In re Report & Decision of Railroad Commissioners , 83 Me. 273 ( 1891 )

Haskell, J.

Railroads for public use are creatures of the legislature, either by charter or by organization under the statute. They are public highways; great thoroughfares of public travel and commerce; endowed.with the right of eminent domain subject to the laws of the State. Spofford v. B. & B. Railroad, 66 Maine, 26.

By R. S., c. 51, § 14, "A railroad corporation, for the location, construction, repair and convenient use of its road, may take and hold, as for public uses, land and all materials in or upon it; but the land so taken shall not exceed four rods in width, unless necessary for excavation, embankment, or materials.

Section 15, requires a location according to the charter, to be filed and recorded with the County Commissioners, that may be amended by filing a new description.

Section 18, permits railroad corporations to locate branch tracks to mills or manufacturing establishments, in certain cases, under the direction of the railroad commissioners, with the powers granted by, and subjected to the duties imposed under their charters.

Revised Statutes, c. 18, § 27, as amended by c. 282 of 1889, permits public ways to be laid across railroad tracks, subject to regulation by the railroad commissioners, who may determine the manner of crossing, and the expense of building and maintaining the way within the limits of the railroad. This act refers to the tracks of railroad companies located under authority of eminent domain, either by the purchase of the right of way, or by the taking of it under the provisions of statute ; for, in either case, the lands are held, as for public use. R. S., c. 51, § 14. That is, lands covered by the location required by § 15, are held, as for public use, under the exercise of eminent domain, whether purchased, or taken under process of law ; and, in regard to them, the corporation "shall be subject to all the duties imposed upon it by its charter.” § 18. There is no' occasion to apply the act to railroad tracks not laid under charter authority, so as to be held in the exercise of eminent domain and become a railroad for public use, because they are a mere convenience, to be used or disused at pleasure; to be maintained or removed as the owner wills to do.

They are exactly like private tramways or any other private estate, subject to be taken in the exercise of eminent domain. They, like other property, may be severed in two by the laying of a public way, and are protected by the same right of compensation. If their owner be a corporation, endowed with the exercise of eminent domain, it can proceed to locate such tracks across the public way, that has interfered, under the provision of statute expressly provided for such cases.

There is force in the argument that public safety requires that the intersection of railway tracks and roads should be under the control of the railroad commission. But, unless both are public ways, that is, constructed and maintained under the authority of law, or for public use, the public has no rights to be affected. If either be wanting in its public quality, the conflict is between public and private rights ; and as the former are paramount, the laws regulating private rights are ample in such case. A railroad track not legally laid across a public way may be a nuisance, and not permitted to remain. B. S., c. 17, § 5. State v. P. S. & P. Railroad, 58 Maine, 46. If not a nuisance, nor prohibited by statute, it is the same as any other private crossing of a public way, to be used so as not to unreasonably endanger or impede public travel.

In the case at bar, the town located the way through the railroad track that was mere private property of the B. & M. Bailroad, not clothed with a public quality under the provisions of its charter, for want of location as provided by statute.

It could be operated or disused; taken up or maintained by its owner at pleasure. It had no limits, within which the railroad commissions could adjudicate upon the conflicting rights and uses. The railroad rights in the premises are in no sense public, but only private. The railroad commission had no occasion to interfere. Exceptions overruled.

Peters, C. J., Walton, Virgin, Libbey and Wiiiteiiouse, JJ., concurred.