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on a bright morning, and the evidence was con 2. SAME_RAILS LAID IN STREET-PERSONAL flicting as to whether the gong was sounded PROPERTY. and as to the speed of the car. Held, that de The rails of a street railway company imfendant's negligence and the plaintiffs' contribu bedded in the streets of a city remain personal tory negligence were for the jury.

property, and are subject to disposition as such. [Ed. Note. For cases in point, see vol. 44, 3. SAME-ALIENATION OF FRANCHISE. Cent. Dig. Street Railroads, "S$ 251, 255–257.) A street railway company has no power to

alienate its franchise without permission of Exceptions from Superior Court, Suffolk the Legislature. County.

[Ed. Note.-For cases in point, see vol. 44, Actions by one Erb against the Boston Ele Cent. Dig. Street Railroads, 88 123, 124.] vated Railway Company. A verdict was 4. SAME-SALE OF ROAD-FAILURE OF PURreturned in favor of plaintiffs in each case,

CHASER TO OPERATE.

Where the purchaser of the tracks and and defendant brings exceptions. Overruled.

rails of a street railroad from the receivers of Thos. J. Barry, for plaintiff. R. A. Sears the corporation failed to organize a corporation

within 60 days by which to operate the road, and J. E. Hannigan, for defendant.

as required by Rev. Laws, c. 112, § 13, and

thereby forfeited all right and power to operate LATHROP, J. These are two actions of the road as expressly provided by such section, tort for injuries sustained by the plaintiffs

and the gross receipts of the road were insuffi

cient to pay operating expenses, such purwhile driving in a buggy, in consequence of

chaser was under no duty to use the tracks so their vehicle being struck by an electric car purchased for the operation of a street railway. of the defendant, on Washington street in 5. MUNICIPAL CORPORATIONS - STREETS-REBoston. At the trial in the superior court, a

MOVAL OF STREET CAR RAILS-SUPERIN

TENDENT OF STREETS-PERMIT-DUTIES. verdict was returned for the plaintiffs, and

Waltham City ordinances provide that no the cases are before us on the defendant's

person shall dig up any street without a written exception to the refusal of the judge to direct license from the superintendent of streets, and a verdict for the defendant.

authorizes the superintendent to grant a license

for the use of portions of streets under specified The plaintiffs drove through Madison street

restrictions, providing that such license may be from Shawmut avenue to Washington street, revoked by the superintendent at any time. They then stopped and looked both ways

The office of superintendent of streets for Waltfor cars, and listened. They saw nothing

They saw nothing $ 36, providing that he should have the power of

ham was created by St. 1893, p. 1002, c. 361, and heard nothing. They then proceeded to a road surveyor and all the powers of road cross Washington street in a diagonal direc commissioners not otherwise conferred, and tion towards Hunneman street, and were al.

vested him with the power to determine whether

in a particular case a license to authorize the most immediately struck by a car. The time

digging of a part of the street should be granted. of the accident was about half past 11 of a Held that, where petitioner owned the rails and bright morning, on the 8th of March, 1904. tracks of a street railway imbedded in a street

of such city, the superintendent of streets could There was conflicting evidence on the ques

not arbitrarily refuse a permit to remove them, tion whether the gong was sounded and as because he hoped some other person or corporato the speed of the car.

tion would operate cars over them, but was If the jury believed the testimony of the

bound to grant or refuse such license in the

exercise of a legal discretion. plaintiffs there was evidence that they were

6. SAME-MANDAMUS. in the exercise of due care; and it clearly Petitioner was not entitled to mandamus was a question for the jury on the conflicting to compel such street commissioner to grant a evidence whether there was negligence on

license for the removal of such rails, but was

entitled to a writ commanding him to hear and the part of the defendant. Wood v. Boston

determine petitioner's application without reElevated Ry., 188 Mass. 161, 74 N. E. 298.

gard of any hope or desire that any person Exceptions overruled.

or corporation would operate cars over the tracks, and to determine the controversy as a matter of legal discretion on the basis that

petitioner was the owner of the rails and was (191 Mass. 522)

not bound to use them for the operation of cars. FRENCH V. JONES.

