Oppenheimer v. Philadelphia, Baltimore, & Washington Railroad

39 App. D.C. 253, 1912 U.S. App. LEXIS 2220

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 6, 1912
• Docket: No. 2412
• Status: Published

Opinion

Mr. Justice Bobb

delivered the opinion of the Court:

It is conceded in behalf of the complainants that if the defendant had a lawful right to construct the bridge as planned,, the petition was properly dismissed.

We are therefore confronted, at the threshold of the case, with the question whether the defendant has the right which it seeks to enjoy, and this question is to be determined by an interpretation of the applicable portion of sec. 10 of said act of February 12, 1901 (31 Stat. at L. 767, chap. 353), reading as follows: “And it shall be lawful for said Baltimore & Potomac Bailroad Company to extend and construct, from time to time, branch tracks or sidings from the lines of railroad1 authorized by this act into any lot or lots adjacent to any street or avenue along which said lines of railroad are located, upon the application of the owner or owners of such lot or lots, to* enable such owners to use their property for the purposes of coal, wood, or lumber yards, manufactories, warehouses, and other business enterprises: Provided, however, That no grade crossing of any street or avenue within the city of Washington shall be thereby created, but such connecting tracks shall be carried across such street or avenue in such manner as not to obstruct the free use thereof, and the plans of such connecting tracks shall in every case be first filed with and approved by the commissioners of the District of Columbia.”

As the petition avers, the line of the defendant’s railroad extends along Virginia avenue south of square 536 and across Four-and-a-half street at its intersection by said avenue. Said lot 6 in square 536, it is conceded, is adjacent to Virginia avenne, along which said line of railroad is located. The complainants concede that had the defendant constructed an overhead branch track or siding from its main line on Virginia avenue into lot 6, in such a manner as not to obstruct the free use of the avenue, the structure would have been a lawful one, providing of course that the requisite approval by the commissioners of the plans had been first obtained. They contend, however, that the act in question does not authorize an extension of a siding springing from the main line at a point west of-Four-and-a-half street, across Four-and-a-half street, and beyond the limits of Virginia avenue. The contention is that the bridge across Four-and-a-half street does not carry a branch track or siding from Virginia avenue into a lot adjacent thereto, but is an extension of a siding in another square and over a street along which its main line does not run. It is insisted that the plain purpose of the act is to permit the construction of a siding from the main lines across the street “along which” ¡such main line runs, directly and immediately into any adjacent lot.

Before proceeding to an analysis of the statute, it may be well to direct attention to the fact that the fee-simple title to the streets of Washington is in the United States, and that no individual or corporation may occupy them, or any portion of them, without the authority of Congress. As these streets are held for and devoted to the use of public travel, the intent of Congress to encroaeh upon that use to the benefit of one as against the many must clearly appear. The rule is thus stated in Oregon R. & Nav. Co. v. Oregonian R. Co. 130 U. S. 1, 26, 32 L. ed. 837, 842, 9 Sup. Ct. Rep. 409: “It is to be remembered that where a statute making a grant of property, or of powers, or of franchises, to a private individual or a private corporation, becomes the subject of construction as regards the extent of the grant, the universal rule is that in doubtful points the construction shall be against the grantee and in favor of the government or the general public.” The same rule was announced in Blair v. Chicago, 201 U. S. 400, 50 L. ed. 801, 26 Sup. Ct. Rep. 427, where the court said: “It is matter of common knowledge that grants of this character are usually prepared by those interested in them, and submitted to the legislature with a view to obtain from such bodies the most liberal grant of privileges which they are willing to give. This is one among many reasons why they are to be strictly construed.” In Warren R. Co. v. State, 29 N. J. L. 353, in which the railroad company sought to justify an obstruction of the street under the act of the legislature conferring its charter, the court, said: “No such construction should be given to these words by unnecessary implication. Public highways ought not to be-destroyed, even in part, under pretense of legislative authority,, unless it be conferred either by express terms or by necessary implication. If the words are ambiguous, the construction ought to be in favor of the common right of highway, not against it.”

