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

construction which was a nuisance in
llselt and menace to the safety of the
traveller. Railway Co. VS. state, 81
Tenn, 1856 St Louis VS.. the Missouri
Rallroad Co, 81 Mo, 151.
| Inc principle enunciated in the Ten
! hessee case Is strongly supported by the
| reasoning of Fits VS.. Queen City Rail
way Co, SO Wis., 323 which holds that
statute Of Wisconsin providing that
street railways shall be constructed
upon the most approved plans for such
| foads is merely declaratory of the COM
mon law, and there can be no question
pul that it is the duty Of the street
railway to construct such roads and to
MAINTAIN them by the use of common
ana approved means, and SO as at least
| 70 pc no obstruction to the Use of the
street by, or to the necessary convent
ence Of the travelling public" The Ian
suaSe OF the court in discussing the
respective sites of the street railways
ana the public in streets is vigorous and
inStructiVe:
The duty of using the most APP
proved plan does not stop or cease with
| me original construction. If ii were So
then there would be no duty To repair
or 10 adopt any new plan when the old
one has been found by full trial and
experience to be inadequate, insufficient
| and dangerous. The most approved
methods and plans must be maintained
with view to the public safety. The
old plan might at the time of construc-
lion nave been considered adequate and
sufficient, and have been in general
use, but afterwards may have been as
generally abandoned, because proved on
trial not to be So and a more approved
plan may have been adopted, as in this
case. Can it be cOntended that it is
not the duty Of this company to also
abandon such old and insufficient and
dangerous plan, and adopt a safer and
the more approved plan in general use?
But side from this special duty there
IS a continuing duty and obligationrest-
ing upon the company, in consideration
Of its use of the public streets, to con-
suit all the time the safety and con-
yenience of travellers thereon, consist
ent with the full enjoyment Of its own
privileges and franchises.
The company has no greater right
to the use of the streets than the
public and it being thus a joint use
of the street neither the company
nor the public has any right to
make it dangerous for either in
their proper use of it.
The principle is also sustained in city
of Halifax VS.. City Railway Company,
Russell, 319; Attorney General vs..
Toronto Street Railway Company, Is
Grants CHI, 673.
Several cases have arisen in which
it has been directly determined that
municipal authorities have the right to
prohibit the laying of II rails. Harris
| burg City Passenger Railway Company
VS. Harrisburg, Pa. CO. Ct Rep. 584;
| Waterloo VS.. Waterloo Street Railway
| Company, Il Ia, 1873. See also city OF
| Detroit VS. Fort Wayne and Elmwood
Railway Company; American and Eng
| fish railroad cases, 447; Albany VS..
| Watervliet Turnpike Railway COM
pany 10S n. Y, IA.
Certain other Jurisdictions, however
| have held that there is no right reserV-
ed 10 the municipal authorities to or
| der the removal Of T rails in use Union
| Loan &, Trust Company VS. Southern
California motor road, 80 federal re-
ports, 267; Easton Railroad Company
VS. Easton 1873 Pa, St, 500,
1t will be found on the whole that
| cases arising in other states AFFORD
comparatively little assistance in ue-
termining the law of this common
wealth. as the statutory provisions eX-
listing in the several states vary SO
much in the rights granted to the rail-
road companies and the power reserved
TO the municipal authorities
The question has never arisen IN thls
commonwealth, however, and WheChef
the line of reasoning adopted by the
wisconsin court would be followed, is
matter of conjecture There are Ger
tain expressions in Some decisions OF
our court which seem to indicate that
it would not be followed. Jones vs.: Wal
tham Cush., 299; Hawks VS.. North
ampton. 116 Mass, 40; Young VS.. Var
mouth, Gray, 1885,
1t is possible also that an information
in equity might be maintained in the
name of the district attorney to re-
strain the continuance of the use of
the rails, provided they were found by
the court clearly to be a nuisance. Such
an action cannot be maintained how
ever. if the proof was conflicting and
the injury to the public uncertain or
doubtful. District Attorney VS.. Lynn
and Boston Railroad Company, l6
Gray, 242. See, however, Old Colony
Railroad Company VS.. Rockland and
Arlington Street Railway, 161 Mass,
416.
If the difficulty which it is desired to
remedy is a negligent and careless
maintenance of the t rail, SC that 1t
has become dangerous to public travel
by reason Of such negligent and care
less maintenance, and not by reason
of its original construction, then prob
ably one or another Of these remedies
damus would be. Detroit vs.. Railway
81 N. w. Rep, 6SS
To summarize what has been said
with reference to 7 rails; 1t seems
to me, first, that there is vested in
the board of aldermen authority,
upon proper application, to order
such relocation, and, upon being
satisfied of the necessity, to order
IN. araz or
with condition that T rails shall
not be used. And, second, if it can
be clearly established upon full and
satisfactory evidence. that the I
rails are a nuisance, 1t is possible
that either q criminal prosecution
might be maintained against the
railroad, or relief in equity obtained
by information About these last
propositions, however, it must be
conceded that there is grave doubt,
as they have never been directly
passed upon by the supreme court
of this commonwealth. If 1t APP
pears that the rails have been SUI
fered to become dangerous, by rea-
son of failure to keep in proper re-
pair. relief would probably be af-
forded.
Third-The order provides that
the mayor take legal steps to cause
the railway company using the
citys streets to provide closed or
boz. cars in stormy weather. Chap
ter 216 of the laws of 1891 vests in
the railroad commissioners author
ity to direct additional accommoda-
tions for the travelling public. If,
therefore, it should pe deemed ne
cessary to take an action in this di-
rection, the proper course would be
to request the mayor to make APP
plication to the railroad commits
sioners for an order requiring such