Hiss v. Baltimore & Hampden Passenger Railway Co.

52 Md. 242, 1879 Md. LEXIS 105

• Court: Court of Appeals of Maryland
• Decided: July 15, 1879
• Status: Published

Opinion

Irving, J.,

delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court for Baltimore County, dissolving an injunction and dismissing the hill of the appellants. The hill charges, that the appellants are the owners of the lots abutting upon Decker street or Maryland avenue, between Shirk and Brown streets, in Baltimore County; that the bed of said street or avenue belongs to the complainants, and that the same is a private way. It further charges, that the appellee, the Passenger Railway Company, without the assent of the complainants, and claiming incorporation under, and authority by, an Act of the Legislature passed in 1865, being chapter 32, is laying a railway track along said street or avenue to their injury, without having condemned the right of way or made any compensation to them for their interest in the soil and damages incurred; the hill then prays for an injunction. The answer admits title, hut denies that the said street is a private way, and charges it to he a public street or highway, and a very important thoroughfare. It admits the laying of the railroad track, but alleges it is only a horse car railway, which their charter fully authorizes, and defendants disavow and forever renounce all claim to place a steam railway on said street, and insist that the law is wholly within legislative powers.

The case presents two questions. 1. Is Decker street or Maryland avenue a public street and highway ? 2. Is the authority given the Railway Company by their charter, Act of 1865, ch. 32, constitutionally imparted ? In other words, had the Legislature power to authorize the construction of such railroad in and along said street or highway?

1. From the admissions of record, the proof in the cause, and the concession at bar, it is clear that the street or avenue in question has been thrown open to public use, and has been accepted and used by the public for many years ; that lots have been sold calling for said street; that it has been used for very many years as a thoroughfare for all the ordinary modes of transit; so that we regard the appellants as estopped from denying it is such street or highway, for all the purposes for which it may he fairly inferred, that the dedication was intended. White vs. Flannigan, 1 Md., 540; Hawley, et al. vs. Mayor and City Council, 33 Md., 270; 6 Peters, 431.

2. Was the Act of 1865, ch. 32, within the scope of legislative authority? Has the Legislature imposed a new servitude on the appellants’ land, and added a burden not contemplated in the dedication, or reasonably incident to its use as a highway? This is a question which has been much debated, and has been decided very differently in the various States.

Judge Dillon, in his work on Municipal Corporations, Vol. II, p. 675, (2nd Edition,) says that “ the weight of judicial authority at present is that where the public have only an easement in streets, and the fee is retained by the adjacent owner, the Legislature cannot, under the constitutional guaranty of private property, authorize a steam railroad to be constructed thereon against the will of the adjoining owner, without compensation to him. In other words, such railway, as usually constructed and operated, is an additional servitude.” He adds that as to horse car railroads it is mostly held that they “ do not create a new burden, hence the Legislature is not bound to, though it may, provide for compensation to the adjoining proprietor.”

Denying that such distinction ought to be drawn, and is the law here, the counsel for the appellants contends, that the Act of 1865, under which the appellees claim their authority, gives an unqualified right to build any kind of railway, and that as a steam railway may be constructed under that Act, the law could not be constitutionally passed; and is, therefore, void. It is not necessary for us to determine whether a steam railway, if attempted to be laid, would be without sufficient legal warrant, which Judge Dillon says, notwithstanding the preponderance of decisions, is u still the subject of fair debate;” for the appellees are not laying claim to any such right. On the contrary, they are building a horse car railway only, and renounce all claim to lay any other, and make that disclaimer a part of tlieir answer that they may he forever hound thereby. It does not necessarily follow, that the Act is wholly unconstitutional because something may he attempted under it, and may, in the broad language of the Act, seem to he covered by it, which the Legislature could not authorize. If the law will admit a construction that will justify that which is being done under it, and which, by the terms of the law, is clearly warranted by it, to that extent the law ought to he sustained. All intendments will he made in favor of the constitutionality of a statute, that is not necessarily, by its provisions, unconstitutional. If, in this case, that which the appellees are doing under their charter, is warranted by their charter, and within the power of the Legislature to authorize, they ought not to be enjoined. The terms of the Act are so broad, it is clear that it includes the right to build a horse-car railway. It is a case of the major, including the less. The question then recurs, is a horse car railway along a public street or highway a new and additional servitude on the land ? It is well established, that a highway cannot he diverted, by the authority of the Legislature, or those who enjoy the easement, to other purposes than those for which it was dedicated or acquired; nor can it he so enlarged as to cumulate burdens on the land not reasonably contemplated in the dedication or condemnation. The theory upon which the Courts of Connecticut, New Jersey and Ohio, justify the use of public highways for laying horse car railways, is that the dedicator is presumed to have intended the highway to he used in such way by the public as would he most convenient and comfortable for travel, or doing any necessary work; and that any improved mode of using the road, for any of the contemplated objects and convenience, is not an invasion of the rights of the owner of the abutting land. It has been further held that to sustain a claim of intrusion on his rights such owner must show some injury other and different from that sustained by the public generally, for whose use the roadway has been dedicated. City R. R. Co. vs. C. R. R. Co., 20 N. J., 61; 17 N. J. Eg., 75; 14 Ohio, 523, and Elliott vs. R. R. Co., 32 Conn., 579.

