USA > Massachusetts > Middlesex County > Lincoln > Town Report on Lincoln 1898-1902 > Part 17
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We gave most careful consideration to the question whether electric roads should be placed upon the highways in a town like Lincoln, and finally concluded that they ought to be placedjupon special ways of their own, controlled by the town. This would require legislation and we therefore called a town meeting on January 26, 1901, at which we were authorized to present a petition to the General Court enabling the town to lay out special town ways for the use of electric roads. In presenting the matter to the town, the chairman of our board made a detailed explanation of the
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proposed legislation and of the events leading up to the posi- tion taken by the Selectmen, and as the town voted to request us to publish his remarks in connection with this report, it is unnecessary to go over the ground covered by him. In pursuance of the instructions of the town, given us at this meeting, we immediately filed a petition in the General Court asking for either general legislation enabling all towns in the State to lay out special town ways for electric roads, or special legislation limited to the town of Lincoln, and filed with our petition the proposed bill which has been printed and sent to all voters in the town.
The town will be interested to know that the question raised in Lincoln in regard to special ways for electric roads has suddenly become the burning question thoughout the entire State. The Legislature has now pending before it forty-three bills filed by railway companies for authority to go over private land. At least two of these bills provide that the street railway companies may condemn land under the power of eminent domain in Lincoln.
The bill which we have presented and which has become known as the " Lincoln bill," is the only one where the rights of the towns are fully preserved, and is the only in- stance in which a town is requesting legislation. In all other cases the street railway companies or their promoters are the petitioners. We may congratulate ourselves upon taking up this subject in time, before the State has com- mitted itself to some policy which would deprive the town officers of the power to regulate the traffic of street railways outside of the highways. As it is, we are none too soon in the action we have taken. None of the bills for private ways for street railways have yet been acted on by the Legisla- ture, and it is the understanding that the street railway com- mittee, to which most of them are referred, will make no report upon them until they have all been considered.
We have succeeded through the efforts of the counsel for the town, in already eliminating from one of the most dan-
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gerous bills the provision for the power to condemn land in Lincoln for street railway purposes. This is a bill in which some of the strongest men in the State are interested, pro- viding for the incorporation of the Arlington, Waltham and Concord Street Railway Company through the town of Lin- coln, and also providing that the railway company when incorporated shall have the right to carry mail and freight, and may also establish and conduct one or more places of amusement, for the purpose of swelling the traffic of their line. The line projected by this company is through the middle of the town, and the places of amusement are un- doubtedly on Sandy and Walden ponds, and probably Fair- haven bay. The promoters had failed to publish the lawful notice of their petition, and when they applied for leave to enter their bill notwitstanding such failure, the counsel for the town insisted that if the bill is to be admitted at all the power of eminent domain should be eliminated forthwith, and to this?the committee of the Legislature immediately agreed.
For a more detailed statement as to our action in street railway matters we shall refer to the remarks of the chair- man of the board at the town meeting of January 26, 1901.
Respectfully submitted, JOHN F. FARRAR, CHARLES S. SMITH, EDWARD F. FLINT, Selectmen of Lincoln.
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Remarks of Mr. John F. Farrar, Chairman of the Select- men, at the Town Meeting held January 26, 1901, in regard to Special Town Ways for Electric Roads.
[It was moved and seconded " that the selectmen be authorized and instructed to petition the General Court for legislation to enable the town to lay out special town ways for the use of electric railroads, substantially in accordance- with the proposed act submitted by the selectmen at this meeting." After Mr. Farrar's remarks and general discus- sion, the motion was carried. The town then voted to request the selectmen to print Mr. Farrar's speech with. their report. ]
"In making this motion I voice the unanimous wish of the- board of selectmen. The act which is proposed has been printed, and copies of it sent to every voter in the town. There are also copies of it in the hall for the use of those who desire them. I desire to explain to the town the reasons. why the selectmen want the act passed and also to explain the terms and provisions of the act itself, so that all my understand upon what they are voting.
Last summer petitions for the location of street railways in our publie streets were presented to the selectmen for the the first time in the history of the town. The locations asked for were upon the State highway and upon the Concord. turn-pike, both of which are in the north part of the town. The petitioning companies expected considerable traffic through the town to points beyond, and did not rely on the comparatively insignificant business which might come from Lincoln, although a number of people in the north part of the town desired a street railway because they are at present remote from any railroad, and feel that they need better facilities for reaching the city and adjacent towns.
