Baltimore & O.R. Co. v. Kane

• Decision Date: 11 November 1914
• Docket Number: 19,20.
• Citation: 92 A. 532,124 Md. 231
• Parties: BALTIMORE & O. R. CO. v. KANE et ux. MAYOR AND CITY COUNCIL OF BALTIMORE v. SAME.
• Court: Maryland Court of Appeals

92 A. 532

124 Md. 231

BALTIMORE & O. R. CO. v. KANE et ux.

MAYOR AND CITY COUNCIL OF BALTIMORE v. SAME.

Nos. 19, 20.

Court of Appeals of Maryland

November 11, 1914

Appeals from Baltimore City Court; Morris A. Soper, Judge.

"To be officially reported."

Action by Bartholomew Kane and wife against the Baltimore & Ohio Railroad Company and the Mayor and City Council of Baltimore. From a judgment for plaintiffs, both defendants appeal. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.

Benj. H. McKindless, Asst. City Sol., of Baltimore (S. S. Field City Sol., and Edw. J. Colgan, Jr., both of Baltimore, on the brief), for appellant Mayor and City Council of Baltimore. Duncan K. Brent and W. Irvine Cross, both of Baltimore, for appellant Baltimore & O. R. Co., Edward L. Ward and Edward M Hammond, both of Baltimore, for appellees.

BURKE J.

The appellees on this record are the owners of a fee simple lot with improvements thereon located on the west side of Eutaw street in Baltimore city. The lot has a frontage of 25 feet on Eutaw street, with a depth of about 71 feet to an alley, 3 feet wide, which runs north to Hamburg street. The plaintiffs have a right to the use of this alley in common with others. Access to the plaintiffs' property in the rear was had through the alley from Hamburg street--the property of the plaintiffs being located 91 feet from the south side of Hamburg street at its intersection with the west side of Eutaw street. The plaintiffs' property was used for dwelling and saloon purposes; a saloon having been conducted there for some time prior to the infliction of the injuries complained of in this case. There were two steps--one to the saloon, and one to the dwelling--leading from the front on Eutaw street into the property.

The mayor and city council lowered the grade of Eutaw street for a considerable distance, and in front of the plaintiffs' property the grade of the street was lowered at the north end about 5 feet 2 inches, and at the south end about 4 feet 9 inches. The effect of this excavation was to increase the elevation of the entrance and to require the construction of eight additional steps in order to enter the saloon and residence. The Baltimore & Ohio Railroad Company, by permission of the mayor and city council, constructed concrete approaches on the south portion of Hamburg street to a bridge which it erected over Eutaw street. The approaches and bridge were built to carry the traffic over Eutaw street, on which the railroad company had for many years operated its cars. The work of constructing the approaches and bridge was done solely by the railroad company and the entire cost of the work was paid by it. The construction of the approaches to the bridge obstructed the 3-foot alley mentioned, in that the concrete approaches were built across the alley to a height of about 6 feet at the point of the intersection of the alley with Hamburg street. The plaintiffs' easements of light and air were not affected by the change of grade of Eutaw street, or by the construction of the bridge and its approaches; but the ingress and egress to the property were interfered with in the manner stated. The effect of the whole change was to require eight additional steps to get into the property in the front, and the construction of about the same number to get into the house in the rear.

The plaintiffs sued the Baltimore & Ohio Railroad company and the mayor and city council in the Baltimore city court to recover damages for the injuries done their property by the change of the grade of Eutaw street and the obstruction of the alley referred to. They recovered a judgment against both defendants, and both defendants have appealed.

