48 CROSSINGS OF RAILROADS WITH RAILROADS, ETC. Acts of 1892, Chapter 275. Prescriptive An Act to prevent the Acquisition of Rights of Way across Railroads by Prescription. No right of way across any railroad track or location which is in use for right of way. 141 Mass. 407. railroad purposes, shall hereafter be acquired by prescription; but nothing 145 Mass. 433. herein contained shall affect any existing right of way. [Approved May 6, 153 Mass. 58, 300. Grades of two or more rail. Railroad not to be built across another at grade, or over tide-waters, without consent, etc. 1874, 372, § 85. 1881, 156. See 1892, 228. Damages for cutting off access to sea. 1892. Crossings of Railroads with Railroads or Tide- Waters. SECTION 117.* When two or more railroad corporations whose tracks cross each other at the same level agree to separate the grades, they may apply to the board, which shall thereupon determine when, in what manner, and by which corporation, said work, and each portion thereof, shall be done, and shall apportion among said corporations all charges and expenses occasioned by making such alterations, and all future charges for keeping in repair the necessary structures connected therewith; and the supreme judicial court shall have jurisdiction in equity to compel compliance with all orders, decrees, and judgments of the board in the premises. For said purposes the corporations may, under the direction of the board, make all necessary changes in the location, grade, and construction of said railroads, and, so far as may be necessary, may take additional land therefor, and may raise, lower, or otherwise change any and all highways and town ways; and in the exercise of said powers said corporations, and any person who sustains any damage thereby, shall have all the rights, privileges, and remedies, and be subject to all the duties, liabilities, and restrictions, provided by law in the case of land taken by railroad corporations. SECTION 118. No railroad shall be constructed across another railroad at the same level therewith without the consent in writing of the board of railroad commissioners, nor across navigable or tide-waters without the consent in writing of the board of harbor and land commissioners, and in such manner as the said boards respectively shall prescribe; nor across any portion of the deep channel of Boston harbor below the bridges existing on the thirtieth day of March in the year eighteen hundred and eighty-one, without special legislative authority obtained therefor. Any littoral proprietor whose access to the sea is obstructed or interrupted by the location and construction, after said day, of any railroad across tide-water otherwise than by a bridge with a suitable draw, may recover all damages occasioned by such location and construction of the corporation whose railroad is so located, in the same manner and with the same rights as to security as are provided by law in relation to damages occasioned by laying out and maintaining railroads; but this provision as to damages shall * Sections 117 to 138 inclusive are not in any way affected by St. 1891, c. 170, entitled "An Act to give Towns jurisdiction over Highways and County Bridges." (See § 5 of that act.) Consent required for grade crossing. by whom given. Railroad commissioners. Special commissioners. [See page 48, Section 119.] Crossings of Railroads with Street Railways. Acts of 1895, Chapter 426. An Act relative to Crossings of Railroads and Street Railways at SECTION 1. No street railway shall hereafter be constructed across the tracks of any railroad at the same level therewith without the consent of the railroad commissioners, or of a board of special commissioners appointed as hereinafter provided; nor shall any railroad hereafter be constructed across the tracks of any street railway without such consent. SECTION 2. The corporation desiring to construct a street railway across the tracks of a railroad or a railroad across the tracks of a street railway at the same level shall have the right to elect whether the right so to cross shall be decided by the railroad commissioners or by a board of special commissioners; and upon such election its right to apply to the other board shall cease. If it elects a board of special commissioners, it may apply by petition to the superior court for the county in which the proposed crossing is situated, or some justice thereof, in term time or vacation, and thereupon such court or justice, after notice to all parties in interest and a hearing, appointment, shall appoint a commission of three disinterested persons who, after hearing the parties, shall determine whether the public convenience and safety reasonably require a crossing on the same level at the place prayed for, and if so, how the same shall be constructed, and shall make return thereof to the court within thirty days after the close of the hearing; and such return, when accepted by the court, shall be final between the parties. Compensation shall be allowed and paid to said special commissioners in like manner as in the case of auditors or referees who are appointed by the supreme judicial court etc., of. compensation of. Certain crossings excepted. Provisos. SECTION 3. This act shall not affect any case where permission has been granted prior to the passage of this act for a street railway to cross a railroad: provided, said street railway shall be actually constructed across said railroad within twelve months after the passage of this act; and provided, further, that the foregoing proviso shall not affect any case in which the street railway is in process of actual construction at the time of the passage of this act. SECTION 4. This act shall take effect upon its passage. 29, 1895. [Approved May CROSSINGS OF RAILROADS WITH PUBLIC WAYS. 49 board, when to not apply to any railroad constructed under the provisions of chapter two hundred and fifty-two of the statutes of the year eighteen hundred and eighty. Associates for the purpose of constructing a railroad Consent of under section thirty-four, or a corporation proceeding to construct its be obtained. road or branch or extension thereof, shall not take proceedings contemplating a new crossing of one railroad by another at the same level therewith, unless such crossing is first approved in writing by the board of railroad commissioners; and every preliminary approval of a plan for such crossing shall be subject to revision by the board. The supreme judicial court shall have full equity jurisdiction, on in- Remedy. formation filed by the attorney-general, in case of a violation of the provisions of this section. Crossings of Railroads with Public Ways. railroad across 1874, 372, § 86. 