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As you all know, the greatest interest was awakened by these petitions of the railroad companies. The hearings on them were largely attended, and the discussions were of the most animated character. In September, 1900, a town meet- ing was held at which it was voted " that it was the sense of the town that in granting any location to a street railway company, the selectmen should require a fair and substantial cash consideration therefor, equal to the value of the fran- chise." At the same meeting it was proposed that no electric railroad should be allowed to go through the town unless it were kept off the public highways.
Inasmuch as the question was presented to Lincoln for the first time, the selectmen felt that they should exercise great care in the first step which they took, and avoid creating any precedent which would embarass the future action of the town. The more the subject was investigated, the clearer it became to us that to adopt the policy of permitting electric railways to occupy the public streets in a town like Lincoln would be an irreparable mistake. We found that both the railroad companies and the towns were awakening to the necessity for providing some way in which electric roads could traverse the country outside of cities and thickly settled villages at a high rate of speed without the danger to the public necessarily caused if they used the highways. The only solution of the problem seemed to us to be to put the electric roads in towns like Lincoln upon special ways which are not used for the general purposes of public travel; and we felt that some means could be adopted whereby this de- sirable end would be secured, while at the same time the interests of the public as weN as of the railways would be fully protected. Accordingly, on November 10, 1900, we adopted an order dismissing certain petitions by railway companies which were then before us, and expressing our opinion on the whole situation. This order was printed and copies of it have been sent to every voter in the town. We may say, without undue pride, that our action has attracted general attention and that we have received warm commendation
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"from many quarters. The ground that we took was that in rural communities electric railways should not be allowed to traverse the public streets ; but if in any case the public streets were used, the railway companies must pay for the franchise in accordance with the vote of the town.
There has been, fortunately, very little misunderstanding, so far as we can learn, in regard to our position upon the part of the citizens of the town. We did not intend to ex- clude electric railroads from Lincoln. We recognized the fact that the town cannot interpose itself indefinitely as a barrier between the communities on either side of it, and prevent electric railroads from going across its territory. At the same time we did not, in the action which we have taken, and we do not now in any action which we propose, intend to adopt a policy which will afterward prove a mistake. We think that we have devised a plan which will meet all sub- stantial objections and secure to the inhabitants of the town the railroad accomodations which they desire.
With this purpose in mind, we asked the counsel for the town to prepare for us an act to be passed by the legislature which would permit electric roads to be constructed through the town without necessarily using the existing highways. This act has been drawn by him and has been carefully con- sidered by us and we recommend it to the town as a measure which if adopted will fully protect the interests of all persons.
In drafting this act the main question to be decided was how and by what authority special ways should be laid out. We did not believe it practicable to leave the railroad com- panies to purchase of private owners their own rights of way, because any one might refuse to sell and in that way defeat the wishes of all those who desire, that a railroad should be built ; and even if a company succeeded in purchasing a way, it might not be in the best location to serve the public. It was necessary, therefore, that somebody should be author- ized to take the land under authority of law for that purpose and to lay out suitable ways for the electric railroads. And
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who should exercise the power to lay out special ways? Ought it to be the railroad companies or the town? There seems to us but one answer to that question. Until street railway companies are more severely controlled by State leg- islation than they are at present, it is not safe to permit any company which may be formed to condemn a right of way through the town. Street railway companies are now being organized in great numbers, and it would be possible, unless strict safeguards were provided, for these companies to con- demn ways alongside of one another for the purpose of in- juring one another's business : all this would result in injury to the public. Therefore, we came to the conclusion that the town is the proper agent to exercise the power of eminent domain for the purpose of laying out special ways for rail- road companies. As we stated in our order of November 10, 1900, these special ways should be controlled by the town.
There fortunately is a convenient legal method existing, already made to hand, which, with slight modification, en- ables the town to lay out these special ways for railroads : that method is the well known process of laying out town ways. The modification required is that when laid out all other public travel except by means of electric roads shall be excluded. The selectmen already have power to lay out a town way from one end of the town to the other. This way, when laid out and accepted by the town, is open to public travel of all kinds, and locations for electric roads may be granted in it. But the town is obliged to keep it in repair and is liable for all defects in it; and these are the precise things which we wish to avoid. Therefore the proposed act is so drawn that the town is not obliged to keep a special town way in repair, nor is it liable for any defects whatever and this is because all travel except on the railroads is- excluded.
I wish now to explain the particular provisions of the pro- posed act.
