Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-06-28

| may oe heceHSaiy Tor the location
construction. and convenient use o
their 0ts) road"
Section J. provided that the land s,
taken shall be held las land taken an,
held for public highways"
Section 5. provided. however tba
no corporation shall take as afore
said, any meeting house. dwellin,
mouse, or pubic or private buryin,
ground without consent Of the own
ers; and this restriction in section s
has hcve: been eliminated from IN.
! statute, and is now found in section II
chapter IL.
| The next act in relation tn t,kins
! land. was i'm 1853, chapter Al. whic,
provided that. railways shall not be
carried along any existing highway
but must cross the same in line of the
highway, unless leave be obtained
from the town."
/ The next act was in 1865. chapte,
32l. which provided that "a railroad
company may take and hold real estate
necessary for depot purposes. and
when the parties Interested do moi
consent thereto. and cannot agree nd
on other persons to determine the
question of necessity. and the extent
thereof. said corporation may make
application to the railroad commission
ers OF this state. to view the premises
ana determine whether, and how mich
of such real estate Is NECESSARY for tho
reasonable accommodation of the traffic
and appropriate business of the said
corporation"
hi lou xNf
the last act was amended so as 10
reau as follows: "A Railroad Cor
poration may take and hold real estate
Tor depot purposes, and for all neces-
safy tracks or side tracks, wood sheds
repair shops, and car engine and
freight houses, and when the parties
interested do not consent thereto
ana cannot agree upon other persons
10 determine the question of necessity
ana the extent thereof, the said cor
porauon may make application to the
railroad commissioners of this state to
view the premises, and determine
whether, and how much of said es-
tate is necessary for the reasonable ac
comodatiOn of the traffic and aDpro-
pirate business of the said corpora
ton"
These several acts We're ipcorpor-
ated into the Revised Statutes Of 1871.
The next act In relation to the taking
OIL land was Public Laws. 1873, chapter
g which was as follows:
section l. No railroad corporation
snail construct or maintain any track. or
run any engines or cars on any street
or hignway so near any depot of any
other railroad as TO endanger the safe
10 a "a.
depot for ordinary pm poses,
Section 2. No railroad company shall
take the grounds occupied by any other
railroad company and necessary for its
use Tor cepot purposes, without the con
.cnt OF such company. When application
Is made 10 take any such grounds III.
railroad commissioners upon motto. ana
hearing thereon. shall determine. whether
Sary as aforesaid or not. and whether
any public necessity requires il To be
AIKEN
Section ,. All acts and parts OF acts
inconsistent with this act are so modified
A. To render them consistent Herewith
when approved.
In the revision Of the statutes in 1879
'hese sections Were Separa ted and section
of this act became section ~, OF the re
vised statutes. and section Of the act
became section Isl of the revised statutes
BY familiar principle of construction
however. We are authorized To consider
ntSt Two S.ttlhlS III the 3tlpil which
they bore To each other in the original
act.
Before 1872 railroads were authorized by
statute to take Land Tor nearly all rail
road purposes. And there seemed to be
no prohibition as to the kinds of lands |
which could be taken. except as 10 meet
ing houses. dwelling houses. and bury
grounds. There Was no prohibition in our
against the taking Of the land
VI one railroad company, by another rail
road company, whatever the common law
rule might have been, What reason there
was for the act of 1872. perhaps have
no right to inquire: but our knowledge
IF the course of legislation leads irrista-
bly, to n conclusion. BY chapter $50.
Public and Special Laws of 1871. the leg
stature OF this state authorized the Bos
ION a. Maine Railroad Company to eXtrn,.
It's road from Berwick which was then
It's terminus in Maine, through certain
he rights powers. privileges and immtn-
ties. and subject To all like liabilities and
duties as similar roads then had The
Eastern Railroad. which was then ii com
peting road with the Boston x Maine. an !
" hich then had leased the old Portland.
Saco K Portsmouth Railroad, had its ter
minus in Portland.
The Eastern Railroad Company oh
tanned from the Legislature of Massa
chusetts. by statute of 1872. chapter 35G,
a authority to take possession Of ana hold
and use as hereinafter set forth. and for
the purpose of increasing the terminal
facilities and affordine convenient access
TO the passenger depot Of said corpora
ton, a certain lot of land situated in
Boston occupied by the Boston 4 Maine
and bounded as follows: tue-
scribing it, Provided. that no building
shall toe erected on any part of said land
for other than passenger purposes.
ContemporaneouS with this section OF
the Massachusetts legislature. the Maine
legislature passed the act of 1877, chapter
%, now in controversy, evidently to regu-
late this entering OF the Boston Il Maine
into Portland.
The act of the Massachusetts, legisla
ture came before the court in 1S12.. in
Eastern Railroad Company VS.. Boston X
The Eastern Railroad Company had
taken possession of some land occupied
by the Boston & Maine Railroad Com
pany, and the latter company had ousted
the Eastern Railroad Company, and held
the same.
The Eastern Railroad Company brought
its bill in equity to compel the Boston Il
Maine to release its possession. The lat
ter company in its answer replied that
the land in question was necessary to ell
able it to perform its public duties. that
no other land was available, and tnat the
act was Unconstitutional. because ii WAS
an infringement Of its chartered rights;
and that the land once appropriated.
could not be taken for the same use by
another corporate
1t appeared that the land taken was
used by the Boston u Maine Railroad, not
for the general depot purposes OF the
company, but for 4 special purpose Of !
delivering brick.
The court hold that while ut common
law this land could not be taken, being
devoted TO public use, ii was in the
power of the legislature to authorize the
taking because the Legislature, under its
power had authority over all the
land in the state. whether then used for
n pnhiic purDuSe or not.