Commonwealth v. Nashua & Lowell Railroad , 68 Mass. 54 ( 1854 )

Shaw, C. J.

We cannot doubt that the obstruction of a highway or town way, in any form, is prima facie a public nuisance; and that the proper redress for the public is to be sought by indictment. Railroad companies are prohibited from making the roads so as to obstruct public ways, except in a particular mode, by the permission of the selectmen. Rev. Sts. c. 39, §§ 66, 67. The only justification relied on in the present case is, that that part of the license or permission of the selectmen, which required a draw in the railroad bridge, to be opened when necessary for the passage of high loads and carriages, was void; that it was beyond the authority of selectmen to prescribe, and the defendants were not bound to comply with it; and that, having complied with the residue of the order, they are justified.

This presents a new and somewhat difficult question. There is no express limit, provided by statute, to the authority of selectmen and county commissioners, as to the expedients they may prescribe, to overcome difficulties, and reconcile the use of the highway and the railroad with each other. We can imagine cases, where the position of the highway and the railroad towards each other, and the vicinity of waters, rocks and precipices, are so peculiar, that some new expedient must be resorted to, within the scope of invention and experience, to effect this mutual accommodation. In the earlier days of railroads, many expensive and artificial means were applied, to overcome difficulties apparently insuperable, such as inclined planes and stationary engines, and lifts, in the nature of locks on canals, from one level to another.

. In the present case, it appears, from an examination of the localities on the plan, that the railroad, the public road and the river have a relation to each other, quite peculiar, and all affecting the question of mutual accommodation. The railroad, for a considerable distance, passes near the bank of the river on a level, at a height just sufficient to be above the reach of the water, at its highest stages. If the highway were carried by a bridge over the railroad, the height would be so great and the distance so short, from the top of the bridge to the margin of the river, that it would be quite too steep for use, if not absolutely impassable. If earned under the railroad, it would fill with water from the river, and be useless. To carry the railroad over the way would require an embankment beginning at a great distance each side, to get the required slope and height, and this would be attended with very great expense. We are not, however, prepared to say that a draw in the railroad bridge was necessary, or was the only means which could be suggested in order to secure the use of the road. But it does appear that the selectmen, who had a right, in the first instance. +o prescribe the alterations which should be made, thought the draw a suitable and feasible expedient to secure the free and full use of the public way, without impeding the passage of the railroad. And we are of opinion that it is not necessary, in the present case, for this court to decide upon the abstract question, whether selectmen may or may not require such an expedient as a draw in the railroad. We are of opinion that the mailing and providing for the use of such a draw, on which the license or permission was granted to the corporation to cross the railroad with their bridge, was a condition, and that it was a condition precedent, and that they could not legally claim the benefit of the license, and refuse to comply with the condition on which it was granted. If they intended to insist on the principle on which they now defend, that the selectmen had no authority to prescribe such a condition as they did, they should have appealed to the county commissioners, who had authority, by Rev. Sts. c. 39, § 68, to decide what alterations should be made, and to correct the errors of the selectmen, if they had fallen into any. But we think they canno,t justify under an act of the selectmen, as a license, whilst they refuse to comply with an essential condition in the grant. Without a compliance with the condition, the grant itself was inoperative and void, and cannot afford justification to a measure, which, without a valid license, was a public nuisance.

Judgment on the verdict.