SENATE .... No. 350

(ftommomueoltt) of illassacljusdts.

In Senate May 10, 1878.

The Committee on the Judiciary, to whom was committed the Bill relative to the Southern-Yermont Railroad, and cer- Yermont, to be constructed, to connect with the Troy and Greenfield Railroad, have considered the same, and submit thereon the following

REPORT.

The Southern-Yerraont Rai road Company was chartered n 1848 by the Legislator . It was authorized construct and maint Iroad across the State, in the ounty of Bennington, from tl to the New- York line. Its railroad t under the charter thus granted. In 1856, Nov. 21, t ,d, then in process of build- ng apparently, was leased by the company to the Troy and Railroad Cf ing the term of the continuance of the chart id Southern-V Railroad Corpoi ing the term of an newal or renewals of said cl irter that might thereafter obtained, at ar an Act of the L rf this Coranu hap- ter 202 of the Statutes of 18( “ The Troy Greenfie Railroad C th 1 to pur- chase the entire road, franchise, stock, bonds, and otlu 9 SOUTHERN-YERMONT RAILROAD. [May,

property of the Southern-Yermont Railroad Company, to- gether with the income, benefits, and reversion of its lease to the Company, and subject to its provisions, for the sum of two hundred thousand dollars; and for the purpose of enabling them to make such purchase, and transfer the same to the Commonwealth as additional security to the Commonwealth for its whole loan,” a further loan of two hundred thousand dollars to the Troy and Greenfield Railroad Company was authorized, and subsequently made. On the twenty-first day of April, 1860, the Southern-Yer- mont Railroad Company, in consideration of two hundred thousand dollars, and in conformity with and under the fore- going Act, transferred to the Troy and Greenfield Railroad Company its railroad, particularly described, with “ all the franchises, capital stock, bonds, leases, contracts, rights, privi- leges, and other property, including the lease made by said grantor corporation to the Troy and Boston Railroad Com- pany,” dated, &c., and “ one part of which, held by the lessor corporation,” was annexed to the deed of transfer. On the same day the Troy and Greenfield Railroad Com- pany mortgaged this Southern-Yermont Railroad so conveyed to it to the Commonwealth. Nov. 10, 1860, the Legislature of Vermont, by an Act of that date, ratified this transfer and mortgage. The Commonwealth now holds title to the Southern-Ver- mont Railroad as mortgagee in possession under this mort- gage. The Southern-Yermont Railroad appears to have been

opened for use in 1859 ; since which time it has been and still is operated by the Troy and Boston Railroad Company, under its perpetual lease. Since it came into possession of the Troy and Greenfield Railroad, and of this Southern-Yermont Rail- road, under its mortgages, the Commonwealth has collected and received, and still collects and receives, as the Committee are informed, the annual rent of twelve thousand dollars un- der the lease. The relation between the Commonwealth and the Troy and Boston Railroad Company as to this Southern-Yermont Rail- road is that of lessor and lessee. The Commonwealth’s title, as assignee of the original lessor, is that of mortgagee in pos- session, with an existing right of redemption by the mortgagor, the Troy and Greenfield Railroad Company. 1878.] SENATE —No. 250. 8

The Bill before the Senate, and referred to the Committee, in its first section authorizes the Troy and Boston Railroad Company, within a limited period, “to assign said lease to this Commonwealth; ” and provides, among other things, that thereupon the Company “shall be released and discharged from all obligations not already incurred to the Common- wealth arising from said lease.” Sect. 2 provides, in case such assignment shall be made, for the payment by the Commonwealth to the Troy and Bos- ton Railroad Company of the value of the lease assigned, and provides also the mode of settling such value. To these sections there would seem to be no constitutional r legal objections. The expediency of the Commonwealth’s making the proposed purchase of the lease the Committee do not suppose the Senate intended they should consider, as that matter has already been fully considered by another and more appropriate Committee. The third section of the Bill gives the consent of this Commonwealth, “so far as the same may be lawful,” to the Boston, Hoosac , and Western Railway Company, “ to enter upon, and use and locate, construct and maintain, un- der the laws of the State of Vermont, a railroad upon the rights of way and railroad lands of said Troy and Greenfield Railroad in the State of Vermont, otherwise called the Southern-Vermont Railroad, and upon such parts and por- tions of the same as may be necessary to construct their railroad through the State of Vermont, but not interfering with the main tracks of the present road, nor entering within one rod of said tracks, except as may be necessary for con- nection with the Troy and Greenfield Railroad at the State line of Massachusetts.” If this section stood alone, and an entry was made under its provisions upon the Southern-Vermont Railroad, the Com- mittee think such entry would be an eviction of the lessee, which would relieve it from the payment of further rent un- der the lease, and perhaps involve other liabilities. Koyce vs. Goggenheim 106 Mass. R. 202. Sherman vs. Williams, 113 Mass. R. 481. Upton vs. Greenlep, 17 C. B. 73. Colburn vs. Morrill, 11 ' Mass. R. 264. Mirick vs. Hoppin, 118 Mass. R. 587. 4 SOUTHERN-VERMONT RAILROAD. [May,

