trains

ask the company to run daily trains for that slight fraction, that, according to the testimony, would not pay one dollar out of twenty that they would cost.

The Monday train, if added to the present court trains, will relieve the special hardship of the petitioners, and will furnish reasonable accommodation for their towns. We accordingly recommend the company to run such trains, in order to promote the convenience of the public.

APRIL. 9, 1881.

By the Board.

WM. A. CRAFTS, Clerk.

TABLE A.- Passengers to Plymouth, with Close Connection.

TABLE B. Passengers to Plymouth, with Connection broken, but with Special Trains connecting during Sessions of Court.

N B. Special trains "court weeks," in February, May, June, October, and November.

APPLICATION OF THE BOARD OF ALDERMEN OF BOSTON, THAT ALL STEAM RAILWAY TRACKS CROSSING CHARLES RIVER AND WARREN AVENUES, IN CHARLESTOWN, BE PLACED AT A PROPER ELEVATION ABOVE THE ROADWAYS OF THOSE AVENUES.

THE petition was opposed by the Fitchburg Railroad Company, by the Hoosac Tunnel Dock & Elevator Company, by the Commonwealth as interested in the Troy & Greenfield Railroad, by the Navy Department on behalf of navy-yard interests, by various wharf owners, and by leading citizens living in Charlestown, who objected to the proposed structure as unsightly and dangerous.

The first question is whether this Board has jurisdiction. And this question arises on account of an error in compiling the railroad laws in 1874. Chapter 262 of the Acts of 1872 provides that if the mayor and aldermen of a city or the selectmen of a town in which a way is crossed by a railroad, or the directors of the railroad company, desire to have the method of crossing changed, such a change may be ordered by the county commissioners. The party by whom the order shall be carried into effect, and the division of expense incurred in making the change, are to be decided by a special commission. As the Municipal Board in Boston and Nantucket is identical with the Board of County Commissioners, it was provided that in Suffolk and Nantucket the Railroad Commissioners should perform the duty elsewhere required of county commissioners. Instead of repealing this enactment, the Act of 1874 simply provides, "Duties devolved upon the county commissioners by reference or appeal from the mayor and aldermen or selectmen, shall, in cases arising in said city (Boston), devolve upon the Board of Railroad Commissioners." Four alterations are made. 1. Nantucket is excluded from the jurisdiction of this Board, in case of proposed change. This was intentional. (See p. 5, Notes on Draft of Bill.) 2. Chelsea, Revere and Winthrop are also excluded. There was good reason for this; but it does not appear from the notes that it was intended. 3. The power of petitioning seems to be taken away from railroad corporations, so far as crossings in Boston are concerned. This was probably by inadvertence. 4. Instead of a request by the mayor and aldermen, the Act speaks of "reference or appeal from the mayor and aldermen." The respondents deny that this is a reference from the Board of Aldermen. Although the word is not well chosen, it seems to the Commissioners that it does cover this case. It cannot be supposed that the city of Boston, with a hundred or more grade

crossings, was intended to be excluded from the provisions of a section so important. But, if the construction contended for is correct, then every other municipality in the State can go to a tribunal competent to grant a separation of grades, and thus to secure additional safety; but this city has no such tribunal. This cannot have been the intention of the Legislature. The compiler states that "section 5 expresses the existing law in all respects, except when otherwise indicated in these notes." The committee that reported the bill declare that no changes have been made, "except where they were needed to make the different portions or the Act harmonious." (House Document 480, 1874.) The new Act was intended to be a mere compilation; and, unless a change of law is plainly indicated, it is presumed to be unchanged. The word "appeal" refers to proceedings under section 126; but the word "reference" means nothing, unless it means a request from the aldermen.

It was also argued by one respondent that the words "location, construction, maintenance and operation," in the first clause of section 5, qualified the jurisdiction given in the last clause, and that the proposed change was neither location, construction, maintenance nor operation. Another opponent of the petition argued that these words do include such a change as is asked, and that they give original and final jurisdiction to the aldermen of Boston. It seems clear to the Board that neither of these words applies to a separation of grades; but it is equally clear that they do not limit the jurisdiction given in the final clause. The first eleven lines of section 5 are a re-enactment of certain provisions of the General Statutes. The last lines were intended as a re-enactment (with a slight change) of section 3 of chapter 262 of 1872; and so it appeared to this Board when the compilation of 1878 was made, as is shown by the marginat note on p. 9. The Board, therefore, has carefully considered the application on its merits.

The grade-crossings which the city government wishes to discontinue are objectionable and dangerous, as all such crossings are; and these are made more dangerous by the great increase of travel. But there is a wide difference between granting a new grade-crossing, and refusing to discontinue an old one, especially when great expense has been incurred on the faith of its continuance. The present crossings have been used without objection for many years. For a long period, when the ice trade was most prosperous, they were used as much as they are likely to be used for many years. And the Dock & Elevator Company has expended and is expending large sums in the expectation that they will continue. The promoters of that enterprise say that they would be obliged to relinquish it if this scheme

were carried out. Certainly they would not have engaged in it had they foreseen that the proposed change would be made. By legislation in 1879 and 1880 they secured the right to establish their elevator and warehouses and docks in this spot, and to connect them with the tracks of the Fitchburg Railroad. And by placing the regulation of the crossing of the streets in the hands of the city government, it was implied that they were to be so crossed. The General Court

of 1879 had in mind the danger arising from the crossing of streets at grade. They might have forbidden it; but they preferred to secure safety by giving an unlimited power of regulation to the mayor and aldermen. Certainly, the grantees of that charter had a right to believe that they would be allowed to cross at grade. On account of this provision of the Act of 1879, this is very different from ordinary cases of a grade-crossing. In such cases, only two precautions can be required by municipal authorities, the maintenance of a flagman and of a gate. In this case any additional precaution may be required, and the speed and hours of running are absolutely in the control of the city authorities.

The cost of the proposed improvement to be shared between the city and the railroad company would be very great. But if this were the only objection it might not be sufficient to meet the argument of increased safety. The hindrance of business and the delay of traffic are far more serious difficulties. The only plan laid before the Board by the petitioners proposed an ascent of fifteen feet on an inclined plane of three hundred feet, and a descent of the same character. This, however, would only give a headway of thirteen feet, with a thickness of two feet for the bridge. But in such thoroughfares as these such limited headway would not be satisfactory. A headway of fifteen and an ascent of seventeen feet would be needed. Even on such a grade as would be necessary it is possible to force traffic, but at such cost and with such inconvenience and delay as to render the enterprise of the Dock & Elevator Company a failure. The entire weight of testimony shows that whether this sharp ascent and descent be adopted, or whether the rise be made more gradual, as it would have to be, the result would be disastrous to the business proposed to be carried on. The arguments of the railroad company and of the dock company were re-enforced by the appeals of adjacent wharf-owners, who testified that their facilities for doing business would be in a great part destroyed, and the value of their property greatly diminished. To their evidence was added the protests of numerous business men who believed that such a structure, as proposed, crossing the main thoroughfares of Charlestown, would drive away and keep away residents, and reduce the value of real estate.