Boston & Providence Railroad v. Midland Railroad

Shaw, C. J. *

The object of this petition is to obtain authority to file an information, in the nature of a quo war Yanto, against the Midland Railroad Company and several other corporations, now consolidated into one by the name of the Boston & New York Central Railroad Company. This proceeding is founded on the practice act of 1852, §§ 42-50, being, in this respect, in the same terms as the practice act of 1851, §§ 55—64. Section 42 of the statute of 1852 provides that any person, whose private right or interest has been injured, or put at hazard, by the exercise, by any private corporation, of a franchise or privilege not conferred by law, may apply to this court for leave to file an information in the nature of a quo warranto. The succeeding sections, to § 50 inclusive, make various provisions for the mode of proceeding ; giving notice to the attorney general, that he may intervene in behalf of the Commonwealth if he shall think fit; directing how the prosecution shall be conducted, and what judgment maybe rendered, in case the attorney general shall or shall not intervene; to what extent the petitioners or relators shall be liable for costs; and generally prescribing suitable regulations, adapted to such a proceeding. The statute provides that application for leave to file the information may be made in any county, and thereupon the court shall take order for the summary hearing of the parties.

The first, and, as it appears to us, by far the most important question, now brought before us, is, whether the corporation now known as the Boston and New York Central Railroad Company had authority by their charter, under the name of an amended location, to make and file the location which they did make on the 27th of April last, and thereupon to proceed and lay down their railroad, from South Dedham to Boston, on the line of such new or amended location, to place cars thereon, and become *358 carriers of passengers and merchandise thereon, as public carriers for hire. Indeed, it is this new location, of which the petitioners complain, as affecting their rights and interests injuriously, by coming much nearer to the principal village of Dedham, thereby becoming a collateral and rival road, and thus injuriously affecting them, as well on their main line, as on the branches which they are authorized by law to make and maintain, and which at great expense they have made, and also by crossing the track of their main line, at a place not authorized by their first location, but at a mile distant therefrom, and, as they allege, not authorized by law.

In order to see whether this late location, made by the Central Railroad Company, was justifiable, it is necessary to examine their charter. In doing so, they will be found to be a consolidated corporation, composed of three preexisting incorporated companies, namely, the Norfolk County Railroad Company, the Midland Railroad Company, and the Southbridge and Blackstone Railroad Company. The Midland Railroad Company were incorporated by St. 1850, c. 268, and made subject to the duties, liabilities and restrictions, and invested with all the powers and privileges, set forth in Rev. Sts. c. 44, and in that part of c. 39 relating to railroad corporations, and all other general laws, which had been or should be passed, relative to railroad corporations. It will not be necessary to look at the other parts of this act at present. This act seems to have contemplated in the outset a union of this corporation, provisionally, with the Norfolk County Railroad Company and the Southbridge and Blackstone Railroad Company, in this commonwealth, and also with two corporations in the State of Connecticut, so as to form one continuous line of railroad to and through Connecticut. By St. 1852, c. 158, some similar union seems to have been contemplated. But whether those acts would have warranted the union afterwards formed between the three corporations, it seems hardly necessary to inquire, because by a very recent act; St. 1854, c. 447, the proceedings of these corporations, whereby, on the 12th of December 1853, they united themselves into one corporation, under the name of the Boston and New *359 York Central Railroad Company, in accordance with the last act above cited, are ratified and confirmed.

By these proceedings, thus ratified, the consolidated corporation succeeded to, and became entitled to exercise all the powers and privileges, and subject to the duties and obligations, of each of the three corporations, as they then stood, and as they wer e respectively affected by their several acts of incorporation, and by the acts done, the obligations incurred and property held under them.. The question therefore resolves itself into this; whether the Midland Railroad Company, at the time when this union was formed, had the legal right and authority to file the new or amended location, which was filed by the Central Railroad Company in April last, and to proceed to build their road conformably to this new location ?

This, like every other question respecting the powers of railroad companies, must depend on the statutes of the Commonwealth and very little aid can be derived from English judicial decisions on this subject, because the provisions of their acts of incorporation, and their whole course of proceeding, differ so much from our own. The act incorporating the Midland Railroad Company, St. 1850, c. 268, § 5, provides that if the location of said road shall not be filed in one year, and the railroad constructed in two years, the act shall be void. This provision, so far as filing the location is concerned, merely declares, what would have been the law, by force of the general railroad act, to which this act of incorporation is made in all respects subject. Rev. Sts. c. 39, § 75. “ Every railroad corporation shall, in all cases, file the location of their road within one year, with the commissioners of each county through which the same passes, defining the courses, distances and boundaries of such portion thereof, as lies within each county respectively.”

