Maine Central Railroad v. Bangor & Old Town Railway Co. , 89 Me. 555 ( 1897 )

Strout, J.

This is a proceeding by petition to the railroad commissioners to effect a change in the highway crossing of the Maine Central Railroad at grade to an overhead crossing, including a lite change in the crossing of the Maine Central at the same point by the Bangor, Orono and Old Town Railway, an electric road running along that highway. The Railroad Commissioners made report of their decision to the Supreme Judicial Court, as provided by section 27, of chap. 18, of Revised Statutes, as amended by chap. 310 of the laws of 1885, and by chap. 282 of the laws of. 1889. The commissioners adjudged “that public convenience and necessity, and the public safety, require that the said highway be raised so as to permit the Maine Central Railroad to pass under the same, and that the crossing of said highway be altered to facilitate such crossing. And we find as matter of fact that this change of grade of said highway, and of the crossing of the Bangor, Orono and Old Town Railway with the Maine Central Railroad is necessary on account of the location of the Bangor, Orono and Old Town Railway along said highway.” To effect this, the railroad commissioners changed the place of crossing to one a short distance from the existing grade crossing, but as nearly contiguous thereto as was practicable on account of the conformation of the ground, and laid out a way for a short distance, which was necessary to afford ingress and egress to and from the old line of the highway, over the elevated crossing; and thereupon determined “that the existing conditions, construction and manner of crossing of the Bangor, Orono and Old Town Railway with the Maine Central Railroad shall be changed so that the said Bangor, Orono and Old Town Railway shall cross said Maine Central Railroad by the overhead bridge along the said highway, when changed as herein specified.”

The case comes up on report, by which, among other things, this court is “to determine whether or not the public safety, convenience or necessity require that the course of the highway should be changed as prayed for.”

The court had a view of the premises. The highway on which the electric cars run crosses the Maine Central at an acute angle, its immediate approach from the south being down a short but quite steep declivity, with a very limited view of the Maine Central track. A signal station is there located. The safety of passengers on the Maine Central and on the electric road, depends upon the watchfulness of the signal tender, the locomotive engineer and the motorman, as well as the effective working of the car brakes. If the track of the electric road should be wet or icy on the hill, it might be impossible for the motor-man to arrest the onward movement of his car before reaching the crossing. When such result would be perceived on the Maine Central train, it would be too late to arrest its progress.

The question whether public safety requires a highway to pass over or under a railroad at a crossing, is left by the statute in the first instance, to the judgment of the railroad commissioners, and their decision should not be reversed by this court unless it is manifestly erroneous. Our judgment upon this question, from an observation of the premises, entirely coincides with that of the railroad commissioners.

The objections made to the proceeding and decision of the railroad commissioners by the electric road and the town of Veazie, render it necessary to examine the various statutes creating and giving jurisdiction to that board.

By chap. 36 of the laws of 1858, it was made the duty of the governor to appoint three railroad commissioners. Their authority under that act, related to the condition of railroads, their rolling stock, rates of speed, time tables, times and terms of connection and junction or crossing, and rates of toll, “ to the end that the public safety and convenience in the transportation of passengers and merchandise may be provided for and secured.” This act was amended in 1864, but the jurisdiction of the railroad commissioners was not materially enlarged. By chap. 204 of laws of 1836, the authority to raise or lower the. grade of a highway to allow a railroad to pass over or under it, and to change the course of a highway to facilitate a railroad crossing, was vested in the county commissioners. By chap. 41 of laws of 1853, “the place, manner and conditions ” of crossing a highway by a railroad, was to be determined by the county commissioners. This jurisdiction remained with the county commissioners until the act of 1883, chap. 167, § 2, conferred upon the railroad commissioners the authority to determine “ the manner and conditions of crossing.” But the right to change the course of the highway to facilitate a railroad crossing, and to locate the necessary piece of new road to accomplish that result, was not taken from the county commissioners and conferred upon the railroad commissioners until 1889, by chap. 282, § 3. The mode of crossing of one railroad by another, when no highway or town way was involved, appears to have been left without statutory regulation until the act of 1895, chap. 72, by which the railroad commissioners were given authority “ to determine the manner and conditions of one railroad of any kind crossing another.” By chap. 205, of laws of 1893, the railroad commissioners were empowered to require a gate or a flagman at a crossing of a highway by a railroad. Until that act, this authority had rested with the county commissioners. And by chap. 227, laws of 1893, the railroad commissioners were empowered “ on the application of any railroad corporation whose road crosses another railroad at the same level,” to authorize the applicant “ to establish and maintain a system of interlocking or automatic signals” at such crossing.

These various statutes iiidicate the purpose of the legislature to confer upon the railroad commissioners full jurisdiction as to all crossings of ways by railroads, and of railroads by railroads, and of all matters connected with or incidental thereto, which are necessary or conducive to the safety of travelers. In re Railroad Commissioners, 87 Maine, 254.

