Baltimore & H. Turnpike Co. v. Union R. Co. of Baltimore

• Decision Date: 16 February 1872
• Parties: THE BALTIMORE AND HAVRE DE GRACE TURNPIKE COMPANY v. THE UNION RAILROAD COMPANY OF BALTIMORE.
• Court: Maryland Court of Appeals

35 Md. 224

THE BALTIMORE AND HAVRE DE GRACE TURNPIKE COMPANY v. THE UNION RAILROAD COMPANY OF BALTIMORE.

Court of Appeals of Maryland

February 16, 1872

APPEAL from the Circuit Court for Baltimore County, in Equity.

The facts are given in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, BRENT, ALVEY and ROBINSON, J.

Arthur W. Machen and Geo. H. Williams, for the appellant.

There is no warrant in the charter of the appellee for the second crossing at grade, and any attempt so to do would be ultra vires.

Whilst in the exercise of the power of eminent domain, a franchise may be condemned, it must be as an entirety, and cannot be fractionalized. West River Bridge vs. Dix, 6 How., 529; 1 Redf. on Railw., sec. 70; Bridge Proprietors vs. Hoboken Co.. 1 Wall., 116.

If the apprehensions of the appellant be well founded, and the uncontradicted testimony of all the witnesses be true, that the tolls will not suffice to keep up the road, the Turnpike Company would be without legal defence to any scire facias issued by the State, and the duration of their corporate existence would depend on a contingency. Wash. & Balto. Turnpike Co. vs. State, 19 Md., 239; 3 Wall., 213, 214.

The appellant's charter is a contract with the State for an unobstructed highway in perpetuity, and not for a crippled road, with revenues so diminished as to make the life of the corporation precarious, and its existence a mere probability. Binghampton Bridge, 3 Wall., 73.

The State cannot impair a contract, and the extent of impairment if the act done amount to impairment, is a matter of no consequence. 4 G. & J., 109, 149; Boston Water P. Co. vs. B. & Worc. R. R., 23 Pick., 394; 17 Conn., 54; 11 Leigh, 81; 21 Ver., 595.

The charter of the Union Railroad Company contains no provision for compensation for such an interference with the easement enjoyed by the Turnpike Company, or for the taking of a portion of its franchise. The power to condemn land or materials, does not extend to an encroachment like this, upon an incorporeal right. And as the Act does not provide for compensation, the railroad company cannot exercise its powers in such manner as to interfere with the Turnpike Company's franchise, without first obtaining the consent of the latter company. Boston and Lowell R. R. Co. vs. Salem and Lowell R. R. Co., 2 Gray, 37.

Wm. A. Fisher and Bernard Carter, for the appellee.

The Legislature, in the exercise of the right of eminent domain can authorize and empower a railroad corporation to cross another railroad or turnpike road, on making compensation, and the grant of such power is not a violation of the Constitution of the United States. Boston Water P. Co. vs. Bos. and Worc. R. R. Co., 1 Amer. Railw. Cases, 323-7, or 23 Pick., 360; White River T. Co. vs. Vermont C. R. R., 21 Ver., 591, 592-4; Enfield Bridge Co. vs. Hart. & N.H. R. R., 17 Conn., 461, 462; Tuckahoe Canal Co. vs. Tuckahoe R. R. Co., 11 Leigh, 70, 71, 73, 74, 75; West River Bridge Co. vs. Dix, 6 How., 529, 535, 541, 544; Richmond, &c., R. R. Co. vs. Louisa. R. R. Co., 13 How., 78, 80; 42 Barb., 120, 122; Backus vs. Lebanon, 11 New Hamp., 22-4; New Castle R. R. Co. vs. Penn. R. R. Co., 3 Ind., 468, 469, 470; The Bellona Co's Case, 3 Bland, 449, 450.

It is the easement in the land, and not the franchise, which is condemned. 6 How., 541; 3 Bland, 449, 450; Peirce on Railw., 152, n. 1.

The Legislature has granted the power to the appellee to make the crossings. Nothing was necessary except to fix the termini, and the appellee could then select its route between the given points. 1 Amer. R. W. Cases, 328, 329, 331; 11 Leigh, 79; 17 Conn., 464, 465; 3 Ind., 467; 13 How., 78; 4 Cush., 72; Peirce on Railw., 155.