If this provision stood alone, it would seem to be'entirely decisive. It shows clearly enough the purposes for which a location is intended, and declares what it shall contain, to wit, the courses, distances and boundaries of the road. To define the boundaries of the road is to prescribe lines, within which the land is taken, and beyond which it is not taken, and it is neces *360 sarily exclusive. This location, whatever may be the effect of it, must be made within a year. But the respondents say, that they complied with this requirement; but, having filed their location within a year, they insist that they have authority by the same act, if they find it expedient, to vary the direction of the road, provided it be done, and a location of such alterations filed, before the time required by law for completing their road. This authority is found in Rev. Sts. c. 39, § 73. “ Any railroad corporation, after having taken land for any portion of then road, may, if they shall find it expedient, vary the direction of the road in the place where such land is situated; provided, they shall not thereby locate their road, or any part thereof, without the limits prescribed by their act of incorporation; and they shall, before the time required by law for completing their road, tile the location of the different parts of the road, where such variations are made, with the commissioners of the respective counties, where said parts of the road are situated, or with the mayor and aldermen of the city of Boston, as the case may be ; and provided also, that the time, allowed by law for completing the whole road, shall not be extended in consequence of such variation.”

It is difficult to put any satisfactory construction upon this section, but it must be construed, as all other sections and parts of statutes are construed, by a reference to every other part of the statute, and in this case to the whole of the revised statutes, which constitute one act, going into operation at the same time

The provision for alterations is, “ after having taken land for their road.” Looking at other parts of the act, it is manifest that the purpose of filing the location is to define and specify the boundaries of the land, which the corporation appropriate; and the effect of the location is to bind the land described to that servitude, and to conclude the land-owner and all parties haring derivative interests in it, from denying the title of the company to their easement in it. We think therefore that the filing of the location is the taking of the land. It is upon that, that the owner is forthwith entitled to compensation; it is that act, which gives the easement to the corporation, and the right *361 to have damages to the owner of the land. It was so held in a late case, and farther held that the filing of the location is the taking from which the three years are to be computed, within which a claim must be made for damages. Charlestown Branch Railroad v. County Commissioners, 7 Met. 78 .

In a later case, it was intimated that it was the duty of the railroad corporation to file their location, which however they might fail to do; that therefore, if without a location the corporation should enter upon land and proceed to make their road, in favor of the owner and as against the corporation, this might be deemed such an actual taking, as would warrant him to proceed and claim damages ; or rather that the corporation, under such circumstances, would be estopped to deny that they had taken his land. Davidson v. Boston & Maine Railroad, 3 Cush. 106 . But this is not at all inconsistent with the position, that filing a location is a taking.

If, after having thus taken land by a location, they may vary the direction of the road, how far and in what mode shall this variation extend ? The right or power to vary is made to depend only on their own views of expediency. But it is provided, that they shall not thereby locate their road, or any part thereof, without the limits prescribed by their act of incorporation. We think some light may be thrown on this provision by looking at the previous acts. This provision for varying the direction was not first introduced in the revised statutes, but seems to have been part of the early railroad system, and is first found in a prior general railroad act, St. 1833, c. 187, § 7; which, however, contained no restriction that the variation must be within the limits prescribed by their act of incorporation. But this was followed, two years after, by St. 1835, c. 148, § 2, providing that this section should not apply to any railroad corporation, the location of whose road is particularly described in their act of incorporation. Both of these were in force, when the statutes were revised, and are in effect embodied ir § 73, by still authorizing the variation, if the corporation shall find it expedient, provided it be within the limits prescribed by the act of incorporation.

*362 Here we find what is meant by “ limits prescribed in theii act of incorporation.” and that it means the same thing as “ location,” a definite line of road described, which leaves nothing to be done, but to lay it down and mark it on the ground, and leaves no room for variation.

It is also illustrated by contrast with the ensuing section, § 74, (since repealed by St. 1846, c. 9,) which authorizes a corporation not at theii' own discretion or view of expediency, but upon a grant of authority, by the county commissioners, to make an original location or alter an existing one, without the limits prescribed.

Thus construed, with the aid of contemporaneous provisions and of prior acts, the meaning of § 73 appears to us to be this : If the act of incorporation itself has fixed the termini and intermediate stations or local objects described, with the courses and distances between them, it is itself a location, and there is no room for variation. If it has fixed the termini, and any fixed intermediate stations, without corases and distances, this section warrants a variation between the fixed stations, but no further; the intermediate fixed stations, as well as the termini, are limits, and must be observed. But if there be no fixed intermediate stations, these variations may be made anywhere between the termini, subject only to be controlled by such qualifying terms of a general nature as the act may contain, such as north of such a hill, west of such a pond, or near such a town, or over such a meadow, where the meadow is, a broad one. Whatever in the act prescribes limits, more or less definite, excludes variations beyond those limits.