Case Reserved from Supreme Judicial (Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1906.)

Court, Suffolk County ; John Lathrop, Judge. 1. STREET RAILWAYS — RECEIVERS–SALE OF

Petition by one French for mandamus RAILWAY LINE-VESTING OF TITLE_CONDI to compel one Jones, as superintendent of TIONS.

the streets of the city of Waltham, to issue Rev. Laws, c. 112, $ 12, authorizes the re

a permit for the breaking or digging up of ceiver of a street railway company to sell the road, property, locations, and franchises of the the surface of the Trapelo road in Waltham company under order of court, and section 13 to remove certain street railway rails from declares that the purchaser shall, within 60

the street. Case reserved for full court. days thereafter, organize a corporation to hold,

Granted. own, and operate the railway purchased, and for a failure so to do declares that all rights and

Powers & Hall, for petitioner. Chas. E. powers to operate the roads shall thereupon cease. Held that, where receivers of a street

Stearns, for respondent. railway company sold its rails and tracks laid in a street to petitioner, the latter's failure to

SHELDON, J. The first question presented organize a corporation and operate the road

in this case is whether the petitioner has did not divest him of title to the property purchased

became the absolute owner of the rails and

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tracks laid by the street railway company and now lying on and imbedded in the surface of one of the public streets. He purchased all the property of the company at a sale properly made by duly appointed receivers of the company, and the receivers made a proper transfer to him. It is provided by Rev. Laws, c. 112, § 12, that "a receiver of the property of a street railway company may, by order of the court, sell and transfer the road and property of such company, its locations and franchises, on such terms and in such manner as the court may order. The purchasers from such receiver, and a corporation organized under the provisions of the following section, if such road has been transferred to it, shall hold and possess said road, all its rights and franchises and all property acquired in connection therewith, with the same rights and privileges and subject to the same duties and liabilities as the original street railway company; but no action shall be brought against such purchaser or such new corporation to enforce any liability incurred by said original corporation, except debts and liabilities owing from said original corporation to any city or town within which the road is operated and taxes and assessments for which said original corporation is liable under the statutes relating to street railways, which shall be assumed and paid by said new corporation. The provisions of this section shall not impair the powers of the holders of an outstanding' mortgage to enforce their rights by suit or otherwise."

Section 13 of the same chapter provides that the purchasers at such a sale shall within 60 days thereafter organize a corporation for the purpose of holding, owning and operating the street railway purchased, and that if they fail to organize such a corporation in the manner therein prescribed, all rights and powers to operate the road shall thereupon cease. The respondent contends that the petitioner, never having organized or intended to organize such a corporation, and never having intended in any way to operate the street railway or cause it to be operated, but baving made his purchase for the purpose only of removing and şelling the rails, was not such a purchaser as is contemplated by the statute, and did not acquire any right to the property. We think however that the title to the property sold by the receivers did pass to the petitioner. It may be granted that the sections of the statute to which we have referred contemplate the continued operation of a street railway which has been sold under the authority that they give. But no such requirement is made in terms; and the provision in section 13 that upon failure to form a corporation to hold and operate the railway the right and power to operate it shall cease, is far from being tantamount to a provision that the purchasers shall suffer the further

penalty of being deprived of the property which they have bought and paid for. The receivers have full power to make the sale; it is their duty to do so when ordered by the court which has appointed them; they have no right or duty to inquire into and no means of ascertaining the motives or intentions of bidders or purchasers. We are of opinion accordingly that the petitioner is the absolute owner of the property in question.

But his right to remove the rails and other materials which are imbedded in the surface of the public street, and for that purpose to break and dig up the street depends upon other considerations. It has been decided by this court that these rails and materials remain personal property. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500, 73 N. E. 646. But they were laid by a street railway company in pursuance of a location granted to it and accepted by it and with the obligation to operate its road and thus to perform certain public duties; and they cannot be removed without digging up the surface of the street and making the public highway, at any rate partially and temporarily impassable. The petitioner does not contend that he has any right to remove the rails if he or the voluntary association which he represents is under any duty to operate this line as a street railway; and accordingly it becomes necessary to determine whether he is now under such a duty.

