Lynn & Boston Railroad v. Boston & Lowell Railroad

Morton, J. The rights in the highway, acquired by a street railway corporation, under a charter like that of the plaintiffs, are of a limited and qualified nature. It has the right to use the highway in common with the general public, but it has no exclusive control of it, and no right or title in it which precludes the public authorities from making such use of it as the public exigencies require. Middlesex Railroad Co. v. Wakefield, 103 Mass. 261. Metropolitan Railroad Co. v. Quincy Railroad Co. 12 Allen, 262. Union Railway Co. v. Mayor, &c. of Cambridge, 11 Allen, 287. The enactment of a statute authorizing a railroad corporation to construct a road over a given route, necessarily involves a determination by the Legislature that the public exigency requires such road. It may, by a direct provision, authorize the corporation to build its road on a level with any highway which it crosses. In the absence of any express provision, the power of deciding whether public necessity requires that the railroad should be built on a level, is delegated to the county commissioners. St. 1865, c. 239. If they so decide, it is an appropriation of the highway to a public use by the authority of the Legislature. It necessarily modifies, to some extent, the general use of the highway, but neither those who have occasion to travel over it, nor a street railway corporation which has a right to use it in common, can object. They hold their rights to use it in subordination to the power of the public authorities to determine what other use of it is demanded by public necessity. There is nothing in the charter or situation of the plaintiffs which gives them greater rights in this respect than those held by other street railway corporations. The turnpike of the Salem Turnpike and Chelsea Bridge Corporation was laid out as a highway by the St. of 1868, c. 309. It thus became a highway, sub [92] jeet to all the laws regulating the use of highways, unless they were modified by the act laying it out or by the act in amendment thereof passed the same year. The plaintiffs rely upon the proviso introduced by the last named act, which is as follows : “ Provided that said highway shall be subject to all the leasehold and chartered rights and liabilities of the Lynn and Boston, and the Boston and Chelsea railroad corporations.” The charter and lease authorize the plaintiffs to build and maintain their road over the turnpike and bridge, but do not give them the exclusive use or control of them. This road and bridge, before it was made a highway, was subject to the liability of being crossed by a railroad on a level, by the order of the county commissioners, the statutes extending to turnpikes as well as to public highways. The proviso was intended to preserve but not to enlarge the rights of the plaintiffs, and cannot be construed to take away or limit the power of the Legislature to authorize a railroad to cross the highway on a level if public necessity requires it. It seems to us clear, therefore, that the defendants, having obtained an adjudication of the county commissioners that public necessity requires that their road should cross this highway on a level, had the right so to build it. Though this adjudication was made after this bill was filed, its necessary effect is to defeat the prayer of the bill for an injunction. As this view is decisive of the case, it is not necessary to consider the other questions raised. Bill dismissed.