Baltimore & O.R. Co. v. Silbereisen

• Decision Date: 26 June 1913
• Citation: Baltimore & O.R. Co. v. Silbereisen, 88 A. 252, 121 Md. 407 (Md. 1913)
• Parties: BALTIMORE & O. R. CO. v. SILBEREISEN.
• Court: Maryland Court of Appeals

88 A. 252

121 Md. 407

BALTIMORE & O. R. CO. v. SILBEREISEN.

Court of Appeals of Maryland

June 26, 1913

Appeal from Circuit Court, Howard County, in Equity; Wm. Henry Forsythe, Jr., Judge.

Suit by Louis Silbereisen against the Baltimore & Ohio Railroad Company.From a decree dissolving an injunction restraining trespass by plaintiff on defendant's right of way and dismissing defendant's petition, defendant appeals.Cause remanded, without either affirming or reversal of the order appealed from, for further proceedings.

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

Francis Neal Parke, of Westminster, for appellant.

John E Dempster and Edward M. Hammond, both of Baltimore, for appellee.

BOYD C.J.

On November 28, 1910, the appellee filed a bill of complaint against the appellant in which he alleged that the railroad company had from time to time dumped a large quantity of earth and cinder upon his land which adjoins its right of way and had negligently and knowingly allowed a great quantity of earth and cinders to be shoved and forced upon his land because of the failure of the defendant to properly protect the embankment along its right of way.It then alleges that several days before the bill was filed, the railroad company did by its agents and employés enter upon a part of the plaintiff's land and was engaged in digging a ditch upon his property into which they were preparing to place a pipe about 30 inches in diameter; that they were about to cut down and destroy valuable trees on said land, the destruction of which would do great and irremediable mischief and injury to the plaintiff, his property and estate.The bill prayed that the company be restrained and enjoined from entering or digging upon his property or from cutting down or destroying the trees or any part thereof.

An injunction was issued as prayed, and on January 17, 1911, an answer was filed, in which the defendant denied the allegations of the bill and demurred to the whole bill because on its allegations the plaintiff had a plain, adequate and complete remedy at law.Whether the answer overruled the demurrer is now immaterial, as the court below dismissed the bill and no appeal was taken.Nothing further was done until January 10, 1913, when the railroad company asked to have the motion for the dissolution of the injunction set down for hearing.An order was passed setting it down for hearing on January 16th, with leave to both sides to offer evidence, but on that date the company, with leave of the court, filed a "motion or petition" consisting of 12 paragraphs, in which it is alleged that on December 9, 1835, the company acquired by purchase the parcel of land for its right of way and other corporate purposes which is set out in a copy of a deed filed; that it took possession of it and appropriated it to its corporate purposes and uses and constructed over it a high embankment of an average height of about 20 feet to secure the necessary grade and built its railroad tracks thereon; that it has since the date of the deed held and had possession of the whole of said parcel of land, within the bounds thereof as described in the deed, and has maintained the embankment and tracks and has used and enjoyed the whole extent thereof without any interference or disturbance until the filing of the injunction by the appellee; that at no time has the company invaded or in any manner encroached upon the property of Silbereisen by its embankment, works, or other railroad structures, and that any change in width or height or in position of said embankments has always been and is now within the limits of the property lines of the company; that on or about November 28, 1910, in the necessary care and upkeep of the said embankment, and for the purpose of discharging its duty and obligation to provide safe, convenient, and quick transportation of its passengers and freight, and wholly within the limits of its own property, it began to lay a drain or pipe line to carry off the surface water, when the injunction was obtained on the untrue and unwarranted statement that the drain and ditch were on the land of the plaintiff and would cause him irremediable mischief and injury.

It is then alleged that although the defendant company had filed its answer denying the allegations of the bill upon which the injunction was issued, and although the plaintiff did not proceed thereafter in said equity cause, yet on the--day of December, 1912, and on divers other days, between that day and the filing of the motion or petition, the plaintiff entered upon the land of the defendant and wrongfully dug up and hauled away the earth and soil for the distance of 300 feet along the western line of said lot of the width of four or five feet and of a depth of three feet, all said acts having been done wholly within the lines of said lot of defendant which was then in its possession; that the plaintiff claims title of a portion of the original tract under a common owner or grantor with the defendantJames Hill, but said Hill conveyed the parcel of ground to defendant in 1835 and did not convey the land which plaintiff claims until December 14, 1851; that notwithstanding the possession of said lot with the embankments thereon by defendant, and in disregard of the terms of his own deed, and in violation and defiance of the rights of defendant for so many years possessed in undisturbed possession, the plaintiff made the said cut and built a line of fence upon defendant's land; that said cut was made without any previous notice or warning to defendant and whilst the injunction was still outstanding; that said cut has removed and destroyed the toe of the slope of the embankment and deprived it of the support, stay, and anchorage afforded and given since 1835, so that it is now without proper support and stay and is developing large crack and fissures because of the removal of the toe of the embankment; and that he has given notice to defendant that he will make further encroachments and invasions upon its land by cutting down, digging up, and removing more of the embankment.

It is further alleged that since the issuance of the injunction, although it is to be laid upon and through its property, it has not proceeded with the laying of said pipe line, and that the water is damaging and injuring the embankment and property of defendant and rendering the same unfit for its railroad purposes and uses; that the excavating, removing and hauling away the earth and soil from the said embankment and the action of the surface water upon it, by reason of the wrongful acts of the plaintiff, will, if not restrained, destroy the proper and safe grade for the operation of the trains of the defendant and deprive the ties and rails of the tracks of a safe, secure, and stable support, "so that public travel and the movement of freight and trains and engines will be rendered unsafe, uncertain, interrupted, and irregular by the sinking and sliding of the said embankment from the causes aforesaid and will utterly and irreparably ruin and destroy the said embankment for the corporate purposes for which the defendant corporation for so many years past has been and is now using and employing it," etc.; "that it is absolutely imperative and essential, in the discharge of the duties of the defendant corporation as a public carrier of freight and passengers under its charter powers and obligations, that leave be granted to the said defendant corporation to repair the mischief and harm done by the said wrongful acts of the plaintiff by taking the necessary steps and precautions to secure the said embankment from any further sinking, sliding, and disintegrating by reason of the said wrongful acts of the said Louis Silbereisen."

The petition then prays: (1) That upon final hearing said Silbereisen, his agents, etc., be perpetually enjoined from excavating, removing, or hauling away the earth, soil, and other material from any part of the said embankment and from any part of the land of defendant corporation within the lines of the deed from James Hill to it; that the said defendant corporation may be quieted in its right to the enjoyment of said land as above set forth and be decreed to have the right to use and enjoy the same, etc.; (2) that in the meantime, and until this action can be fully heard and determined, said Silbereisen be restrained from excavating, removing, or hauling away the earth, soil, and other material from said embankment and from any part of the land of defendant contained within the lines of said deed; (3) that in the meantime, and until this action can be fully heard and determined, the railroad company be given leave and permission to make the aforesaid embankment safe for public travel; and (4) for general relief.

An order was passed on that directing that an injunction be issued as prayed in the second paragraph of the prayer for relief, and that "leave be and the same is hereby given to the said Baltimore & Ohio Railroad Company to make the aforesaid embankment safe and secure for public travel and use by the said railroad company in whatever way may be necessary within the limits of the property rights of the said Baltimore & Ohio Railroad Company, provided, however that, if the said Baltimore & Ohio Railroad Company shall, in so...