New York, New Haven, & Hartford Railroad v. Inhabitants of Blackstone

Loring, J. The selectmen of Blackstone brought a petition for the widening of St. Paul Street, between two abutments supporting an overhead bridge, on which the tracks of the New England Railroad were laid. The county commissioners decided in favor of the widening, and a special commission was appointed under what is now R. L. c. Ill, § 136, to determine which party should carry the decision into effect and which party should pay the charges and expenses of the alteration, the future charge of maintenance and the costs of the several proceedings. Their award was in substance this : The town was to carry into effect so much of the decree as required the taking of land and other property to widen St. Paul Street; all construction was to be [495] carried into effect by the railroad, including the remaking of St. Paul Street as well as the rebuilding of the railroad bridge and its abutments; in the future the railroad bridge and its abutments were to be maintained by the railroad, and St. Paul Street by the town ; the town was to pay the “ entire expense ” due for land and property taken in widening St. Paul Street; and all other charges and expense were to be borne two thirds by the railroad company and one third by the town. In pursuance of the decree the town took ten hundred and fifty square feet of land within the location of the railroad owned by it in fee, and covered by the abutment of the railroad bridge on the northerly side of St. Paul Street and “ all buildings, erections and structures standing on the above described and bounded tract of land.” The railroad brought the petition now before us to recover compensation for this taking. The petitioner’s first exception is to the introduction in evidence of the award of the special commission. Its contention here is that it is entitled to compensation under what is now R. L. c. 111, § 135, and that the right so given is not affected by the award of a special commission under § 136, and that it was so decided in New England Railroad v. Railroad Commissioners, 171 Mass. 135. But we are of opinion that the special commission appointed under what is now R. L. c. 111, § 136, in apportioning the expenses between the railroad and the town, could have provided that the railroad should contribute to the alteration its land and all damages suffered by it. In the absence of such a provision in the award of the special commission, the railroad would have the same right to compensation which a stranger would have under what is now R. L. c. 111, § 135. But if the special commission does make a provision in its award that the railroad shall bear the burden of the compensation due for its property taken to carry out the alteration, and the railroad feels aggrieved, its remedy is to take an appeal to a jury under what is now R. L. c. Ill, § 138. The award of the special commission was properly admitted. The petitioner’s right to compensation, therefore, depends upon this: First, would it be entitled to compensation apart from the award of the special commission ? Second, does that award take it away ? [496] The real question in the case at bar is the true construction of the fifth article of the commissioners’ award directing the town to “ pay the entire expense of land damage occasioned by the taking of land and property for the widening of said St. Paul street,” in connection with the seventh article directing that “ All other charges and expense occasioned by carrying into effect such decision, including cost of the hearing before said special commission,” shall be paid, two thirds by the railroad and one third by the town. The ruling of the Superior Court was “ that the value of the land, subject to its use for railroad purposes, was the only thing that the petitioner was entitled to recover under the award of the special commission.” We are of opinion that this was wrong. Had the award provided that the town should pay the “ damage occasioned by the taking of land and property for the widening of St. Paul Street,” it would hardly be contended that the railroad could not recover compensation for the taking of the abutment which covered the land taken as well as for the land taken. The insertion of the word “ land ” before damage does not lead to a different conclusion. Compensation for land taken under the power of eminent domain and for the buildings on it is technically “ land damages.” The building is technically not only a part of the land but is technically land; and an action for compensation for land taken under the power of eminent domain and buildings which are upon that land is, as matter of technical law and ordinary parlance, spoken of as an action for “ land damages.” To exclude the value of the abutment and to confine the railroad to the value of the land is to read out of the article the provision that the town shall pay the damage occasioned by the taking of property as well as of land. This conclusion is reinforced by reference to the first article of the award by which the special commission provided that the town should carry into effect so much of the decree of the county commissioners as requires the taking of land and other property, and by reference to the taking made in pursuance to this article, which was a taking of the ten hundred and fifty square feet and “ all buildings, erections and structures standing on the above described and bounded tract of land.” [497] We are therefore of opinion that the petitioner was entitled at least to the value of the abutments then on the land as well as to the value of the land. But the petitioner is not entitled to compensation because it was required by the decree of the county commissioners to maintain a bridge to span a street thirty-three feet wide in place of the old street nineteen feet wide. By the third article of the award of the special commission, this burden was cast upon the railroad, and the petitioner’s exception to this evidence must be overruled. This brings us to the petitioner’s contention that as part of the damages to which it is entitled it has a right to compensation by reason of the fact that the parcel of its land which has been taken is land on which one abutment of its railroad bridge was constructed, and that the taking of the land to widen St. Paul Street over which its railroad bridge is constructed has forced it to rebuild the bridge and this abutment. Apart from the burdens cast upon the parties by the award of the special commission, the petitioner would be entitled to these damages. Boston & Albany Railroad v. Cambridge, 159 Mass. 283. The respondent’s contention here is that the cost of the construction of the new abutments and of the new bridge is covered by the seventh article. But that is not so. That article does not provide that all charges and expenses occasioned by carrying the county commissioners’ decree into effect shall be paid two thirds by the railroad and one third by the town ; what it does provide is that “ all other charges and expense ” so occasioned shall be so paid. That is to say, all other charges and expenses not provided for in the fifth article which throws on the town the entire expense of the land damages occasioned by the taking of land and other property. In addition to the rebuilding of the railroad bridge and its abutment, there was the rebuilding of St. Paul Street. The seventh article, therefore, finds in the rebuilding of the street other charges of construction in addition to those covered by the fiftlr article, and finds in the maintenance of the bridge thrown on the railroad by the third article and that of the street thrown on the town by the fourth article, charges and expenses other than charges and expenses of construction. [498] Effect, therefore, can be given to this article, even if it does not cover the cost of construction of the railroad bridge and its abutment. The only ground on which it could be held that these damages cannot be recovered is that by the terms of the fifth article the damages to which the petitioner is entitled are “ land damages,” and not all damages “ occasioned by the taking of land and property.” But we are of opinion, for the reasons already given, that that is not enough to exclude these damages to which the petitioner otherwise would be entitled, and that evidence that “ the extra expense of the new bridge and new abutment constructed in accordance with the decree of the county commissioners, after deducting the increased value that the new structure had over the old to the railroad for use in its railroad business, was $11,878,” should have been admitted as bearing on the damages to which they are entitled by the taking of tfyeir land. The special commission evidently took the following view of the matter: This widening is for the sole benefit of the travel-ling public, and in no respect or aspect for the benefit of the railroad. The burden of paying for the highways is under our system of laws thrown on the town in which they are located. It is therefore fair that the land damages legally due for widening this public way, whatever they may be, shall be paid by the town, and that the balance (since the burden of widening the way is thrown on the town alone) should be put more heavily on the railroad. The damage suffered by being forced to remove the water crane and valve pit to a new location was also a subject for which the petitioner was entitled to compensation. The other matters claimed by the petitioner seem to be properly included in the offers of evidence which we have discussed. In accordance with the terms of the report the entry must be Verdict set aside; case to stand for hearing before an assessor.