Summary
In Patterson v. Boston, 20 Pick. 159, Chief Justice Shaw said: "Jurors would be very little fit for the high and responsible office to which they are called, especiallyto make an appraisement, which depends on knowledge and experience, if they might not avail themselves of these powers of the mind when they are most necessary to the performance of their duties."
Summary of this case from Beveridge v. LewisOpinion
No. 4782.
Argued December 1, 1959.
Decided January 27, 1960.
1. The statute (RSA 383:1, 33) requiring a railroad to provide a "suitable crossing" to accommodate persons whose lands are separated from a highway by a railroad contemplates a crossing which is reasonably necessary, and reasonably safe and convenient for the purpose, at a location to be determined according to the use made of the lands, their physical characteristics and the practicability and comparative expense of the constructional type of crossing required.
2. In determining the question of location of such crossing the doctrine of reasonable use should be applied and the convenience of all parties considered.
3. In a petition for a vehicular crossing under such statute the Public Utilities Commission's determination thereunder that the proposed location was unsafe and that it was impossible to provide a suitable crossing as requested was not error.
APPEAL, to the Superior Court, under RSA 373:8, from a report of the Public Utilities Commission (D-T 3641) dismissing a petition by the plaintiff for the establishment of a private crossing under RSA 373:1, 33, to afford access to his land in Grafton which is separated from the highway by the railroad. After hearing, with a view, the Public Utilities Commission found that "the proposed location is unsafe, and that it is impossible to provide a suitable crossing as requested," and dismissed the petition.
In the Superior Court the parties agreed upon a statement of facts which establishes among other things that there is no access to the plaintiff's land other than across the railroad tracks; that he has a right of way over adjoining land from a location where there had previously been a crossing from 1937 to 1946 and where crossing is now sought; that a crossing for motor vehicles is requested, which may be barred to public use by locked gate; and that a pedestrian crossing at the proposed location is not regarded by the plaintiff as acceptable.
The parties further agreed that "the issue for the consideration of the Supreme Court . . . is the construction of RSA 373:1 and RSA 373:33 by the Public Utilities Commission in its . . . Report . . . ." All questions and issues presented by the agreed facts and the agreement concerning the issue for this court were reserved and transferred by the Presiding Justice (Grant, J.). Other facts are stated in the opinion.
James C. Cleveland (by brief and orally), for the plaintiff.
Sulloway, Hollis, Godfrey Soden and Joseph S. Ransmeier (Mr. Ransmeier orally), for the defendant.
The issue transferred relates to the interpretation of RSA 373:1 and 33, requiring a railroad to "provide suitable . . . gates, crossings, cattle passes and other facilities for the accommodation of persons whose lands . . . are separated from a highway, by a railroad" (s. 1); and authorizing the Commission, in case of disagreement as to the. "place, number, or kind" of the facilities to be provided, to "determine the number, places, time and manner of construction of the same." (S. 33).
The Commission took no action under section 33. Having ruled that "the word `suitable' [in section 1] must be used in its broad sense, not only that the physical characteristics may be suitable for such a crossing, but that reasonable safety must also be considered," it found that "the proposed location is unsafe, and that it is impossible to provide a suitable crossing as requested."
Before 1850 there was no statutory provision of general application for the establishment of grade crossings, although charters various railroads contained provisions relative thereto. See Bolger v. Railroad, 82 N.H. 372, 378. In March v. Portsmouth Railroad, 19 N.H. 372, decided in 1849, the court approved instructions to jury that the owner of land crossed by a railroad "has the right to cross the road" and to construct crossings over it for his own use; and that since railroads were not bound to provide suitable crossings for the landowner, he must provide them for himself, and should therefore be allowed for this expense in the assessment the taking of the railroad's easement over his land.
RSA 373:1 and 33, supra, had their origin in Laws 1850, c. 953, s. 5, which provided that railroads should "make and maintain all necessary . . . cattle passes and farm crossings, the convenience and safety of the land owners along the line . . ." and that in case of disagreement three justices of the peace should determine their location. C.S. (1853) c. 150, s. 45; Horne v. Atlantic St. Lawrence Railroad, 36 N.H. 440, 442. Since that time, the location of crossings has been a matter of public regulation, under statutory provisions which have not changed in their material provisions. Bolger v. Railroad, 82 N.H. 372, supra. The phrase "suitable crossings" was substituted for "necessary crossings" in the revision appearing in P.S., c. 159, s. 1, with no purpose to alter the meaning of the section. See Commrs' Report, Public Statutes (1891).
Thus it is settled that a landowner whose land is cut off railroad has "the right to a suitable crossing" (Costello v. Railway, 70 N.H. 403, 405) where a reasonable necessity therefor is demonstrated (Bolger v. Railroad, 82 N.H. 372, 378; Horne v. Railroad, supra, 446); and that a "suitable crossing" is one reasonably safe and convenient for the purpose at location to be determined according to the use made of the land, its physical characteristics, and "the practicability and comparative expense of the different modes of crossing, whether by bridge over the road, a crossing at grade, or a pass under it." Horne v. Atlantic St. Lawrence Railroad, supra, 445. See also, Pierce v. Railroad, 83 N.H. 466; Shea v. Railroad, 88 N.H. 462, 468. As elsewhere expressed, the question of "location" is to be determined by the application of the doctrine of "reasonable use," and the "convenience of all parties is to be considered in determining this question." Costello v. Railroad, supra, 405.
In the instant case, the necessity for a crossing is established by the fact that the plaintiff's land, upon which there is a cottage house some two hundred feet from the proposed crossing, is situated upon the shore of Tewksbury Pond on a tract bounded on all sides by the pond and the railroad's right of way, which in essence parallels the highway over the area involved.
The plaintiff seeks a vehicular crossing, while the Railroad is prepared to furnish him with space upon its right of way between the highway and the railroad on which to park his automobile, and a pedestrian crossing to adjoin the same. The plaintiff in his brief has indicated a need for seasonal use only. Whether a crossing for vehicular use is necessary or whether the plaintiff's requirements would be satisfied by a pedestrian crossing is an issue upon which no finding has been made.
The Commission decided the question of location adversely to the plaintiff. Although his petition sought no specific location, in his testimony he requested a crossing at the point where the railroad and the highway have a common grade, and where a crossing was formerly located, from which a right of way extends northwesterly to the plaintiff's land across land of another owner abutting the railroad at that point. At the locus of the proposed crossing the view of the railroad track is somewhat limited in either direction, and greatly limited to the traveler's left whether the crossing is approached from east or west. The easterly rail is only fifteen feet from the easterly line of the railroad right of way, and eighteen feet from the traveled way of the highway. Thus an automobile stopped upon the approach, between highway and crossing, would be endangered by the overhang of a passing train unless sufficiently back from the rail for clearance, when it would be in danger of collision with traffic passing upon the highway.
The Commission, correctly ruling that "reasonable safety must also be considered," concluded that it is impossible to provide a suitable crossing as requested by the plaintiff. The testimony before the Commission contained evidence tending to show that neither an overpass nor an underpass would be practicable at any point north of the former crossing, because of physical features of the land, and the difference in grade between the highway and the railroad. In this connection the Commission found: "There is no other convenient location because the highway at the top of the grade is comparable to the railroad grade in the vicinity where, at all other locations, there is a sharp difference in the grade."
In finding and ruling that "the proposed location is unsafe and that it is impossible to provide a suitable crossing as requested" the Commission correctly construed RSA 373:1 and 33 as applied to the plaintiff's request for a vehicular crossing. See also, RSA 373:22.
Remanded.
All concurred.