Baltimore & Ohio R. Co. v. Kuchta

• Decision Date: 01 September 1987
• Docket Number: No. 1331,1331
• Citation: 76 Md.App. 1,543 A.2d 371
• Parties: The BALTIMORE & OHIO RAILROAD COMPANY v. Francis W. KUCHTA, et al. ,
• Court: Court of Special Appeals of Maryland

Page 1

76 Md.App. 1

543 A.2d 371

The BALTIMORE & OHIO RAILROAD COMPANY v. Francis W. KUCHTA, et al.

No. 1331, Sept. Term, 1987.

Court of Special Appeals of Maryland.

July 8, 1988.

H. Russell Smouse (Kenneth D. Pack and Melnicove, Kaufman, Weiner, Smouse & Garbis, P.A., on brief), Baltimore, for appellant.

Richard K. Jacobsen, Chief Sol. (Neal M. Janey, City Sol. and Ambrose T. Hartman, Deputy City Sol., on brief), Baltimore, for appellee.

Argued before GARRITY, KARWACKI and POLLITT, JJ.

KARWACKI, Judge.

The Baltimore & Ohio Railroad Company (B & O) appeals from the decision of the Circuit Court for Baltimore City (Kaplan, J.) that B & O was liable to the City of Baltimore for the reasonable and necessary costs associated withthe reconstruction of Bridge 5A (the Bridge) which carries Washington Boulevard over the B & O tracks near Morrell Park. Judge Kaplan found that those costs totaled $946,430.58 and entered judgment in that amount in favor of the Mayor and City Council of Baltimore and its Director of Public Works, the appellees.

This dispute between Baltimore City and B & O arose in 1974, after an inspection incidental to the repair of Washington Boulevard by the Highway Department of the Baltimore City Bureau of Engineering revealed serious structural deterioration of the Bridge. The Department of Public Works of Baltimore City notified B & O that the Bridge required reconstruction. B & O denied that its responsibility for maintenance of the bridge extended to rebuilding. Recognizing that waiting for a resolution of the dispute over who would bear the cost of replacing the bridge would needlessly continue a potential hazard to the public, the City and B & O entered into an agreement in 1978 which permitted the City to enter B & O's property to reconstruct the bridge and provided that their dispute over who should bear the cost of the reconstruction would be resolved at a later date. Following the reconstruction of the Bridge in 1979, the appellees filed the instant case seeking reimbursement from B & O for the bridge reconstruction costs.

On December 20, 1985, the court granted a partial summary judgment in favor of the appellees, ruling that it was B & O's responsibility to reconstruct the Bridge. A hearing was ordered to determine whether the City had acted "unreasonably or arbitrarily in rebuilding Bridge 5A in the fashion it did and, if not, whether the costs incurred for doing so were unreasonable."

After a hearing on those issues, the court entered the judgment from which this appeal has been taken. B & O presents the following questions:

1. Whether the trial judge erred in holding the railroad to be responsible for reasonable and necessary costs of rebuilding and widening the bridge where the costs of constructing the existing bridge had been shared by the railroad and government and the railroad was obligated only to "maintain" the existing bridge.

2. Whether the trial judge erred in holding the costs of the new bridge to be "reasonable and necessary" where there was overwhelming evidence that the existing bridge was repairable at a lower cost, and the undisputed evidence was that a smaller new bridge, at lower cost, would have served equally well.

3. Whether the costs of relocating utilities and traffic maintenance were reasonable and necessary where the undisputed evidence was that relocation costs had been and customarily are borne by the utility, and maintenance is customarily proportionate to the length of the project.

The events which give rise to this litigation date back to the early years of the 19th century. The construction of the Washington Road, the forerunner of Washington Boulevard, was authorized by the General Assembly of Maryland by ch. 78 of the Acts of 1812. Several years after the completion of the road, B & O was incorporated by ch. 123 of the Acts of 1826. Section 16 of that Act provided:

And be it enacted, That wherever, in the construction of said road or roads, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors of said company so to construct the said road across such established road or way, as not to impede the passage or transportation of persons or property along the same; or where it shall be necessary to pass through the land of any individual, it shall also be their duty to provide for such individual proper wagon-ways across said road or roads, from one part of his land to the other.

