Dickinson v. New Haven & Northampton Co.

Allen, J.

At the outset, when the defendant company found it necessary in the construction of its railroad to cross the highway in question, it made application to the county commissioners for a decree prescribing what alterations should be made; and the county commissioners passed a decree prescribing the alterations, and made a provision for the drainage of the highway, by ordering a drain to be built which began at a point three hundred and thirty-one feet away from the highway. The reason for this apparently was because the company, in constructing its railroad, had made an excavation alongside thereof from the highway at the place of the proposed crossing, over its own land, to the point where the drain ordered by the county commissioners was to begin. The drain could not well be laid along the highway itself, but the contemplated method of draining the highway was to use the existing excavation by the side of the railroad as a drain for the distance of three hundred and thirty-one feet, and then to excavate a drain connecting therewith across the land of Mrs. Graves to a brook. At the time of the original order, this was sufficient to provide effectual drainage, and the decree of the county commissioners was complied with, and the drain was built, and the damages for crossing the land of Mrs. Graves were paid by the defendant company, and the highway was in fact effectually drained for four years thereafter; and then the excavation and drain became obstructed with grass, weeds, willows, and other materials.

The question is whether, under this state of things, the county *19 commissioners had authority to pass a new order providing for effectual drainage at the expense of the company.

It is conceded that the county commissioners at the outset had authority to provide for drainage at the expense of the company, but it is contended that this authority was exhausted by the decree which they passed in 1880.

The authority to pass the original decree was not conferred by any language which in express terms empowered them to require drainage to be provided by the company, but is derived incidentally from other provisions of statute which imply its existence. Thus in Pub. Sts. c. 112, § 119, it is enacted that, “ when a railroad is laid out across a highway or other way, it shall be constructed so as not to obstruct the same ”; and a similar requirement is found in earlier statutes. Gen. Sts. c. 63, § 46. Rev. Sts. c. 39, § 66. Then in Pub. Sts. c. 112, § 121, it is enacted that “a railroad corporation may raise or lower a highway or other way for the purpose of having its road pass over or under the same; but before proceeding to cross or to alter or excavate for the purpose of crossing the way, it shall obtain from the county commissioners a decree prescribing what alterations may be made in the way, and the manner and time of making the alterations or structures which the commissioners may require at the crossing.” This in like manner comes from earlier statutes. Gen. Sts. c. 63, § 48. Rev. Sts. c. 39, §§ 67, 68. No express provision is found that the county commissioners may require drainage, but it is properly assumed that such power was given by implication. The primary and fundamental provision is, that when a railroad is to cross a highway it must be so constructed as not to obstruct the same. The highway is recognized as an existing thing, and if a railroad company finds it necessary to cross it, the railroad must be so built that the highway will not be obstructed thereby. The obvious meaning of this is, that the railroad must be so built that no obstruction of the highway will result from the building of the railroad; and if drainage is necessary to prevent the highway from being obstructed by water, the county commissioners have power to require such drainage. Any other construction would be narrow and insufficient to carry out the plain purpose of the Legislature. And indeed to this extent we do not understand the *20 learned counsel for the defendant to deny the authority of the county commissioners.

But it seems to us that, if thus much is to be assumed, the rest follows. By the Pub. Sts. c. 112, § 135, “ Original jurisdiction of all questions touching obstructions to highways or town ways, caused by the construction or operation of railroads, shall be vested in the county commissioners within their respective jurisdictions ”; and by § 136, this court is authorized by proceedings in equity to “ compel railroad corporations ... to comply with the orders and decrees of county commissioners in all cases touching obstructions to such ways by railroads.” These statutes also are not new, but originated in St. 1849, c. 222, §§ 4, 5, re-enacted in Gen. Sts. c. 63, §§ 62, 63. It seems to have been contemplated that the original orders or decrees of the county commissioners might prove insufficient, or that circumstances or questions might arise which were not and perhaps could not be adequately considered or provided for in the first instance. Railroad companies which lay out their railroads across existing highways are made subject to the jurisdiction of the county commissioners in respect to their duty of not obstructing the highways, not only at the outset, but continuously. The general policy of the legislation is to authorize the county commissioners to put upon the railroad companies the burden of keeping the highways free from obstructions which result from building railroads across existing highways. To this end, the county commissioners may at the outset pass such decrees as seem suitable for the purpose; and if necessary to pass further decrees at a later date, jurisdiction is conferred upon them to enable them to do it. There is no reason why the Legislature may not properly subject railroad companies to this duty, and such appears to have been the purpose of §§ 135 and 136. See Commonwealth v. New Bedford Bridge, 2 Gray, 339 ; Cooke v. Boston & Lowell Railroad, 133 Mass. 185 ; Wellcome v. Leeds, 51 Maine, 313.

No objection is made to the form of the order of the county commissioners. For these reasons, in the opinion of a majority of the court, the entry must be, jDecree for the plaintiffs.