Having in mind the above rule of construction, let us now proceed to an analysis of the language which the defendant contends authorizes the obstruction in question. The words of the statute are that it shall be lawful for the defendant company to construct branch tracks or sidings “from the lines of railroad authorized by this act into any lot or lots adjacent to any street or avenue along which said lines of railroad are located.’’ The purpose of this provision is then declared to be to enable the owners of property so situated along the lines of railroad authorized by the act to use their property for various-enumerated business enterprises. And after declaring this to be tbe purpose of tbe act, it is provided that no grade crossing within the city of Washington shall be created, “but such connecting tracks shall be carried across such street or avenue in such manner as not to obstruct the free use thereof.” The siding in question leaves the line of railroad authorized by the act .at a point about 320 feet west of Four-and-a-half street, and leads easterly through land of the defendant to said street. The .siding then continues across Four-and-a-half street, “along which” said main line does not run. This, we think, the statute •does not permit. Should we rule this structure to be within the terms of the act, it would necessarily follow that a structure across Four-and-a-half street at its intersection with D street, •and thence along D street, for the purpose of providing a siding into a lot or lots in said square 536, adjacent to Virginia avenue, would also be within the terms of the act. Indeed, carried to its logical conclusion, the contention of the defendant necessarily results in a construction of the statute which would permit the crossing of any number of streets in the construction of a siding, providing only that the termini of such siding answered the terms of the statute. Such was not the intent of Congress. This legislation, it is stated in the brief of the defendant, had its inception in a recommendation of the commissioners of the District, made in their report to the Senate Committee on the District of Columbia, under date of February 6, 1900, wherein the commissioners “recommended that the company be authorized, upon the petition of the owner or owners of any lot or lots adjacent to the line of its railway, to run branch tracks or sidings into such lot or lots, provided, of course, that no grade crossings are created thereby.” This recommendation, as we read it, as well as the statute which it inspired, is of a purely local character. Both speak of “any lot or lots,” and neither of any square. The privilege conferred is not general, that is, a privilege to be enjoyed by the public at large. On the contrary, its benefits are confined to those having a lot or lots adjacent to the right of way of the defendant. Fresumably Congress believed that inasmuch as four lines of tracks already ran along the street to which the lots mentioned in the act were adjacent, it would do no particular harm to permit a siding to be run from that right of way into such .adjacent lots. Such a siding, if constructed in accordance with the provisions of the act, would probably have little effect upon property in squares more remote from the railroad’s right of way, whereas a siding crossing or traversing a street along which •said right of way does not extend might injuriously affect property in squares that would be little affected by the running of trains over the right of way. The present case proves the pertinency of these suggestions. Had this siding entered from Virginia avenue and been confined exclusively within the limits of that avenue, it would have been so remote from the complainant’s premises that probably little, if any, injury would have resulted to complainants. As we have suggested, if the siding in its present location is authorized by the act, it would be ■equally within the terms of the statute if it crossed at a point ■opposite D street, at the very doors of complainants’ premises. That this suggestion is not fanciful is apparent from an inspection of said plan, for the Sixth street yard of the defendant extends north of D street, and hence it was simply a question •of expediency whether to cross Eour-and-a-half street at the point in question or farther north.

It may be suggested that under the construction we have adopted it might be impossible to extend the benefits of this act to all lots adjacent to the railroad’s right of way. Even so, a construction ought not to be adopted which may work harm to those who, in no event, would receive any benefits. If any lot is so located that it may not be entered by a siding constructed in accordance with the provisions of the act, it is the misfortune of the owner. If he desires permission to occupy a portion of the public streets not within the terms of this act, he must seek authority from Congress. It is our duty to construe, and not to make, laws. The construction we have adopted ■comports with and gives effect to the real purpose of the statute. Moreover, it is definite and leads to no uncertainty or ■conjecture. The construction contended for by the defendant is so ambiguous that difficulty would be certain to be experienced in giving it effect.

It is insisted by the defendant that complainants have no standing in a court of equity until it has been determined in a court of law that the bridge in question is an illegal structure. To sustain this contention counsel cite Irwin v, Dixon, 9 How. 10, 13 L. ed. 25. In that case the complainant alleged that he was the owner of a warehouse fronting, “on the east, the Biver Potomac, and the doors and windows of said front open on a strand, which has been used uninterruptedly as a public highway for upwards of thirty years,” and sought an injunction to prevent the defendant from building a fence in a portion of said strand or public street. In his answer the defendant claimed as his own property the land upon which the fence was to be erected, and denied that such fence would constitute an obstruction, “in any appreciable degree,” of the light of the windows of the complainant. Many exhibits and much testimony were introduced. The court held that the gravamen of. the action was “the obstruction of a public highway where a fence runs,” and, later in the opinion, observed: “And when the right or title to the place in controversy, or to do the act complained of,- is, as here, doubtful and explicitly denied in the answer, no permanent or perpetual injunction will usually be granted, till such trial at law is had, settling the contested rights and interests of the parties.” The court, however, notwithstanding that the existence of the highway was in dispute, proceeded to a full consideration of the evidence bearing upon that point, and found that the ground upon which the fence was to be built was private property, and not a public street.

