Boston & Lowell Railroad v. Salem & Lowell Railroad

68 Mass. 1

Opinion

Shaw, C. J.

Footnotes

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The first question usually considered in cases of equity is, whether the court has jurisdiction ; and it has not been omitted in the present case.

The subject of controversy is a mere naked, incorporeal right, claimed by the plaintiffs, to have and enjoy a right to maintain a railroad, and take the tolls and profits thereof, a right created and granted to them by the government of the State ; and they allege, whether correctly or not is hereafter to be considered, that the defendants have disturbed them, in the enjoyment of this incorporeal right. It is a right or title, which, if it exist at all, is purely a statute right. It is created by law, it exists only in contemplation of law, it is invisible, intangible and incapable of a physical possession, and depends on the law for its protection. It involves no complicated inquiry into facts; it depends mainly upon the enactment, the validity and legal construction of legislative acts. If the right exists and has been invaded, the appropriate and specific remedy, that which shall prevent the continuing invasion, is by injunction, and this can be afforded only in equity. On these grounds, we are of opinion that such a case is within the ordinary scope of equity jurisdiction, and that the jurisdiction is peculiarly appropriate to such a case. An injunction will generally be granted to secure the enjoyment of a statute privilege, of which the party is in actual possession, unless the right is doubtful. Croton Turnpike v. Ryder, 1 Johns. Ch. 611. Newburgh & Cochecton Turnpike v. Miller, 5 Johns. Ch. 101. Livingston v. Van Ingen, 9 Johns. 507.

In regard to the limited equity jurisdiction of this court, it is proper to state, that if the plaintiffs are disturbed in the enjoyment of their franchise or incorporeal right, such a disturbance is technically a nuisance. “ If a ferry is erected on a river, so near another ancient ferry as to draw away its custom, it is a nuisance to the owner of the old one.” 3 Bl. Com. 219. By statute, in this commonwealth, the court has jurisdiction in equity in all cases of waste and nuisance; Rev. Sts. c. 81, § 8 j and so it was considered in the early and analogous case of Charles River Bridge v. Warren Bridge, 6 Pick. 376.

II. The next question, material to be considered, is, what are the rights of the plaintiffs, under their act of incorporation ?

This was one of the earliest acts, providing for the establishment of railroads in this commonwealth, for the transportation of passengers and merchandise; so early indeed, and with so little foresight of the actual accommodations as they were afterwards provided and found necessary, that it was rather regarded as an iron turnpike, upon which individuals and transportation companies were to enter and run with their own cars and carriages, paying a toll to the corporation for the use of the road only; and the act authorized the corporation to make suitable rules and regulations, as to the form of cars, the times of running, &c. which might be found necessary to render such use of the railroad safe and beneficial.

Of course, neither the government nor the undertakers had any experience, and could not form any accurate or even approximate estimates of the cost of the work, or the profits to be derived from it. And it appears by the act itself, and its various additions, that the capital was increased from time to time, from $500,000 to $1,800,000. With this want of experience, and with an earnest desire on the part of the public to make an experiment of this new and extraordinary public improvement, it would be natural for the government to offer such terms, as would be likely to encourage capitalists to invest their money in public improvements; and after the experience of capitalists, in respect of the turnpikes and canals of the Commonwealth, which had been authorized by the public, but built by the application of private capital, but which as investments had proved in most instances to be ruinous, it was probably no easy matter to awaken anew the confidence of moneyed men in these enterprises.

In construing this act of incorporation, we are to bear in mind the time and circumstances under which it was made, but more especially to take into consideration every part and clause of the act, and deduce from it the true meaning and intent of the parties. The act, like every act and charter of the same kind, is a contract between the government, on the one part, and the undertakers, accepting the act of incorporation, on the other; and therefore what they both intended, by the terms used, if we can ascertain it, forms the true construction of such contract.