In 1829, B & O extended its railroad to the present site of Bridge 5A. In order to cross the Washington Road, B & O dug up a section of the Washington Road and the embankment supporting it and laid its tracks across the excavated portion of the road. B & O then constructed a wooden bridge, named "Jackson Bridge," to carry the Washington Road over its railroad. ¹ This wooden structure was maintained by B & O until 1907. At that time the structure, then located in Baltimore County, ² was determined to be in a dangerously deteriorated condition by County Commissioners of Baltimore County sitting as its Highway Commission. On August 29, 1907, an agreement was executed by B & O and the County Commissioners for the construction of a "steel structure resting on masonry foundations." The B & O agreed to build the structure and Baltimore County agreed to contribute one-half the cost of construction, but no more than $5,500.00. The agreement further provided that B & O would maintain the bridge at its sole cost. The record is replete with references over the ensuing years to repair work done by B & O in response to complaints by the City. Additional facts will be supplied where appropriate to the discussion of appellant's questions.

I.

The court based its ruling that B & O was responsible for all necessary and reasonable costs of reconstructing Bridge 5A on the well settled common law principle governing the liability of a party who builds a structure to carry its road over the road of another. Under this so-called "second comer" doctrine, the builder of a new way or road whose course intersects another way or road already in existence and use is responsible to repair the damage it made in crossing the first way or road including the construction of a bridge or viaduct, if necessary, and to bear the cost of maintaining the viaduct or bridge in a manner which insures the safety and convenience of the users of the first way or road. Northern Central Railway Co. v. Mayor and City Council of Baltimore, 46 Md. 425, 445-46 (1876).

B & O launches a two pronged attack on the court's reliance upon the second comer doctrine. First, it contends that the City's predecessor in interest, Baltimore County, abandoned its asserted common law right as first comer to the intersection of the railroad with the public way now known as Washington Boulevard by its 1907 agreement with B & O. ³ Alternatively, B & O argues that the second comer doctrine, if applicable, is not broad enough to compel rebuilding the bridge. We find no merit in either contention.

B & O asserts that, by entering the 1907 agreement, the County Commissioners of Baltimore County abandoned the common law rights that the county possessed as the first comer to the intersection in question. Thereafter, B & O asserts, the rights of the County and its successor in interest, Baltimore City, were governed by the terms of that agreement. Under that agreement, B & O posits, Baltimore County gave up any right it possessed at common law to insist that the cost of any necessary reconstruction of a bridge at the intersection would be borne solely by B & O. This argument overlooks the inability of a municipal government to contract away police powers delegated to it by the State to maintain its streets for the safety of the traveling public.

At the time of the 1907 agreement, the County Commissioners for Baltimore County, designated as the Highway Commission of Baltimore County, had been delegated the police power of the State to protect the safety of the public who used the roads in Baltimore County. Ch. 465 of the Acts of 1904. In § 189 of that Act, the General Assembly of Maryland directed:

The said Highway Commission of Baltimore County shall have general charge of and control over all the public highways, roads, bridges, streets and alleys of the county; and it shall be the duty of the said commission to keep the same in proper condition of repair and reasonably safe for public travel, and to that end exercise a general supervision over the same throughout the county, and direct repairs and improvements thereto whenever it shall deem the same necessary or advisable for the public convenience or safety.

Included within the police power and responsibility then delegated by the General Assembly to the County Commissioners was the duty to enforce Baltimore County's common law right, as first comer to the intersection of the Washington Road and the railroad of the B & O, to require the B & O, as second comer, to provide a safe structure to carry the public road over its railroad. In Eyler v. County Comm'rs of Allegany County, 49 Md. 257 (1878), the Court of Appeals construed a statute conferring upon the County Commissioners the duty to "take charge of and control over the county roads and bridges." The statute furthermore provided the Commissioners with the necessary authority and power to discharge those duties for the public good. Eyler had been injured by the defective condition of a bridge which carried a public road over the Chesapeake and Ohio Canal. The bridge had been constructed by the canal company when it severed the public road in constructing its canal. The Court held that the Commissioners, by "neglect of their primary duty" in failing to exercise their power to force the canal company to maintain in good repair the bridge which the company had built across its canal, were the primary cause of Eyler's injuries and therefore liable for...