Street Railway, Condition in location. Contract, Implied. If a town grants to a street railway company a location, to reach which it is necessary to construct a railway in an adjoining town, and the last named town refuses a location, this does not relieve the railway company from the performance of a condition in the location granted by the first named town, that the company shall build ten miles of road within one year, if under the location more than ten miles of road can be built in that town alone, and, for the same reason, it is immaterial, that a railway company, in another State adjoining the town, under substantially the same management had expended a large sum of money in grading, preparatory to constructing a road to meet the proposed railway at the State line.
A street railway company asked a town for a location, and presented a draft of a location containing a condition that the railway company should deposit the sum of $2,000, which should be paid to the treasurer of the town if ten miles of road were not built within one year. The location was granted on the terms asked, and the railway company made the deposit. The road was never built, and the railway company brought a bill in equity to restrain the payment of the $2,000 to the town treasurer. Held, that the payment being voluntary the court would not assist the plaintiff in recovering it, whether the condition proposed by the plaintiff and accepted by the town was against public policy or not.
BARKER, J.
Under the location more than ten miles of railway could be built in Agawam alone. Therefore there is no ground for implying a condition that the plaintiff should be authorized to build outside of that town, and for the same reason the evidence excluded by the master was immaterial.
It is plain from the facts found by the master that the obligation to pay over the $2,000 was not one imposed by the selectmen at their own instance, and that such a payment was first suggested and offered by the plaintiff itself in asking for a location, and that the condition as incorporated in the grant of location was one drafted by their own attorney and was more than once accepted by the plaintiff. Under such circumstances the payment was not involuntary or constrained. See Boston Sandwich Glass Co. v. Boston, 4 Met. 181, 188.
The plaintiff is in this position — If the condition was a proper one there is no reason why the plaintiff should have the money back. If it was against public policy the plaintiff can no more have the help of the courts to recover the money than to recover a bribe. It did not act under any necessity, but of its own voluntary choice, and in declining to aid in the recovery of money voluntarily paid against public policy the courts leave the plaintiff where it has seen fit to place itself.
Decree reversed and bill dismissed with costs.