It conferred, on the persons incorporated, the franchise of being and acting as a corporation, and the authority to locate, construct and finally complete a railroad, at or near the city of Boston, and thence to Lowell. That this was regarded as a public improvement, and intended for the benefit of the public, is manifest from the whole tenor of the act, more especially from the authority to take property, on paying a compensation in the usual manner, which would otherwise be wholly unjustifiable.

It is equally manifest, from the whole tenor of the act and the nature of the subject, that the work would require a large outlay of capital.

How then are the undertakers to be compensated for the work, thus provided for the public, at their expense ? This is answered by § 5, which provides that a toll is granted, for the sole benefit of such corporation, upon all passengers and property of all descriptions, which may be conveyed or transported on said road, at such rates as the company, in the first instance, shall fix. This is in every respect a public grant, a franchise, which no one could enjoy but by the. authority of the government. This grant of toll is subject to certain regulations, within the power of the government, if it should become excessive.

We are then brought to a consideration of § 12, upon which the stress of the argument in the present case has seemed mainly to turn. It provides that no other railroad than the one hereby granted shall, within thirty years, be authorized to be made, leading from Boston, Charlestown or Cambridge to Lowell, or from Boston, Charlestown or Cambridge to any place within five miles óf the northern termination of the rail road hereby authorized, that is, the termination at Lowell. The question is, does this provision confer any exclusive right, interest, franchise or benefit on this corporation 1 It is found in the same act; the whole is presented at once to the consideration of the corporators, to be accepted or rejected as a whole; and this would of corase constitute a consideration in their minds, in determining whether to accept or reject the charter. If it adds any thing to the value and benefit of the franchise, such enhanced value is part of the price which the public propose to pay, and which the undertakers expect to receive, as their compensation for furnishing such public improvement.

This is a stipulation of some sort, a contract, by one of the contracting parties, to and with the other; in order to put a just construction upon it, we must consider the character and relations of the contracting parties, the subject matter of the stipulation, and its legal effect upon then respective rights.

It was made by government, in its sovereign capacity, with subjects, who were encouraged by it to advance then property for the benefit of the public. It was certainly a stipulation on the part of the government, regulating its own conduct, and putting a restraint upon its own power to authorize any other railroad to be built, with a right to levy a toll; but without an authority from the government, no other company or person could be authorized so to make a railroad and levy toll, and of course no other such road could lawfully be made. It was, therefore, equivalent to a covenant for quiet enjoyment against its own acts, and those of persons claiming under it. This is, in fact, all that the government could stipulate. It could not covenant with the corporation, for quiet enjoyment against strangers and intruders, against the unauthorized and illegal disturbance of their rights by third parties ; against these, they would have their remedy in the general laws of the land.

