Baltimore Belt R. Co. v. McColgan

• Decision Date: 16 June 1896
• Citation: 35 A. 59,83 Md. 650
• Parties: BALTIMORE BELT R. CO. v. MCCOLGAN.
• Court: Maryland Court of Appeals

35 A. 59

83 Md. 650

BALTIMORE BELT R. CO. v. MCCOLGAN.

Court of Appeals of Maryland

June 16, 1896

Appeal from superior court of Baltimore city.

Action by Charles C. McColgan against the Baltimore Belt Railroad Company to recover damages for the obstruction of a right of way. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, BRISCOE, FOWLER, ROBERTS PAGE, and BOYD, JJ.

W Irvine Cross, for appellant.

James McColgan, for appellee.

BOYD J.

In 1864 a decree was passed in the case of Parkhurst v. Frisby by the circuit court for Baltimore county, for the sale of the property therein mentioned, which has since been included within the limits of Baltimore city. Before offering it for sale, the trustees laid out streets through it, and divided it into lots, which were sold by numbers, and according to a plat filed in the case. It is admitted that the sale of the lots by this plat worked a dedication of what is called "Barclay Street," which is shown on the plat to be 66 feet in width; but the street was not graded, paved or otherwise improved. In the construction of the appellant's road, it became necessary to make a deep cut at a point where it crossed Barclay street, as laid out on the plat, which was done, the appellant owning the property on both sides of the street. Before the railroad was constructed through that portion of the city, an ordinance was passed by the mayor and city council of Baltimore providing for the route, terms, and conditions under which it should be built, including a provision that "said company shall also construct and maintain iron bridges or viaducts for the purpose of carrying Oak street and Barclay street, when opened, over said railroad." Prior to the excavation being made, a number of buildings had been erected on this street between Huntingdon avenue and the point where the railroad crossing was made, but none had been built north of that point. The appellee owns some lots which front on this street some distance north of the crossing, which he claims have been greatly depreciated in value by reason of this excavation of the street. There are three counts in the declaration; the first proceeding on the theory that it was the duty of the appellant to build a bridge or viaduct over the excavation; the second alleged it was its duty to restore the surface to its original condition before the road was built; and the third claimed that, by the excavation of the bed of the street, it became impassable and the plaintiff was deprived of the use, benefit, and advantage of it, and his property fronting thereon was greatly depreciated in consequence thereof. As the evidence established the fact that there had been no acceptance of the street by the public authorities either of the county or city, the first and second counts were practically abandoned and the case tried on the third count. All of the prayers of the plaintiff were rejected, as were the second, fourth, sixth, seventh, and eighth of the defendant. The court gave an instruction of its own, and modified the defendant's fifth prayer. The verdict having been...