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CONSTITUTIONAL LAW-PUBLIC HIGHWAYS USE EREC-
TION OF STRUCTURES OVER PUBLIC WAYS - EMINENT
DOMAIN PUBLIC PURPOSE.

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A proposed bill which provides that upon petition and after public notice and a public hearing the board of street commissioners of the city of Boston may, with the approval of the mayor, issue a permit to certain individuals named therein "to construct and maintain a bridge across Avon Street in said city for the purpose of connecting buildings owned by them on opposite sides of said street or for the purpose of a fire escape, on such conditions and subject to such restrictions as said board may prescribe," purports to confer upon such individuals an absolute right to be granted by the city of Boston, and in so far as the grant of such right would be inconsistent with the rights of other persons, to require the exercise of the power of eminent domain without provision for compensation.

A proposed bill which authorizes the city of Boston through its mayor, if it shall sell the whole or a part of its real estate on Mason Street in said city, "to grant to the purchaser of said estate, and his successors in title, the right to connect the real estate so sold with property on Tremont Street opposite said real estate by means of a covered passageway or bridge over Mason Street," and provides for the compensation of any person whose property may be injured by the erection of the structure so authorized, appears to contemplate the exercise of the power of eminent domain, not for a public purpose but for the benefit of certain individuals who may purchase the real estate described therein.

Both bills are therefore objectionable upon constitutional grounds.

Committee

1911

You have submitted to me on behalf of the joint standing To the House committee on cities certain bills now pending before that on Cities. committee, and have stated that my opinion is desired upon March 31. the following specific question: "With reference to House bills numbered 817 and 451, would either or both of these bills, if passed, be in your opinion constitutional; or, to put it in another way, is there any constitutional objection to the passage of these bills?"

House Bill No. 817 is entitled "An Act to authorize the Construction of a Bridge over Avon Street in the City of Boston," and provides in section 1 that

Upon petition and after seven days' public notice published in at least three newspapers published in the city of Boston, and a public hearing thereon, the board of street commissioners of the city of Boston may, with the approval of the mayor, issue a permit to Eben D. Jordan and Edward J. Mitten to build and maintain a bridge across Avon street in said city for the purpose of connecting buildings owned by them on

opposite sides of said street, or for the purpose of a fire escape, on such conditions and subject to such restrictions as said board may prescribe.

House Bill No. 451 is entitled "An Act to authorize the Bridging of Mason Street in the City of Boston," and provides that

The city of Boston by its mayor is hereby authorized and empowered, if it shall sell the whole or part of its real estate on Mason street in said city, to grant to the purchaser of said estate and his successors in title the right to connect the real estate so sold with property on Tremont street opposite said real estate by means of a covered passageway or bridge over Mason street, said covered passageway to be not more than twenty feet in width and at the bottom of the floor not less than twenty feet above the street level.

In section 3 provision is made for the compensation of any person whose property may be damaged by the erection of the structure so authorized.

I assume that both Avon Street and Mason Street were laid out and constructed as public highways, and that although the fee of the land remains in the landowner, the public have acquired in such streets an easement of travel which includes "every kind of travel and communication for the movement or transportation of persons or property which is reasonable and proper in the use of a public street." New England Telephone & Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 399; see also Cheney v. Barker, 198 Mass. 356, 362. The easement so acquired extends to the use of structures either above or below the surface of the way, when such structures "are used by the public or a part of the public, or are held and used in private ownership for the benefit of the public." New England Telephone & Telegraph Co. v. Boston Terminal Co., supra; Sears v. Crocker, 184 Mass. 586, 588. But these uses and the facilities therefor must be "reasonable in reference to their effect upon adjacent property, as well as their effect upon other kinds of public uses of the street," and "a use of the street which would constitute a grave private nuisance to property at the side of the street could not have been contemplated by

