Worcester v. Worcester Consolidated Street Railway Company
These five cases were brought here by writs of error, sued out by the city of Worcester, for the purpose of reviewing the several judgments of the supreme and superior courts of the commonwealth of Massachusetts, respectively, affirming the judgments of the trial courts in favor of the railroad company, the defendant in error. The five cases involve the same questions, and were brought for the purpose of answering any possible objection to the particular mode adopted in any one case for the purpose of obtaining the relief sought by the plaintiff in error. 182 Mass. 49, 64 N. E. 581. The first two cases were petitions for writs of mandamus against the railroad company, which petitions were demurred to, and the demurrers sustained. Of the three other cases, two were suits in equity, and were brought by the city against the railroad company, and were heard upon the bills and demurrers thereto, the court sustaining the demurrers; the fifth case was an action on contract originally brought by the city against the railroad company, in the superior court, and heard upon demurrer to the complaint, which was sustained and judgment ordered for defendant, from which judgment plaintiff appealed to the supreme judicial court of the commonwealth.

The defendant in error is a street railroad corporation, organized and doing business under the laws of the state of Massachusetts, and it owned and operated in the city of Worcester and in numerous outlying cities and towns a street railway system parts of which had previously belonged to other similar corporations, and had been acquired by the consolidated company in 1901, by the purchase of the franchises and properties of such other companies under the general provisions of the street railway laws of the commonwealth. Under the general laws of the commonwealth, as they existed from 1891 to 1893, it was provided that a street railway company might apply to the board of aldermen of a city, or the selectmen of a town, for the location of the tracks of the railway company in the streets of the city or town, and, after hearing, it was provided that the board might grant the petition 'under such restrictions as they deem the interests of the public may require; and the location thus granted shall be deemed and taken to be the true location of the tracks of the railway, if an acceptance thereof by said directors in writing is filed with said mayor and aldermen or selectmen within thirty days after receiving notice thereof.' Mass. Pub. Stat. chap. 113, § 7.

The law also provided (§ 21 of above act) that the board of aldermen or the selectmen might, from time to time, 'under such restrictions as they deem the interests of the public may require, upon petition, authorize a street railway company whose charter has been duly accepted, and whose tracks have been located and constructed, or its lessees and assigns, to extend the location of its tracks within their city or town without entering upon or using the tracks of another street railway company; and such extended location shall be deemed to be the true location of the tracks of the company, if its acceptance thereof in writing is filed in the office of the clerk of the city or town within thirty days after receiving notice thereof.'

Section 32 of the act made it the duty of every street railway company to keep in repair, to the satisfaction of the superintendent of streets, 'the paving, upper planking, or other surface material of the portions of streets, roads, and bridges occupied by its tracks, and if such tracks occupy unpaved streets or roads (the company) shall, in addition, so keep in repair 18 inches on each side of the portion occupied by its tracks,' etc.

As the law then stood, the railroad company, on several different occasions, between 1891 and 1893, made applications for and was granted the privilege of extending the location of its tracks. On the 11th day of May, 1891, the defendant in error, upon application, was duly granted an extension of its location for its tracks in certain streets in the city of Worcester, which extension of location was stated in the order or decree of the board of aldermen to be granted 'upon the following conditions;' eight different conditions then follow, among which is—

'Second. That block paving shall be laid and 'maintained between the rails of its track, and for a distance of 18 inches outside of said rails, for the entire distance covered by this location."

This order or decree was duly accepted in writing by the defendant in error, and its acceptance filed with the clerk of the city of Worcester. Other extensions of locations were applied for and granted during this time, some of which were upon the condition or restriction that the paving should be between the rails and outside thereof to the street curb, and these conditions were accepted and the acceptance duly filed in the city clerk's office.

Subsequently, and in 1898 (chap. 578 of the Massachusetts Laws of that year), provision was made for a somewhat different system of taxation than that which prevailed at the time these several extensions of locations were granted and accepted by the railroad company. It was provided by § 11 of that act as follows:

'Sec. 11. Street railway companies shall not be required to keep any portion of the surface material of streets, roads, and bridges in repair, but they shall remain subject to all legal obligations imposed in original grants of locations, and may, as an incident to their corporate franchise, and without being subject to the payment of any fee or other condition precedent, open any street, road, or bridge, in which any part of their railway is located, for the purpose of making repairs or renewals of the railway, or any part thereof, the superintendent of streets or other officer exercising like authority, or the board of aldermen or selectmen, in any city or town where such are required, issuing the necessary permits therefor.'

After the passage of this act of 1898 the railroad company consented and conformed to its requirements, and thereafter omitted to make the repairs in the streets which had been required of it at the time when its extended locations were granted, during the period from 1891 to 1893. The city thereafter sought by these various actions or proceedings to compel the street railway company to repair and maintain the surface of the streets as provided for by the law in force when the extended locations were given and accepted. During the time that the railroad company had, since the passage of the act of 1898, omitted to make the repairs provided for as a condition for the granting of its application for extended locations, the city had incurred expenses in renewing and repairing various portions of the pavements, because of the omission and refusal of the railroad company to do so, and one of these actions was brought to recover the expenses thus incurred by the city in making such repairs and renewing such pavement.

Arthur P. Rugg and John R. Thayer for plaintiff in error.

[Argument of Counsel from pages 543-545 intentionally omitted]

[545]

Messrs. Bentley W. Warren and Clement R. Lamson for defendant in error.

[Argument of Counsel from pages 545-547 intentionally omitted]

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court: 

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