Judge Cooley draws a distinction between streets taken or dedicated for city or town purposes, and country highways. He thinks that a street is to be regarded for all the ordinary purposes of a street, not only as such as have been hitherto adopted, but those “ demanded by new improvements and new wants,” and includes within “ new improvements and new wants,” which the original dedication must have contemplated, grooved tracks for carriages, and regards them as “ almost as much a matter of course as paving and grading.” Cooley’s Constitutional Limitations, 556. This distinction, if supported by authority, upon which we do hot pass, cannot and ought not to apply in this case; for, although the way is not technically within the city limits, its location, in such near proximity thereto, as an entering way into the city and exit therefrom ; and in fact, as an extension of one of the city streets it must, and ought to be regarded as subject to the same burdens in the way of use which would legitimately fall on the street, of which it is, at the place in question, only an extension. It is so near the city proper, and used in such way by the city people and others; that when it was formally dedicated many years ago, it was then called Decker street, in consequence of the mode of occupation of the adjacent property, and the rapidly extending limits of quasi city occupancy. Under such circumstances, it must be supposed the dedicator intended it to be liable to all the uses of city streets, one of which, it was so absolutely certain, that in the growth of the town, it would become. In Peddicord’s Case, 34 Md., 479, this Court, in passing upon the rights of the Catonsville Passenger R. R. under its contract with the Turnpike Company, say the use so granted does not, (in the language of the Court in 14 Ohio, 523,) “exclude or seriously interfere with the original modes in which the highway was used; hut simply adds another in furtherance of the same general object.” The effort to distinguish this case from Peddicord’s is vain. It is true that in that case the R. R. Oo. derived their powers by contract, from the Turnpike Company, who had secured the easement, by legislative aid, through purchase or condemnation. Still it was only an easement, as a highway, for the ordinary and usual uses of a turnpike, which the Turnpike Company had obtained, and if the Turnpike Company had the right, under its charter, to authorize the Catonsville R. R. Co. to lay such a track along its line or road, and such use by the R. R. Co. did not add a new servitude upon the road, as against the adjacent proprietor, surely the public have acquired in Decker street or Maryland avenue a right of as high grade as the said Turnpike Company secured. If that be so, then the Legislature, representing the public, may grant this right of improved use of the highway. Whenever a case shall arise wherein the right is claimed under that statute to build another kind of road it will be time enough to consider that as part of the question.

The only remaining question to be considered, is the point made by appellants’ counsel, that because, when the decree was passed and the injunction dissolved, the time within which the appellees were to complete their work had expired, it was error in the Court to dismiss the bill and dissolve the injunction ; and that then the injunction should have been made perpetual. Their time, it is contended, expired on the 1st day of January, 1818. No supplemental bill has been filed suggesting that as an additional reason for the injunction, and no proceeding below by which the point appears to have been raised. On the contrary, the case went to a commission for testimony, and all testimony was taken after the period named, and the bill was dismissed, by consent, pro forma, for the purpose of appeal. Under such circumstances, therefore, this Court on review, must consider all the proceedings as relating to the time of filing the hill, and decide the cause according to the actual rights of the parties appellees at the time they were arrested, at the instance of appellants, hy injunction, from proceeding with a work, which we hereby hold, was then legitimately authorized. If by reason of the delays incident to the litigation, the appellees have lost their right to finish their work, it is their misfortune; but the appellants cannot maintain their appeal by reason of it. The injunction granted originally, on complainants’ prayer, ought not to have been granted when it was granted, therefore the final order dissolving it was correct. In addition to the reasons already assigned, it may be well to add, that to hold otherwise on this point would, in effect, he declaring a forfeiture of appellee’s charter, in an incidental way, without any proceedings instituted for the purpose. We think the decree of the Circuit Court, dissolving the injunction and dismissing the bill, was right.

(Decided 15th July, 1879.)

Decree affirmed with costs.