Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1902-12-29
Penobseot County Re.cript.

The following rescript has been re-
ceived by Clerk of Courts Choate in the
Penobscot county case OF Chapin,
Mayor of Bangor VS.. Maine Ceptral
Railroad. Rescript by Whitehouse, j.
The petition before the court asks
that the defendant railroad company be
compelled to maintain a safe and con-
! venient grade crossing over the lower
section of Exchange street alleged to
have been established by action of the
city council of Bangor in 1868, and
| therein described by metes and bounds.
| The petition gave no notice that an IS
sue would be raised respecting the exis-
| tence of Il way by dedication OF pres
scription, and the evidence concerning
4 question not presented by the petition
is Irrelevant and inadmissable.
| Eut assuming that there was dedi-
cation of Exchange street to low wa
ter mark in 1901, the report fails 10 dis
close sufficient evidence to warrant the
conclusion that the way in question
was ever accepted by the public or by
the town in behalf of the public.
For obvious reasons the act of the
city in laying out the extension under
the act of 1865 cannot be deemed the
acceptance of a way previously dedi-
Gated. Nor had the locus in question
acquired legal existence as public
| way by user, for it clearly appears that
| the portion of Exchange street extend
ed in 1868, was all south of the original
shore line of the river. In such case
the use of the shore below high water
mark as way for public travel upon
the waters of the river is but the eXer-
else Of Il right. and no one is presumed
to have granted an easement in the
right of passage to the public over his
land, when that right is in the public
to the fullest extent.
1t is familiar principle of law that a
public ways cannot be laid out across a
navigable river without consent of the
Legislature for the reason that ii would
destroy an existing highway. the river
itself, in which all the citizens have an
interest.
1t WAS competent for the Legislature
to grant Il qualified permission that
Exchange street might be extended to
low water mark, with the consent Of
the rail, DAD company. according to the
terms of the act of 1865 But there is
no direct evidence in the case that such
ttlSt!ll Wis ever tApitSSly ny
the railroad company either orally or in
, writing, or that the subject was ever
presented for the consideration OF the
board Of~directors or any official of the
railroad company. Nor in the opinion
of the court is the circumstantial evil
dence sufficiently clear and conclusive
to justify the inference that the rail-
road company in fact ever consented
to the location of the street across its
tracks.
prescriptive right to cross a rail-
road track by virtue of an adverse pub
lie use, cannot be acquired under the
existing laws of this State In view of
the manifest danger incident TO the
crossing of railroad tracks by a high
way at grade. the purpose of all the
ligeislation upon this question since
1858 has been to place the entire subject
matter under the jurisdiction and con-
troll of the railroad commissioners.
To hold now that a right to cross a
railroad can be acquired by prescription
would be wholly Incompatible with the
spirit and legitimate effect of this leGis-
latiOn. and contrary TO the settled
policy of the State.
1t is accordingly the opinion of the
court that upon the case reported the
defendant railroad company ought not
to he required to maintain a public
crossing at Exchange street in Bangor.
Petition denied.