Baltimore & H.R. Co. v. Algire

• Decision Date: 11 March 1885
• Citation: 63 Md. 319
• Parties: THE BALTIMORE & HANOVER RAILROAD COMPANY v. JACOB ALGIRE.
• Court: Maryland Court of Appeals

63 Md. 319

THE BALTIMORE & HANOVER RAILROAD COMPANY v. JACOB ALGIRE.

Court of Appeals of Maryland

March 11, 1885

Appeal from the Circuit Court for Carroll County.

This was an action of tresspass quare clausum fregit brought by the appellee against the appellant in the Circuit Court for Baltimore County, and thence removed at the instance of the defendant to the Circuit Court for Carroll County, where it was tried. The insertion of the numerous prayers offered on both sides is deemed unnecessary. The jury rendered a verdict in favor of the plaintiff for $250, and judgment was entered accordingly. The defendant appealed.

The cause was argued before ALVEY, C.J., YELLOTT, MILLER ROBINSON, IRVING and BRYAN, JJ.

Covington D. Barnitz and Charles B. Roberts Attorney-General, for the appellant.

Geo. L. Stockdale and James A. C. Bond, for the appellee.

Robinson J., delivered the opinion of the court.

This is an action of tresspass quare clausum fregit against the appellant for running its trains over the land of the appellee, and the main question is whether a license under which the company entered on the land, and upon the faith of which it expended large sums of money in the construction of its road, can be set up as a defense in a court of law to the action. And this depends upon whether a right of way can be acquired in this State by a license upon the faith of which the way has been constructed.

The Code, Art. 24, sec. 1, provides that no interest in or concerning land for a term exceeding seven years shall be transferred otherwise than by deed duly executed and recorded. Under this statute it was decided so long ago as Hays v. Richardson, 1 G. & J. 366, that a right of way was an interest in land which could not be created except in the mode and manner prescribed by the statute. In that case the plaintiff constructed the road and built a bridge under a license in writing from the owner of the land, and it was held that no action would lie against a subsequent owner for obstructing the road.

But while admitting this to be so in regard to an ordinary way, it was argued that in a case like the one now before us, where a railway company has made large expenditures in the construction of a permanent way under a license of the owner, the latter ought not to be permitted to revoke it, and that such a defense is available at law as well as in equity. Were this a question to be decided purely on equitable principles, there might be some force in this contention. But this is an action at law, and the rights and liabilities of the parties must be determined by the well-settled rules of law. For the protection and security of titles, the Legislature has said that certain formalities must be observed in the transfer of interests in real estate. The law in this respect was well known to the appellant, and besides its charter pointed out in precise terms how and in what manner a right of way might be acquired. Disregarding, however, all this, the appellant has seen fit to construct its road under a bare license of the owner of the land. But a right of way being an interest in land, such an interest could not, as we have said, be created by a license, the effect of which was merely to make the acts of the licensee lawful, which otherwise would have been unlawful. And now, when the owner revokes the license thus granted, a right incident to the ownership of the land, we are asked to say the appellant has acquired an interest in land under the license, unaffected by the act of revocation--and this, too, in the face of the statute which declares that an interest in land cannot be transferred otherwise than by a deed executed and recorded. To hold that a right of way is an interest in land which cannot be created except by deed, and yet that a licensee may continue to use and enjoy it against the revocation of the license itself, is to give to a license the effect and operation of a grant by deed.

Cases may be found, it is true, in which the defense now relied on has been held to be a good defense, even in actions at law. Some of these cases proceed on the ground that where one has induced another, either by express consent or acquiescence to incur expense in the erection of permanent works, he will not be permitted to deprive the licensee of the benefits of such expenditure by reason of want of a complete legal title. In other words, such conduct on the part of the licensor operates as an estoppel in pais. Other cases proceed on the principle exexcised by courts of equity in the specific performance of parol contracts in regard to the sale of land, and give to a license thus executed the force and effect of a contract. Le Fevre v. Le Fevre, 4 S. & R. 241; McKellip v. McIlhenny, 4 Watts, 317; Rerick v. Kern, 14 S. & R. 267. In McKellip v. McIlhenny, Kennedy, J., said: "Whe...