
    The Boston & Lowell Railroad Corporation vs. The Boston & Maine Railroad.
    The legislature, in the act to incorporate the Boston & Lowell railroad corporation, having reserved a power to authorize any other railroad company to enter upon and connect with the Boston and Lowell railroad, paying for the right to use the same, and complying with such regulations relating to the use thereof, as might be established by the Boston and Lowell railroad corporation; and having subsequently incorporated the Andover and Wilmington railroad company, with authority to enter upon and use the road of the Boston and Lowell railroad corporation, on the terms and conditions provided in their charter; the Andover and Wilmington railroad company entered accordingly upon the Boston and Lowell railroad, and connected their road therewith, and the Boston and Lowell railroad corporation thereupon made expensive and permanent arrangements for the accommodation of the Andover and Wilmington railroad corporation, and the car riage of their passengers and freight, and carried the same accordingly, for such compensation as was agreed upon and established by the two companies; the Andover and Wilmington railroad company afterwards, by authority of the legislature, extended their road from a point in the same, near its connection with the Boston and Lowell railroad, to Boston, and from thenceforward carried all their passengers and freight, destined for Boston and intermediate places, over the newly-constructed road, and discontinued the use of the Boston and Lowell railroad, for the carriage of such passengers and freight: In an action on the case by the Boston and Lowell railroad corporation against the Andover and Wilmington railroad company, for diverting the carriage of passengers and freight from the road of the former, and discontinuing the use of the same, by means of such newly-constructed road, it was held, that the entry and connection of the Andover and Wilmington railroad company upon and with the Boston and Lowell railroad did not constitute a permanent and perpetual contract with the Boston and Lowell railroad corporation, that the Andover and Wilmington railroad company should forever enter upon and use the road of the former; and that such contract could not be inferred from any supposed legal obligation, on the part of the Boston and Lowell railroad corporation, to provide accommodation for the passengers and freight thus brought upon their road.
    A provision in the charter of a railroad corporation that no railroad, other than the one thereby established, shall be authorized to be made from one termination thereof to any place within five miles of the other termination, is not infringed by an act authorizing the construction of a railroad, from the first mentioned termination, to a point not within five miles of the other termination, although within the space included by two straight lines drawn from the first termination to points five miles on each side of the other termination.
    This was an action of trespass on the case, in which the plaintiffs alleged substantially in their declaration the following facts: — -
    The Boston and Lowell railroad corporation, by their act of incorporation, passed on the 5th .of June, 1830, (St. 1830, c. 4,) were authorized and empowered to construct a railroad, at or near the city of Boston, and thence to Lowell, in such manner and form as they should deem most expedient, and to lay the same out four rods wide throughout its whole length; with the right to collect and receive tolls for their sole benefit from all passengers and property, which might be carried on their road, at such rates as might be agreed on and established by the directors. By the twelfth section of this act, it was enacted as follows: “ That no other railroad, than the one hereby granted, shall, within thirty years from and after the passing of this act, 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 of the northern termination of the railroad hereby authorized to be made; ” “ provided that the state might authorize any company to enter with another railroad at any point of the Boston and Lowell railroad, paying for the right to use the same, or any part thereof, such a rate of toll as the legislature might prescribe, and complying with such roles and regulations as might be established by the Boston and Lowell railroad corporation, by virtue of the fifth section of this act of incorporation.”
    