A street railway company, like a railroad corporation, has no power to alienate its franchise without permission of the Legislature. Richardson v. Sibley, 11 Allen, 65, 87 Am. Dec. 700. Our earliest statute upon this subject provided that "no street railway corporation shall sell or lease its road or property unless authorized so to do by its charter or by special act of the Legislature." St. 1864, p. 161, c. 229, $ 24. And “any alienation either in fee or for the period of its corporate existence or for any less term of substantially all its real and personal property, so as to disable it from carrying on the business which it had been chartered to do for the benefit of the public, is clearly within the terms and meaning of the prohibition." Gray, J. in Richardson v. Sibley, ubi supra. And subject to certain limitations not material to the decision of this case, the same prohibition has since remained in force (Pub. St. c. 113, $ 56; St. 1897, p. 241, c. 269; Rev. Laws, c. 112, § 85 et seq.), except that in 1900 power was given to the receiver of a street railway company to make such a sale of its road, property, locations and franchises as is here in question. St. 1900, p. 322, c. 381; Rev. Laws, C. 112, $$ 12, 13, 14. The petitioner's rights accordingly depend upon the provisions of these sections.

The respondent contends that as it is expressly provided by section 12 that the pur

chasers at such a sale "shall hold and possess the city against all damage or loss to the city such road, all its rights and franchises, and accruing from the doing of any act or thing all property acquired in connection therewith, under such license, and sureties may be rewith the same rights and privileges and sub quired in the discretion of the superintendent ject to the same duties and liabilities as the of streets, and every person who, when so lioriginal street railway company," and by censed, shall obstruct or render unsafe any section 13 that they shall within a limited public street or sidewalk, shall guard the time organize a corporation for the purpose same by a proper fence or railing and by of holding, owning and operating the street lights during the nighttime, subject to the railway, they are under the same obligation approval of the superintendent of streets. to operate the railway and to carry passen

Such license may be revoked at any time by gers as rested upon the original company; the superintendent of streets." Without a and that this obligation can be terminated license granted by the superintendent of only by an order of the board of aldermen or

streets under this section, the petitioner canselectmen ordering the street to be cleared of not break or dig up any part of the way, and the tracks under Rev. Laws, c. 112, § 36, or so cannot remove these rails. They have a revoking the location under Rev. Laws, C.

value for a resale of more than six thousand 112, § 32. Springfield v. Springfield Street dollars; but they are valueless to the petiRailway, 182 Mass. 41, 48, 64 N. E. 577. tioner unless they can be removed. The opBut under the last clause of section 13, ubi eration of a street railway line over these supra, the petitioner has now no right or tracks never has produced, and there is no power to operate a street railway over these reason to believe that it ever could produce, tracks; and we cannot construe the statute

sufficient income to pay the bare expenses of as continuing the existence of this duty after Aperation. The petitioner has made proper its performance has been forbidden by the a pplication to the respondent, who is supervery terms of the statute. The language of intendent of streets of the city of Waltham, these sections is indeed mandatory; but look for a license to take up these rails, and the ing at the object to be attained, the realiza respondent has refused and refuses to grant tion of all the property of an insolvent cor it. It has been found at the hearing before poration for the payment of its debts, con a single justice of this court that the respond. sidering the fact that the penalty imposed for ent's refusal to issue the license did not rethe failure of the purchasers to organize a sult from the exercise of his judgment or discorporation and operate the railway is merely cretion as to the proper care of the streets, or the loss of the right and power to carry on

from the adverse determination of any quessuch operation, and the practical impossi tion connected with such care or with the bility of continuing to operate a railway protection of the public travel, but from a whose gross receipts are insufficient to meet desire to keep the rails in the streets in the its operating expenses, we are of opinion hope that some person or corporation would that the petitioner is not now under any duty operate street cars over them; and that the to use these tracks for the operation of a rails could have been removed and could now street railway.

be removed without any permanent injury to We have then, the case of an owner of per the street or unreasonable disturbance of pubsonal property which is so imbedded in the lic travel. The petitioner asks this court to surface of a public way that it cannot be issue a mandamus commanding the respondremoved without breaking and digging up ent to grant such a license to the petitioner. the surface.

