New England Railroad v. Board of Railroad Commissioners

Barker, J. The plain purpose of Pub. Sts. c. 112, § 129, is to give a method of making any alteration in the crossing of a railroad and a way for ordinary travel which may be necessary for either the safety or the convenience of the public. The alteration may be in the crossing itself, in the approaches thereto, or in the location of the railroad or the way for ordinary travel. If the taking of land for the purposes of making the alteration is necessary, the statute (Pub. Sts. c. 112, § 130) provides how it shall be taken and how the damages for the taking shall be assessed and paid. The petitioner’s argument is that a widening of a way is not included within the meaning of the words “alteration . . . in . . . the location of . . . the highway or town way,” in § 129, or of the words “ that the location ... of the highway or town way shall be changed,” in § 130, and so that the statute does not authorize an alteration of the crossing to be effected by widening the way at the crossing, or, if it does authorize such a widening, that it does not provide compensation [138] for land taken for a widening, and is unconstitutional. It is to be noticed that none of these contentions are made in the statement of the reasons of appeal. The widening of an existing way is a change in its location, effected by bringing more of the earth’s surface within the location. Such a change is contemplated both in § 129 and in § 130. That the intention of the Legislature was to provide for any alteration necessary for the public safety or convenience is apparent from a comparison of the provisions of Pub. Sts. c. 112, §§ 129,130, with that of St. 1872, c. 262, and of St. 1874, c. 305, and with the decisions of this court in Lancaster v. County Commissioners, 113 Mass. 100, and Boston & Albany Railroad v. County Commissioners, 116 Mass. 73, 79. As the statute provides for compensation if land is taken, there is no ground for contending that it is unconstitutional. Pub. Sts. c. 112, § 130. Demurrer sustained, and petition for certiorari dismissed.