      On the 15th of March, 1833, by an act of the legislature then passed, (St. 1833, c. 109,) the Andover and Wilmington railroad corporation was established, with power to construct a railroad, four rods wide, commencing at or near the south parish meeting-house in Andover, and thence to the Boston and Lowell railroad in Wilmington, so as to form a branch thereof, in such manner and form as they might deem expedient ; and with power to enter with their railroad, on such part of the Boston and Lowell railroad, as should be deemed most expedient; paying for the right to<use the same, or any part thereof, such a rate of toll as the legislature might prescribe, and complying with such other rules and regulations, as might be established by the Boston and Lowell railroad corporation, by virtue of the fifth section of their charter.
    The Boston and Lowell railroad was constructed and completed, in pursuance of the authority conferred by the charter, passing through Charlestown and Wilmington to Lowell, and provided with engines and cars for the transportation of freight and passengers; and the Andover and Wilmington railroad was afterwards constructed and completed, as authorized by the charter, and united with the Boston and Lowell railroad, so as to form a branch thereof.
    The Andover and Wilmington railroad corporation, by an act passed on the 7th of April, 1835, (St. 1835, c. 134,) were authorized to extend their road, and did extend it accordingly from Andover to Haverhill. The road was further extended, by virtue of an act passed on the 5th of April, 1837, (St. 1837, c. 113,) to the line of the state of New Hampshire. These acts provided, that any railroad company, then or afterwards to be incorporated, might be authorized by the legislature to enter with their road, at any point of the road thereby granted, paying for the right to use the same, or any part thereof, such rate of toll as the legislature might prescribe, and complying with such rules and regulations as might be established by the Andover and Wilmington railroad corporation, by virtue of their act of incorporation. By the act of 1837, c. 113, the name of the Andover and Wilmington railroad corporation was changed to that of the Andover and Haverhill railroad corporation, and by a further act passed on the 3d of April, 1839, (St. 1839, c. 82,) to that of the Boston and Portland railroad corporation.
    By an act of the legislature of New Hampshire, passed in 1835, a corporation was established by the name of the Boston and Maine railroad company, for the purpose of construct ing a railroad from the termination of the Boston and Port land railroad in Massachusetts, to the boundary line between New Hampshire and Maine, and to be united with the latter. The roads, thus authorized, were built accordingly, constituting one continuous line of railroad from the boundary line between Maine and New Hampshire, to the Boston and Lowell railroad ; and the several corporations, in pursuance of acts of the legislatures of New Hampshire and of this commonwealth, (St. 1841, c. 56,) were afterwards united under the name of the Boston and Maine railroad.
    On the 10th of March, 1844, a corporation was established by an act of the legislature, (St. 1844, c. 172,) by the name of the Boston and Maine Extension railroad corporation, with authority to build a railroad from Boston to a place in Wilmington, on the line of the Boston and Maine railroad, not nearer to the Boston and Lowell railroad than a brook called Lubber brook, there to intersect and unite with the then existing Boston and Maine railroad, at a point between the Boston and Lowell railroad and Andover, and less than two miles from the Boston and Lowell railroad. This act authorized the Boston and Maine railroad, to subscribe for the stock of the corporation thereby established, and they did accordingly subscribe for the whole number of the shares thereof, except one hundred out of five thousand, and the two corporations chose the same directors, with the exception of one on each board.
    The corporation last established proceeded according to the authority given by their charter, and built the road above described, from Boston to a point on the Andover and Wilmington railroad, within two miles and some feet of the Boston and Lowell railroad. After the road was completed, the two corporations were authorized to unite, by an act passed on the 19th of March, 1845, (St. 1845, c. 159,) and did afterwards unite, and form one corporation, under the name of the Boston and Maine Railroad, and connected the newly-made road with the road before established and known as the Boston and Maine railroad.
    The plaintiffs averred, that they had constructed and furnished their road, upon the faith of their charter, at an expense of one million nine hundred thousand dollars, and, at the time of the grievances complained of in this action, were using the same for the purpose of carrying passengers and freight, with great benefit to the public and reasonable profit to themselves: That the Andover and Wilmington railroad corporation having constructed their road, and connected the same with the Boston and Lowell railroad, so as to form a branch thereof, as prescribed in their charter, thereby acquired the right of using the Boston and Lowell railroad, for the conveyance and transportation of all passengers and freight, brought upon the Andover and Wilmington railroad and destined for Lowejl or Boston, or any intermediate place; or brought upon the Boston and Lowell railroad, and destined for Andover, or any