Worcester, Nashua & Rochester Railroad v. Nashua

It was provided by Rev. St., c. 142, s. 4, that "if any railroad shall intersect or cross any highway in any town in this state, such town may, at any legal town-meeting, direct that such place of crossing or intersection shall be secured by a bridge over said road, or by the erection of gates on both sides of said highway, as the town may think expedient." The section has been amended in some particulars (Laws of 1852, c. 1232, Gen. St., c. 147, s. 3) and condensed, but the provision in respect to bridges has never been changed. Gen. Laws, c. 161, s. 3. The plaintiffs' act of incorporation provides that it "shall be construed and taken as subject to all the provisions and restrictions of the Revised Statutes in relation to corporations and railroads. Laws of 1844, c. 188, s. 11; Laws of 1845, c. 288, 8. 4. The questions, therefore, whether the plaintiffs are a public corporation (see Laws of 1883, c. 239, s. 1,), and whether the legislature can impose upon it burdens in addition to those which existed at the date of its charter, do not arise. The provision of the statute requiring the plaintiffs at the direction of the town to secure a highway crossing by a bridge, is as much a part of its charter as if inserted therein.

A railway crossing is a crossing of two highways. The purpose of the statute is to protect travellers on both against the dangers arising from the crossing, and to cast the expense of the necessary protection upon the managers of the way which, by the method of its operation, causes the danger. No distinction is expressed between town highways established by law and constructed, and those so established but not constructed, and no ground is perceived for implying any. If the building of the bridge is the construction of a new town highway, it is equally so in both cases — in the first, as a substitute for the old one, and in the other, as a part of the new one. The bridge is a part, not of the town way, but of the railway. Its erection may or may not require the doing of work which must otherwise be done by the town in building its highway; — if it does, it is not because the railroad corporation is compelled to make town ways, but because the bridge cannot otherwise be constructed. The situation may be such that the erection of the bridge may increase rather than diminish the work of making the town highway. The railroad may, if it can, make the bridge without in any way interfering with the town roadway.

If a new town highway is established and constructed upon the same grade with the railroad at the crossing, it is conceded that the town may then call upon the corporation to build a bridge, if the public safety requires it. No good reason is suggested why it may not be directed to build the bridge before as well as after the road is opened to the public. There may be cases in which it is essential to the public safety that the road should not be opened until the bridge is completed. Railroad corporations are protected against capricious and unreasonable requirements on the part of towns by their right of appeal. G. L., c. 161, ss. 5, 6.

In answer to the suggestion that the vote is insufficient in terms, it is enough to say that the statute does not require any particulars of the structure to be stated.

Case discharged.

BLODGETT, J., did not sit: the others concurred.