But it has been argued that this stipulation, as it appears in the charter, is a mere executory covenant or undertaking, and is not an executed contract. But we think it may be both ; so far as it confers a present right, it is executed; so far as it amounts to a stipulation that the covenantor will not disturb the enjoy ment of the right granted, it may be deemed executory. So a deed, conveying land, transfers, on its delivery, all the title and interest which the grantor can confer, and is also a stipulation that the benefit granted shall not be revoked or impaired. And this is held to apply to the grants of governments as well as to those of individuals. Fletcher v. Peck, 6 Cranch, 87. He who has the power of conferring a right or a franchise lying solely in grant, and who stipulates, for a valuable consideration, that another shall have and enjoy it, undisturbed and unmolested by any act or permission of his, in effect grants such right or franchise. But more especially, when such right is conferred by the community in the form of a statute, having all the forms of law, and sanctioned by the government, acting in behalf of all the people, and having power to bind them by law, such right would seem to be clothed with as much solemnity, and to have the same force and effect, as if it were the grant of an exclusive right in terms. We are therefore of opinion, that under this form of words, that no other railroad should be authorized to be made for thirty years, the government, as far as it was in then: power, intended to engage with the corporation, that no other direct railroad between Boston and Lowell should be legally made; leaving them to guard themselves from unauthorized and illegal disturbance, by the general laws, in the course of the ordinary administration of justice. This is strengthened by the consideration, that as their whole remuneration would depend upon tolls, uncertain in amount, it was intended that they should be to some extent secure against any authorized road, taking the same travel, and of course the same tolls. There is a provision in the close of this §12, which, in our judgment, adds some weight to this conclusion. There is a right reserved to the Commonwealth, after a certain term of years, to purchase the railroad, and all the rights of the corporation, on reimbursing them the whole cost, with ten per cent, profit, and then follows this provision: “ And after such purchase, the limitation provided in this section [that no other railroad shall be authorized to be made] shall cease, and be of no effect.” From this provision it is manifest that the restriction, as it is termed, was imposed upon the government, and of course upon all the subjects, for the benefit of this corporation; and after the government should have succeeded to their rights, by purchase, then there would be no longer any occasion to impose any restriction on the government; it might do what it would with its own, and it would then be at liberty to make any other grant or not, at its pleasure. This carries a strong implication, that until such purchase, and so long as the income from tolls would enure to the benefit of the proprietors, the exclusive right, so far as these restrictions upon other railroads to take the same travel and the same tolls made it exclusive, should stand part of the charter.

III. But it is strongly urged, that if the legislature intended to grant such exclusive right, and the terms of the whole act, taken together, will bear and require that construction, and they did grant such exclusive right, and did restrain succeeding legislatures from making any grant or contract inconsistent with it, the provision itself was beyond the power of the legislature, and was void.

We readily concede that, for general purposes of legislation, the legislature, rightly constituted, has full power to make laws, to repeal former laws, and of course the last legislative act is binding, and necessarily repeals all prior acts, which are repugnant.

But in addition to the lawmaking power, the legislature is the representative of the whole people, with authority to control and regulate public property and public rights, to grant lands and franchises, to stipulate for, purchase and obtain all such property, privileges, easements and improvements, as may be necessary or useful to the public, to bind the community by their contracts therefor, and generally to regulate all public rights and interests.

It is under this authority that lands are granted, either in fee or upon any other tenure, that the uses of navigable streams and waters are regulated, the right to build over navigable waters, to erect bridges, turnpikes and railroads, and other similar rights and privileges, are granted and justified.

Of the necessity and convenience of all roads and other public works and improvements, of their fitness, and the best mode of providing them, the established government of the State, acting by the legislature for the time being, must necessarily judge and determine. They must decide whether it is-best to provide for them, by funds from the public treasury; or to procure individuals to advance their own funds for the purpose, to be reimbursed by tolls; and to make just and adequate provisions, incident to each. Supposing ferries or bridges are obviously necessary over a long and broad river; it is equally obvious that no public convenience would require them to be built parallel and close to each other; on the contrary, such erections would be an unnecessary waste of property. Would it not be for the legislature to decide within what stated and fixed distances from each other public convenience would require them ? If they were erected by funds drawn directly from the State, the legislature would plainly have the power to determine such distances, and provide that no one should be built within the distances thus fixed. May they not, with a due regard to the public exigencies and public interests, do the same thing, when such public works are erected by individuals, at the instance and procurement of the government, for public use? Were it otherwise; and were all such grants and stipulations repealable-by a subsequent legislature, because they are in the form of laws; then the unlimited power of the legislature to alter and change the laws, sometimes called, rather extravagantly, the omnipotence of parliament, would be a source of weakness, and not of strength. In making such grants and stipulations, no doubt great caution and foresight are requisite on the part of the legislature, a just estimate of the public benefit to be procured, and the cost at which it is to be obtained; and as great changes in the state of things may take place in the progress of time, a great increase of travel, for instance, on a given line, which changes cannot be specifically foreseen, it is the part of wisdom to provide for this, either by limitation of time, reservation of a power to reduce tolls, should they so increase, at the rates first fixed, as to become excessive, or of a right to repurchase the franchise, upon equitable terms, so that the con ract shall not only be just and equal in the outset, but within reasonable limits continue to be so. In the charter of the Boston and Lowell Railroad Corporation, the government reserved the right, both to regulate the tolls and to purchase the franchise, upon terms fixed and making part of the contract. When such a contract has been made by the legislature, upon considerations of an equivalent public benefit, and where the grantees have advanced their money to the public, upon the faith of it, the State is bound, by the plain principles of justice, faithfully to respect all grants and rights, thus created and vested by contract. Such a power of regulating public rights is everywhere recognized, as one distinguishable from that of legislation, a power incident and necessary to all well regulated governments, and when rightly exercised, is within the constitutional power of the legislature, and binding upon the government and people.