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These special town ways will be laid out in exactly the same manner as town ways are now laid out by law. The selectmen must first give notice to all the owners of land through which the way is to pass ; they will then proceed to lay it out and to make awards to the persons who have any claims for damages. After that, the selectmen will prepare a description of the way with the proper plans, and file the description and plans in the office of the town clerk, where they will be open to public inspection for seven days at least before a town meeting called to accept and allow the way. This town meeting will be called in exactly the same way that town meetings are now called to accept and allow any town way laid out by the selectmen. We have had numer- ous instances within the last few years in which this has been done and the citizens of the town are familiar with the process. The way will not be legally laid out until the town votes to accept and allow it in accordance with the descrip- tion filed by the selectmen.
After the way has once been laid out, the course of pro- cedure under the proposed act, however, will be somewhat different from what it is in the case of an ordinary town way. When an ordinary town way is laid out, it is the duty of the town to proceed to construct it and make it fit for travel. It must be so constructed also as to connect with the other roads at grade.
In the case of the special town ways which are proposed, the town will not be obliged to do any work of construction. It will be sufficient if the town simply lays out the way. At the same time we have provided that the town may perform such work of construction as it deems expedient. We ex- pect,however, that occasions would rarely arise when the town would find it expedient to do any work whatever. Again, a special way, under the proposed act, need not cross any of the existing roads at grade. It may be laid out with a view to crossing over or under the existing roads, and in that way avoid all grade crossings.
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The act also provides that land necessary for approaches, buildings and structures used in the operation of the railways may be included. As everyone will see, it may be convenient to locate a special town way, of which some portions will be at some distance from any existing road ; on the other hand, it may be convenient to build some portions of it alongside an existing road. The public, in both cases, however, should be provided with convenient means of access to the railway, and we think that it is likely that stations will be established at different points. The act as drawn enables the selectmen to lay out as a part of a special town way all of the necessary approaches to any station that may be built to serve the convenience of the public.
I will now point out briefly the important points in which the proposed act affects (1) the street railway companies ; (2) the general public ; and (3) the town.
(1) So far as the street railway companies are concerned there is no difference between a special way and an ordin- ary town way. Locations are granted in a special way as in any public street. The selectmen may grant a part of a railway route on a public street and part on a special way. There is no legal difference between the two parts and they may be granted upon one petition as one continuous loca- tion. The railway company holds its location, in one part as in the other, under the same contingencies of discontinu- ance and alteration by the town authorities.
We are familiar with the reservation of a portion of a high- way in boulevard construction for the use of electric rail- ways. A special way reserves the whole instead of a part of the way. If afterward the town or county authorities should lay out roads on both sides of the special way, the result would be the ordinary boulevard construction with a reserved space in the middle for electric roads.
(2) The general public is affected in two ways by the . proposed act. First, general travel is excluded from special ways. This is done for the public safety and is the prime
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object to be secured. Secondly, special ways may be laid out so as to avoid grade crossings.
(3) The town is affected by the proposed act in the fol- lowing particulars : First, the authority of the town is enlarged so that it may, so far as is convenient, preserve its existing streets from the encroachment of street railways. Secondly, special ways may be laid out without liability to keep them in repair. Thirdly, the town will not be liable for accidents caused by defects in a special way. Under the law as it now is, the town might lay out town ways for the especial accommodation of railroads, but it would be obliged to keep these ways in repair and permit the general public to travel over them.
After the way is laid out, the selectmen may grant loca- tions to railroad companies in it in exactly the same way as they now grant locations in the public streets. This pro- vision enables the town to impose all of the conditions and restrictions upon the railroad companies which may be imposed in the ordinary case of granting a location in the public street. For instance, if the town should determine that the way should be altered, the railroad company may be required, free of expense to the town, to change its tracks to the new location. Again, if the town should see fit to discontinue a way laid out under the provisions of the pro- posed act, the railroad company is obliged to remove its tracks and the land reverts to the abutting owners.
Instead of granting locations in the ordinary way, the act provides that the town may, with the consent of the railroad commissioners, lease these ways to one or more street rail- way companies for a term not exceeding 99 years. We are not prepared to state whether the method of leasing is better than, or as good as, the ordinary method of granting loca- tions ; but the right to adopt it does no harm and may do much good. It is enough to say that no improper use of this power can be made now or hereafter, so long as the leases must be approved by the railroad commissioners.
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In granting a location or in making any lease there may be many restrictions and conditions which should be imposed upon the railroad company. It is not necessary for me to say what these restrictions and conditions should be, because they must be adapted to each particular case as it comes up.
It is not the intention of the act to limit the use of a special town way to one railroad company, but several may be granted locations over the same way.