This way

is situated in The office of superintendent of streets is Waltham; and the ordinances of that city created by the charter of the city of Waltham provide that "no person, unless authorized by (St. 1893, p. 1002, c. 361, $ 36), which provides law, sball break or dig up any part of any that he "shall have the powers of a road surstreet or erect thereon any staging for building veyor and all the powers of road commissionplace thereon any lumber, brick, or other ers not herein otherwise conferred." He is building materials without a written license charged with the duty of seeing that the from the superintendent of streets. Any streets are kept safe and convenient for person intending to erect or repair any build travel; and he is to exercise his best judging upon land abutting upon a street shall ment and discretion for the performance of give notice to the superintendent of streets, this duty. He is vested with the power of who may, at the owner's request, set apart determining in any particular case whether such portion of the street as he may deem or not a license shall be issued to authorize expedient for such use. Such person shall, the digging up of any part of a street or the when required by the superintendent of erection thereon of any staging for building, streets, construct and maintain a suitable the placing thereon of any building materials, sidewalk around the obstruction, and shall, or the temporary use of any portion of the before the expiration of his license, remove street for the erection or repair of buildings all rubbish and restore such street to its former condition, to the satisfaction of the when either public or private interests or superintendent of streets. Every person so both would be seriously affected by his issulicensed shall, in writing, agree to indemnify | ing or refusing to issue such a license; and

it is for him to consider in each case the na authority in the statutes or ordinances for ture and magnitude of the interests involved, such a contention; and we are not aware that the extent and probable duration of any in support can be found for it in any judicial terference with public travel and the effect decision. It has indeed been held that one which may be produced upon the structure or who has an absolute and paramount right to paving of the way, and to determine whether do an act which necessarily involves the dig. or not, in view of all the circumstances and ging up of public streets may by mandamus in the proper exercise of his discretion as a compel the officers who are charged with the public officer charged with the care of the care of the streets to allow him to exercise streets the license asked for ought to be that absolute right in a proper manner and granted. This he has not done in the case with suitable safeguards. Commonwealth v. at bar, but has refused to issue the license Warwick, 185 Pa. 623, 40 Atl. 93; State v. prayed for merely from a hope and desire St. Louis, 145 Mo, 551, 46 S. W. 981; State which ought not to have influenced his deci v. Latrobe, 81 Md. 222, 31 Atl. 788. In the sion. He has not heard and determined the case at bar, however, no such absolute right petitioner's application in the manner in can be found to

to exist. The petitioner which he ought to have heard and determin bought the property with full notice of its ed it; and we have no doubt that a man character and position, and knowing that his damus may properly issue to compel him to power to remove it depended upon his ability do so.

