Hagerstown & F. Ry. Co. v. Grove

• Decision Date: 19 April 1922
• Docket Number: 49.
• Citation: 118 A. 167,141 Md. 143
• Parties: HAGERSTOWN & F. RY. CO. v. GROVE et ux.
• Court: Maryland Court of Appeals

118 A. 167

141 Md. 143

HAGERSTOWN & F. RY. CO. v. GROVE et ux.

No. 49.

Court of Appeals of Maryland

April 19, 1922

Appeal from Circuit Court, Frederick County, in Equity; Glenn H Worthington, Judge.

"To be officially reported."

Suit for injunction by John W. Grove and wife against the Hagerstown & Frederick Railway Company. Decree for plaintiffs, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, ADKINS, and OFFUTT, JJ.

Leo Weinberg, of Frederick, for appellant.

Frank L. Stoner and John S. Newman, both of Frederick, for appellees.

BRISCOE J.

This is a bill in equity, filed by the plaintiffs, the appellees on this record, against the defendants, the appellants here, in the circuit court for Frederick county, to enjoin and restrain the defendants, by injunction, from locating and constructing a switch or siding for railroad purposes on the plaintiffs' lands as designated in the bill of complaint and from placing thereon certain materials necessary and useful for the construction and operation of the switch or siding thereon. The defendants filed a demurrer to the bill which was overruled, and from a decree of the circuit court for Frederick county, sitting in equity, dated the 20th day of December, 1921, granting the injunction as prayed, this appeal has been taken.

The material facts, as they appear from the record, are as follows: On the 8th of September, 1906, the Washington Frederick & Gettysburg Railroad Company, which subsequently became merged in the appellant company, in the exercise of its right of eminent domain, condemned a strip of land along the north side of plaintiffs' farm, and bordering on what is known as the Montevue pike, for a distance of 1,375 feet, and of the width of 25.51 feet at the eastern end thereof, and of 14 feet at the western end thereof, the use of which piece of land, as stated in the inquisition, is needed by the Washington, Frederick & Gettysburg Railway Company for the construction of a railroad from Frederick City to Thurmont, in Frederick county. A plat showing the boundaries of the strip of ground mentioned is set out in the record, marked "W., F. & G. Ry. Co. Plan, Showing Right of Way Through Lands of John W. Grove." The condemnation proceedings were ratified by the court on the 9th of January, 1907, and the railway company subsequently constructed a single-track railway westwardly out and on Fourth street, in Frederick City, and south of and adjoining the Montevue pike, and along over the strip of ground condemned of the plaintiffs' farm; the railway company being authorized to lay its tracks on Fourth street, in Frederick City, by an ordinance of the mayor and aldermen of Frederick, dated July 25, 1906.

It appears that the road as thus constructed was operated for a few years, but, upon objection by the residents of Fourth street to the use of that street for railroad purposes, application was made to the authorities of Frederick City for a change of route for the railroad. By an ordinance of the mayor and aldermen of Frederick City, dated March 18, 1910, the Frederick Railroad Company, the successor through merger and consolidation of the Washington, Frederick & Gettysburg Railway Company, was granted the right to lay and maintain its tracks and roadbed along, through, and over Fifth street, in Frederick City, subject to certain regulations, restrictions, and conditions. By section 5 of the ordinance, it is provided that the-

"Frederick Railroad Company shall, at its own expense, after the completion of its roadbed on Fifth street and within two years from the date of this ordinance, remove its track from Fourth street and put the street in as good condition as it was before the laying of said tracks thereon, and in the meantime it shall keep the portion of said street occupied by its said tracks in good repair: Provided that the rights, privileges, and franchises which were granted to the Washington, Frederick & Gettysburg Railway Company by ordinance dated July 25, 1906, shall forthwith cease and terminate at the expiration of the time hereinbefore granted to the Frederick Railroad Company for the completion and operation of its tracks on Fifth street."

It further appears that, in accordance with the ordinance and permission, the railroad company, in the year 1910, removed its track from Fourth street to Fifth street, and...