It was argued against this construction, that it would be unreasonable to allow a private corporation, after appropriating one portion of land to their road, at their discretion to take another portion, without the five rods already taken, and that therefore this § 73 must be construed to authorize variations within the five, rods only. But we think it impossible to agree to this construction. It is the strip of five rods, not the iron track within which constitutes the road, and the line of the road. The corporation have no need of such a variation; they may lay their *363 track in the middle or on either side of this strip, at their pleasure. Further, § 76 provides, that “ every railroad corporation shall be liable, as well to the owners of the lands first taken, as to the owners of those taken for making such variations, for all damages occasioned by taking the same.” This is decisive that the lands, contemplated to be taken by the variations, are other and distinct from those taken by the original location. Indeed, this provision, that the corporation shall be liable for both parcels of land taken, may afford some security against any abuse of this authority, by malting capricious and unnecessary variations.

It was argued by one of the counsel, that this Midland Railroad Company stood upon a somewhat different footing, because their own charter, St. 1850, c. 268, § 5, provides, that if the location of said road shall not be filed in one year, and the railroad constructed in two years, the act shall be void. We cannot perceive that this distinguishes it from corporations generally. The location was filed within one year. By the general clause in their act, the corporation were entitled to all the powers and privileges set forth in Rev. Sts. c. 39, one of which is, if the foregoing construction is right, that of making variations and filing them, at any time within the time limited for the completion of the road.

Another argument is founded on the peculiar phraseology of the statute. Section 73 provides that a railroad corporation, having taken land for any portion of their road, may, if they find it expedient, vary the direction of the road, “ in the place where such land is situated.” The argument is, that this clause restricts the right of variation to some narrower limits, than it might otherwise have. It is certainly difficult to see what was intended by it. If it restricts it, as the literal construction imports, to the place, where the land (taken) is situated, it must keep it in the original place, admit of no variation at all, and thus be self-contradictory. A nearly similar expression is used in St. 1833, c. 187; but the words stand in a little different order. On the whole, we are inclined to think, that the words “in the place where” qualify “road” so as to describe it as the road lying or being in the place, or in any place, wherein *364 such land, (the land taken,) is situated. In this sense, it adds very little to the meaning of the words “ in any place,” but in no sense can we perceive that it means any more.

On the whole, the court are of opinion, that the Central Railroad Company, succeeding to the rights of the Midland Railroad Company, had power, within the time limited, to make variations in the direction of their road, within the limits of the act of incorporation of the Midland Company, and to file an amended location, expressing their variations, within the time limited by law. This at first view seems to be a very large power to be vested in a corporation; but looking at the great latitude allowed by the legislature, in view of the great public improvements expected, to railroad companies, by their own engineers, managers, and directors, to lay out railroads originally with a great range of selection, this power to vary, after one location, and after a more thorough knowledge of the ground and its capacity for the purpose intended, and to adopt another, differs very little from the power originally given to select one line within a wide space.

It remains to inquire whether the amended location was filed in due time. The provision we have been considering, § 73, is thus: “ And they shall, before the time required by law for completing their road, file the location of different parts of the road, where such variations are made,” &c. This fixes the time within which the amended location must be filed, as the time, in each case, limited for the completion of the road.

By their act of incorporation, the Midland Railroad Company were required to construct then railroad within two years from the passage of the act, May 2d 1850. By St. 1852, c. 47, the time was extended two years, making the entire time four years, to. May 2d 1854. And by the act consolidating the three corporations, the time allowed the consolidated company, to construct that part of the road which was originally to be built by the Midland Railroad Company, was extended one' year from the time then allowed by law. St. 1854, c. 447, § 2. This extends the time for completing the road, and consequently for filing the amended location, to May 2d 1855.

*365 It was said in argument, that these acts, extending the time for the construction of the road, were passed upon the ground, that then location had been completed, according to the charter; and extended the time of construction only for their road, as thus located. But we see no evidence of this, in the acts themselves. No allusion is made to the location, except in St. 1853, c. 311, which is not one of the acts extending the time, requiring them to alter their location, in one part, where it passes South Boston, and crosses the channel into Boston. In all other respects, they are left to their rights in regard to location. If it is intended by the argument, that the legislature assumed that the location had become fixed and unalterable by the first location, it is only repeating the argument in another form, and may be answered by the suggestion, that by law the corporation had still power to vary their location; then the legislature did not act upon the ground that it was fixed, and their acts have no tendency to fix it. Those acts therefore give an unconditional extension of time, and place the corporation on the same footing as if such extended time had been originally given.

