We have not deemed it necessary to consider whether the original laying out of A Street by the order of *234December 18, 1855, was valid, because we are of opinion that, if it was invalid, it was confirmed and made valid by the St. of 1873, e. 289.
In determining the effect of this act and the intention of the Legislature, we must have regard to the state of facts existing at the time it was passed. It affected a large tract of flats and newly made land between Boston and South Boston, in which the Commonwealth and the city of Boston had important interests as proprietors. Many special acts and resolves had been passed, of which the purpose was to fill up the flats, and to improve and make valuable this territory.
From the nature of the case, the territory when filled must be flat and level. It would be impossible to lay out streets which should pass under the plaintiff’s railroad, and it would be a serious impediment in the development and improvement of the teritory if the streets were required to pass over the railroad at a higher level.
By the St. of 1854, c. 218, the Legislature had authorized the Boston Wharf Company to fill up its flats, and by the fifth section had authorized the city of Boston to lay out streets on the territory which the Boston Wharf Company was authorized to fill, provided that such streets should be laid out within one year from the passage of the act. Under this authority, the city proceeded to lay out a number of streets on the territory by an order passed April 4, 1855, being within the year. But the city afterwards changed its plans, and, by an order dated December 18, 1855, laid out the street which is the subject of this suit. We cannot regard this as an alteration of one of the streets laid out by the order of April 4, 1854, but must treat it as a new laying out. The city of Boston had proceeded under this laying out, and constructed and opened for public travel a part of the said street, at the grade contemplated in the order, which would cross the plaintiff’s track on a level when the flats were filled. It is to be observed that the plaintiff was not al lowed to locate its road over this tract in the usual way, by tak ing five rods in width, but the direction and width of its track were carefully defined by the Legislature. St. 1850, c. 268.
. It is not practicable, without undue length, to refer to the various statutes, resolves and contracts of the Commonwealth *235respecting the development and improvement of this territory. An examination of them will show that the Legislature regarded the matter as presenting an exceptional case, in which deviations from the general policy of the state as to the construction of raikoads and streets were necessary in order to effect the redemption and improvement of a large and valuable tract of flats.
Under such circumstances, the St. of 1873, c. 289, was passed. It must be regarded as a part of the general scheme of the Commonwealth in dealing with this territory. In the fifth section it authorizes the plaintiff, for the purpose of increasing its terminal facilities in Boston, to take or purchase a tract of land and flats which includes A Street where it crosses the track, “ provided that the said railroad company are not hereby authorized to take any part of the land within the limits of A Street as located by the city of Boston, or conveyed to the said city by the Boston Wharf Company, or of the extension of the same to Eastern Avenue; but the said street may be crossed by the tracks of the said railroad company in such places and to such extent as shall not prevent the use of the same for public travel as a highway.” This cannot be regarded as a mere incidental or unimportant reference to a street supposed to exist. It must be presumed that the Legislature understood the subject with which it was dealing, and knew that this street had been located over tide waters, and at a grade which was on a level with the railroad track of the. plaintiff after the flats were filled. The statute not only refers to the street as a boundary, but it takes care to protect the rights of the city in it as a street, and recognizes it as a public highway. These provisions would not have been made unless the Legislature had intended that A Street as located by the city of Boston should be regarded and treated as a legal public highway. We think that this statute was a recognition and affirmation of said street as a legal street, and had the effect to cure any illegality or defect in its original laying out.
The plaintiff therefore cannot maintain its bill.
jBill dismissed.