14 Gray, 379. 14 Allen, 444. SECTION 119. When a railroad is laid out across a highway or other Laying out way, it shall be constructed so as not to obstruct the same; and, public way. unless the county commissioners and the board authorize a crossing 1876, 73. at the same level as provided in section one hundred and twenty-three, it shall be constructed so as to pass either over or under the way, as prescribed in the following section, and conformably to any decree which may be made by the county commissioners under section one hundred and twenty-one. structed to pass Under way. Height of bridge, etc. 1874, 372, § 87. 1875, 219. SECTION 120. If the railroad is constructed to pass over the way, a How consufficient space shall be left under the railroad conveniently to accom- over way. modate the travel on the way. If the railroad is constructed to pass under the way, the railroad corporation shall build such bridges, with their abutments and suitable approaches thereto, as will accommodate the travel upon the way; but no bridge for any purpose shall be constructed over a railroad at a height less than eighteen feet above the track of such railroad, except by the consent in writing of the board. The supreme judicial court may, by suitable process in equity, compel a compliance with the provisions of this section. SECTION 121. A railroad corporation may raise or lower a highway or other way for the purpose of having its road pass over or under the same; but before proceeding to cross or to alter or excavate for the purpose of crossing the way, it shall obtain from the county commissioners a decree prescribing what alterations may be made in the way, and the manner and time of making the alterations or structures which the commissioners may require at the crossing; and before entering upon, excavating, or altering the way, shall give to the city or town in which the crossing is situated security, satisfactory to the commissioners, that it will faithfully comply with the requirements of the decree to their acceptance, and will indemnify the city or town against all damages and charges by reason of a failure so to do. Way may be lowered. raised or 1874, 372, § 88. 9 Cush. 1. See §§ 119, 124, 127, 136. course of, may be changed. SECTION 122. A railroad corporation may alter the course of a highway or other way for the purpose of facilitating the crossing of the 1874, 372, § 89. same by its road, or of permitting its road to pass at the side thereof 50 Laying out rail. road across way at grade, how authorized. Consent of board, etc. 1874, 372, § 90. 1876, 73. See §§ 94, 119, 125. CROSSINGS OF RAILROADS WITH PUBLIC WAYS. without crossing, upon obtaining a decree of the county commissioners prescribing the manner and time of such alteration, if before granting the decree they, after due notice to the city or town in which the way is situated, decide that the alteration will not essentially injure the way. The corporation shall pay all damages occasioned to private property by the alteration, as in case of land taken for its road. SECTION 123. When a railroad is laid out across a highway or other way, the county commissioners, upon the application of the railroad corporation or of the mayor and aldermen of the city or selectmen of the town in which the crossing is situated, after due notice to all persons interested and a hearing, may adjudge that public necessity See 1892, 228. requires the crossing at the same level, and may, if the board also consents in writing to such crossing at the same level, make a decree specially to authorize and require the corporation so to construct its road, in such manner as shall be prescribed in the decree; and said commissioners may modify the terms of such decree, or may revoke the same, at any time before the construction of the railroad at such crossing. Rails to be planked, etc., at crossings. 1874, 372, § 91. 140 Mass. 84. 147 Mass. 455. Laying out public way across railroad. 1874, 372, § 92. 1876, 73. SECTION 124. A railroad corporation, whose road is crossed by a highway or other way on a level therewith, shall at its own expense so guard or protect its rails by plank, timber, or otherwise as to secure a safe and easy passage across its road; and if in the opinion of the county commissioners any subsequent alteration of the highway or other way or additional safeguards are required at the crossing, they may order the corporation to establish the same as provided in section one hundred and twenty-one. SECTION 125. A highway or town way may be laid out across a railroad previously constructed,* when the county commissioners adjudge that the public convenience and necessity so require; and in such case, after due notice to the railroad corporation and hearing all 140 Mass. 87. parties interested, they may thus lay out or may authorize a city or 11 Gray, 512. 1 Allen, 324. 7 Allen, 523. Consent of board to grade crossing. See 1892, 228. Altering course town on petition of the mayor and aldermen or selectmen thereof to lay out a way across a railroad, in such manner as not to injure or obstruct the railroad, and otherwise in conformity with the provisions of sections one hundred and nineteen and one hundred and twenty; but not permitting it to cross at a level with the railroad unless public necessity so requires, and unless the board also consents thereto in writing, in which case the county commissioners may give special authority for such crossing as provided in section one hundred and twenty-three. SECTION 126. A railroad corporation may, with the consent of a canal corporation, alter the course of a canal, or of a feeder to a canal, where the same interferes with the convenient location of its road. Damages caused by taking the property of a person under this section shall be estimated and paid as in case of land taken under section ninety-five. * A railroad corporation is entitled to recover the damages caused by such laying out. Boston & Albany R.R. Co. v. Cambridge, 159 Mass. 283. |