Attorney General v. Ware River Railroad

Ames, J. The statutes upon which this proceeding is to be maintained (if it can be maintained at all) are by their express terms.made applicable only to such railroads as should be “hereafter constructed.” The defendant’s railroad was not only in course of actual construction, and partly completed, but its line had been located, its right of taking land for the use of the road had been exercised, and its liability for land damages incurred; much expense had been incurred and much labor had been done in laying the road bed, in rock excavation, in the construction of abutments for a bridge over the highway, and in the building of a long bridge at grade with the Cheshire Railroad. All this had been done in the immediate vicinity of the proposed crossing, and with a view to a crossing at grade, at a time when such a method of construction was legally allowable. To require the defendant to change its proposed course of construction, and to cross the Cheshire road by passing over or under it, would render much of the expense already incurred and much of the construction, so far as it had been advanced when the statutes in question went into effect, wholly useless. It might also require a material change in the location, and a renewed and different taking of land for the use of its road. In Stearns v. Old Colony Railroad, 1 Allen, 493, it was held that the St. of 1846, c. 271, requiring railroad corporations to erect and maintain fences along any railroad which they might thereafter construct, did not apply to a railroad which had been located and partially constructed at the time of its passage. In that case, the road had been partially graded. A like decision was given in Baxter v. Boston & Worcester Railroad, 102 Mass. 383, a case in which the location was filed and the construction “ had been begun ” before the statute took effect. See also Sawyer v. Vermont & Massachusetts Railroad, 105 Mass. 196. We see no reason why the construction sanctioned by those decisions is not equally applicable to this case ; and it is therefore ordered that the Information be dismissed.