The act will not permit general public travel along a special town way, but it is provided that certain public uses may be made of the way which are not inconsistent with its use by the railway companies, such as laying drains, pipes for water, gas, and electric wires, and the erection of tele- phone and telegraph poles. These rights will undoubtedly prove to be valuable to the town in the future.
As the railway may be constructed so as to make it difficult for persons to cross who might wish to reach their land, it is provided by the act that crossings shall be laid out by the selectmen in all cases where any person is cut off from access to his lands.
The question may be asked whether the town would be under any liability to pay land damages if a special way is laid out, with the expectation that the railroad company will make use of it, but fails to do. so. The answer to this question is that under the law relating to town ways, which is applicable to these cases, the town is not liable to pay any land damages to any person until his land is actually entered upon for the purpose of construction. He has one year after that time in which to bring suit. It follows that if the town should lay out a way which through accident was not made use of there would be nothing to pay.
Provision is made for the issue of bonds by the town to an amount approved by the railroad commissioners, in order to enable it to carry out the provisions of the act. The object of this provision is to enable the town to raise the money in a convenient way and to postpone the time of pay-
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ment, so that the expense may be fully paid by the revenue derived from the railroad companies.
Moreover, no indebtedness of this kind can be incurred without a two-thirds vote of the town, in which the check list shall be used. This is a general provision of law and it is unnecessary to repeat it in the proposed act ; but if there were any danger that the town might go too far, such danger is prevented by requiring the issue of bonds to be approved by the railroad commissioners.
When we couple these restrictions upon incurring in- debtedness, with the additional fact that the town will not be under any expense until the way is actually entered upon for the purpose of construction, we are more than doubly assured that the town cannot make an improvident issue of bonds. As the town need not do any work of construction and can be liable only for land damages, it is not likely that any case will arise when an issue of bonds will be necessary, but the provision is made so as to cover cases that may arise in the future.
In dealing with matters of such importance, the selectmen believe that the town should be the final tribunal. Con- sequently they have had the proposed act so drawn that every important step must be approved by vote of the town. When the selectmen lay out a special way, it must be accepted and allowed by the town; when they grant a location or make a lease, that also must be approved by vote of the town ; and finally all issues of bonds must be authorized by a two-thirds vote of the town. We have gone one step further, and provided that if the town accepts the act, no location in any public street shall take effect until approved by vote of the town. Thus the town will always have the control of the entire situation in its own hands.
In conclusion, we wish to say that the selectmen desire to congratulate the town upon the deep interest which its citizens have taken in the subject of street railways in Lin- coln, and to thank them for the discussions which have
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taken place at the hearings before us and in town meeting. These discussions have enabled us to take a broader and larger view of the subject than would otherwise have been possible. In submitting to you this act we feel that the plan it provides furnishes a solution of the difficult problem which has arisen all over the Commonwealth. I can only say from my own short experience in the Legislature that this year will be remarkable for one thing, and that is for the great number of bills and petitions introduced by railroad companies and others, all seeking to provide some method by which electric railroads can be constructed on private land. It is our humble belief that the act which we propose suggests the best possible method ; not that it is the final form which legislation will ultimately take, but that it is a step in the right direction. We believe that the power of eminent domain which will be demanded by the railway companies should not at present be granted to them ; but on the contrary we believe that the rights of the towns should be carefully protected, and that rights given by the Legislature to condemn special ways for electric railroads should be conferred upon the municipalities.
In the future we may expect to see provision made for appeals from the action of the towns to a central authority, but until that time comes we think . that the act which we propose not only best meets the requirements of the public, but also of the railway companies themselves, and not only best meets these requirements but satisfactorily meets them."
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HOUSE
No. 727.
[Bill accompanying the petition of John F. Farrar and others for legislation authorizing special town ways to be laid out by town authorities for the purpose of granting locations therein to street railway companies. Street
Railways and Towns, sitting jointly. Feb. 1.]
COMMONWEALTH OF MASSACHUSETTS.
In the Year One Thousand Nine Hundred and One.
AN ACT
To authorize the Laying Out of Special Ways for Street Railways and other Uses.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows :
SECTION 1. The town of Lincoln may lay out special town ways for railways operated by any motive power ex- cept steam. Such ways may cross highways and town ways, at grade or otherwise, and shall be laid out, altered and dis- continued in the manner provided by law in the case of town ways, except that the selectmen shall exercise the powers conferred on the road commissioners, if any are chosen by the town, and that there shall be no appeal to the county commissioners ; and the rights and remedies of all persons interested shall be the same, so far as applicable, as those provided in the case of town ways. There may be included in such ways land necessary or convenient for approaches, and for buildings or structures used in the operation of such railways.
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