These statutes being in pari materia, should be construed together, as if they were one law. “ The meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view or the purpose which was designed.” U. S. v. Freeman, 8 How. 556. “Statute provisions, unless absolutely conflicting, are to be construed so as to make them operate harmoniously as a whole, giving each its appropriate effect, not using one section to evade or abrogate another.” Collins v. Chase, 71 Maine, 436. “Statutes are to receive such a construction as must evidently have been intended by the legislature. To ascertain this we may look to the object in view, to the remedy intended to be afforded, and to the mischief intended to be remedied.” Winslow v. Kimball, 25 Maine, 495.

The statute of 1889, amending former acts, applied solely to crossings of ways by railroads, and provided that the expense of building and maintaining so much of the way as was within the limit of the railroad, should be borne by the railroad, or by the city or town in which the way was situated, or apportioned between them as should be determined by the railroad commissioners. After making their decision, the railroad commissioners were required to report their doings, with such rulings, proofs and proceedings as either party desired, or as they deemed necessary for a full understanding of the case, in writing to the Supreme Judicial Court, at its next term, at which term the presiding justice “may accept, reject or recommit said report, or send the case to a new commission, or make such other order or decree as law or justice may require.” To his ruling exceptions are allowed. The decision of the commissioners does not become operative, till final decree of the Supreme Judicial Court shall confirm them. Section 3 of this act provides for raising or lowering a way to permit the railroad to pass over or under it, by order and under the direction of the railroad commissioners; and for such purpose “ land may be taken and damages awarded as provided for laying out highways and other ways.” This provision is broad, and must be regarded as applying to existing ways and railroads. The safety to be obtained and the mischief to be remedied, are as imperative as to existing as to future crossings; and it cannot be doubted that the legislature intended to provide for both. But from the important rights involved, and the granting of the right of eminent domain, it was deemed wise, after the adjudication by the railroad commissioners, to require the judgment of the presiding justice of the Supreme Judicial Court thereon, át a regular term, before it should become final. His judgment is subject to review by the law court.

The act of 1895 relates to crossing of one railroad by another, where no way is involved, and the crossing of a bridge owned by a municipality, over which any railroad may desire to pass. Under this act, the railroad commissioners are required to make a report in writing of their determination, file it in their office, and cause a copy to be sent by mail to each railroad corporation, or to the municipal officers of the city or town as the case may be. Their decision is final upon the parties, unless an appeal is taken to the Supreme Judicial Court. On appeal, the presiding justice is authorized “to make such order or decree thereon as law and justice may require;” and exceptions .are allowed. It was not deemed necessary in the case of two railroads crossing each other, or of a railroad using a municipal bridge, to require the sanction of this court, before the decision of the commissioners should have force. It might well be assumed, that in many cases of the crossing of two railroads, or the use of a municipal bridge, the decision of the commissioners would be satisfactory to both. parties, and no action of this court be required.

In the case at bar, we have a railroad crossing a highway, and being crossed by another railroad, a condition not specifically provided for by the statutes. It is urged that two proceedings should be had; one for a change of the highway to an overhead crossing of the Maine Central railroad, the damages to be apportioned ■ between tbat railroad and tbe town of Yeazie, in wbiob tbe way is, — under tbe act of 1889, — and another proceeding under tbe act of 1895, for tbe crossing of tbe Maine Central by tbe electric road upon tbe elevated bigbway to be constructed over it, — and tbat it is not competent for tbe commissioners to change tbe crossing at grade by tbe electric road, now existing, to tbe overhead crossing by tbe altered line of bigbway, except upon request of tbe electric road. But the electric road on June 19, 1895, by its petition to tbe railroad commissioners, asked a crossing of tbe Maine Central railroad at -Yeazie., Tbe railroad commissioners granted a crossing at grade, “ until otherwise ordered by tbe board.” Tbat crossing has been made, and has been and still is used by tbe electric road. An appeal from tbe commissioners’ decision was taken by -the electric road, and is still pending; but tbe reasons for tbe appeal to which tbe appellant is limited, raise no question as to tbe location of tbe crossing itself, but only object to tbe apportionment of tbe expense of its construction and tbe cost of tbe signal post and salary of tbe signal man. Tbe location of tbe grade crossing is not appealed from, and remains established by tbe decision of tbe commissioners.

Tbe change in the bigbway, when confirmed by this court, will operate a discontinuance of tbe bigbway across tbe Maine Central railroad, and vacate tbe right of tbe electric road in its present grade crossing. Tbe electric road is legally located over tbat bigbway, and after tbe change made by tbe commissioners is accomplished, it remains tbe same bigbway; it is but a change from a grade to an overhead crossing; and tbe electric road does not need any new location or additional consent of Veazie to use it. If, as suggested, one proceeding is bad for tbe change and alteration in tbe bigbway alone, and tbe Maine Central Bailroad and tbe town of Yeazie pay tbe entire expense, it may be that tbe electric road could run its cars over tbe bridge and overhead way, free of expense. It is doubtful if any provision of law exists, to compel it, under such circumstances, to pay its fair share of tbe expense, already borne by Yeazie and tbe Maine Central. Tbe suggestion of counsel, that a wooden bridge could be built, sufficient for ordinary travel on the highway, but insufficient for electric cars, and that when the electric road asks to cross, it might be compelled to pay its share of the expense of a stronger structure, involves unnecessary delay' and needless waste of money. A construction of the statutes which would lead to such results, ought, not to be adopted, unless imperatively demanded by their language.

