New York, New Haven, & Hartford Railroad v. Cohasset Water Co.

Loring, J. This appeal is without merit. [292] Before the railroads acquired any rights by their locations in the parcels of land here in question the public had acquired highway rights in them. The public’s highway rights were not extinguished by the railroad locations. They were modified by the fact that thereafter the same parcel of land was subject to two co-ordinate easements, each of which had to be exercised with due regard for the exercise of the other. See, for example, Boston & Albany Railroad v. Worcester, 180 Mass. 71; New York Central & Hudson River Railroad v. Cambridge, 186 Mass. 249. Highway uses include the right to lay and maintain water pipes within the limits of the way. See, for example, New England Telephone & Telegraph Co. v. Boston Terminal Co. 182 Mass. 397. And the public’s highway rights include the laying and maintaining of water pipes by a water company which has authority so to do from the Legislature which speaks for the public. See, for example, New England Telephone & Telegraph Co. v. Boston Terminal Co. 182 Mass. 397, 399. The petitioners acquired no greater rights, in case of the two crossings where they own the fee, by reason of deeds to their predecessors in title which bounded on the highways in question. It may be conceded that, being bounded on the highways, the fee to the centre of the highways passed to the grantees in those deeds. But their title to the land covered by the highways was subject to highway uses. There is no allegation in this petition that the pipes laid by the respondent were laid without due regard for the co-ordinate railroad rights of the petitioners in the land in which the pipes were laid. Nor is there an allegation that any special damage was suffered by the railroad companies. For that reason, if for no other, the case does not come within Hyde v. Fall River, 189 Mass. 439. See also McKeon v. New England Railroad, 199 Mass. 292, 295. What the petitioners seek to be compensated for is for the exercise of the public’s highway rights made by the respondent with due regard for the petitioners’ co-ordinate railroad rights, where no special damage has ensued. , In our opinion the appeal was frivolous. It follows that the judgment should be affirmed with double costs. It is So ordered.