FRANCIS PEABODY, JR. & others, trustees, vs. CITY OF BOSTON. SAME vs. SAME.

RUGG, C. J. The petitioners owned the Devonshire Building and the lot on which it stood, at the corner of Washington, State and Devonshire Streets in Boston and fronting on all three of these streets. They seek to recover damages caused to this estate by the construction of the Washington Street tunnel. No land has been taken from the petitioners. The foundations of the building, so far as necessary, were supported by concrete walls built underneath them by the Boston transit commission without expense to the petitioners and the jury have found that they have sustained no damage on this account. But they owned the fee of the land adjacent to their building to the centre of Washington Street and had excavated and used space under the sidewalk in connection with their building. The construction of the subway not only has appropriated a portion of this space, but has rendered necessary the removal of boilers and other appurtenances to another part of their basement, whereby they have been occasioned expense. All the tunnel constructions so far as now material are within the limits of Washington Street.

The point to be decided is whether the petitioners are entitled to recover damages on this ground.

It is plain that, if there were no statute governing the subject, the petitioners would have no standing. The public acquired

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the right to use the land, within the boundaries of the taking of the easement of travel, for all reasonable means of transportation for persons and commodities which the advance of civilization may render suitable for a highway. The fee of the land remains in the landowner, who may use it in any reasonable way not inconsistent with the paramount right of the public easement which is coextensive with the limits of the highway. When the needs of the public for the purpose of travel increase, they are superior and the landowner must withdraw even to the extent of being quite excluded. Commonwealth v. Morrison, 197 Mass. 199, 203. Lentell v. Boston & Worcester Street Railway, 202 Mass. 115. Changes of grade or raising or lowering the surface of highways made by public authority for the purposes of public travel afford no cause of action to an abutting landowner apart from statute. Included in the same public right is the subterranean use of the streets for travel. Sears v. Crocker, 184 Mass. 586. All damages for these and such like uses were included in the assessment of compensation for the original laying out of the highway. No constitutional right of the abutting landowner is invaded by the exercise of the rights acquired by the public but suffered to lie dormant for a time. Callender v. Marsh, 1 Pick. 418. Hyde v. Boston & Worcester Street Railway, 194 Mass. 80.

The petitioners contend that they are given right to damages by St. 1902, c. 534, the material portions of which are in a footnote. [Note p378] The power conferred upon the commissioners by § 6 is

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comprehensive and unqualified. Its natural signification is to clothe them with the authority to exercise the entire right obtained by the public when the easement for a public way was acquired. That this was the meaning intended is confirmed by the terms of § 8, whereby the commission is required to award damages sustained by reason of property taken or injured "except public ways or lands." The provision of § 9 which requires all structures "or other property of any person or corporation" in public ways or land which the commission deems to interfere with the construction or operation of the tunnel to be removed without expense to the city, tends to the same construction.

Giving to the words employed in the statute their common and unconstrained meaning, it seems clear that the Legislature tried to confer upon the commission the right to do that which rightfully it might do within the streets without being under liability to owners of the fee or licensees therein who had appropriated to their own uses parts of the highway not theretofore needed for the exercise of the easement of travel.

Comparison of § 8 of the statute here in question with St. 1894, c. 548, §§ 26 and 34, as amended by St. 1895, c. 440, § 1, is significant of a change of legislative purpose. That statute contained no exception as to highways, and it was held in Fifty Associates v. Boston, 201 Mass. 585, that under those statutes an abutting landowner who suffered injury, although none of his land was taken, was entitled to recover damages, following in principle Hyde v. Fall River, 189 Mass. 439. Manifestly the Legislature designed to accomplish a different end by the statute now under consideration. The case at bar is distinguishable from those decisions. It falls into the class illustrated by Callender v. Marsh, ubi supra, Howe v. West End Street Railway, 167 Mass. 46, and

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Underwood v. Worcester, 177 Mass. 173. See New England Telephone & Telegraph Co. v. Boston Terminal Co. 182 Mass. 397.

Judgment on the verdict.