City of Boston v. Inhabitants of Brookline

Morton, J. The question in this case is whether the right to exercise the power of eminent domain given to the city of Boston for the purpose of laying its water pipes excludes the exercise of the right of eminent domain by the town of Brook-line for the purpose of laying out a way over the same land in which the city of Boston has laid the water-pipes. There is no doubt that land devoted to one public use may be taken by authority of the Legislature for another public use. Old Colony Railroad v. Framingham Water Co. 153 Mass. 561, and cases cited. This follows from the nature of the right of eminent domain. Eastern Railroad v. Boston & Maine Railroad, 111 Mass. 125. In the present case, however, the town of Brookline does not rely upon a special act authorizing it to lay out a way over the land taken by the city of Boston to lay its water-pipes in, but upon the general authority given to towns to lay out ways by the Pub. Sts. c. 49. Under such an authority a town could not lay out a way across a navigable river, or longitudinally along a railroad, because it would essentially impair or interfere with or be inconsistent with a public use already existing or specially authorized. Kean v. Stetson, 5 Pick. 492. West Boston Bridge v. County Commissioners, 10 Pick. 270. Wellington, petitioner, 16 Pick. 87, 103. Springfield v. Connecticut River Railroad, 4 Cush. 63. Commonwealth v. Haverhill, 7 Allen, 523. Boston & Maine Railroad v. Lowell & Lawrence Railroad, 124 Mass. 368. Easthampton v. County Commissioners, 154 Mass. 424. For the same reason, a corporation could not, under an act authorizing it to construct a railroad between two termini, locate its road along an existing highway, unless such authority was to be found in the act, or arose by reasonable intendment from the application of the act to the subject matter. Springfield v. Connecticut River Railroad, 4 Cush. 63. Commonwealth v. Old Colony & Fall River Railroad, 14 Gray, 93. Housatonic Railroad v. Lee & Hudson Railroad, 118 Mass. 391. On the other hand, if the location of a way over land already devoted to a public use would not be inconsistent or materially interfere with such use, there would seem to be no good reason, in the absence of any provision expressly or by implication forbidding it. why a way might not [176] be laid out over such land under the general authority given to cities and towns or county commissioners. Wellington, petitioner, 16 Pick. 87. Boston Water Power Co. v. Boston & Worcester Railroad, 23 Pick. 360. Boston & Albany Railroad v. Boston, 140 Mass. 87. Easthampton v. County Commissioners, 154 Mass. 424. The question whether such interference or inconsistency would arise is not to be settled with reference to every possible manner in which the land might be used for the purpose for which it had been acquired, but with a reasonable regard to the way in which it would naturally and reasonably be used in putting it to that purpose. Springfield v. Connecticut River Railroad, ubi supra. Nothing in the St. of 1865, c. 131, under which the pipes referred to in this case were laid, or in the earlier acts to which that was an addition, either expressly or impliedly prohibits the laying out of a way over land taken to lay pipes in. Sts. of 1846, c. 167; 1849, c. 187; 1850, c. 316; 1859, c. 222. The provisions in several of the acts relating to the digging up of roads to lay, maintain, and repair the pipes, and subjecting the city of Boston to such regulations as the selectmen of Brookline should prescribe as to the time, place, and manner of digging up the streets, and making the city of Boston liable to Brookline for expenses incurred by it through the want of repair in any street due to the laying or maintaining or repairing any pipes, are such as would naturally be adopted to protect the city’s rights, both as to existing streets and as to streets that might afterwards be laid out over the pipes. The nature of the interest or right acquired by the city of Boston in the land taken does not require that the possession should be exclusive, Harback v. Boston, 10 Cush. 295. The facts found by the justice who reported the case show that there is no inconsistency between the use of the land to lay water-pipes in and its use as a way, and that the latter will not interfere with the former. They also render it extremely improbable that the Legislature could have intended, by the special act authorizing the city of Boston to take the land to lay water-pipes in, to suspend the right of the town of Brookline to lay out a way over it. It appears from the facts found, that, when the [177] street is worked to grade, the pipes will be twelve feet below its surface at the gate chamber. Although the city of Boston has in some places laid its water-pipes in embankments above the surface of the ground, there has been no such construction in the places where the pipes referred to in this case are laid. The pipes are all laid below the surface, and, so far as at present appears, it will never be necessary to lay them above the surface in the strip crossed by the way in question. The gate chamber and gates can be maintained, operated, and repaired as well after the construction of the street as now, and nothing in the laying out of the way will require any alteration in the complainant’s water-works beyond the making of a new crossing for the gate chamber, which is now unsafe and out of repair, and which can be done at an expense of a few hundred dollars, and for less than the sum awarded for damages to said city by said laying out. The gate chamber will not be jeopardized in the slightest degree by the construction of the street. The city has more than twenty gates in the public ways of the defendant town, and all are operated from the surface, and no one is above the surface of the ground. There will be no engineering difficulty in adjusting the plaintiff’s pipes and water-works as they now are, or any future pipes or works so far as now contemplated in said land, to said way, and without great expense. The sti’ip of land taken by the city for its pipes extends from Chestnut Hill Reservoir to Boylston Street, a distance of about 7,500 feet, of which about 4,800 feet is entirely within the town of Brookline and is private land. The way laid out over it by the town forms a direct communication between Buckminster Road, a street extending from Chestnut Hill Avenue to a road called Sumner Road, and Boylston Street. We think, upon these facts, that there is not now, and probably never will be, any material interference between the use of the land as a way by the town of Brookline and its use by the city of Boston for its water-pipes. It would seem that the Legislature hardly could have intended, without a greater necessity for it than appears to exist in this case, to exclude, for nearly a mile, the town of Brookline from laying out a street upon this land, although common convenience and necessity should require it to be done. [178] No objection against the laying out has been urged except what has been considered, and a majority of the court think the bill should be dismissed, and it is iSo ordered.