The Worcester spy. [volume] (Worcester, Mass.) 1898-1904, 1898-12-28

ks that question is one of evidence
lie discretion of officers charged with
in full is subjoined
authority was reserved to the board of
aldermen in a city, under any circum-
stances, to change the rails which were
laid, There We're reserved by section
70, chapter 113, of the public statutes,
authority to revoke the location, and
order the tracks removed altogether;
and there was also reserved by section
% of the same chapter the power to
change the location and position of the
tracks upon proper application. But
neither of these sections contains any
suggestion of authority TO direct a
change of the rail OF other appliances
to be used by the street railway COM
pany.
The statute of 1898, above referred to,
however, repeats sections % and % of
chapter 113 above referred to, and en-
acts, with reference 20 the revocation
of location in section II of chapter SIS,
that no revocation shall be valid until
approved by the board Of railroad COM
missioners, unless the company itself
consents in writing to such revocation.
One method of causing the re
moval of the T rail, therefore, is
entirely in the hands Of the board
Of aldermen, by passing an order
reVoking the location as provided in
section H. provided such revocation
meets with the approval Of the rail
road commissioners, for the same
section provides that upon revoca-
ton approved as aforesaid the COM
pany shall remove the railway in
conformity with the order of reVo-
cation, and shall put the portion CT
the surface of the street disturbed by
such removal in as good condition
as the surface Of the aoJacent
street"
Another course is pointed out in
section is Of the same act, which
is the new legislation relative to
the alteration Of location, and
which provides that the board of
aldermen of a city upon
petition of the board of directors
of the street railway company
whose tracks are located in said
city or upon the petition
of any interested party, after no
tice and hearing, may
alter the location of tracks of said
company in the manner and sub
1ect to the provisions contained III
section 10 of this act. Such alter
atoms shall be made by the com
pany within such time, and the eX-
pense thereof shall be borne by
such party or parties, and in such
proportions as the board of alder
men and selectmen may determine.
Section Is. referred to for the provi-
sons under which the location may be
altered, provides that the board of al
dermen may, in granting location or
such relocation, prescribe the manner
IN which said tracks shall be laid, and
the kind of rails, poles, wires and other
appliances which shall be used.
1t seems to me that this section af-
fords strong ground for the argument
that boards of aldermen in granting a
relocation of tracks in any street, have
right to impose as a condition that a
kind of rail other than that used at the
time relocation is granted, shall be
laid.
This is almost the only clause in the
statute of 1898 which does not appear
TO curtail and lessen the powers of
boards of aldermen and 'selectmen in
dealing with street railway companies,
and seem to afford privileges to the
street railways which are not enjoyed
heretofore. Whatever may be the
rexplanation of this exception, l am of
opinion that if there should be present
ed. from persons interested, a petition
to the board of aldermen requesting a
relocation Of the tracks of the street
railways in the streets described in
your order, and after notice and hear
ing. il should seem to the board Of al
dermen that there was sufficient reason
for granting such relocation, and that
another suitable location could be
found within the streets, it would then
be competent for the board of aldermen
to grant such relocation subject to the
condition that T rails should not be
used This suggestion, it will be OBJ
! served does not contemplate action by
the mayor or by the city council, but
| by some interested party who might
petition the board of aldermen to act
! in it's judicial capacity in passing upon
the questions within the sphere re-
served to it by the statute.
There is a broader question, which
has been considerably discussed
upon the adoption of the order re-
questing this opinion, whether L
rails are in themselves a proper
construction. and whether there is
any remedy against their use after
having been laid. 1t must be borne
| in mind that all these locations were
legally granted by the board of al
dermen, and that the kind of rail
which was used. which has now be-
come Objectionable, was laid in COM
pliance with these locations
It has been repeatedly determined II
this commonwealth that if the loca-
ton of a street railroad is duly author
| fzed and it has been built and IS main
aimed in a proper condition, then il
5ecomes lawfully in the highway The
municipality has no right to remove Il
md cannot be held liable to an injury
50 a traveller occasioned by it. Law
,ence VS.. New Bedford, 100 Mass. 22I
Fowler VS. Gardner, 1863 Mass; 500 IL l
vouId seem to follow logically from
.5eea decisions that the question OF
ybether the structure is in fact a nuts ;,
nee is not open to discussion after ,I,d II
put in place in pursuance % Pr
,ar license, permit or location.
II has been held in some jurisd L.,i5 ilS
,a+ street railway company wound De