Baltimore & O.R. Co. v. Waters

• Decision Date: 03 April 1907
• Citation: 66 A. 685,105 Md. 396
• Parties: BALTIMORE & O. R. CO. v. WATERS.
• Court: Maryland Court of Appeals

66 A. 685

105 Md. 396

BALTIMORE & O. R. CO. v. WATERS.

Court of Appeals of Maryland

April 3, 1907

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Suit by John Waters against the Baltimore & Ohio Railroad Company. Decree for complainant. Defendant appeals. Reversed and bill dismissed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS JJ.

John G Wilson and W. Irvine Cross, for appellant.

W Calvin Chestnut and Edgar H. Gans, for appellee.

PEARCE J.

The Baltimore & Ohio Railroad Company was chartered by chapter 123 of the Acts of Assembly in the year 1826, and by the fourteenth section of that act the president and directors of said company were "invested with all the rights and powers necessary to the construction and repair of a railroad from the city of Baltimore, to some suitable point on the Ohio river, to be by them determined, not exceeding sixty-six feet wide, and with as many set of tracks as the said president and directors, or a majority of them may deem necessary"; and in the same section it was enacted "that they, or a majority of them, may make or cause to be made, lateral railroads, in any direction whatsoever, in connection with said railroad from the city of Baltimore to the Ohio river, and in the construction of the same, or their works, shall have, possess, and may exercise, all the rights and powers hereby given them in order to the construction or repair of the said railroad from the city of Baltimore to the Ohio river." Section 15 of the charter conferred upon the corporation ample powers of condemnation to be exercised "for the construction or repair of any of said roads, or of any of their works"; and in section 23, the concluding section of the charter, it was provided "that full right and privilege is hereby reserved to the citizens of this state, or any company hereafter to be incorporated under the authority of this state, to connect with the road hereby provided for, any other railroad leading from the main route to any part or parts of this state, provided, that in forming such connection, no injury shall be done to the works of the company hereby incorporated." The terminus upon the Ohio river was subsequently fixed at Wheeling, then in Virginia, and the road was completed to that point and opened for business January, 1853. In April, 1906, the president and directors of this company, in pursuance of the authority conferred in section 14 of its charter, determined to build a lateral railroad in connection with its railroad from the city of Baltimore to the Ohio river, from a point on its main line at or near Grouch Station, in Carroll county, Md through Baltimore county, and a portion of Harford county, to a connection with the Philadelphia Branch of the Baltimore & Ohio Railroad, between Van Bibber and Sewells Stations, to be known as the "Patapsco & Susquehannah Branch of the Baltimore & Ohio Railroad Company," and have surveyed, located, and adopted the route or line of the same which is approximately 40 miles in length, and passes several miles to the north of the city of Baltimore, effecting a saving of 13 1/2 miles over the present line through the city of Baltimore, and relieving the congestion of freight and passenger traffic now passing through the tunnel from Camden Station to Mount Royal Station, and the tunnel beyond Mount Royal Station. The descent over the main line from Grouch to the city of Baltimore and the ascent over the Philadelphia Branch to Sewells are by grades of about eight-tenths of 1 per cent., while by the proposed lateral line the grades will be much lower and more even, being about three-tenths of 1 per cent. for east-bound traffic and five-tenths of 1 per cent. for west-bound traffic; the latter grade being higher, because the west-bound freight is lighter and many cars returning are empty. This proposed lateral road runs through a tract of land in Baltimore county near Pikesville belonging to the appellee, and, the appellant having taken the necessary steps to condemn the strip of land required for passage through said tract, the appellee filed a bill to enjoin the condemnation proceedings, alleging that the defendant cannot exercise the power of condemnation "for constructing a steam railroad on the property of the appellee, not only because it is expressly prohibited from so doing by the Act of 1906, c. 457, but also because the defendant has no such power under its charter, the said proposed road not being a lateral road within the meaning of the charter when properly construed." The defendant answered fully, averring that the proposed road is a lateral road within the meaning of its charter, and denying that Act 1906, p. 838, c. 457, is effectual to forbid the construction of the road. Testimony was taken, and after argument the circuit court for Baltimore county perpetually enjoined the further prosecution of the condemnation proceedings, and from that decree this appeal is taken.