intermediate place; or of having such passengers and freight so transported and conveyed by the Boston and Lowell railroad corporation, in manner and form as provided in and by the charters of said companies, upon payment of the tolls therein provided for: That by reason of the construction of the several railroads constituting the Boston and Maine railroad, and the several acts authorizing the same, the corporation known by that name acquired the right of using the Boston and Lowell railroad for the conveyance and transportation of passengers and freight, brought upon the Boston and Maine railroad, and destined for Lowell or Boston, or any intermediate place on the Boston and Lowell railroad, or brought upon the Boston and Lowell railroad, and destined for the termination of the Boston and Maine railroad or any intermediate place on the same; or of having such property and passengers so transported and conveyed by the Boston and Lowell railroad corporation, in manner and form as prescribed in and by the respective charters of said corporations, upon payment of tolls as aforesaid : That the plaintiffs, thereupon, and by reason of the premises, be« came obliged to furnish reasonable accommodation and facili ties for such conveyance and transportation of passengers and freight; and did expend divers large sums of money for that purpose in laying new tracks, procuring new cars, carriages, locomotive engines, and other customary apparatus, tools, and utensils, and in enlarging their station-houses and depots and constructing others, and in the employment of numerous other and further engineers, conductors, and other officers and agents, requisite for the expeditious, proper, and safe management and transaction of the increased business and affairs, which they were thus obliged to accept and take charge of, and in various other necessary expenditures; and did, in pursuance of their said obligation, and of arrangements made between them and the said Boston and Maine railroad company, conformably to the provisions in their respective charters, receive, transport, and convey all the property and passengers to and from all and singular the towns, cities, and places aforesaid, for the benefit and on account of the said Boston and Maine railroad company, and for certain tolls and hire agreed to be paid upon such passengers and freight by said last-named corporation; and before and at the time of the grievances complained of, were, by means of the premises, in the receipt of large sums of money, as and for such tolls or hire, and as a compensation for the risk, skill, labor, service, and expense of the plaintiffs, in that behalf, amounting to a large sum of money, to wit, the sum of forty thousand dollars, annually : That the plaintiffs, by reason of the premises, at the time of the- grievances complained of, namely, on the 30th of June, 1845, had acquired and were in the possession and enjoyment of, and by reason of the premises, the Andover and Wilmington corporation had therefore impliedly promised and undertaken that the plaintiffs should thenceforth enjoy, the sole and exclusive right of transporting and conveying, by means of any railroad, to Boston and Wilmington and all places between the same, all such passengers and freight as should be transported and conveyed by the Boston and Maine railroad, upon and over that portion lying between the south parish in Andover and said Wilmington or any part thereof, destined to be transported and conveyed by means of any railroad to Boston or Wilmington, or any intervening place; and all such passengers and freight as should be conveyed and transported, by means of any railroad, from Boston and Wilmington or any intervening place to any part of the defendants’ road lying between Wilmington and the south parish in Andover: That the defendants, from the time of the construction of the newly-made road from Boston to Wilmington, by the Boston and Maine railroad extension company, until the day of service of the plaintiffs’ writ, have used the said newly-made road, and have transported and conveyed over and upon the same, in their own cars, and by their own engines, to Boston and places between that city and Wilmington, great numbers of passengers and great quantities of freight, transported and conveyed by the defendants upon and over their road lying between the south parish of Andover and Lubber brook, and which would otherwise have been transported and conveyed by the plaintiffs over and upon their road to Boston and other places between that city and Wilmington, for such tolls as the legislature might from time to time prescribe, or as might be agreed upon between the plaintiffs and the defendants; and have also in like manner transported and conveyed over this newly-made road great numbers of passengers and great quantities of freight, which would otherwise have been in like manner and for like tolls transported and conveyed by the plaintiffs, over and upon their road from Boston and other places between that city and Wilmington, to the road of the defendants lying between Wilmington and the south parish in Andover; whereby the transportation and conveyance of said passengers and freight have been diverted from the railroad of the plaintiffs, which would otherwise have been carried thereon, to the great damage of the plaintiffs, and to the nuisance of their railroad ; and by reason thereof, the plaintiffs have been and are defrauded of the tolls and other profits and advantages which they might and otherwise would have had.
    The defendants demurred to the declaration.
    