Osborn v. Selectmen of Lenox, 2 Al to obtain a license from the superintendent len, 207; Dodge v. County Commissioners, 3 of streets. It well may be that this officer Metc. 380; Nourse v. Merriam, 8 Cusn. 11. cannot refuse a license upon wholly immateIt was his duty to hear and consider this rial reasons or from mere wantonness or application without regard to other considera caprice; and that is all that was decided in tions than those which we have stated, and People v. Keating, 55 App. Div. 555, 67 N. Y. not to base his action upon any such desire Supp. 413; People v. Colliss, 17 App. Div. as has guided him. People v. Supervisors of 448, 45 N. Y. Supp. 282, and Laclede Gas Co. Delaware County, 45 N. Y. 196; State v. St. V. Murphy, ubi supra. And it may be that Louis, 145 Mo. 551, 46 S. W. 981. He has a he would not have the right to shut his eyes right to refuse to grant the license asked for to proved facts, and rest a decision upon an if in the proper exercise of his judgment and of alleged failure to find such facts, as was held ficial discretion he decides that it ought not in Stockton Railroad v. Stockton, ubi supra, to be granted; but he has not the right to re though there might be a practical difficulty in fuse it merely for a reason which lies outside reviewing his action in such a case. But the scope of his duty. Similar questions none of these decisions support the petitionhave often arisen in other jurisdictions; and, er's present contention. so far as we are aware, this doctrine always We are of opinion that the correct rule to has been maintained. Laclede Gas Co. v. be followed in such a case as this was declarMurphy, 170 U. S. 78, 18 Sup. Ct. 505, 42 L. ed in Keough v. Aldermen of Holyoke, 156 Ed. 955; In re Excise Licenses (Super. N. Y.) Mass. 403, 31 N. E. 387. It appeared in that 38 N. Y. Supp. 425; People v. Supervisors of case that the petitioner had been duly electHerkimer County, 56 Barb. (N. Y.) 452; ed collector of taxes for the city of Holyoke, People v. Perry, 13 Barb. (N. Y.) 206; State but the board of aldermen denied his right v. Commissioners of Warren County, 17 Ohio to the office, claimed that another person St. 558; Zanone v. Mound City, 103 Ill. 552; had been elected, and upon that ground refusGulick v. New, 14 Ind. 93, 77 Am. Dec. 49; ed to accept the petitioner's official bond; Harwood y. Quimby, 44 Iowa, 385; Mobile and it was held that he was entitled to a Ins. Co. v. Cleveland, 76 Ala. 321; State v. writ of mandamus, declaring that he had Lutz, 136 Mo. 633, 38 S. W. 323; State V. been duly elected, and commanding the board Shannon, 133 Mo. 139, 33 S. W. 1137; State of aldermen to consider the bond presented v. Barnes, 25 Fla. 298, 5 South. 722, 23 Am. by him, and to accept or reject it as it might St. Rep. 516; Stockton Railroad v. Stockton, or might not be found to be satisfactory to 51 Cal. 328; Thomas V. Armstrong, 7 Cal. them and in the form required by law, but 286; Regina y. Fawcett, 11 Cox, C. C. 305; that, although the board had put their reKing v. Justices of Cumberland, 4 Ad. & El. fusal to accept his bond directly upon the 695.

ground that he had not been duly elected, yet But the petitioner contends that he is en they could not be required to accept his bond, titled to a

mandamus commanding the for the reason that the bond must be in such respondent to issue the license prayed for. sum as they should require and with sureties He contends that in acting upon such an ap to their satisfaction. It is true that in that plication the superintendent of streets per case the record of the board of aldermen had forms a purely ministerial duty, that his dis subsequently been amended by adding the cretion goes no further than to see that prop statement that their refusal to accept the er indemnity is given to the city against any bond was for other reasons also; but the court damage or loss and that proper precautions in its opinion (page 408 of 156 Mass., page are taken against accident, and to determine 387 of 31 N. E.) declined to pass upon the whether sureties shall be required from the validity of this amendment, and rested its licensee. But we have been referred to no decision upon the general ground which has

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been stated. The same doctrine is affirmed Action by Ernest V. Shattuck against in the well-reasoned opinion of the court in James L. Simonds. A verdict for defendant State v. Latrobe, 81 Md. 222, 31 Atl. 788, re was directed by the court, and plaintift" lied on by the petitioner, in which it is ex brings exceptions. Exceptions sustained. pressly declared that whenever the perform

J. J. O'Connor, Wm. J. Corcoran, and Chas. ance of a duty is dependent upon the exercise

E. Walsh, for plaintiff. Clarence W. Rowley, of judgment and discretion on the part of the

for defendant.
person to whom its performance is assigned,
that judgment and discretion will not be in-.

BRALEY, J. To sustain an action for a terfered with or controlled by the writ of

malicious prosecution it was incumbent on mandamus, and this for the reason that there

the plaintiff to offer evidence from which it is no warrant of law justifying the substitu

could be found that the original suit was tion of the judgment of the court for the judgment and discretion of the individual exclu

not only terminated in his favor but that it sively intrusted with the performance of that

was instituted by the defendant without havparticular duty. To the same effect are Lunt

ing probable cause to believe that he was

guilty of the crime alleged, and that in causV. Davison, 104 Mass. 498; Rice Machine Co. v. Worcester, 130 Mass. 575; Deehan v.

ing complaint to be made charging him with a

criminal offense he was actuated by malice. Johnson, 141 Mass. 23, 6 N. E. 240; Provi

Stone v. Crocker, 24 Pick. 80, 85; Bacon v. dent Savings Society v. Cutting, 181 Mass.