These cases abundantly show that the power to cross all intermediate roads results from the fixing of the termini; this is sufficient for our purposes, especially as it is physically impossible to build a road between the termini fixed by the Legislature, without crossing the appellant's road. But, if it were necessary, the power is expressly confined to cross all roads, by the 16th section of the Baltimore and Ohio Railroad Charter, made part of that of the appellee. White River T. Co. vs. Ver. C. R. R. Co., 21 Verm., 596; Rogers vs. Bradshaw, 20 Johns., 742, 743.

The power to cross being conferred, there is sufficient provision in the charter for the condemnation of the appellant's easements. The term "land," in such charters, includes every possible interest in lands. 17 Conn. 462, 463; 1 Amer. Railw. Cases, 327; 11 Leigh, 77, 78; 21 Ver., 597; Peirce on Railw., 152, n. 1, and 154.

And in fact, so far as the viaduct crossing was concerned, there was no necessity for a condemnation. The appellant has merely an easement, and that and the easement of the appellee can well coëxist. Peirce on Railw., 178, 216; 11 Leigh, 81.

The only remaining proposition is in regard to the power of the appellee, under the terms of the charter, to build the switch across to the Baltimore, Philadelphia and Wilmington Railroad. The 10th section of the Act of 1870, ch. 412, authorizes all railroads to run their cars and locomotives over the railroad of the appellee, when constructed. The road was to be a trunk road, as all roads so built through a city should be, for all railroad companies that might wish to use it. The roads which it would cross and connect with at present, and which were more immediately in the contemplation of the Legislature, were the Baltimore, Philadelphia and Wilmington Railroad, the Northern Central Railway, the Baltimore and Potomac Railway, and the Western Maryland Railway; but the Legislature thought best to make use of language which would be applicable as well to those as all other railroad companies which might in the future come in contact with the Union Railroad. There could be no doubt that, had the 10th section expressly provided that the Philadelphia, Wilmington and Baltimore Railroad Company, should have the right to run its cars and locomotives on the tracks of the Union Railroad, that language, with that of the 9th section, would have fully authorized the construction of such a switch, and it is difficult to see how the grant of a power to use the tracks for its locomotives and cars, by the Philadelphia, Wilmington and Baltimore Railroad, in connection with other companies, could be less effectual. State vs. Mansfield, 3 Zabr., (N. J.,) 512-14; N. O. R. R. vs. N. O., 1 Lou. Ann., 128; 11 Hump., 348, 351; Chicago, & c., R. R. vs. Wilson, 17 Ill., 124; State vs. N. C. R. R., 18 Md., 217, 218; 17 Conn., 465; 11 Leigh, 52.

ROBINSON J., delivered the opinion of the Court.

The bill alleges that the complainant was empowered by its charter, granted in 1813, to build a turnpike road from Baltimore to Havre-de-Grace; that by subsequent legislation the road was suffered to terminate twenty-three miles from the city; that the road was accordingly built at a cost of about $100,000, and licensed for taking tolls; and that the tolls received therefrom have averaged for some years past seven thousand dollars per annum; that there are now but three tollgates on the road--one near the City of Baltimore, another about ten miles therefrom, and the third about sixteen miles; that the portion of the turnpike between the second and third mile-stones, and beyond the first gate, is nearly or quite level, and is preferred by those having fast horses to any other similar road anywhere in the vicinity of said city, and that with other advantages peculiar to said road, constitutes a great inducement to the use thereof and the travel thereon, and is a great source of profit; and that the tolls received from the first gate are the main source of revenue to the complainant.

The bill charges that the appellee was chartered by the Acts of 1866, 1867 and 1870, for the purpose of making a railway with its terminus on tide-water at Canton, and that under its supposed powers for condemnation has summoned a jury and condemned two crossings over the turnpike road of the complainant, and selected for the same the part of the road above mentioned--one of said crossings being by a viaduct twenty feet high, intended for the termination of the railroad at Canton, and the other a grade crossing, to form a lateral connection with the Philadelphia, Wilmington and Baltimore Railroad, and that the jury have awarded five thousand dollars as damages for such crossings.

The bill then charges that the second crossing is ultra vires, and that either or both of said crossings will irreparably injure the complainant's franchises; that the verdict of the jury is a mere pittance; that the complainant apprehends and charges that if either or both of the crossings be made, the travel would be so banished as not to leave receipts sufficient, probably, to keep the road in repair, as required by its charter, and, therefore places in probable peril and jeopardy its corporate existence, and destroys all hopes of...