mere remedying the inconvenience caused by its own works, and some views may be taken in regard to it which give it the appearance of being the price of the grant. But courts and their instruments are bound, we suppose, to view such transactions, with a charitable disposition to maintain and justify them upon allowable grounds. And in this view it seemed to the commissioners that there was no satisfactory proof in the case that these burdens were not imposed in good faith, and that they might not justly be regarded as rendered necessary, in some sense, and to some extent, in consequence of the privilege granted to these companies to use their cars through these streets. And as it was certainly a burden which the Metropolitan Company could not escape, as before stated; and as the privilege accorded to these companies is one of a very burdensome and offensive character, so far as other public travel is concerned; and one which would not be likely to meet with much indulgence from the public, if it were not for the very great accommodation thus afforded to a class of persons who do not use the public streets, with carriages, to any great extent in other modes, it seemed to us that the companies using this circuit could not justly require to be exempted from their proportionate contribution towards this expense. And the last consideration adverted to might justly seem to require the city authorities to be watchful that such privileges were not given these companies except upon the "condition that they indemnify fully against all expense fairly attributable, either directly or indirectly, to their peculiar use of the street. And so far as it may fairly be considered doubtful whether the burdens imposed upon the Metropolitan Company are not fair and legitimate, the commissioners are bound to regard them as being so. We have therefore included this expenditure in the estimate of the cost of the track along this circuit, and have taken the expense of maintaining the pavement into account, in estimating the expense of maintaining the track. We call the cost of building the track in this circuit, ac- Expense of paving and other business imposed, . Policeman, trackman, and guarder, and contingent expenses of tending track, Allowance to company for general supervision, including proportion of salaries, law expenses, and other matters not susceptible of clear definition, but which will inevitably occur in numerous ways, $21,000 00 24,047 96 1,150 00 $46,197 96 $ 2,770 97 1,200 00 750 00 750 00 2,000 00 1,500 00 3,000 00 $11,970 97 One fifth of this sum, we think, should be paid by the Broadway Company annually to the Metropolitan Company, beginning from the date of the petition in this case, $ 2,394.19. And if the commissioners have any jurisdiction to determine the rate of compensation before the date of the petition, which from a hasty examination would not seem to be the case, we should fix the same rate of compensation in proportion to the time from the first entry of the Broadway Company upon the track of the Metropolitan Company, which was on the 15th day of September, 1861. We have allowed nothing for counsel fees in estimating the cost of this circuit, because we regarded such expense as chiefly the result of the controversy between the companies, and presume that similar expenses were incurred by both companies, and after the controversy had been compromised by mutual concessions, we judged it to be fairly within the spirit of the compromise that the expenses of the controversy should not be brought into the future dealings of the parties, but should set off against each other. Some claim was made by the Metropolitan Company on account of their greater exposure to claims for damages occurring along this circuit to persons or their vehicles, in consequence of the streets being more crowded by the frequent passing of teams, resulting from the use of the track here by so many companies. But the commissioners did not make any separate allowance on this account, because it was extremely difficult of estimation, and did not seem to rest upon any sufficient legal basis. For if injuries complained of resulted from the negligence of one company or the other, or their servants, it should fall, and must fall, if the claim were enforced by legal steps, upon the company in default. And if such claims were not founded upon any legal default of any party, they could not be regarded as legal claims, and the settlement of them being a voluntary payment in order to buy peace, could not form the basis of a legal claim against any one. But the commissioners had no doubt the Metropolitan Company would be presented with some claims of this character every year, which they might choose to pay rather than contest them, and which it might be prudent to meet in this mode, and that the expense thus incurred might be increased to some extent by reason of the use of this circuit by so many companies. We could only meet this, if in any mode, by a pretty liberal compensation for general supervision, which we have allowed. In this we thought it just to take into account the fact that the company owning the line, used in common by other lines, necessarily must be subjected to many outgoes, not fairly attributable to any specific duty, or breach of duty, and which nevertheless must be met, and should be compensated in some way by those who have the common use, and consequently contribute their share in bringing those outgoes upon the primary company. The Commissioners had under consideration the question of the diversion of passengers from the Metropolitan Company by the Broadway Company being allowed to run their cars upon this circuit, and which passengers would otherWe had no doubt wise naturally go upon the Metropolitan Company's cars. such diversion took place to a considerable extent. But we were not prepared to say that the Metropolitan Company could require the loss thus sustained to be included in the estimate of compensation for the use of their track. We thought it could not be thus included, and if we were wrong in our view, there should be added to the estimated compensation at least $300 annually. The Commissioners considered that the Broadway Company had acquired the legal right to take up and carry passengers from any one point to any other point upon their whole route, including this circuit. This view of the case suggested to the Commissioners in ordinary cases, where one company is allowed to drive its carriages over the track of another company by means of its own motive power, whether upon steam or horse railways, the necessity of providing against any diversion of the natural and legitimate business of the company owning the track. This is effected more readily upon steam than upon horse railways; and the company exposed to loss has a more obvious check upon the other. In the case of horse railways, where passengers are taken up and set down at every point upon the line, and where the public accommodation would seem to require that every company passing along the line should be allowed to do this, it will be more difficult to keep the amount, and the company exposed to loss has no natural check upon the other. The Commissioners suppose it was not the intention of the legislature to allow