To accomplish the desired object of an overhead crossing of the Maine Central Railroad, by the highway and the electric road thereon, and equitably to apportion the expense between the two railroads and the town of Yeazie, the whole matter should be heard at one time and upon one petition, by the railroad commissioners. The statute of 1889 relates to the crossing of a railroad by a highway; and the act of 1895, to a crossing of one railroad by another. The mode of proceeding when a construction of the three crossings at one point is involved, is not prescribed by any statute; yet the subject matter falls within the jurisdiction of the railroad commissioners, by force of the two statutes. The proper proceeding, therefore, where the three crossings are involved, is to present them all in one petition, as was done here; and have one decision, adequate to protect the rights of all parties, and equitably apportion the burden.

The primal proposition was to change the highway crossing of the Maine Central road by the highway, from grade to overhead. To effect this, the conformation of the ground required the overhead crossing to be upon the elevation, contiguous to, but a few rods removed from, the existing crossing; and this change also involved the exercise of the right of eminent domain, to secure ingress and egress to and from the old line of highway, by the overhead way. The act of 1889 conferred upon the railroad commissioners authority to do this, subject to the approval of this court. The highway leading through Yeazie is the same highway after, as before, the alteration. The electric road was legally located and exists upon that highway. It now has an established crossing of the Maine Central Railroad at grade over and along the highway. When the highway is raised to pass over the railroad, the electric road must pass over and upon the highway as then existing; and it is immaterial whether this is at the precise point of the established grade crossing, or contiguous thereto. The place, mode and manner of crossing is within the jurisdiction of the railroad commissioners. The electric road now has a grade crossing, established upon its petition, accepted and used by it. It could not cross the railroad without permission of the railroad commissioners. That permission was granted “until otherwise ordered ” by the board. The electric road accepted the privilege with this condition; and now when, as incident to the change of grade of the highway, the railroad commissioners require the electric road to conform to the change, it cannot be successfully answered by that railroad, that it may choose to go elsewhere, and avoid the crossing altogether. It has not done so, but holds and uses the existing crossing, and is litigating as to the apportionment of the expense attending it. If it would escape its share of the expense of the change of grade, it can do so by abandoning its location at the grade crossing, before decree upon the railroad commissioners report, and making a location that will avoid crossing the Maine Central. But the suggestion of possible action of this kind by the electric road, with no action taken, cannot be received as a defense.

The railroad commissioners made return of their decision to the Supreme Judicial Court, as provided by chap. 282, of the laws of 1889, amending section 27 of chap. 18 of R. S.; but did not file in their oifice, and send copies of their decision to the railroads interested, as provided by chap. 72, section 4, of laws of 1895. These provisions are directory, and do not constitute conditions precedent to the validity of the decision. Veazie v. Mayo, 45 Maine, 564. Both railroad companies and the town of Veazie must have had actual notice of the decision of the railroad commissioners, for they all appear here and are represented by able counsel.

The railroad commissioners properly made report to this court, in the manner provided by the law of 1889; the change in the highway being the principal thing, and the change of the electric road being tbe resulting incident. There was no necessity to observe the formalities prescribed in the act of 1895, relating only to a crossing of one railroad by another. The rights of all parties will be amply protected by the decree which the presiding justice, at a term of the Supreme Judicial Court, shall make, subject to be reviewed by the law court, as provided in the act of 1889.

The act of 1889, authorizing the railroad commissioners to take land, necessary to ingress and egress to and from the overhead crossing, imposed upon them the duty of assessing the damages for land so taken. They omitted to do this. If, in their decision, they had made no mention of damages, it would be equivalent to a decision that no damages had been sustained; and the land owner, if dissatisfied, would have had his remedy as provided by law. Detroit v. Co. Com. 52 Maine, 215; Howland v. Co. Com. 49 Maine, 147. But the commissioners say in their report, after having located the approaches to the overhead crossing, that “the land described in the aforesaid change of location may be taken for the above named purposes, and damages awarded as provided by law.” This language implies, that in the judgment of the railroad commissioners, some damages were sustained; and if so, they should have assessed them. The report must be recommitted to allow the commissioners to assess the damages.

No other objection is perceived, to the acceptance and confirmation of the report, so far as to establish the change of grade of the highway and of the electric road. By the terms of the report, “ all questions of fact relative to the course and expense of the new highway, if ordered, the kind and maximum cost of the bridge and the abutments thereon, the apportionment of the expense of building and maintaining the same, and the taxation and allowance of the cost are to be finally determined by a single justice without right of exception to his determinations.” When the railroad commissioners shall have assessed the damages for the land taken, and amended their report to include such assessment, and returned the same to court, the case will be in order for the hearing by a single justice upon the matters agreed to be submitted to him; and decree should go according to the report of the commissioners as to the change of grade and location of the approaches to the overhead bridge, and the decision of the single justice as to the matters submitted to him.

Report recommitted to have damages assessed for land taken.