Derby v. Framingham & Lowell Railroad

Gray, C. J. A railroad corporation has no right to take and appropriate to its own use lands of any person without a strict compliance with the provisions of the statutes which authorize it so to do. The Gen. Sts. c. 63, § 19, expressly provide that lands without the limits of its railroad shall not be taken without permission of the owner, unless the county commissioners “ first prescribe the limits within which the same may be taken.” As no such limits were prescribed by the commissioners before the respondent in this case filed its location over the land in question, it acquired no right, against the will of the owner, in any part of the land outside the limits of its road; so much of this land as had not been conveyed to the corporation by the owner remained his ; and no reason is shown why he should not have a decree [518] under the Gen. Sts. c. 63, §§ 43, 44, compelling the corporation to erect suitable fences between his land and its railroad. Decree affirmed.