The next material question is, whether the amended location made and filed on the 27th of April 1854, including a part of the original location and the variations, was a location within the limits of the act of incorporation ; or, in other words, had it been a new and original location, first made under the charter, without objection as to time, would it have been authorized and warranted by the charter.

By § 2 of the act of incorporation of the Midland Company, “ the said Company are empowered to locate, construct and maintain a railroad, with one or more tracks, commencing at some convenient point on the Norfolk County Eailroad in South Dedham; thence through the southerly part of Dedham; thence through or near the westerly part of the towns of Canton and Milton to the town of Dorchester; thence in a northeasterly direction, through the town of Dorchester,” &c. This embraces all that part of the location, respecting which the question arises.

This is, to a considerable extent, a question of fact, depending *366 on evidence set forth in the report; and it is difficult to make it intelligible, without the large map, used at the trial as part of the case, on which both locations are distinctly laid down. The question must depend upon comparing the actual location made, with that authorized by the charter. A glance at the charter, as cited above, will show how large a latitude was allowed to the corporation, within which to make then location. The terminus a quo is not a fixed station; it is a point on any part of the Norfolk County Railroad in South Dedham, which would allow them to select any point on a line of three or four miles; no intermediate station or fixed monument or point is designated, no course or distance or other indication of direction, nothing approximating to a description more closely, than “ through the southerly part of Dedham, through or near the westerly part of Canton and Milton,” and into Dorchester, without alluding to any point. We have examined the evidence, and are of opinion that the variations made by the company are not beyond the limits prescribed by the act of incorporation; and that, if the same location had been originally made, it would have been warranted by the charter.

Without going much into detail of the evidence, which leads to this conclusion, we will consider a few of the leading objections to this result.

The petitioners insist that the company themselves put a construction upon their charter, by their earliest and most nearly contemporaneous acts, in entering and filing their first location, coupled with the fact, that such location was in conformity with the plan exhibited by them to the legislature, under which they obtained their grant. In regard to this last fact, no such plan has been produced; nor do we think any such plan, not referred to in the act, could be evidence. It would be admitting evidence aliunde to show the intent of the legislature in a legislative act; whereas the statute itself, duly authenticated, is the only evidence that such act has received the sanction of all departments, necessary to give it the force of law. Commonwealth v. Fitchburg Railroad, 8 Cush. 240 . North British Railway v. Tod, 12 Cl. & Fin. 731, 738. If it be urged that the act of first location is *367 evidence of the respondents’ view of the true construction and' limits of their charter, the answer is, that it was provisional and not definitive, subject to be altered and amended on further examination, if thought expedient, and so no evidence of their view of the extent and limits of their powers.

Again; it is argued that the location, by the act, is to commence at a point on the Norfolk County Eailroad, and thence to depart from that line and run thence through the southerly part of Dedham, whereas in fact it runs from the terminus a quo more than two miles, not from, but on and over the actual location of the Norfolk County Eailroad. This we think is a misconstruction of the language of the act. It commences at some convenient point on the Norfolk County Eailroad in South Dedham, thence, not from that railroad or the line of that .railroad, but from a point on that railroad, which it may do, if it continues to run from that point three miles on that railroad, and so must run through the southerly part of Dedham, if that railroad is in the southerly part of Dedham, which the act implies. Though the act of incorporation did not fix any point on the Norfolk County Eailroad, yet in point of fact both locations assume the same station, as the starting point.

Another objection is, that it does not pass through or near the westerly part of Canton and Milton. But “ near ” is a vague term. It was not required to pass through those towns, and without passing through, it could not well pass much nearer, because Neponset Eiver is the dividing line. The objection appears the stronger, from a comparison between the two locations, the former having passed for a long distance over the meadows, and for some distance in a line parallel, or nearly so, with the river and the westerly line of Canton. The engineer has given his reasons for changing the location, and satisfactory grounds to show that it was not done through caprice, or with any improper motive, but for good cause. As it is, it now runs within about two hundred rods of the northwesterly corner of Canton, and this, we think, does not exceed the limits, allowed by the act.