The court are of opinion that these principles are well established by authorities, a few of which only are cited. Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35. Livingston v. Van Ingen, 9 Johns. 507.

In the case of Charles River Bridge v. Warren Bridge, both in this court and in the Supreme Court of the United States, it was not doubted that a state would be bound by a grant of an exclusive right to a bridge or ferry, made in terms by the legislature; on the contrary, the validity of such grant was implied. The controversy turned on the question, whether by the simple grant of a toll bridge or ferry, from one terminus to another, any exclusive right could be implied, to take toll for that line of travel, so as to bar the legislature from granting a right to build a bridge to and from other termini, on the same line of travel. 7 Pick. 344. 11 Pet. 420.

In Fletcher v. Peck, 6 Cranch, 135, the court say: “ When a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights.” So any law granting privileges to others, repugnant to those previously granted, which, if available, would be a repeal by implication, is obnoxious to the same objection. That, which cannot be repealed in express terms, cannot be repealed by implication, by the enactment of laws repugnant to the provisions of the former act. The same defect of power which invalidates the one, has the same effect upon the other.

IV. But it is earnestly insisted that the grants to the defendant corporations do warrant and justify them in setting up the line of transportation by railroad, by the union of the several sections of their respective railroads; and that it may be regarded as lawfully done, under the right of the government to appropriate private property' for public use. It is fully conceded that the right of eminent domain, the right of the sovereign, exercised in due form of law, to take private property for public use, when necessity requires it, of which the government must judge, is a right incident to every government, and is often essential to its safety. And property is nomen generalissimum, and extends to every species of valuable right and interest, and includes real and personal property, easements, franchises and incorporeal hereditaments. Even the term “ taking,” which has sometimes been relied upon as implying something tangible or corporeal, is not used in the Massachusetts Declaration of Rights; but the provision is this: “ Whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.” Declaration of Rights, art. 10. Here again the term 61 appropriate ” is of the largest import, and embraces every mode by which property may be applied to the use of the public. Whatever exists, which public necessity demands, may be thus appropriated. It was held in the Supreme Court of the United States, that a franchise to build and maintain a toll bridge might be so appropriated; and that the right of an incorporated company, to maintain such a bridge, under a charter from a state, might, under the right of eminent domain, be taken for a highway. West River Bridge v. Dix, 6 How. 507. The same point was afterwards decided in the same court, in the case of a railroad. Richmond, Fredericksburg & Potomac Railroad v. Louisa Rail road, 13 How. 83. Such appropriation is not regarded as impairing the right of property, or the obligation of any contract ; on the contrary, it freely admits such right, and in all just governments provision is made for an adequate compensation, which recognizes the owner’s right.

