Baltimore & P.R. Co. v. Reaney

• Decision Date: 12 March 1875
• Citation: 42 Md. 117
• Parties: THE BALTIMORE AND POTOMAC RAILROAD COMPANY v. JOHN G. REANEY.
• Court: Maryland Court of Appeals

42 Md. 117

THE BALTIMORE AND POTOMAC RAILROAD COMPANY v. JOHN G. REANEY.

Court of Appeals of Maryland

March 12, 1875

APPEAL from the Court of Common Pleas.

The facts of the case are sufficiently stated in the opinion of the Court. The first exception was taken by the defendants to the granting by the Court below, of the second, third and fourth prayers of the plaintiff. The second exception was taken by the defendants to the refusal by the Court to grant their third and fifth prayers. The verdict and judgment being for the plaintiff, the defendants appealed.

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

William A. Fisher and Daniel Clarke, for the appellants.

The right to enter the City of Baltimore, and construct its railroad within the limits of the city, was conferred by the Legislature upon the Baltimore & Potomac R. R. Co. under its charter, and the amendments thereto. Act of 1853 ch. 194, secs. 12, 16, 22; Act of 1870, ch. 80, sec. 7; Tenn. & Ala. R R. Co. vs. Adams, 3 Head, 597; Mohawk Bridge Company vs. Utica and Schenectady R. R. Co., 6 Paige, 554; Smith vs. Helmer, 7 Barbour, 416; Mason vs. Brooklyn City & New Town R. R. Co., 35 Barbour, 374.

The Legislature had the power to authorize the building of the Balt. & Potomac Railroad within the limits of the City of Baltimore, or upon a street or other public highway. Tennessee & Ala. R. R. Co. vs. Adams, 3 Head R., 597; Newbury Turnpike Co. vs. Eastern R. R Co., 23 Pick., 326; Drake vs. Hudson River R. R. Co., 7 Barbour, 508; 4 B. & Ald., 30; Philadelphia and Trenton R. R. Co., 6 Whart., 43; Mercer vs. Pittsburgh & Fort Wayne & Chicago R. R. Co., 36 Penn., 99; Broadway & Locust Point Ferry Co. vs. Hankey, 31 Md., 349; People vs. Kerr, 37 Barbour, 357.

The Mayor and City Council of Baltimore had the right to prescribe the manner in which the Baltimore & Potomac Railroad Company should construct its road through the streets of the city, and to provide for the mode of building it in a tunnel along its streets, as contained in the ordinance, approved May 29th, 1869. See Charter of Baltimore City, City Code, p. 12; Baltimore City Code, sec. 823; Northern Central R R. Co. vs. Mayor, &c. of Baltimore, 21 Md., 103.

The evidence shows that the City of Baltimore, acquired title to Wilson street, when the same was excavated, by condemnation for public use as a street. And the grant of the use of its streets for the construction of a railroad in a tunnel was a proper exercise of power over the streets, and is authorized as a public use to which the street may be applied under the title acquired by condemnation. The grant, made by the ordinance, conferred the right as against the city, which otherwise the company could have only acquired by condemnation. Plant vs. Long Island R. R. Co., 10 Barbour, 26; Adams vs. Washington and Saratoga R. R. Co., 11 Barbour, 414; Chapman vs. Albany & Schenectady R. R., 10 Barbour, 363; Lexington & Ohio R. R. Co. vs. Applegate, 8 Dana, 309; 6 English R. R. Cases, 422; Porter vs. North Missouri R. R. Co., 33 Missouri, 128; Murphy vs. City of Chicago, 29 Illinois, 279.

But if any doubt could exist as to the power of the Mayor and City Council to pass the ordinance approved May 29th, 1869, the Legislature has ratified the ordinance, and the power exercised by the Mayor and City Council. State, ex rel. Mayor, &c. of Balt. vs. Kirkley, 29 Md., 85, 105; Mayor, & c. of Annapolis vs. State, 30 Md., 112; Act of 1870, ch. 80, sec. 7.

The evidence showing that the excavation of Wilson street, was made under the power conferred by the Legislature, and the Mayor and City Council of Baltimore, and that the ordinance required the excavation of Wilson street, the plaintiff's second prayer improperly declared that he was entitled to recover upon the facts therein set forth.