foreign companies entering upon the track of those companies owning and maintaining it, to divert the business primarily and legitimately belonging to such company. But as the circuit in question seems to be the natural outlet of a considerable number of horse railroad companies centring in Boston, and the use of it seems necessary to enable such companies to accomplish satisfactorily the proper business for which they were incorporated, the Commissioners regarded it more in the nature of an investment for the common benefit of all these companies, than in ordinary cases. In the common case of one company being allowed to run its cars over the road of another, it would seem requisite, in order to effect perfect justice between them, that the company owning the track should be indemnified for any diversion of its own legitimate business; and we submit whether or no it should be so in the present case. We have thought that the increasing interest in Street Railways would justify the insertion at this place of a large portion of our carefully prepared report to the legislature of Massachusetts on that subject. The subjects of the commission discussed in detail. 1. Until perfection is reached, the exact relations of the municipalities and street railways cannot be strictly defined. Scope is required for development and growth. 2. We do not regard the interests of towns and cities as opposed to that of street railways. 3. Caution required to be used in regard to concessions of public right. 4. Reserve in regard to concessions to private interests of great magnitude and success, excusable. This may be done, in excess. Primary control of streets, and ultimate control, if practicable, should remain with municipalities. 5. Relations of street railways to each other, and to the use of streets by other vehicles, &c. (1.) Rule of compensation where one road uses the track of another, without doing any competing business. (2.) The best mode of accommodating other travel to street railways. (3.) The gauge of street railways and other carriages, should be the same. (4.) Paving street and three feet on each side, fully indemnifies the cities and towns, in ordinary cases. (5.) Railways should not be allowed in street, unless room for two tracks, and for car. riages to stand, and others pass on either side. (6.) Street railways should be restricted within these reasonable limits, in laying new tracks. Improvements suggested in Boston. 6. Further discussion of the use of tracks by different companies. (1.) Branch lines should account for the net profits of all business done by them exclusively upon the trunk line. (2.) To exclude the branch line from the trunk might put it too much in the power of the latter. (3.) Not practicable to require trunk roads to draw the cars of branch lines over their own road, in all cases. (4.) The rights of trunk and branch lines, upon sound principles of construction. (5.) The mode of estimating compensation in such cases, recommended by us, will cure the desire to multiply trips. 7. The relations of street railways to other travel, further discussed. 8. The propriety of consolidating street railways in Boston, discussed and doubted. 9. Omnibuses cannot, properly, be excluded from streets where street cars are allowed. 10. The subject of removing ice and snow from the streets discussed. 11. The motive power of street railways. Dummy engines. (1.) The examination of these engines. Their use not fully tested. (2.) They will be exceedingly useful in rural and suburban districts. (3.) They occupy but small space, ascend steep grades with ease, and possess great power. (4.) They will be likely to come into general use in light and short passenger traffic, both on steam and street railways. 12. Commutation tickets. Best regulated by the companies. Change recommended. We shall now give our views upon all the subjects submitted to our consideration, in the Resolve providing for our appointment, in the order in which they occur in the Resolve. 1. In regard to "the relation of street railways to the cities. and towns in which the same are located" very much may be said; and at the same time it has not appeared to us judicious to attempt to define these relations, and the consequent rights and obligations, with much strictness, by any new legislative provisions. It has become an axiom in regard to all the intimate relations of life and business, that in proportion to the closeness of the relation was the demand for flexibility and expansiveness. in the rules, or laws, under which the relation was attempted to be maintained, if we would secure reasonable freedom and comfort in the continuance of the relation; and especially where we intend to give room and scope for development and growth in the future. When we feel sure that any system has reached the point of perfection, so that there is no further demand for space for development or growth, it will be practicable to define the obligations and duties of the related parties with perfect accuracy; but, until that point is reached, there will be large demand for modification and experiment, and this will always require latitude and liberality in the terms and in the construction of the laws which we apply to the subject. 2. It was very much urged upon our consideration by the different railway companies which came before us, that some mode should be devised for making the street railways in some degree independent of the exactions and control of the cities and towns through which they passed. There seemed to be a feeling as if the municipal authorities had an interest, in some sense, antagonistic to that of the street railways within their limits; so that when the interests of the latter were submitted to the judgment of the former, it was equivalent to being tried by an adversary party. We have no question that this feeling is very sincerely entertained by many of the officers of the street railway companies, and there may have been more or less reason for the feeling in the past relations and experiences of these two interests, since all such matters are more likely to assume the form of antagonism, in the incipient stages of the growth of a new enterprise, than after its form and demands have become more fully developed, and consequently better understood. But we have not been able to comprehend why the municipal boards of the towns and cities stand in any position of interest opposed to street railways, more than to any other, as extensive and important interests within their limits. 3. It is undoubtedly true that the more exclusive the interest. and occupancy which any class of carriages shall require or demand in the streets, the more needful it will become, and the more natural, that those who have the charge of repairing and clearing the streets should exercise watchfulness and circumspection, lest encroachments should imperceptibly be suffered to grow up in regard to other travel. So also the larger and more influential an interest becomes, and the greater number of persons who are interested in its continuance and extension, the more difficult it will be to retrace any step of indulgence once conceded to such interest; and consequently there will exist the greater need of caution in regard to making concessions to it, |