Nor does it appear to us to make any difference, whether the Land, or any other right or interest thus appropriated, be derived directly from the government, or acquired otherwise; for the reason already stated, that it does not revoke the grant or annul or impair the contract, but recognizes and admits the validity of both. If, for instance, government, through its authorized agent, had contracted to convey land to an individual, and afterwards, and before the title passed, it should be necessary to appropriate such land to public uses, such taking would not impair the obligation of the contract; the individual would have the same right to compensation, for the loss of his equitable title to the land, as he would have had for the land itself, if the title to it had passed. If therefore, in the great advancement of public improvements, in the great changes which take place, in the number of inhabitants, in the number of passengers and quantity of property to be transported, or in great and manifest improvements in the mode of travel and locomotion, it becomes necessary to appropriate, in whole or in part, a franchise previously granted, the existence of which is recognized and admitted, we cannot doubt that it would be competent for the legislature, in clear and express terms, to authorize the appropriation of such franchise, making adequate compensation for the same.

But we cannot perceive in the acts of incorporation of the three defendant corporations, or in any of the acts in addition thereto, any act of the government, talcing or appropriating any of the rights, franchises or privileges of the plaintiff corporation, under the right of eminent domain. The characteristics of such an act of appropriation are known and well understood. It must appear that the government intend to exercise this high sovereign right, by clear and express terms, or by necessary implication, leaving no doubt or uncertainty respecting such intent. It must also appear, by the act, that they recognize the right of private property, and mean to respect it; and under our constitution, the act conferring the power must be accompanied by just and constitutional provisions for full compensation to be made to the owner. If the government authorizes the taking of property, for any use other than a public one, or fails to make provision for a compensation, the act is simply void; no right of taking as against the owner is conferred; and he has the same rights and remedies against a party acting under such authority, as if it had not existed. In general, therefore, when any act seems to confer an authority on another to take property, and the grant is not clear and explicit, and no compensation is provided by it, for the owner or party whose rights are injuriously affected, the law will conclude that it was not the intent of the legislature to exercise the right of eminent domain, but simply to confer a right to do the act, or exercise the power given, on first obtaining the consent of those thus affected.

Compared with these tests, there is no provision, in any legislative act to which we have been referred, which authorizes the defendant corporations to appropriate or use any of the rights of the plaintiffs. On the contrary, the latest act, and that most relied on, St. 1852, c. 118, negatives any such intent. It provides, that “ the Boston and Maine Railroad Company may enter upon and use the Salem and Lowell Railroad, according to law. The Salem and Lowell Railroad Company may enter upon and use the Boston and Maine Railroad, according to law: Provided, that nothing contained in this act shall be construed to impair the rights of any person or corporation.”

This act carefully limits what the terms might otherwise seem to grant, so that it shall not impair the rights of these plaintiffs. Whatever therefore these rights are, under their charter, they are not diminished or affected by any act of legislation, intending or professing to appropriate them to public use. We think therefore that, whatever may be the power of the legislature, there is no intention manifested on their part, to appropriate any part of the plaintiffs’ franchise, right or privilege, to public use; and of course those rights and privileges remain as they were granted and established by their charter; and this brings us back to the question before considered, what was the extent of those rights ?

As the result of the whole case, the court are of opinion that the Boston and Lowell Railroad Corporation acquired by their charter and act of incorporation a right, at their own charge and expense, but for the public accommodation and use, to locate and construct a railroad from the city of Boston to Lowell, for the transportation and conveyance of persons and property between those places by railroad cars, and to levy and receive, for their own benefit and reimbursement, certain tolls, for the carriage of persons and property; and that, as a part of their franchise, privilege and right, and the better to secure to them a just and reasonable compensation and reimbursement, by the tolls so granted, the Commonwealth did, by the said act of incorporation, grant to and stipulate with the said corporation, that no other railroad, within the time therein limited, and not yet elapsed, should be authorized to be made, leading from Boston, Charlestown or Cambridge, (Charlestown then embracing the territory now composing the town of Somerville,) to any place within five miles of the northern termination of said railroad at Lowell. Without such authority of the legislature, we think that no such railroad within the limits prescribed could be lawfully made by other persons or corporations; and therefore this grant and stipulation, to a certain extent exclusive, was a part, and a valuable part of the plaintiffs’ franchise; and that this grant and stipulation it was competent for the legislature, in behalf of the public, to make; and that the same was a valid grant and contract.

