Metropolitan Railroad v. Highland Street Railway Co.

Gray, C. J. The Metropolitan Railroad Company, under its charter from the Legislature, doubtless had a franchise to run cars for hire upon its tracks as located by the mayor and aldermen, and its right in this respect was exclusive as against other persons and corporations to whom the Legislature had not granted like rights. Metropolitan Railroad v. Quincy Railroad, 12 Allen, 262, 269, 270. But, as was said by Chief Justice Shaw, in the leading case of Commonwealth v. Temple, 14 Gray, 69, 76, “ the accommodation of travellers, of all who have occasion to use them, at certain rates of fare, is the leading object and public benefit, for which these special modes of using the highway are granted, and not the profit of the proprietors.” Richardson v. Sibley, 11 Allen, 65, 67, S. P. The Legislature, having reserved the power to alter, amend and repeal this charter, might lawfully, whenever it deemed necessary for the better accommodation of the public, authorize another corporation to lay a similar track through the same streets, or to use the track of the first corporation, making compensation to that company for the use and wear of its .tracks, without mairing it any compensation for the diminution of its profits or of the value of its franchise. Rev. Sts. c. 44, § 23. Sts. 1853, c. 353, § 1; 1859, c. 9, § 2. Gen. Sts. c. 68, § 41. Commissioners of Fisheries v. Holyoke Water Power Co. 104 Mass. 446; S. C. 15 Wall. 500. Parker v. Metropolitan Railroad, 109 Mass. 506. By the act incorporating the respondent corporation, it was authorized “ to build, maintain and operate a street railway in the city of Boston, between Grove Hall and the line of Temple Place Street,” over Warren Street, parts of Washington and Tremont Streets, Eliot Street and Temple Place Street (over which the tracks of the Metropolitan Railroad Company had been already laid according to its charter) and other streets; and to “ enter [294] upon and use with its own motive power the tracks of any street railway, laid in the streets through which the tracks of said corporation may be located, or any part thereof; ” and it was provided that “ in granting a location the board of aldermen may, if the interests of public travel demand, require said corporation to lay one or more additional tracks in any street now occupied by the track of any other street railway, and may restrict said corporation to the use of such additional track.” St. 1872, c. 212. The board of aldermen ordered the tracks of the respondent to be located over the streets above named, and other streets mentioned in its charter, and by the same order provided as follows: “ Said company shall have the right to make suitable connections, switches, curves and turnouts, to unite the tracks, hereby located, into a continuous line of railway from Grove Hall to Temple Place. And whereas the interests of public travel require that the said Highland Street Railway Company shall not lay additional tracks in any street where tracks are now located and constructed, except so far as may be necessary to fill the above location, this location is on the express condition that any tracks, already laid in the streets or portions of the streets above mentioned, shall be deemed tracks within the above location, for the use of the Highland Street Railway Company, to be enjoyed under the provisions, as to compensation to the corporation owning the same, provided by law.” By virtue of the respondent’s charter, and of this order of the board of aldermen, the tracks of the Metropolitan Railroad Company in these streets were within the limits of the franchise granted to each corporation; and the respondent, so far as the franchise of running cars over these streets was concerned, had as much right as the petitioner, and, while it was bound to compensate the petitioner for the use and wear of its tracks, was not bound to make it any compensation for thereby interfering with its franchise or profits. In the case of Metropolitan Railroad v. Quincy Railroad, 12 Allen, 262, no part of the Metropolitan Railroad was within the franchise limits of the Quincy Railroad Company, and it was upon that ground that it was held by the commissioners and by the court that the first corporation had a peculiar franchise and [295] right in its own tracks, for which it was entitled to compensation from the second corporation. The law that must govern this case is so well settled by our own decisions, that it is hardly necessary to refer to the authorities elsewhere, cited for the petitioner. But it may be observed that in Jersey City & Bergen Railroad v. Jersey City Hoboken Horse Railroad, 5 C. E. Green, 61, no compensation whatever was made for the use of the tracks of the first corporation, and the court had no occasion to consider the measure and limits of such compensation ; and that in Dillon on Municipal Corporations (2d ed.) § 578, it is said that “ a legislative grant of authority to construct a street railway is not exclusive, unless so declared in terms, and therefore the Legislature may, at will, and without compensation to the first company, authorize a second one on the same streets or line, unless it has disabled itself by making the first grant irrepealable and exclusive.” The question which we have considered is the only question of law involved in the award of the commissioners and the exceptions thereto. In other respects, the principles stated by the commissioners as to the modes of apportioning expenses and estimating compensation between the two corporations are simply practical rules, within the discretion intrusted to them by statute, and not open to exception. Metropolitan Railroad v. Quincy Railroad, 12 Allen, 262, 271. St. 1871, c. 381, §§ 38, 39. Award accepted.