In Parker v. Winnipiseogee Lake Cotton & Woollen Co. 2 Black, 545, 17 L. ed. 333, the complainant failed to state in his bill how the injury was produced and in what it consisted. The court observed: “We have looked carefully into the evidence upon the subject; the result is, that we are left in doubt upon which side lies the truth. We have failed to find those clear facts of rights upon one side, and wrong upon the other, which are necessary to.quicken into activity the powers of a court of equity.” The court was eareful to qualify its ruling" in the case by the following: “It [a court of equity] will also give its aid to prevent oppressive or interminable litigation, or a multiplicity of suits, or where the injury is of such a nature that it cannot be adequately compensated by damages at law, or is such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which cannot be prevented otherwise than by an injunction.”

Johnson v. Baltimore & P. R. Co. 4 App. D. C. 491, also' cited by the defendant, is very similar in its facts to Irwin v. Dixon, supra. The existence of the highway which the complainant alleged was being constructed was in issue. The complainant had waited for several years before instituting his suit and, as the court found, the nature of the injury suffered, if any, was such that adequate compensation could be had in an action at law.

In the present case there are no disputed questions of fact, the existence of the highway which, it is alleged, the bridge in question obstructs, being admitted. The defendant seeks to justify its partial occupation of this highway under authority of said act of 1901. The interpretation of that statute is a question for judicial determination, and, if determined adversely to the defendant, the bridge is per se a public nuisance, as is any other unauthorized obstruction of a public street. No reason is apparent why, if conditions entitling complainants, to be heard in this forum are present, they should be remitted to a court of law to have said act of 1901 interpreted.

We are now brought to the question whether complainants, have stated a case entitling them to the relief sought. It has long been the rule that a bill in equity to abate a public nuisance' lies at the instance of one who has sustained, or will sustain, special damages. “The private party sues rather as a public prosecutor than on his own account; and unless he shows that he has sustained and is still sustaining individual damage, he cannot be heard. He seeks redress of a continuing trespass and wrong against himself, and acts in behalf of all others who are or may be injured.” Mississippi & M. R. Co. v. Ward, 2 Black, , 17 L. ed. 311, 314. After setting forth the proximity -of their property to this obstruction, complainants aver that .they will sustain special and irreparable damage if it is suffered to be maintained; that it will permanently depreciate the fee-simple value of the property of those who are owners, and be a special inconvenience, damage, and injury to those who are tenants; that to operate said siding over said bridge cars must be propelled by steam locomotives, and cars hauled back and forth for switching and unloading, coupled and uncoupled; that the noise, jar, smoke, soot, coal dust, and other like consequences from the use of said siding over said bridge will seriously impair the comfortable use of the plaintiff’s property, compel them to keep windows closed in order to keep out the smoke, etc., and “will interfere with the comfort of service at said church.” These averments are admitted by the demurrer. Upon demurrer we cannot say that these averments of special damage and injury are not likely to be realized; in other words, we are unable to say that the anticipated injuries will not naturally result from the maintenance of this unlawful structure. The members of this church, the proprietors of these stores, and the occupants of these homes, have the right to the comfortable enjoyment of their property (Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 27 L. ed. 739, 2 Sup. Ct. Rep. 719), and, owing to the character of the injuries alleged and the number of the -complainants, the preventive force of a decree in equity, restraining the illegal acts before any mischief is done, clearly affords a more efficacious and complete remedy than would be had should the complainants be remitted to their several actions .at law. Missouri v. Illinois, 180 U. S. 208, 244, 45 L. ed. 497, 513, 21 Sup. Ct. Rep. 331.

In Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 46 L. ed. 808, 22 Sup. Ct. Rep. 585, the damages complained -of were anticipated, as here. The court said: “But it is one •of the most valuable features of equity jurisdiction, to anticipate and prevent a threatened injury, where the damages would he insufficient and irreparable.” See also: Craig v. People, 47 Ill. 487; Clowes v. Staffordshire Waterworks Co. L. R. 8 Ch. 125, 42 L. J. Ch. N. S. 107, 27 L. T. N. S. 521, 21 Week. Rep. 32; Chapman v. Rochester, 110 N. Y. 273, 1 L.R.A. 296, 6 Am. St. Rep. 366, 18 N. E. 88; Broome v. New York & N. J. Teleph. Co. 42 N. J. Eq. 141, 7 Atl. 851.

As the petition shows that the complainants moved with all reasonable despatch, the demurrer should have been overruled. The decree will therefore be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.