But this section is qualified by that which immediately follows in Sect. 4, which provides that “ the consent given in Sect. 3 shall not he construed to permit the Boston, , and Western Railway Company, or any person, tc enter upon, use, locate, construct, or maintain a railroad upon the rights of way or railroad lands ” of the Southern-Yer mont Railroad, “without payment to said Troy and Boston Railroad Company of all damages caused thereby to said cor- poration, and to any rights they may have under said lease, as the same may be assessed under the laws of Vermont for the taking of land and other property for such purposes.” The whole scope and effect of the two sections, taken to gether, seems to be, that the Commonwealth, as owner of tl reversion, consents that the Boston, Hoosac Tunnel, and Western Railway Company, may be authorized by the State of Vermont, in the exercise o the right of eminent domain, to take more or less of the pn ierty of which Massachusetts holds the reversion, without o b tion, or claim of damage, on her part, but that there mus be no interference whatever with her tenant, except under t Ire power of eminent domain, and with the usual and necess y provision for adequate com- pensation for all property or r fits taken under this power from such tenant. In simple language, the Coi umonwealth says to the State of Vermont, “ You may, if yoi i see fit, authorize another rail- road company to locate and < construct a railroad over por- tions of the Southern-Verm ont Railroad which has been leased, and of which we hold i the reversion, without objection or claim by us, provided you do not interfere with our tenant otherwise than to take such as may be necessary of its rights, and that you pay for the same so taken under this power of eminent domain.” If, then, by the true construction of Sects. 3 and 4, the consent of the Commonwealth is thus limited to its own in- terest as reversioner, and does not extend to any interfer- ence with the tenant’s rights, but leaves them to be dealt with under the laws of Vermont, and the power of eminent domain vested in and exercised by that State, the Committee do not see that there is any eviction of the tenant, breach of any covenant for quiet enjoyment made to it, or violation of any of its rights. 1878.] SENATE —No. 260.

This seems to be settled ir the cases of Ellis vs. Welch, 6 Mass. R. 24 Parks vs. Boston. 15 Pick. 198, 205, 20( That any corporate property or right mav be taken for a public .use under the power of minent domain has been long settled in this Commonwealth Boston Water-Power C mpany vs. Boston and Provi- lence Railroad Corj ation, 23 Pick. R. 360 And it is now well-establishe 1 law everywhere in this coun ry, “ This power, denomim the eminent domain of the State, is, as its name imports, f aramount to all private rights i unc vernm and these last are, by ne sary implication, held in sub' rcluicitic this power, and must yield in every instant roper exercise (Case of the West-Rive Bridge in Vermont, Supreme Court of the United West-River Bridge Co. Dix, 6 How. R. 507-532.

“ If the whole of a fraud mid become necessary for the public use, I am not pi to say that the right of minent domain, in an extreme case, would not extend to and authorize the Legislature to take it on payment of a ful valent. lam not aware that it stands upon a higher or sacred ground than the rig ht to personal or real prop-

C. J. Shaw in Boston W P. ( B. & W. R.R. Co. 13 Pick Precisely the case supposed by Chief Justice Shaw occurre i the West-River Bridge was taken for a public highway icier the laws of Vermont; and the Supreme Court of the United States, as above stated, sustained the action of the State. Numerous cases might be cited to the same point the Committee do not deem it necessary, as they regard id as to be hardly ope If it be the ( rght to be so amended as to rer any To th 1, the Committee recommend that Sect. 8 of the proposed printed substitute Bill be (T SOUTIIERN-VERMONT RAILROAD. [May, ’7B.

amended in the fourth line by inserting after the word “law

” ful the words “ and its title or interest is concerned.” They further recommend that Sect. 4 of the same Bill be amended by inserting after the word “lease,” in line 5, the words “or to interfere in any way with their rights thereunder;” and by inserting after the word “purposes,” in line 15 of the same section, the words “nor shall it authorize any eviction of the tenant from any rights under said lease, nor any interference therewith.” The Committee have not felt it necessary to consider the remaining sections of the Bill, as they relate merely to mat- ters of railroad policy and expediency already full}' con- sidered and reported upon by another and more appropriate Committee. Nor do the Committee mean by this Report to express any opinion of the justice, equity, expediency, wis- dom, or policy of the legislation proposed by this Bill, as these have all been elaborately considered by the Special Joint Committee which reported the Bill, and their re-ex- amination is not regarded by this Committee as within the scope and purpose of the reference to them.

For the Committee,

CHAS. THEO. RUSSELL