I concur with the opinion of the court, except that I think it was not the intention of St. 1894, c. 548, and of St. 1895, c. 440, that any part of the subways should be constructed in the Public Garden. The use to be made of Boston Common in the construction of the subways is very carefully provided for in § 29 of the St. of 1894, and in' § 3 of the St. of 1895, but not a word is said concerning the Public Garden in either statute. Considering the very careful provisions made in the statutes concerning the use of the Common for subways, it is improbable that the Legislature would not have made equally careful provisions concerning the use of the Garden if it had supposed that the commissioners could use the Garden for the purposes of the subways, or could construct a subway in or under it. I think that the intention of the Legislature was that the connection of the subway with the surface tracks of the railway on Boylston Street should be made at or near the corner of the Common bounded by Charles and Boylston Streets, and that the incline of the subway for these tracks should begin there. By § 25 of the St. of 1894, the principal subway was to begin at “a point or points within one thousand feet of the junction of Tremont Street and Shawmut Avenue,” and was to continue “ through and under Tremont Street and the adjoining mall of Boston Common or other public or private lands adjoining or near said street,” to Scollay Square, etc. By § 27, subways to be connected with the principal subway might be constructed for the use of the cars which run along Columbus Avenue through Park Square and those which run along Boylston Street. At the time of the passage of these statutes, at the junction of Charles and Boylston Streets and Park Square the surface tracks of the railways were connected with one another. No provision was made by the statutes whereby *368the surface tracks on Charles Street should be connected with the subways, but provision was made whereby the surface tracks on Columbus Avenue and on Boylston Street might be so connected. The provision for the Boylston Street tracks is that a subway may be constructed “ From Tremont Street through and under Boylston Street and the adjoining mall of Boston Common or other public or private lands adjoining said street to a point on or near Boylston Street, where a suitable connection with surface tracks may be made.” The provision for the Columbus Avenue tracks is that a subway may be constructed “ from Boylston Street through and under Park Square and Columbus Avenue or other lands adjoining said square and avenue to a point on or near Columbus Avenue, where a suitable connection with surface tracks may be made.” The subsidiary subways must unite with the principal subway at or near the corner of Boylston and Tremont Streets. The Columbus Avenue subway, if one is built, must unite with the subway in Boylston Street or in the adjoining mall of Boston Common at or near the junction of Park Square and Boylston Street. I see no authority in the statutes for carrying the subway in Boylston Street, or in the adjoining mall of Boston Common, beyond the junction of Park Square and Boylston Street, or beyond the limits of the adjoining mall on the Common.
The report of the presiding justice states that “ on the admission of the plaintiffs that they did not rely on the allegation in the bill as to extending the subway from opposite Church Street to Arlington Street, in view of the statement which was made by the defendants that there was no intention on their part to do so, I sustained the demurrer,” etc. The work actually done by the commissioners in the Public Garden perhaps indicated an intention on their part, not of reaching the surface 'tracks on Boylston Street by the nearest practicable approach to the subway as it was built under Charles Street, but of deflecting the surface tracks on Boylston Street, at its junction with Arlington Street, to the southwesterly side of the Garden, and of laying tracks over the surface of the Garden until they reached the incline of the subway in the Garden. But any such intention, if it ever existed, it seems has been abandoned.
The opinion of the court justifies the construction of the sub*369way in the Public Garden on the ground that it was necessary in order to comply with the provisions of § 29 of the St. of 1894, and § 3 of the St. of 1895, to the effect that no part “ above the surface ” of the Common should be occupied by railway tracks or for any other purpose than for suitable ventilation, for shelter and stairways to stations, and for coverings therefor, and not on the ground that authority was given by the statutes to the Commissioners to use the Garden in any such manner as they saw fit for the purpose of constructing the subway. Without laying much stress upon the employment of the word “ tunnel ” in the statutes, as distinguished from “ subway,” the use of an incline beneath the surface of the ground for tracks to reach a subway or tunnel is not, I think, an occupation “ above the surface,” within the meaning of the provisions of the statutes which have been cited. An incline is a necessary part of the subway, and is to be included within the limits of the subway. The phrase “ other public or private lands adjoining said street,” found in § 27 of the St. of 1894, is found in other sections of the statute, and cannot be held to extend the termini of the subways as fixed by other provisions of the statutes. The phrase means that within the authorized termini the commissioners may construct the subways in the directions indicated through the land, whether the land be public or private. I do not dissent from the result reached by the court, because before the present suit was brought the subway had been substantially constructed in the Public Garden without any objection, so far as appears, on the part either of the Commonwealth or of the city of Boston ; and I should not feel justified, under such circumstances, in attempting to undo the work there done because I differed in opinion with the commissioners upon the construction to be given to the statutes, unless the construction acted on by them seemed to me impossible; but my opinion is that the statutes were not intended to authorize such a use as they have made of the Public Garden.