Hines v. Symington

• Decision Date: 12 January 1921
• Docket Number: 46.
• Parties: HINES, Director General of Railroads, et al. v. SYMINGTON.
• Court: Maryland Court of Appeals

112 A. 814

137 Md. 441

HINES, Director General of Railroads, et al. v. SYMINGTON.

No. 46.

Court of Appeals of Maryland

January 12, 1921

Motion for Reargument Denied March 3, 1921.

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

"To be officially reported."

Suit by Elsie J. Symington against Walker D. Hines, Director General of Railroads, and the Pennsylvania Railroad Company. Judgment for plaintiff, and defendants appeal. Affirmed.

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

Shirley Carter, of Baltimore (Bernard Carter & Sons, of Baltimore, on the brief), for appellants.

Frank B. Ober and Stuart S. Janney, both of Baltimore (Janney Stuart & Ober, of Baltimore, on the brief), for appellee.

URNER J.

The appellee is the owner of land in Baltimore county along the margin of which extends a line of railway known as the Green Spring Branch of the Pennsylvania Railroad Company. In this suit recovery was sought and obtained by the appellee for the alleged appropriation of part of her land by the railroad company for the construction of a siding connected with the existing single track of the branch line just mentioned, and the use of the siding for the operation of freight trains in such manner as to cause injury to the appellee's nearby dwelling and serious discomfort to the occupants. The most important question in the case is whether there is legally sufficient evidence to prove that the siding was constructed upon the appellee's land, and not upon ground which the defendant railroad company was entitled to use for that purpose as being included within the limits of its right of way. While the siding was built before the period of federal control of railroads, and the suit was not brought until after the close of that period, some of the consequential damages sued for were sustained during the administration of the Director General of Railroads, and for that reason presumably, he was joined with the Pennsylvania Railroad Company as a defendant.

The Green Spring Branch railroad was originally constructed about 80 years ago by the Baltimore & Susquehanna Railroad Company under a charter which provided that the width of the railroad should not exceed 66 feet. After various intermediate transfers the possessory and operative rights in the railroad are now vested in the defendant railroad company as lessee. There was testimony admitted at the trial to the effect that the ground occupied by the railroad adjacent to the land now owned by the plaintiff was not acquired by the Baltimore & Susquehanna Railroad Company, or by any of its successors, through condemnation proceedings or by any method of conveyance, but that the company built its railway over the land by permission of the plaintiff's predecessor in title. It was a single-track railroad, and, where it borders on the plaintiff's land, the full width of the ground included within the bounds of its actual use and occupation was considerably less than the limit of 66 feet mentioned in the charter.

The evidence was in conflict as to whether the siding complained of was located beyond the space previously appropriated to the railroad, but the verdict of the jury decided that question of fact in favor of the plaintiff's contention. It does not appear, however, that the new track is outside of the right of way of the defendant railroad company if it is entitled to the use of one 66 feet wide at that place. The theory of the defendant is that this is the real extent of its right. It contends that in view of the charter power of the Baltimore & Susquehanna Railroad Company to build a railroad of the width of 66 feet, and of the fact that its property and franchises were subsequently vested by authorized consolidation in the Northern Central Railway Company, which in the year 1857 conveyed the railroad to the Western Maryland Railroad Company, which company reconveyed it in 1874 to the Northern Central Railway Company, by which it has been leased for 99 years to the defendant railroad company, the predecessors in title of the latter company must be held to have been in adverse possession from the year 1874 at the latest of a railroad right of way 66 feet wide which includes the land in dispute. It is argued that, whatever may have been the width of the space actually used and occupied for the railroad, and whatever may have been the extent of the right of user conferred upon the Baltimore & Susquehanna Railroad Company, the later and formal conveyances of the railroad should be regarded as placing the grantees in the position of having entered under color of title, and as consequently extending their adverse possession to the limits permitted by the franchise to which they had succeeded. A right of way 66 feet wide is therefore claimed by prescription.

It is a rule well supported by judicial opinion that a railroad company can ordinarily acquire by adverse possession such land only as it holds by actual occupation. Some of the decisions to that effect are James v. Ind. & St. Louis R. R. Co., 91 Ill. 554; Floyd v. Louisville & N. R. Co. (Ky.) 80 S.W. 204; Coleman v. N. Pac. Ry. Co., 36 Minn. 525, 32 N.W. 859; Phila. & Reading Ry. Co. v. Obert, 109 Pa. 193, 1 A. 398; Omaha & R. V. Ry. Co. v. Rickards, 38 Neb. 847, 57 N.W. 739; Louisville & N. R. Co. v. Smith, 141 Ala. 335, 37 So. 490; St. Louis S.W. Ry. Co. v. Davis, 75 Ark. 283, 87 S.W. 445. There are decisions to the contrary upon which the appellants rely, but we think the rule we have stated has the weight of reason and authority in its favor. It gives logical application to the general and well-settled principle that adverse possession without color of title affects only the land actually occupied. The charter right of a railroad company to acquire land of a specified area does not give it color of title to that extent with respect to land of which it has appropriated a smaller area by permission of the owner. The color of title which the law recognizes is that which is created by an instrument purporting to give title to the particular land which it describes. It is only by virtue of a color of title thus created that actual possession of a part of the land described is constructively extended to the whole. In the ordinary case of a mere permissive entry and user by a railroad company there is no just principle upon which the effect of its actual occupation should be extended in its favor on the theory of constructive possession.

Cases have been cited in which the landowner sued the railroad company to recover the value of his ground appropriated for its right of...