A brief general consideration of the nature, of the rights acquired by a street railway corporation under a charter from the legislature, and of the extent of the powers of commissioners appointed under the St. of 1864, c. 229, § 29, when one such corporation enters upon or uses the tracks of another, will go far towards disposing of the respondents’ exceptions to this award.
The charter of a street railway corporation is the grant of a franchise to lay iron rails on part of the public highways, to run horses and cars thereon for the transportation of passengers, and to receive fares for such transportation, in consideration of the benefit to the public resulting from the establishment of such means of travel, and in compensation for the expenses ncurred by the grantees in laying their rails and running their cars. Although such a grant does not deprive ordinary travellers of the right to pass over the whole highway, including that part on which the rails are laid, so long as they do not unreasonably interfere with the passage of such cars; it is clearly inconsistent with the use of the tracks by other similar corporations for the running of vehicles of the same kind for the transportation of passengers for hire, without like authority *270from the legislature; for the grant of such a franchise would be of no benefit to the grantees, if it merely authorized them to incur the expense of laying rails adapted to the drawing of passenger cars, upon which, when laid, all other corporations, without compensation or reimbursement to them, would have equal rights to run similar cars and to receive like fares. Commonwealth v. Temple, 14 Gray, 74-77. St. 1864, c. 229, §§ 22, 23, 26, 33. 1 Redfield on Railways, (3d ed.) 319, 320, 322. The legislature indeed reserves to itself the right to repeal or modify the charter, and to the municipal authorities the power of fixing, changing and discontinuing the location of the tracks and of regulating their use. Gen. Sts. c. 68, § 41. St. 1864, c. 229, §§ 14-20, 31, 34.
Such was the nature of the franchise granted by the St. of 1854, c. 435, and the acts in addition thereto, to the Dorchester Avenue Railroad Company, and now owned by the Metropolitan Railroad Company. The Quincy Railroad Company are authorized by their charter “ to enter upon and travel over with their cars and vehicles the tracks of said Dorchester Avenue Railroad,” in a manner and upon terms to be fixed by commissioners appointed by this court, if the parties do not agree; and are made “ subject to all general laws which have been or may hereafter be enacted relating to horse railroads.” St. 1861, c. 48, §§ 3, 6.
The general act of 1864, concerning such companies, provides that whenever any street railway corporation, duly authorized by law, enters upon and uses the “ tracks, or any portion thereof, of another such corporation, and the corporations cannot agree upon the manner and conditions of such entry and use, or the compensation to be paid therefor, the supreme judicial court, upon the petition of either party and notice to the other, shall appoint three commissioners, who, after due notice to and hearing of the parties interested, shall determine the rate of compensation to be paid for future use, and if desired by either party, for past use, or fix the manner and stated periods of such use, or the mode of connection of the tracks, having reference to the convenience and interest of the corporations, and of the public to be accommodated thereby; ” and their award, being *271returned to and approved by the court, shall be binding for one year and until revised in the same manner.
By this statute the rate of compensation to be paid by one corporation for the use of the tracks of the other is submitted in the broadest and most general terms to the determination of the commissioners. The weight to be allowed to the extent of the franchise granted in either charter, to the expenses incurred by each corporation, the amount of business done upon each of the connecting roads, and all other circumstances bearing upon the question, is left entirely to their discretion.
The compensation which each corporation would in fact have received for their outlay and expenditures, in case no other corporation had entered upon their tracks, would have been the amount of the fares of all passengers transported in cars over those tracks. In the award made in this case, the commissioners, exercising the discretionary powers intrusted to them by the statute, appear to have been much influenced by this ; and have determined that the suitable compensation to be paid to the Metropolitan Railroad Company for the use of their tracks by the Quincy Railroad Company is that portion of the profits from passengers carried over -the whole or part of both roads, which is derived from carrying them on the road of the Metropolitan Railroad Company, or rightly belongs to the business of that road, having regard to the capital and work contributed by each company in the transportation; and also the entire receipts from passengers carried wholly on that road, allowing to the Quincy Railroad Company only the cost of transportation, which must of course be held to include an allowance for the interest on the capital invested in the horses and cars used by that corporation in such transportation of passengers. There is nothing in the facts of this case, as presented to the court, to show that this mode of estimating the compensation was unreasonable or beyond the authority of the commissioners. The question whether any other rate of compensation would have been more just and equitable was a question to be decided by the commissioners, and not by the court. The court must presume that the reasons in favor of a different mode of computation *272from that adopted in the award were presented to the commissioners and duly considered by them.
With these general views of the nature of the questions to be decided by the court, we now come to the examination of the particular exceptions of the respondents.
The first exception is based upon the assumption that the corporation whose tracks are entered upon have no peculiar right to transport passengers in cars over their own road; an assumption which, as already stated, is inconsistent with the nature of the franchise granted by the legislature.
The ground alleged for the second, fourth and seventh exceptions is that the commissioners have been guided, in estimating the compensation, by the amount of business done by the respondents upon the petitioners’ road. This was within the authority given to the commissioners by the statute.
The third exception is groundless. There is nothing in the award which recognizes any interest of the petitioners in any passengers not carried over their own road, or which creates a partnership between the two corporations. The “ union of interest,” which the commissioners declare it to be their object to create, is carefully limited by the words “ to some extent,” and explained by the other objects stated, of removing competition, and giving to each corporation the legitimate profits of the business to do which they were incorporated. The commissioners in this have done no more than follow that clause of the statute which directs them to “ have reference to the convenience and interest of the corporations.”
The statements and accounts required to be made and exhibited by the respondents to the petitioners, which are the subjects of the fifth and sixth exceptions, are no more than reasonable means to secure the payment of the compensation at the rate fixed by the commissioners. There is nothing in the case to show that it is impracticable or difficult to keep or render such accounts.
The obligation of each corporation to keep their tracks in repair is fixed by statute, and need not be expressed in the award. St. 1864, c. 229, § 18. The allowance, if any, to bs *273made for the fact that the tracks were not used during part of the winter was to be, and doubtless was, considered by the commissioners. The eighth and ninth exceptions cannot therefore be sustained.
This disposes of all the exceptions taken by the respondents to this award. It may be added that many of them are very similar to exceptions which have been heretofore taken to like awards between ordinary railroad corporations, under the Sts. of 1845, c, 191, and 1857, c. 291, and overruled by this court, upon reasons which apply with equal force to this case. Boston & Worcester Railroad v. Western Railroad, 14 Gray, 253. Lexington & West Cambridge Railroad v. Fitchburg Railroad, lb. 266.
Award accepted and judgment thereon.
Colt, J. did not sit in this case.