JAMES McKEON vs. NEW ENGLAND RAILROAD COMPANY & another. MAYNARD A. DAVIS vs. SAME.

MORTON, J. These are petitions for the assessment of damages alleged to have been caused by the abolition of the grade crossing on Dudley Street in Boston. The cases come here on report after a demurrer in each had been overruled, and the question is the same in both. They were argued together and we proceed to consider them together.

The McKeon petition, after describing the premises and after referring to the decree of the Superior Court under which the defendants have acted, alleges that the defendants "have caused and are causing great damage to the petitioner's property by the erection of retaining walls on Norfolk Avenue in front of and along the side of and in the rear of the plaintiff's property causing him great and permanent loss in the value of the same and that said defendant companies in pursuance of said order and in doing the work thereunder have caused your plaintiff great damage by the erection of the temporary bridges over said Norfolk Avenue and upon and against your plaintiffs property over which said bridges said companies have caused to be run during the prosecution of said work a great many trains daily, that the grade of the said roadbed of said railroad has been raised a great height shutting out your plaintiffs light and air and otherwise impairing the value of his property." The allegation in the Davis petition is that the defendants "have caused and are causing your plaintiff great damage to his property aforesaid by the building against his property of a high granite retaining wall, impairing your plaintiffs right to light and air and reducing the value of your plaintiffs property by a large amount."

The defendants contend that the remedy of the plaintiff McKeon, if any, for the erection of temporary bridges upon his property and running trains over the same is in tort; that neither the plaintiff McKeon nor the plaintiff Davis has any remedy at common law for any damages caused by the building by the defendants of retaining walls upon their own premises even though the result is to shut out light and air from the premises of the petitioners, and that neither has any remedy under the statute in regard to the abolition of grade crossings for the reason that in neither case does the petition allege any

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taking of land or an easement therein or discontinuance of a private way.

It does not appear in either of the petitions when the proceedings for the abolition of the crossing were instituted. But it is said in the briefs for the petitioners that the petition for the abolition of the crossing was filed under R. L. c. 111, §§ 149-160, inclusive; and this is also stated in substance in the brief of the defendants, and we assume the fact to have been as both parties seem to agree that it was.

R. L. c. 111, § 153, as amended by St. 1905, c. 408, § 3, and St . 1906, c. 463, Part I. § 37, which was the law in force at the time of the entry of the decree in the Superior Court, [Note p294] provides in regard to the liability of railroad corporations as follows: "All damages which may be . . . caused by the taking of land for the railroad or by the change or discontinuance of a private way, or by the taking of an easement in land adjoining a private way or a railroad location in connection with the abolition of a grade crossing shall primarily be paid by the railroad corporation; and all damages which may be sustained by any person by the abolition of private ways, except as hereinbefore provided, shall be entirely paid by the railroad corporation. If the parties interested cannot agree upon said damages, any party may have the damages determined by a jury in the Superior Court . . . in the same manner as damages may be determined which are caused by the taking of land for the locating of railroads and the laying out or discontinuance of public ways, respectively." The original grade crossing act provided for the determination of the damages "in the same manner and under like rules of law as damages may be determined when occasioned by the taking of land for the locating and laying out of railroads and public ways, respectively." The words "and under like rules of law" were retained through all the various amendments that were made until the Revision of 1902, when, for some reason, probably because they were deemed superfluous, they were omitted from the statute. St. 1890, c. 428, § 5. St. 1891, c. 123. St. 1894, c. 216. St. 1897, c. 264. St. 1898, c. 200. St. 1900,

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c. 463. Their omission does not, however, we think, affect the rules of law applicable to the cases before us. At common law the petitioners would have no remedy for any damages caused to their property through interference with light and air and prospect by the erection by the defendants of retaining walls upon their own land. Cassidy v. Old Colony Railroad, 141 Mass. 174. Their remedy, if they have any, is under the statute in relation to the abolition of grade crossings. And in order to bring themselves within the remedy afforded by that statute their petitions must contain the necessary allegations.

It is plain that, under the recent decisions of this court, the petitioners have suffered special and peculiar damages in the abolition of the crossing, (Whitney v. Commonwealth, 190 Mass. 531. Hyde v. Fall River, 189 Mass. 439. Sheehan v. Fall River, 187 Mass. 356. Sheldon v. Boston & Albany Railroad, 172 Mass. 180. Penney v. Commonwealth, 173 Mass. 507,) and that if that were all that it was necessary to allege in order to entitle them to maintain their petitions, then the demurrers were rightly overruled. But we do not think that it is. As we construe the statute, the defendants were liable only in case there was a taking of land or of an easement in land by them, or a change or discontinuance of a private way. And it is not alleged in either petition that either one of those things was done by the defendants and that damage to the premises of the petitioners was caused thereby. It is not necessary that land of the petitioners or an easement therein should have been taken. But no case has gone so far as to hold that damages like those sustained in these cases can be recovered where no land or easement in land is taken. Interference with light, air and prospect does not constitute the taking of an easement in the land so interfered with, though it may result in damage to the property interfered with, and is a proper element of damage when land is taken. It should be noted that in Rand v. Boston, 164 Mass. 354, which has since been overruled (Hyde v. Fall River, supra), and in which there was a dissenting opinion, land on the opposite side of the street was taken and also in Hyde v. Fall River, supra.

The erection of temporary bridges on and over the property of the petitioner McKeon and the running of trains over the same was a trespass, not a taking, and the remedy, if any, for

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any damages caused thereby is in tort. See Peabody v. Boston & Providence Railroad, 181 Mass. 76; Dodge v. County Commissioners, 3 Met. 380.

It is stated in the briefs for the petitioners that land was taken, although it is not so alleged in the petitions. And the petitions can, perhaps, be so amended as to obviate the objections which are now urged to their maintenance. But that is a matter for the Superior Court to consider and pass upon.

The entry will accordingly be demurrers sustained.

So ordered.