If damage ensue to adjoining property not taken, from the exercise of power conferred by competent authority, then the damage is damnum absque injuria, and the party injured cannot recover for any damage sustained by reason of the exercise of the power, unless it can be shown that the power has been illegally, improperly or negligently exercised. Douglass vs. Boonsborough Turnpike Road Co., 22 Md., 219; Tyson vs. Commissioners of Baltimore Co., 28 Md., 510; Houck vs. Wachter, 34 Md., 265; Corey vs. Buffalo, Corning & New York R. R. Co., 23 Barbour, 482; Porter vs. North Missouri R. R. Co., 33 Missouri, 128; O'Connor vs. Pittsburg, 6 Harris, 189; Green vs. Borough of Reading, 9 Watts, 384; Monongahela Nav. Co. vs. Cons, 6 Watts & Serg., 101; Henry vs. Pittsburg & Allegheny Bridge Co., 8 Watts & Serg., 86; Hatch vs. Vermont Central Railway, 25 Vermont, 49; New York & Erie R. R. Co. vs. Young, 33 Penn., 180; Plant vs. Long Island R. R. Co., 10 Barb., 26.

The plaintiff's third prayer is objectionable because, although it properly places the right to recover upon the fact of due care and diligence in the manner of excavating the street and constructing the work, yet it fails further to require the jury to find that the excavation of Wilson street, was the proximate cause of the injury, and does not submit to the jury to find upon the facts set forth in the defendant's third and fifth prayers as qualifying the plaintiff's right to recover.

There was evidence, upon which to predicate the third and fifth prayers.

It is well settled that a party is not liable in damages for an act which is not the direct, immediate and proximate cause of the damages sustained. 3 Parsons on Contracts, page 177, sec. 5.

The reason of the rule is plain, that if every one were answerable for all the consequences of his acts, no one could tell what his liabilities at any moment might be.

In the case of Insurance Co. vs. Tweed, 7 Wallace, 44, the Supreme Court of the United States say, "the immediate cause of an act, is that which happens without any intervening power to stand as the cause of the injury complained of." Another test is "that a party shall be held liable for those consequences which might have been foreseen and expected as the result of the act, but not for those which he could not have foreseen or expected as the result of the act." Again, another inquiry, to enable the question whether the cause of damage was proximate or remote, is this, "did the cause alleged produce its effect without another cause intervening, or was it made operative only through and by means of this intervening cause?" Parsons on Contracts, p. 180.

If the facts set forth in the third and fifth prayers of the defendants were found to be true by the jury, then the acts of the defendants were not the proximate cause of the damage sustained, and the plaintiff was not entitled to recover for any damage under the first count. Pennsylvania R. R. Co. vs. Kerr, 62 Penn., 364; Ryan vs. New York Central R. R. Co., 35 N.Y. R., 210; 2 Greenl. Ev., sec. 256; Insurance Co. vs. Tweed, 7 Wallace, 45.

In this case the defendants excavated the street at a distance of nearly forty feet from the plaintiff's house. All the witnesses testified that the excavation alone, made at this distance from the plaintiff's house, would have caused no injury to the same. The excavation, without some intervening cause, would not have produced any damage. These intervening causes were several. The testimony further showed, that if there had been no house on the corner, the excavation would not have caused any injury to the plaintiff's house. The testimony further showed that the plaintiff's house would not have cracked or inclined out of a plumb line, unless the adjoining house first settled or inclined from a plumb line.

Even this settling or inclination from a plumb line of the corner house would not have produced any injury to the plaintiff's house, but for the further fact that the houses were improperly joined or fastened together when constructed. This latter fact caused the corner house to have an intervening power for injury to the plaintiff's house, which it would not have possessed had the two houses been properly constructed according to the testimony, i. e. the corner house not attached to the other houses by a peculiar mode of construction which would cause all four houses to settle together.

The defendants should not be held liable for damages resulting along the entire row of houses from an improper mode of construction, which was unknown to them, and which they could not guard against. They should only be liable, if at all, for injuries resulting directly, and as the natural consequence of the excavation.

George C. Maund and William A. Stewart, for the appellee.

The plaintiff's second prayer was properly granted; it was based upon the third section of the ordinance approved 29th May, 1869, above referred to, which among other things contains the following: "the tunnel or tunnels mentioned and provided for in the preceding section, shall be so constructed and arched as to leave uninjured, and secure the streets under which said tunnels shall be made; and if in constructing the said railroad across or under any of the streets or alleys mentioned in this ordinance, it shall become necessary to take up any pavement on said streets, or excavate the same, then, and in that event, the said Baltimore and Potomac Railroad Company shall restore the surface of said streets to the same condition in which they were before, &c., &c."

This ordinance, it is admitted, was applied for and accepted by the company. If it granted rights to the company, surely the company are bound by the limitations which it prescribes. The rights can only be exercised subject to the limitations. In granting to the company the right to take up the pavement on any street, or excavate the same, it prescribes and limits...