Hopkins v. Philadelphia, W. & B.R. Co.

• Decision Date: 16 January 1902
• Citation: 51 A. 404,94 Md. 257
• Parties: HOPKINS et al. v. PHILADELPHIA, W. & B.R. CO.
• Court: Maryland Court of Appeals

51 A. 404

94 Md. 257

HOPKINS et al. v. PHILADELPHIA, W. & B.R. CO.

Court of Appeals of Maryland

January 16, 1902

Appeal from and error to circuit court, Harford county; James D Waters, Judge.

Proceeding by the Philadelphia, Wilmington & Baltimore Railroad Company to condemn land belonging to Robert C. Hopkins and others. From a judgment confirming the inquisition, the landowners appeal and bring error. Appeal dismissed, and writ of error quashed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, PAGE, PEARCE SCHMUCKER, and JONES, JJ.

Geo. L Van Bibber and Richard Dallam, for appellants.

Thomas H. Robinson, for appellee.

SCHMUCKER J.

The Baltimore & Port Deposit Railroad Company was incorporated by Acts 1831, c. 288. Among the powers conferred upon the company was that of acquiring by condemnation the land necessary to enable it to locate, construct, and repair a railroad from Baltimore to Port Deposit, not exceeding 100 feet wide, with the necessary additions for embankments and excavations, and with as many sets of tracks as it might deem necessary. Section 24 of the act required the road to be commenced within 2 years and to be finished within 10 years thereafter. Acts 1837, c. 30, created the Philadelphia Wilmington & Baltimore Railroad Company by the union of several then existing companies, including the Baltimore & Port Deposit Railroad Company, and conferred upon the new company the rights, powers, and limitations of the several former ones which entered into its composition. In 1837 the Baltimore & Port Deposit Railroad Company condemned a strip of land 70 feet wide and about one mile long through a property in Harford county known as the "Old Bay Farm," upon which it constructed the railroad which has since then been operated by it and its successor, the Philadelphia, Wilmington & Baltimore Railroad Company. In April, 1901, the latter company, deeming it necessary for the proper extension and construction of its railroad to occupy a wider strip of land through the "Old Bay Farm," instituted proceedings for the condemnation of 30 more feet of land, of which 10 feet were on one side and 20 feet on the other side of its present roadway through the farm. The appellants, who are the owners of the farm, objected to the confirmation of the inquisition; but the circuit court for Harford county confirmed it, overruling their objections, and they brought the proceedings here for review upon a writ of error and appeal.

Some of the appellants' objections relate to matters of detail in conducting the condemnation proceedings; but we deem it necessary, for the purposes of this opinion, to consider only the fundamental objection that the whole condemnation was ultra vires and void ab initio, and that the circuit court had no jurisdiction to confirm the inquisition. Two reasons are urged by the appellants in support of this objection. The first and principal one is that the power of the appellee to condemn land for its roadway was exhausted by the single exercise of that power made in the original condemnation in 1837 of the strip of land 70 feet wide. The second reason is that the power of condemnation conferred upon the Baltimore & Port Deposit Railroad Company was by its charter limited to the acquisition of land for the purposes of construction and repair, and that the charter required the road to be "constructed within" a period of 10 years, which expired long ago, and it is not pretended that the present condemnation was for purposes of "repair." The appellee has made a motion to dismiss the appeal, because the action of the circuit court is exclusive and final in condemnation cases, which are special and limited statutory proceedings, from which the law provides for no appeal. The general proposition thus relied upon by the appellee in support of its motion has been upheld by this court in numerous cases, in some of which the condemnation was made by the present appellee or one of its component corporations. Brown v. Railroad Co., 58 Md. 539; Railroad Co. v. Condon, 8 Gill & J. 443; Railroad Co. v. Patterson, 37 Md. 136; Cumberland & P.R. Co. v. Pennsylvania R. Co. in Maryland, 57 Md. 274; Baltimore & H. Turnpike Co. v. Northern Cent. Ry. Co., 15 Md. 198.

The only ground upon which the present appeal can be maintained is that the appellee had no right at all to make the condemnation complained of, and for that reason the circuit court exceeded its jurisdiction in confirming the inquisition. If such be the case the decisions support the right of appeal. George's Creek Coal & Iron Co. v. New Central Coal Co., 40 Md. 425; Railroad Co. v. Waltemyer, 47 Md. 331; Herzberg v. Adams, 39 Md. 312. It therefore becomes necessary, in order to determine the appellants' standing in this court, to ascertain whether or not the appellee possessed the power to condemn the 30 feet of land now in question. There is some conflict in the decided cases as to the extent to which a railroad company, or similar corporation that serves the public convenience, may exercise the right of condemnation conferred upon it by statute. This want of harmony in the cases is in large measure due to the variety of provisions found in the charters of the different corporations, and in the laws of the several states regulating the extent, as well as the method of exercise, of the right. The general principles applicable to this subject, especially as declared in the later cases, are fairly stated in Lewis, Em.Dom. (2d Ed.) § 259, as follows: "In the absence of any restrictions or limitations, the power to take private property may be exercised by the grantee, from time to time, as necessity may require. If this were not so, it would be necessary to anticipate all future needs at the outset. The company condemning would thus not only have to take and pay for property in advance, but it might be saddled with property which it could never use at all. On the other hand, either from taking too narrow a view of the future or from the growth of business beyond any reasonable anticipation, it might in a few years find itself unable properly to discharge its duties to the public. Accordingly, the railroad company, after having located and completed its road, may, as the expansion of its business requires and within the limitations imposed by statute, if any, the additional land for right of way, side tracks, branches, etc., or for any other purpose for which its compulsory powers may be exercised." See, also, to the same effect, Brown v. Railroad Co., 58 Md. 539; Childs v. Railroad Co., 33 N.J.Law, 323; Railroad Co. v. Wilson, 17 Ill....