We are also of opinion that the legislature have not, since the granting of said charter, by right of eminent domain, taken, or manifested any intention to take, any part of the right and franchise of the plaintiffs for public use, and that no act or charter has been granted to the three defendant corporations, either or all of them, to take or use any part of the right and franchise of the plaintiffs; and if in any manner the acts of the defendants, under color of their acts of incorporation, do infringe upon the rights of the plaintiffs, such infringement is not warranted by either or all of the same acts, it is unlawful, and constitutes a disturbance and nuisance to the plaintiffs, for which they are entitled to a remedy. We are also of opinion that the several defendant corporations, having been incorporated and chartered to establish railroads between several termini, according to their respective acts of incorporation, have no right, by the use and combination of several sections of their respective railroads, to establish a continuous and uninterrupted line of transportation by railroad, of persons and property, between Lowell and Boston ; and that the actual establishment of such a continuous line of transportation by railroad is substantially making a railroad, other than that authorized to be made by the plaintiffs, to their injury, and contrary to the rights conferred on them by their charter.

jDemurrer overruled.

After the foregoing opinion was delivered, the plaintiffs applied for a temporary injunction. On this application a hearing was had, and depositions were read and arguments made for both parties. And the court, on the 1st of February 1855, issued an injunction, to continue in force while this suit was pending, or until the further order of the court, “ to enjoin and restrain the said defendant corporations, and each of them, and their several officers, agents and servants, and all persons in the employment of the said defendant corporations, or either of them, [under the penalty of thirty thousand dollars,] against carrying, transporting or conveying any persons, or property of any kind, by one continuous line of conveyance by railroad cars proceeding from Lowell, or from any point within five miles of the northern terminus of the Boston and Lowell Railroad, and from thence to Boston in the County of Suffolk, or to Charlestown, Cambridge or Somerville in the County of Middlesex, or from said Boston, Cambridge, Charlestown or Somerville, to said Lowell, or any point within five miles of the northern terminus of the Boston and Lowell Railroad, by one continuous line of conveyance by railroad cars, between the said termini; and from doing any act or acts towards the effecting or accomplishing such transportation of persons or property, by connecting together, or using in connection certain sections of their respective railroads, as follows, namely: The section of the Boston and Maine Railroad lying between Boston and its .intersection with the Salem and Lowell Railroad at Wilmington; that section of the Salem and Lowell Railroad which lies between the last named point and the intersection of said Salem and Lowell Raifroad with the Lowell and Lawrence Railroad in Tewksbury ; and that section of the Lowell and Lawrence Railroad, between said last mentioned place of intersection and its termination in Lowell; or by any variation or alteration of said places of junction and intersection, or in any other mode, using any sections of said several railroads in such manner as to form a continuous line of conveyance by railroad of persons or property between the said termini. And the said three defendant corporations, their officers, agents, servants, and all persons employed by them, are enjoined and prohibited from using or employing any of the means heretofore stated towards the formation, establishment or maintenance of any such continuous line of conveyance of persons or property, in any of the modes following, to wit:

“ 1st. By any agreement or understanding between themselves, to the effect that either of said corporations shall have the use of the cars of either of the other of said corporations, on its own section of railroad, in such a manner as to form one continuous and uninterrupted transportation of persons or passengers over the said sections of said different railroads, or any two of them, without change of cars or loss of time, or either of them.

“ 2d. Or by taking passengers at one of the said termini to be earned or transported to the other of said termini, without change of cars at the places where any one of the said sections of the said several railroads intersects with either of the other of the said sections; or in any other mode from engaging, procuring, employing and using any car or cars, at their common expense or otherwise, for the conveyance of persons or property, for running and passing upon or over the said sections of them respective railroads without change of cars, from either of said termini to the other.

