Eastern Railroad v. Boston & Maine Railroad , 111 Mass. 125 ( 1872 )

Colt, J.

The bill shows a legislative grant to the plaintiffs of the right to take certain described real estate in Boston, belonging to the defendants, and to hold and use the same for the purpose of increasing their terminal facilities and affording convenient access to their passenger station. It alleges a performance on the part of the plaintiffs of all the conditions of the grant, and a taking of the land, with actual possession under it. It charges the wrongful holding of the same by the defendants, and the forcible exclusion of the plaintiffs, whereby the corporation is wrongfully disturbed and interfered with in the exercise of the franchise conferred by charter and by the act in question, with irreparable injury to the plaintiffs and great inconvenience and risk to the public. And it asks for an injunction to prevent the defendants from interfering with the plaintiffs’ right.

The answer declares that the land in question is necessary to enable the defendants to perform their public duties, and to fulfil contracts for the transportation of passengers and freight, law fully made under the provisions of their charter; and that no other land can be obtained in Boston, within the limits of their charter, to enable them to perform their public duties or their existing contracts. It denies that the plaintiffs have complied with the terms of the act; and charges that the act is unconstitutional, because it is an infringement of the chartered rights of the defendants, and because it contains no provision for adequate compensation for injury to their franchise or damage to their business. And it claims that land once appropriated to public use for railroad purposes cannot be again taken for the same use by another corporation, without a violation of rights secured by the Constitution.

There was no objection to the jurisdiction of the court in equity, made by demurrer or stated in the answer. The case was heard and reserved on the proofs, offers of proof and facts agreed. The point was not raised at the hearing, is not reserved in the report, and was not relied on at the argument; and we have not felt obliged to consider that question. Dearth v. Hide & Leather National Bank, 100 Mass. 540.

The first objection made to the proceedings of the Eastern Railroad Company is, that the act in question was not accepted by the stockholders of that corporation, and that all action has been under votes of the directors only. It is not necessary hem to decide whether an amendment or alteration of a charter, made imperative by the Legislature under its reserved power, would require acceptance on the part of the corporation; or, if an additional burden were imposed, whether it could be avoided only by surrender or abandonment of all corporate privileges. The así in question is not, fairly interpreted, an alteration of the charter. By the original act, and by the statutes of the Commonwealth, the corporation had the right to acquire land for station purposes. The St. of 1872 subjected to this general power a specific parcel of land, which, but for this authority, might not be liable to be so taken. The power to be exercised was within the general powers of the directors, conferred by the General Statutes and the by-laws of the company. It is impliedly to be exercised as like powers conferred by the original charter ; and when there is nothing in the grant which expressly or by inference demands action by the stockholders, and the privilege granted contemplates an act within the scope of the authority of the directors of an existing organization, the action of the directors alone will be sufficient evidence of acceptance. Charles River Bridge v. Warren Bridge, 7 Pick. 344. Middlesex Husbandmen v. Davis, 3 Met. 133. Bangor, Oldtown & Milford Railroad Co. v. Smith, 47 Maine, 34.

It is further objected, that the location under which the land was taken was prematurely made. The right to take by location was made subject to the general laws applicable thereto, and under the statutes might be exercised at once. It is only the right to take possession, hold and use, which is postponed until thirty days after notice, and which is intended to give the time necessary for changes that may be required in the business of the two corporations. This distinction between the right of location and the right of possession for use exists under the general laws. Gen. Sts. c. 63, § 45.

The authority of the Legislature to grant these privileges to the Eastern Railroad Company is denied on constitutional grounds. It is said that the land in question has already been appropriated to a public use under the provisions of law, and that in the exercise of the right of eminent domain, the State cannot legally give to one railroad corporation power to take from another the exclusive use of land to be devoted to identically the same public use; that this would be to destroy vested rights and impair the contract contained in its charter. But it has been often declared by this court, that there is no such limitation on the authority of the Legislature. The power of the State to take private property for the public use reaches every description of property within its jurisdiction, even when acquired by grant from the State. It is an inherent element of sovereignty; and from the necessity of the case, and the highest considerations of public welfare, it must continue unimpaired in the State. It is impliedly reserved in every grant. It cannot be abridged so as to bind future legislation. The franchise of a corporation is not exempt. As an incorporeal hereditament, it may be taken, in whole or in part, and with the other property of the corporation devoted to other or similar public uses. The purposes of government would be so far defeated, if any single owner, corporation or individual, could in this respect control its action. It belongs exclusively to the Legislature to determine whether the public benefit to be secured is sufficient to warrant the taking; and this is not a judicial question. The necessity may be left to the adjudication of designated officers or tribunals; but when not so delegated, it may be declared by the Legislature itself. The right itself may be delegated to corporate bodies, public or private; and when the enjoyment of two public rights would to some extent interfere, it is, in the language of Chief Justice Shaw, 66 for the Legislature to determine which shall yield, and to what extent, and whether wholly or in part only, to the other; and such question will ordinarily be determined by the Legislature according to their conviction of the greater preponderance of public necessity and convenience.” Commonwealth v. Essex Co. 13 Gray, 239, 247. Boston Water Power Co. v. Boston & Worcester Railroad Co. 23 Pick. 360. Boston & Lowell Railroad Co. v. Salem & Lowell Railroad Co. 2 Gray, 1. Central Bridge Co. v. Lowell, 4 Gray, 474. Hingham & Quincy Bridge Co. v. County of Norfolk, 6 Allen, 353, 360. Haverhill Bridge v. County Commissioners, 103 Mass. 120. See also New York, Housatonic & Northern Railroad Co. v. Boston, Hartford & Erie Railroad Co. 36 Conn. 196; White River Turnpike Co. v. Vermont Central Railroad Co. 21 Vt. 590; People v. Smith, 21 N. Y. 595, 598.

Nor is the remaining objection to the validity of the St. of 1872 well taken. All general laws relating to the taking of land for railroad purposes are in terms made to apply to and govern the proceedings. This meets the provision of the Constitution which requires reasonable compensation for property taken. The early assessment of all damages occasioned by the taking is secured, and the payment of the amount ascertained. Gen. Sts. c. 63, § 21. If, by the true construction of the act, a part of the franchise is taken with the land, as the defendants contend, then the same provisions are sufficient to secure the same reasonable compensation. In estimating the value of the land taken, the jury would certainly have the right to consider the profitable uses of every kind to which it could be applied, and must take into account its proximity to the stations of two great lines of railroad communication, terminating at tide water within the limits of the city. Boston & Worcester Railroad Co. v. Old Colony Railroad Co. 12 Cush. 605, 611. Decree for the plaintiffs, with costs.