NEWCOMB v. NORFOLK WESTERN ST. RAILWAY

Street Railway, Restrictions imposed in grant of location. A requirement, in a location granted under Pub. Sts. c. 113, § 7, by the selectmen of a town to a street railway company, that the company shall water the street over which it is granted a location from curb to curb between April 15 and November 15 in each year, is a lawful restriction, and will be specifically enforced in equity by this court under Pub. Sts. c. 113, § 63.

Restrictions imposed by the aldermen of cities and the selectmen of towns in granting locations to street railway companies under Pub. Sts. c. 113, § 7, are not affected by St. 1898, c. 578, relating to street railways, it being expressly provided by § 11 of that act that the companies shall remain subject to such restrictions.

HOLMES, C.J.

The requirement in § 23 of the grant of the location to the respondent that it shall water the street over a portion of the way between certain dates was a lawful restriction within Pub. Sts. c. 113, § 7, which allowed selectmen to grant a location "under such restrictions as they deem the interests of the public may require." The well-known effect of running cars is to raise a dust, and the requirement, although affirmative in form, in substance restricts the respondent to running cars in such a way as not to raise a dust. The case is not affected by St. 1898, c. 578. See § 11.

This being so, the restriction is a regulation which this court is given power to enforce by Pub. Sts. c. 113, § 63.

It is true that in St. 1866, c. 294, § 1, from which § 63 is taken, the power was given "according to the usual course of chancery proceedings," and that it might be argued that this restriction should not be enforced because it is not the usual course of chancery proceedings to compel the specific performance of continuous acts or duties for an indefinite time. Powell Duffryn Steam Coal Co. v. Taff Vale Railway, L.R. 9 Ch. 331. Fry, Sp. Perf. (3d ed.) 41, 45. Texas Pacific Railway v. Marshall, 136 U.S. 393, 407. But the court is of opinion that, in view of the obvious purpose of the statute that such regulations should be enforced specifically, it ought to go further than ordinary practice might lead it to go in the absence of legislation, and to do all that it can to see that the requirement is performed. Some confirmation of this view is derived from § 27, as that section shows that regulations concerning the removal of snow and ice were before the mind of the Legislature when it enacted § 63.

Practically there will be no difficulty in the specific enforcement of the street-watering. The issue raised is not on the manner of performance but on the question whether the respondent is bound to water at all. When it is decided that the respondent is bound, probably there will be no further trouble, especially as the location provides a domestic tribunal by requiring the work to be done to the satisfaction of the superintendent of streets.

Demurrer overruled; injunction to issue.