Another ground, on which it is argued that the company by *368 their acts have exceeded the limits of their charter, is, that by the amended location the road of the respondents will cross the main line of the petitioners’ road, at a distance of a mile or more farther north, than it would have done by the first location. No evidence has been offered to show, that crossing their road at the new location will be more burdensome or dangerous than at the old; in either, the respondents must cross over the petitioners’ road, at the height of seventeen feet, and make the embankments and works incident to such crossing, at their own expense. Indeed, although some increased burden was suggested, the argument is not ultimately based on that fact, but on the ground, that any crossing of the petitioners’ road, to an easement in which they had previously acquired a vested interest, not authorized by the charter of the respondents, is the exercise of a franchise not warranted by law, and a usurpation. This would be a very just conclusion, if well warranted by the premises. But the act of incorporation nowhere directs where the Midland Railroad shall cross the Boston and Providence Railroad. The argument then is founded on the assumption, that the first location fixed the line of the road, and thereby fixed the point of crossing, and made that certain, which before the first location was not so. But this depends upon the fallacy, if it be one, that any variation in the direction of the road, from the first location, would be without the limits prescribed by the act of incorporation. But we think they are obviously very different things; and if we are right in the foregoing views, regarding the right of variation, then the point for crossing the petitioners’ road was not fixed, and fixing the point at another place lower down, on the line of the amended location, is not a usurpation, or the exercise of an authority not warranted, but an act done in pursuance of the power given them by the act of incorporation.

One other ground was taken by the petitioners, to show that the respondents had violated their charter; namely, that by the St. 1851, c. 335, the Midland Railroad Company were bound to have their whole capital stock subscribed for by responsible persons, and twenty per cent, paid in, as a condition precedent to their proceeding, and that this had not been done.

*369 The first suggestion in answer is, that if it be so, it is of no concern to the petitioners; it cannot affect their rights. This is not quite a satisfactory answer. The first question is, whether the respondents have usurped a franchise not granted; the consequences are an after consideration. The act, under which this petition is filed, is framed with a double aspect, warranting the commencement of a proceeding, to be conducted, either as a public prosecution, as if commenced by the attorney general; or as a suit, in the name of the Commonwealth, at the relation and at the expense of individuals, and with a view to afford them a remedy. The attorney general may intervene at any stage, if the interests of the Commonwealth in his judgment require it. The information therefore should contain all the grounds, on which, were it exclusively a public prosecution, the Commonwealth could demand judgment. We then proceed to the question, whether there be any such violation.

No such condition was contained in the original act. But by Rev. Sts. c. 44, § 23, the legislature have a power reserved to alter acts of incorporation, and might prescribe such a condition. The argument of the petitioners is that this was done by St. 1851, c. 335. That act appears to have been a grant of a special privilege to build their road in sections, a privilege of which they do not appear to have availed themselves. The apparent purpose of the last proviso, that the section nearest Boston should not be built, until the whole capital was subscribed, and twenty per cent, paid, is, to prevent the grant of a right to build in sections, beginning at Dedham, from being converted into a grant to build a local and sectional railroad a short distance out of Boston, and there stop. The proviso seems to be a condition annexed to the privilege of exercising this power, and not intended to make it a condition precedent to the commencement of the whole work, under the original grant.

On the whole matter, the court are of opinion, that no such usurpation of franchise, or violation of charter, on the part of the respondents, has been shown in the present case, as to warrant the filing of this information.

This conclusion renders it unnecessary to express an opinion *370 upon another question, which was considerably argued, and which was this: What private right or interest petitioners must have, to enable them to come in as relators, under the statute of 1852, c. 312, §§ 42, 44, and file an information in behalf of the Commonwealth 1 The learned counsel for the respondents maintained that it must be some right, legal or equitable, recognized by law, and further, that it must be such right or interest, that, in case of diminution or infringement, the petitioner would have some remedy, at law or in equity, and that the purpose of the act was, to afford him a better remedy. We are not prepared to accede to this view of the law; and are not ready to say, that there may not be cases of encroachments on highways, usurpations of maritime privileges, perhaps also usurpations of office, where the redress is properly to be sought by indictment, or other public prosecution, where the injury in legal contemplation is done to the public, but where the actual damage, though alike in kind, may fall more heavily in degree, nay almost exclusively, on an individual, for which however no action would lie, for such individual, in which this statute may have been intended to afford relief. Equitable rights were recognized in' this commonwealth, before the statute of 1817, c. 87, or any other law, afforded any equitable remedy. But on this point we mean to express no opinion, and make these remarks only to guard against the conclusion, that, by dismissing this petition, we give any sanction to the argument above stated. It is a new statute, no previous adjudication has been had upon it, and we shall consider this question open to the fullest consideration, whenever it may arise. Petition dismissed Bigelow, J. did not sit in this case.