      Joel Parker and E. H. Derby, for the defendants.
    
      C. G. Loring and B. R. Owrtis, for the plaintiffs.
   The opinion of the court (Wilde and Fletcher, Justices, not sitting,) was delivered at the March term, 1851.

Dewey, J.

We have given to the views presented by the plaintiffs’ counsel, that consideration which the importance of the principles involved, as well as the pecuniary interests affected thereby, seemed to require.

We find that the provision in the charter of the Boston and Lowell Railroad company, that the legislature may authorize other railroads to enter upon their road, is a general provision, not inserted therein in reference to any particular road which it was proposed to unite with it; that from the form of the provision in this, and in very many subsequent railroad charters, we understand it to have been a reservation of legislative power for the public benefit; that it was in the nature of a servitude imposed upon the company, but to be enjoyed or exercised by the proprietors of another railroad, only upon paying such compensation as the legislature should deem reasonable therefor; that the Andover and Wilmington railroad, when incorporated, was authorized thus to enter upon the Boston and Lowell road ; that this authority to the Andover and Wilmington railroad to enter emanated from the legislature, and not from the Boston and Lowell railroad corporation; that the legislature, having reserved the right to grant the privilege, had the power to exercise it in favor of the Andover and Wilmington railroad corporation, irrespective of the concurrence of the Boston and Lowell railroad corporation ; that until the power thus given to enter upon the road was exercised, it did not change the relations of the parties ; that it was a power to enter upon the track of the Boston and Lowell railroad, but did not necessarily require any outlay for new engines or cars ; that this was a matter to be arranged as the interest and convenience of the Boston and Lowell railroad corporation might require; and that it might be left to the Andover and Wilmington railroad corporation to use the mere naked right reserved to enter upon the track of the Boston and Lowell railroad, or to make an agreement providing for the use of the same, or for the carriage by the Boston and Lowell railroad of all passengers and freight they should bring.

The details might embrace the time of the duration of such contract, as well as all other matters necessary to carry out a perfect system, so arranged as to secure fully the right of all parties to proper remuneration. Accustomed as we are now to the only safe and convenient mode of having the engines in use under the sole control of the company, whose road they pass over, we are apt to forget, that originally a different mode of using these roads was contemplated; and that to some extent on the earlier roads, the proprietors and the public had in view a use of them, in the manner much more extensively practised in Pennsylvania, by individuals travelling on them with their own vehicles.

We are further of opinion, that in incorporating the Andover and Wilmington railroad corporation, with the privilege thus to enter upon the Boston and Lowell railroad, although the Andover and Wilmington railroad was described as a “ branch,” that description did not, in any manner, change the relations of the parties, or affect their liabilities ; and that the right to use, or not to use the Boston and Lowell railroad, and to enter upon it, was not affected thereby. The Andover and Wilmington was a distinct corporation, in no way connected with the Boston and Lowell railroad corporation, and had an independent character as a road. Nor did the omission, in the original charter of the Andover and Wilmington railroad company, to provide, as has been more usual in other charters, for the right of the legislature to authorize other roads to enter thereon, prevent the legislature, under the power they possessed to alter and amend the charter, from making such provision by a further act; the provisions of the act of 1831, in this respect, having been continued in force by the revised statutes. Still more clear would be the right, if done with the assent of the Andover and Wilmington railroad company. ’