In the opinion filed with the decree the learned judge of the circuit court reached the conclusion that the proposed road was not a lateral railroad authorized by the charter to be built, and therefore did not find it necessary to consider the other question raised in the case, and we shall follow this order of inquiry.

The considerations which controlled the view of the court below may be best stated in extracts from his brief, but clear, opinion. He found from the testimony of the president and general manager of the company that the proposed line "was intended to relieve the congestion in the freightyards and at the tunnels in the city of Baltimore by running freight trains from the west over it, intended for the east, and running freight trains over it from the east, intended for the west, so that western and eastern freight, now passing through the city, will pass around it. *** The charter of the Baltimore & Ohio Railroad (Act 1826, c. 123) was very liberal to the railroad, but it was intended to be, and was, a Maryland and Baltimore railroad. Baltimore was then, as now, the great metropolis of the state, and it was intended by the Legislature that this road should make Baltimore greater. It was the one shipping port of the state of any importance, and the lawmakers at that time guarded with great caution its commerce, and a suggestion at that time that the freight to be carried over the Baltimore & Ohio Railroad for export would be shipped via Philadelphia or New York would no doubt have been regarded as treasonable. The lawmakers at that time were not afraid that the freight over its line from the Ohio river to Baltimore would be diverted to some other port for export, for the reason that there were no other railroads to carry it. So that the power to build lateral railroads was a power to build branches to carry out the purpose for which the main line was built, to wit, to develop the state, and make of Baltimore a great commercial city. In other words, a lateral road as then understood was, in the definition given by Bouvier, a branch road running from some point on a main line, intended as a connecting line or feeder. There seems to be no legal straight edge to lay upon a railroad charter granting the right to build lateral lines (between its termini) to determine just what branches may be built under it. Every such charter must be considered alone, and what might be regarded in one as a lateral branch, might not be interpreted as such in another. So that if the intention of the Legislature granting the charter can be fairly gathered from the grant itself, or from the history of the corporation from its beginning, that intention should control the court in deciding upon what is a lateral branch that may be built under the charter. Any branch, therefore, from the main line that is not a feeder of the port of Baltimore is not a lateral railroad as contemplated in the charter of 1826. *** I do not believe from the evidence that the proposed branch will be a feeder of the main line between Baltimore and the Ohio river, as was intended by the Legislature at the time of the grant, a feeder for the commercial development of the port of Baltimore. Being of the opinion, therefore, it is not a lateral railroad authorized by the charter to be built, it is unnecessary for me to go into the second question raised by the pleadings."

Turning now to the charter itself, with a view to determine how far its language sustains the meaning and purpose attributed to it by the court below, a controlling, if not an exclusive purpose to develop the port of Baltimore, we should naturally expect to find some clear and emphatic expression of the supposed legislative intent. On the contrary, however, we have been able to discover no indication whatever in the language of such intent. The title of the act is: "An act to incorporate the Baltimore & Ohio Railroad Company." The first section names the commissioners to receive subscriptions to the capital stock, and defines their duties and powers. The second section declares the capital stock shall be $3,000,000, in shares of $100 each, of which 10,000 shares shall be reserved for subscription by the state of Maryland, and 5,000 for the city of Baltimore, for 12 months after the passage of the act, and the remaining 15,000 shares to be open to any other subscribers. This section also declares the corporate name and confers the usual corporate powers. Section 3 provides a method of reduction of subscriptions in case the shares are oversubscribed. Section 4 regulates the payment of subscriptions. Section 5 provides that, if within 12 months after opening the subscription books 10,000 shares have not been subscribed, all subscriptions should be void, and the amounts paid in, less proper expenses, should be...