the law as being acquired by a taking for a highway or street." Lentell v. Boston & Worcester Street Ry. Co., 202 Mass. 115, 119. Thus, elevated structures in the street for the use of street railways or other instrumentalities of transportation have been declared by the Legislature to impose an additional servitude upon land taken for street purposes, and provision has been made for any injury to property caused by them. St. 1894, c. 548, 8; and see St. 1903, c. 163, § 3. Lentell v. Boston & Worcester Street Ry. Co., supra; Baker v. Boston Elevated Ry. Co., 183 Mass. 178. This would seem to have been the theory upon which one of the two bills now before me (House Bill No. 817) was drafted, for it contains, in section 3, provision for compensation to any person whose property may be injured by the construction of the bridge authorized in section 1. House Bill No. 451, however, contains no such provision, and, if the structure authorized by it may be considered to be an instrumentality of public travel, transportation or communication, fairly raises the question whether the erection and maintenance of such a structure should be held to be a reasonable and proper use of a public street, or is a use which was not included in the original easement and imposes a new servitude upon the land taken for which compensation must be made. This question is not free from difficulty. The court has declared, in Sears v. Crocker, 184 Mass. 586, at page 588, that—

Our system, which leaves to the landowner the use of a street above or below or on the surface, so far as he can use it without interference with the rights of the public, is just and right, but the public rights in these lands are plainly paramount and they include, as they ought to include, the power to appropriate the streets above or below the surface as well as upon it, in any way that is not unreasonable, in reference either to the acts of all who have occasion to travel or to the effect upon the property of abutters.

Abutters are bound to withdraw from occupation of streets above or below the surface whenever the public needs the occupied space for travel. The necessary requirements of the public for travel were all paid for when the land was taken, whatever they may be, and whether the particulars of them were foreseen or not. The only limitation upon them is that they shall be of a kind which is not unreasonable.

The question in each case must depend primarily upon public necessity and the conditions which exist with reference to the particular locality affected. If the public use of the streets at or near Avon Street or Mason Street require that there should be an elevated structure over either or both of those streets, in order that public travel, transportation or communication may be maintained between points upon either side of such streets, I am inclined to the opinion that the erection of such a structure might well be held to impose no additional servitude upon the highway beneath.

But it is essential that the need for such means of communication should be a public need, and that it should be open to the public. Nothing in either of said bills shows that the structures therein authorized are required by any public necessity or are to be instrumentalities of public travel. On the contrary, it seems that they are not designed primarily for the use of the public, as such, but to serve the convenience of abutting owners and to enhance the value of their property. In House Bill No. 817 the permission which may be granted upon compliance with the requirements therein set forth is to two individuals, and is "for the purpose of connecting buildings owned by them on opposite sides of said street;" and in House Bill No. 451 the right to maintain such structure is granted to the purchasers of certain real estate now held by the city of Boston, and is made appurtenant thereto.

Where a public highway is laid out and constructed the easement secured by the public is no more than an easement of travel. The fee remains in the landowner, who may make any use of his property not inconsistent with its use as a highway. Commonwealth v. Morrison, 197 Mass. 199, 205; Cheney v. Barker, 198 Mass. 356, 362. If the erection and maintenance of structures like those contemplated by the two bills aforesaid are not inconsistent with the paramount rights of the public in the streets over which such structures are to pass, the landowner requires no permission from the Legislature to erect them. "The Legislature is the supreme authority in regard to public rights in the streets and highways" (Boston Electric Light Co.

v. Boston Terminal Co., 184 Mass. 566, 570), and it may define or limit the extent of the rights which it deems necessary for the public, or may even abandon some of them by permitting uses of abutting property which, without such permission, would involve an interference with the public use, provided that such abandonment does not go far enough to amount to an appropriation of public property to private uses. The proposed acts seem to be more than a legislative declaration that the use of private property in the manner which they describe does not interfere with the public easement of travel, or, in other words, a definition or limitation of the public use, and are, in my opinion, objectionable upon constitutional grounds, in that they assume to confer upon private persons rights with respect to the use of abutting property which are made paramount to the rights of other persons, which, to that extent, would be an appropriation of those rights, requiring the exercise of the power of eminent domain. In House Bill No. 871 the exercise of this power is clearly contemplated, for it provides in section 3 for the compensation of any one whose property may be injured by the erection of the structure authorized. House Bill No. 451 contains no such provision, but since it purports to confer an absolute right to be granted by the city of Boston, would necessarily require the exercise of such power in so far as the grant of such right would interfere with the rights of others. No information has been submitted to me respecting the exact limits of the property affected by the proposed legislation or the nature of the title by which it is held. Said property is not even certainly described in the bills themselves. For this reason I am necessarily confined to a discussion of the general principles which appear to be applicable in the premises. These lead me to the opinion that there is constitutional objection to the passage of either of the bills submitted to me.

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