“ 3d. Or by receiving money at either of said termini, as fare or compensation for the passage of any person from one of the said termini to the other, or by selling a ticket for the entire passage, or by taking, at one and the same time and place, payment for said tickets on the several sections of the said respective railroads of the different corporations, or by taking payment in a car, on one section, for a passage on any other section or sections of the same line.

“ 4th. Or by advertising any notice, in any newspaper, pamphlet, written or printed paper, card, circular letter, or by printing or posting up, or causing to be printed or posted up any handbill, placard, or other like paper, giving notice that passengers or merchandise may be carried and transported by railroad through from one of the said termini to the other by one continuous line, or that a passage may be had from one of said termini to the other without change of cars and without stoppage or detention at the said several points of intersection.

u 5th. Or by painting, or in any way placing upon their cars or any or either of them, the words “ Boston and Lowell,” or “ Lowell and Boston,” or by continuing the same or similar words on their said cars or any one of them, or in any other way giving information that a direct and uninterrupted passage by railroad may be had between said termini; or from entering into any other arrangement, or doing any other act, the intent and purpose of which may be to effect a continuous line of travel by railroad for passengers and merchandise in a direct and uninterrupted course between said termini; or from agreeing to use, or actually using the sections or any sections, constituting parts of the lines of their respective railroads, in such manner as form a continuous line of travel or transportation of persons or property from the one to the other of the said termini.”

The following is a copy of the statute of 1855, c. 386, passed on the 18th of May 1855 :

“ An act to establish an independent line of railroad communication between Boston and Lowell.

“ Section 1. The Lowell and Lawrence Railroad Company, the Salem and Lowell Railroad Company and the Boston and Maine Railroad are hereby authorized to make arrangements between themselves for the use in common of those sections of their several railroads which lie between Lowell and Boston, to wit: That section of the Lowell and Lawrence Railroad which lies between Lowell and the point of junction with the Salem and Lowell Railroad in Tewksbury; that section of the Salem and Lowell Railroad which lies between said last named point and a convenient point of junction with the Boston and Maine Railroad in Wilmington; and that section of the Boston and Maine Railroad which lies southwardly of said last named point. And the above named corporations, in conformity to such arrangements, may use said sections of their several railroads, or permit the same to be used, for the transportation of persons and property.

“ Section 2. Any person or corporation who may sustain damage by reason of any acts done by the three corporations above named, or either of them, in pursuance of the authority granted by this act, may have the same estimated in the manner now provided by law for the estimation of damages caused by the laying out, making and maintaining of a railroad ; but the application shall be made to the county commissioners of the county of Middlesex; and if either party, being dissatisfied with such estimate of damages, shall apply for a jury, the jury shall be taken from such towns in said county as any justice of the court of common pleas shall direct, and the sheriff shall apply to some one of said justices for such direction, and it shall be the duty of said justice to name the towns from which the jury shall be taken in the manner prescribed by law.

“ Section 3. The three railroad corporations named in the first section of this act are authorized to run trains through from Lowell to Boston, and from Boston to Lowell, over the three aforesaid sections of railroad, without change of cars or loss of time, for the conveyance of passengers and merchandise over any portion of the line between Boston and Lowell, and to sell tickets, and to receive payment of money in their cars for the transportation of passengers as aforesaid, and to make joint tariffs for the transportation of merchandise: provided, that this section shall not be construed to permit said corporations, or either of them, to transport passengers or freight from Boston, Charlestown, Cambridge or Somerville, to any point within five miles of the northerly terminus of the Boston and Lowell Railroad, or from any point within five miles ot the northerly terminus of said last named railroad to Boston, Charlestown, Cambridge or Somerville.

“ Section 4. The first two sections of this act shall take effect when the same shall have been accepted by all the corporations therein named; but the last two sections shall take effect from and after the passage of this act.”

Bigelow, J. did not sit in this case