The work done by the Baltimore & Ohio Railroad Company was done under the authority of Ordinance No. 387, approved August 16, 1909, known as the "grade crossing ordinance," and which was accepted by the railroad company. This ordinance was considered by the court in the case of Walters and Wife v. Mayor and City Council of Baltimore, 120 Md. 644, 88 A. 47, 46 L. R. A. (N. S.) 1128. In that case both defendants were held liable upon the ground that there had been a taking of the plaintiffs' property for public use without compensation. The circumstances which led to the passage of Ordinance No. 387, and the reason and objects of the construction of the bridge and its approaches, were fully stated by Judge Stockbridge in the opinion in that case. His discussion of the history and provisions of the ordinance, and the purposes to be subserved by the work authorized by it, dispenses with a full consideration of those matters in this opinion. In view of the statement of facts contained in that opinion, only a brief outline of the evidence in this case need be stated in order to ascertain and apply the legal principles by which the rights, duties, and responsibilities of the parties to this case must be determined.

It cannot be, and indeed it is not, denied that the city, in lowering the grade of Eutaw street, pursued the method prescribed by law, and it must be admitted that in making the excavations on Eutaw street in front of the plaintiffs' lot it confined the work within the lines of the street. As stated above, the plaintiffs' easements of light and air were not interfered with, and there was no actual physical invasion of their property. The work was done by the city through a contractor employed by it for that purpose, and was paid for by it. The Baltimore & Ohio Railroad Company had nothing to do with the actual work, nor was it under any obligation to pay for it. The work was not done under the ordinance, but the city followed the usual methods used in lowering the grades of streets. The reasons which induced the city to lower the grade are given in the evidence of Mr. Benjamin F. Fendall, one of the plaintiffs' witnesses, who was, at the time the work was done, city engineer of Baltimore city, and was in charge of the work in his official capacity. We quote from his testimony, which is undisputed:

"The Hamburg Street bridge was started in August, 1910, and finished in August, 1911. That the west approach begins at about Warren and Hamburg streets, and ends at the west side of Eutaw street, where the bridge proper--that is, the steel structure, resting on piers and columns--begins to cross the Baltimore & Ohio Railroad tracks, to the east side of Hamburg street, and then the east approach started down to Sharp street. That the bridge proper extends across from Eutaw to Howard street, and is in the bed of Hamburg street across the tracks of the Baltimore & Ohio Railroad. That the bridge and approaches were actually constructed by the Baltimore & Ohio Railroad. That the location for the approaches was furnished by the city of Baltimore. That before the grade at Eutaw street was changed the clearance at the bridge was about 10 feet or 11 feet. That the cutting down of the grade at Eutaw street was done by the city of Baltimore, and paid for by it under contract with the McLean Contracting Company, and this grading was done some time in 1911, about the time the bridge was completed. Q. Can you tell us the reason of the city for lowering the grade of Eutaw street, from Henrietta down to Stockholm, for instance? A. You could not get under there with a high wagon, and still less could you get under there with an engine or train or box car. That there was not enough clearance under the bridge. That a big wagon required more than 10 feet, and a railroad train or locomotive requires more than 10 feet. That an engine is about 18 feet, and then some wagons could not get under 10 feet. That for wagon and road bridges the lowest clearance is generally 12 feet, but that is rather a tight squeeze with a big load of hay. That the standard clearance for a railroad bridge is 22 or 23 feet, sufficient to clear with a man standing on a box car. That he is not familiar with the new engines which are in use to-day, but that the old engines, which were used on the B. & O. 14 or 15 years ago, could get under 17 feet 6 inches clearance. That he thinks the clearance under the bridge at Eutaw street after the grade was lowered was 17 or 18 feet, as compared with 10 feet before the grade was lowered, but there is more clearance on the east side than on the west side, as the grade of the bridge itself goes up slightly after it leaves the abutments; therefore, the bed of Eutaw street being level, there would be more clearance on the east side than on the west. *** The ordinance fixed the height of the bridge. It provided that the bridge should start at a certain place, and rise with a specified grade until it got to a certain other place. That, of course, fixed the height of the bridge. That the physical work of lowering the grade at Eutaw street was done by McLean Contracting Company, who also built the concrete

...