
    George H. Gardiner & others vs. The Boston and Worcester Railroad Corporation.
    A railroad corporation, which proceeds trader Rey. Sts. c. 39, § 67, after notice to the mayor and aldermen of a city, and on terms agreed upon between the corporation and the mayor and aldermen, to raise a street, that its railroad may pass under the same, acts by virtue of its independent corporate powers, and not as the agent or servant of the city; and such corporation is primarily liable, to third parties, for damages thereby caused to their estates.
    A bond of indemnity taken by the city, and the appointment of a superintendent to take care of the public interests in the execution of this work during its progress, are prudent measures, which do not change the character of the work, or the general liability of the company.
    The time within which damages arising from such a proceeding must be claimed, is limited to three years by Rev. Sts. c. 39, § 58.
    This was a petition to the court of common pleas, sitting as a board of county commissioners for this county, for the assessment of damages done to the land of the petitioners by the respondents, by raising and grading Tremont street, in Boston, at the place where it is crossed by the track of the respondents. The case came into this court by exceptions, to the ruling of Perkins, J.
    The respondents, on the 28th of October, 1844, by their directors, presented their petition to the mayor and aldermen of Boston, setting forth that they were desirous of making snch a change of the level of Tremont street, in that part adjoining their railroad, that the travel thereof might pass above the railroad by means of a bridge; and requesting authority to build a bridge of sufficient height to allow a locomotive to pass under it, and raise the street by a grade to pass over the same. They also requested that such conditions might be agreed upon in regard to the mode of construction, and the compensation for damages to the adjoining estates as should appear to the board just and reasonable.
    The board of mayor and aldermen thereupon resolved: “ That the corporation be permitted, at their own expense, to raise Tremont street, in that part in which their present railroad crosses it, to a height not exceeding fourteen feet and six inches above the level of their bridge over the empty basin,” on several conditions, of which the following is the only one, apparently bearing upon the present case, namely:—
    “ That the said corporation shall give bonds to the acceptance of the mayor' and aldermen, to indemnify the city of Boston against all claims for damages to private property which may be occasioned by such alteration of the said street.”
    The application on the part of the petitioners to the mayor and aldermen, for an assessment of damages was made in September, 1847, and it was conceded that more than a year had elapsed after the raising of the street prior to the filing of the application.
    The petition in this case was filed at the October term of the court of common pleas, 1849.
    It was conceded that the raising of the street was executed by the respondents, in conformity with the requisitions made by the mayor and aldermen, under the direction of the committee of the latter on pavements, appointed for that purpose.
    
      On this state of facts, the respondents contended that they were not liable at all to this process, inasmuch as they acted, in the raising of the street, in subordination to, and as agents or servants of the city, and not by virtue of their independent corporate powers. But the judge overruled the objection.
    The respondents further contended that, if they were ever liable for damages for the raising complained of, they were no longer so, after the expiration of one year from the completion of the work, whether viewed as an act done in subordination to the authority of the city, or in the exercise of their own corporate rights.
    This objection was also overruled, and the jury found a verdict for the petitioners.
    
      T. Hopkinson, for the respondents,
    cited Parker v. Boston & Maine Railroad, 3 Cush. 107,116; Heridia v. Ayres, 12 Pick. 334, 344; Sudbury Meadows v. Middlesex Canal, 23 Pick. 36; Harrington v. Harrington, 1 Met. 404; Parks v. Boston, 8 Pick. 218 ; Brown v. Lowell, 8 Met. 172; Nichols v. Bertram, 3 Pick. 345; Goddard v. Boston, 20 Pick. 407; Stone v. Boston, 2 Met. 220; Hea/rd v. Middlesex Canal, 5 Met. 81; • Cha/rlestown Branch Railroad Company v. County Commissioners, 7 Met. 78; St. 1831, c. 72; Rev. Sts. c. 39, § 56; c. 24, § 55; c. 25, § 6; St. 1833, e. 91, § 2.
    
      S. Ba/rtlett, for the petitioners,
    cited Rev. Sts. c. 39, § 67, 68; St. 1831, c. 72, § 11; St. 1833, c. 91.
   Shaw, C. J.

This case arises on a petition of Gardiner and others against the respondents, for the assessment of damages done the land of the petitioners, by raising and grading Tremont street, at the place where it crosses the Boston and Worcester railroad. It was a petition to the court of common pleas, acting in the county of Suffolk as county commissioners and comes before this court, by exceptions.

The charter of the Boston and Worcester Railroad Corporation was granted in 1831, enlarged in 1832, and the general act passed the succeeding year. St. of 1833, c. 91.

The raising of Tremont street, on the ground of which damages are claimed in this proceeding, was done by the •respondents not as part of their original structure, but ii pursuance of the provisions of the Rev. Sts. c. 39, § 67, authorizing any railroad company which had theretofore been established, to raise or lower any turnpike or way. This provision had been adopted and acted upon by the respondents; they applied to the mayor and aldermen to make this alteration, long after the passing of the Rev. Sts., and it was granted upon certain terms set forth in the case. By acting on this license, they acceded to its terms.

At the trial, upon the facts shown, the respondents contended that they were not liable to this process, inasmuch as they acted, in raising the grade of the street, in subordination to, and as the agents and servants of the city, and not by virtue of their independent corporate powers. But this objection the presiding judge overruled, and held that the respondents were primarily liable. The court are of opinion that this direction was right. By Rev. Sts. c. 39, § 67, above cited, the corporation might raise or lower any way, for the purpose of having their railroad pass over or under the same, after notice to the selectmen, (for whom in Boston the mayor and aider-men were substituted.) It was an additional corporate power, superadded to their preexisting powers, and, by applying to the mayor and aldermen they acted upon it. It was done at their expense, solely for their own use and benefit, and not the city’s; and if it was to avoid a nuisance and danger, it was one caused by the use of their railroad over the street at the same level. By acting upon this additional corporate power, they brought themselves under the provisions of their charter, which rendered them liable to third parties for incidental damages, caused by the execution of those powers, to be assessed in the mode established by law for the assessment of similar damages. On general principles, therefore, as well as by force of the statute and the terms on which they undertook to do this additional work, for the better security of their road, the corporation was responsible, as well for incidental damages, as for the cost and expenses. The bond of indemnity taken by the city, the appointment of a superintendent to take care of the public interest, in the execution of this work during its progress, were prudent measures, taken ex majori cautela, which do not tend to change the character of the work to be done, or take off the general liability of the company. Parker v. The Boston & Maine Railroad, 3 Cush. 107.

This view substantially answers the other exception; which was, that the damages should have been claimed within one year from the time of taking the land, or from the completion of the work causing damage. For this they rely on their act of incorporation, referring to the act for assessing damages on laying out highways.

But we think that limitation is not applicable. This work was done in pursuance of the enlarged powers given by Rev. Sts. c. 39; and we think the time for claiming damages is to be governed by the same statute, § 58, which limits the time to'three years. In the present case, the claim was made within three years.

Exceptions overruled, amd judgment on the verdict.  