Towne, 4 Cush. 217; Ellis v. Simonds, 168 261, 63 N. E. 433, 92 Am. St. Rep. 415; Rice

Mass. 316, 47 N. E. 116. If the evidence upon v. Highway Commissioners of Middlesex, 13

these issues is conflicting, such questions are Pick. 225; Inhabitants of Ipswich, Petition

for the determination of a jury under suitaers, 24 Pick. 343; Prickett's Case, 20 N. J.

ble instructions, and a verdict having been Law, 134; High, Extraordinary Legal Rem

ordered for the defendant we proceed to an edies, 88 80, 88, 91, 92, 97.

examination of the testimony to ascertain if It is not necessary to consider in detail the

this direction was right, and in such an indifferent requests for rulings which were

quiry neither the credibility of witnesses, nor made by the petitioner. They are all disposed of by what has been said. In our opinion

the weight to be given to their evidence is of the petitioner is entitled to have a writ of

importance. That the plaintiff had been

discharged by a court or magistrate having mandamus issue, commanding the respondent, as he is superintendent of streets of the city

jurisdiction at least to determine vi hether

he should be held for trial in the superior of Waltham, to hear and determine the petitioner's application without regard to any

court is not disputed, and this discharge must

be deemed to have ended the prosecution, hope or desire that some person or corporation will operate street cars over the tracks

Moyle v. Drake, 141 Mass. 238, 242, 6 N. E.

520 and cases there cited. While the defendin question, but exercising in the manner hereinbefore stated his sound discretion as

ant did not appear at the trial of the present an officer charged with the care of the streets,

case, in his deposition which was read he in view of the fact that the petitioner is the

denied having caused the arrest, and claimed

that until he was notified to appear as a owner of the property in question and is not

witness in the criminal proceedings he had under any duty to use it for the operation of street cars.

not learned of the plaintiff's arrest, or that he

was charged with having committed the So ordered,

crime. But upon referring to the evidence

offered by the plaintiff this denial was met (191 Mass. 506)

by testimony of alleged statements of the deSHATTUCK V. SIMONDS.

fendant to the effect that it was his purpose

to cause the plaintiff to be prosecuted, and (Supreme Judicial Court of Massachusetts. Suffolk. May 16, 1906.)

accordingly he had taken such action. This,

if believed, was enough to show that the 1. MALICIOUS PROSECUTION - ELEMENTS OF ACTION.

making of the complaint, and the subsequent To sustain an action for malicious prose arrest were put in train by him.

It also apcution, plaintiff must show that the original

pears that he went so far as to offer a pecsuit was not only terminated in his favor, but was instituted by defendant without probable

uniary consideration to at least one of the cause and with malice.

plaintiff's witnesses if she would aid him by [Ed. Note.—For cases in point, see vol. 33, supplying testimony from which the plainCent. Dig. Malicious Prosecution, $$ 18-22,

tiff's identity as being the thief might be es59, 72.]

tablished and without which his conviction 2. SAME-PROBABLE CAUSE-EVIDENCE. In an action for malicious prosecution, evi

might be defeated. When this evidence is unidence held to justify a submission to the jury

ted with the further proof from which a legitiof the question whether the prosecution was mate inference could be drawn that the decommenced without probable cause.

fendant had manifested a hostile feeling [Ed. Note.-For cases in point, see vol. 33,

towards the plaintiff by stating in substance Cent. Dig. Malicious Prosecution, $$ 161, 162.)

that although he was his nephew, and had Exceptions from Superior Court, Suffolk been in his employment for a considerable County; Edgar J. Sherman, Judge.

period of time he had been unfaithful, and

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