We cannot adopt the views of the counsel for the plaintiffs, that this right to enter upon the Boston and Lowell railroad, reserved in the charter of the Boston and Lowell railroad company, when granted to the Andover and Wilmington railroad company, was, as between these corporations, a permanent contract, perpetual in its character, that the Andover and Wilmington railroad should forever enter upon and use the road of the Boston and Lowell railroad company. The proprietors of the Andover and Wilmington railroad had the right to enter it upon the Boston and Lowell railroad, paying therefor so long as they used the same. How many trains they would run daily, or whether they would run their trains at all, was, in the absence of all other obligations than what were contained in the charters of the two companies, a matter as to which the Boston and Lowell railroad company could enforce no claim for damages, if, when the Andover and Wilmington company did enter upon the track of the Boston and Lowell railroad, they observed all the regulations required of them. It was rather in the nature of a lease for an indefinite period of time, with liability to pay as long as the road might be used.

Nor can such perpetual obligation or duty, to continue to enter upon the track of the Boston and Lowell railroad, be inferred from any onerous duty imposed by law upon the Boston and Lowell railroad corporation, to make expensive and permanent additions to and enlargement of their establish- ' ment, for the accommodation of the Andover and Wilmington travel. The right of the Andover and Wilmington railroad corporation was to enter upon the Boston and Lowell railroad, as it existed. If the Andover and Wilmington railroad brought an increase of business, it might be for the interest of the Boston and Lowell railroad company to enlarge their establishment; but that was a matter wholly voluntary, made and to be regulated by their own interests.

We are therefore of opinion, that this was a privilege granted to the Andover and Wilmington railroad corporation, and not a contract in the sense assumed by the plaintiffs’ counsel; and that it was competent for the Andover and Wilmington company, under the various subsequent legislative acts, to connect themselves with the extended lines of railroad, and to withdraw from the use of the Boston and Lowell railroad, and omit to enter thereupon.

But it was further urged, on behalf of the plaintiffs, that the defendants have connected themselves with the Boston and Maine extension railroad, and through that connection are diverting travel from the road of the plaintiffs. The connection is admitted,, and the further question is presented, whether this use of that road is a violation of the charter of the Boston and Lowell railroad corporation. It is said to be in violation of the clause, which provides “ that no other railroad 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 of the northern termination of the Lowell railroad.

The plaintiffs contend, that this clause for the exclusion of other roads goes to the extent of excluding the defendants from having another road, within the limits which would be included between two diverging straight lines drawn from Boston, or the termination in that direction, to such points, that each would be five miles distant from the northern termination of the Lowell railroad.

We do not coincide in this view of the construction of the clause in question. Such a limitation might have been provided in the charter granted to the Boston and Lowell railroad, and if so it ought certainly to be enforced. Public grants are to be construed with some degree of strictness, and especially where they are in the nature of limitations upon the future exercise of legislative power. It seems to us, that this provision of § 12, in the charter of the Boston and Lowell railroad company, is no more than a restriction, that no other railroad should, within thirty years, be established under a legislative grant, leading from Boston, or the other towns named, to Lowell; nor one leading in the same general direction and terminating within five miles of the northern termination of the Boston and Lowell railroad. It left free the construction of other roads from Boston and the adjacent towns, leading in other directions; and by the limitation as to the five miles, it was intended to prevent any fraudulent evasion of the restriction, by means of another road not actually terminating in Lowell, yet so near it, that it would be a rival road to Lowell. To secure this object, five miles on each side of the termination of the road, at Lowell, was taken as an actual exclusion of other roads ; leaving such roads, however, to be established passing more than five miles distant from the northern termination of the Boston and Lowell roadv The defendants are not, in our opinion, liable to the plaintiffs for participating in the construction and use of the Boston and Maine extension railroad.

Upon the whole matter, the court are of opinion, that this demurrer is well taken, and that judgment must be reí Jered for the defendants upon the questions thereby raised. 
      
       This fact is not stated in the declaration.
     