Johnson v. Consolidated Gas, Elec. Light & Power Co. of Baltimore

• Decision Date: 08 January 1947
• Docket Number: 42.
• Citation: 50 A.2d 918,187 Md. 454
• Parties: JOHNSON et al. v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

50 A.2d 918

187 Md. 454

JOHNSON et al. v. CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE.

No. 42.

Court of Appeals of Maryland

January 8, 1947

Appeal from Circuit Court, Baltimore County; John B. Gontrum, Judge.

Condemnation proceedings by the Consolidated Gas, Light & Power Company of Baltimore against William Fell Johnson and others. From a judgment on inquisition made absolute in favor of the defendants for the sum of $16,103, interest, and costs, the defendants appeal.

Affirmed.

Herbert M. Brune, Jr., of Baltimore (Edward H. Burke, Arthur W. Machen, and William Fell Johnson, all of Baltimore, and H Courtenay Jenifer, of Towson, on the brief), for appellants.

Alfred P. Ramsey and Paul S. Clarkson, both of Baltimore (Edwin M Sturtevant, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and HENDERSON JJ.

COLLINS, Judge.

This is an appeal by William Fell Johnson, life tenant, and certain remaindermen, appellants, from a judgment on inquisition made absolute in favor of the appellants for the sum of $16,103.00, interest and costs, for the right to condemn certain property in Baltimore County. As provided by the inquisition, among other things was the perpetual right-of-way for an electric light and power line over the property of the appellants to be placed on three transmission towers. Each of the three towers will occupy a maximum space of 29' X 29' and have a maximum height of 117' and carry a 110,000 volt electric light and power line. The Consolidated Gas, Electric Light & Power Company of Baltimore, the appellee, is given the right to trim and cut all trees on the said right-of-way and any trees adjacent to and within seventy-five feet of said right-of-way to prevent interference with the electric light and power wires. The appellants are given the right to use that part of the right-of-way which is not occupied by the transmission line towers.

Appellants contend, contrary to the ruling of the trial court in refusing certain prayers of the appellants, (1) that under the provisions of 1939 Code Article 23, Section 296, the appellee's power of condemnation is subject to the condition that its poles and wires 'shall not be so constructed as to * * * interfere with the convenience of any land owner more than in unavoidable' and that appellants are thereby entitled to show by way of defense, '(a) That serious and irreparable damage will be caused by the proposed overhead transmission line through high-class residential property such as the Green Spring Valley; (b) That such damage will be wholly avoided if the line is placed underground; and (c) That it is practicable and not unduly expensive to place the line underground.'

(2) The second contention of the appellants is that the damage from the entire tranmission line is not limited to consideration of those portions placed on their property, since the entire transmission line is a single unit, and that they are entitled to damages from the construction of the proposed transmission line across the property of others because their property would be damaged by the sight of the transmission line on the property of others.

It is stipulated in the record that the appellee has the powers conferred by Article 23, Section 335, of the Code of 1939 of the Public General Laws of Maryland. Appellee admits that its power of condemnation is derived under Article 23, Section 335, supra, Acts of 1886, Chapter 161. This Section provides in part as follows:

'Any of the corporations formed under class thirteen, section 28 of this article, as codified by the Code of 1904, shall have the power which is conferred upon telegraph companies incorporated under this article by section 296, and may construct and lay any part of its line or lines underground on any route for which it is authorized to construct such lines in whole or in part, above ground, and such corporation may acquire by condemnation any property or right whatsoever necessary for its purposes in its discretion, either in fee simple or the use thereof in fee simple, or for a less estate * * *.'

The appellants contend and the appellee denies that the power of condemnation of the appellee given under Section 335 is narrowed down to the interpretation of Article 23, Section 296, 1939 Code, Acts of 1868, Chapter 471, Section 128. That Section provides in part as follows:

'It may construct a line or lines of telegraph through this State, or from or to any point or points within this State, or upon the boundaries thereof, and along and upon any postal roads and postal routes, roads, streets and highways, or cross any of the bridges or waters within the limits of this State, by the erection of the necessary fixtures, including posts, piers or abutments for sustaining the cords or wires of such lines, without their being deemed a public nuisance, or subject to be abated by any private party; provided, the same shall not be so constructed as to incommode injuriously the public use of said postal roads or postal routes, roads, highways and bridges or injuriously interrupt the navigation of said waters, or interfere with the convenience of any land owner more than is unavoidable; * * *.'

At the time of the passage of the Acts of 1868, Article 23, Section 296, supra, underground electric lines were not in existence. By Article 23, Section 335, supra, corporations, such as the appellee, were given power to construct their lines underground, to 'acquire by condemnation any property or right whatsoever necessary for its purposes in its discretion.' In the opinion of this Court the grant in the statute of 'the power which is conferred upon telegraph companies incorporated under this article by section 296' was the grant to corporations such as the appellee of the franchise or rights to construct lines along roads, streets, and highways, across any of the bridges or waters within the State without the said corporation being deemed a public nuisance, provided 'the same shall not be so constructed as to incommode injuriously the public use of said postal roads or postal routes, roads, highways and bridges or injuriously interrupt the navigation of said waters, or interfere with the vonvenience of any land owner more than is unavoidable; * * *.' In other words, the limitations just above quoted are limitations of the franchise rights and not limitations on the condemnation powers. We here use the word franchise to describe a grant by a state to some person, natural or corporate, of some privilege or power, not common to the people generally, in respect to property or rights subject to the control of the state or of some agency of the state. Huebschmann v. Grand Co., 166 Md. 615, 622, 172 A. 227.

That these corporations are liable for proper compensation for these franchise rights has been many times stated by this Court. Postal Telegraph Cable Co. v. State Roads Commission, 127 Md. 243, 246, 96 A. 439; Chesapeake & Potomac Tel. Co. v. State Roads Commission, 134 Md. 1, 4, 106 A. 257; Baltimore v. Chesapeake & Potomac Telephone Co., 142 Md. 79, 82, 120 A. 229; American Telegraph & Telephone Co. v. State Roads Commission, 134 Md. 11, 14, 103 A. 260; Chesapeake & Potomac Telephone Co. of Baltimore City v. State Roads Commission, 132 Md. 194, 197, 103 A. 447.

That the limitation that the use must not injuriously interrupt the navigation of waters or interfere with the convenience of any land owner more than is unavoidable, is a limitation on franchise rights rather than on the power of condemnation, is borne out by the following quotation from the case of State, for Use of Hoffman v. Potomac Edison Co., 166 Md. 138, at page 146, 170 A. 568, at page 571, where this Court said: "The statute authorizing corporations to construct their lines along and upon the highways and across the bridges and waters of the state, by the erection of the necessary fixtures, provides that they 'shall not be so constructed as to incommode injuriously the public use of said postal roads or postal routes, roads, highways and bridges, or injuriously interrupt the navigation of said waters, or interfere with the convenience of any landowner more than is unavoidable.' Code 1904, art. 23,§ 324; Annotated Code 1912, art. 23, § 359." Now Art. 23, Sec. 296, 1939 Code, supra. "* * * The appellant's brief contains a suggestion that the prohibition of the act was merely that the public use of the roads shall not be injuriously incommoded more than is unavoidable. We do not so construe the meaning of the statute. The term 'unavoidable' is plainly intended to qualify only the restriction upon interference with the convenience of landowners and has no relation to the provision against incommoding the public use, to which the adverb 'injuriously' is applied." Phelps v.

Board of Com'rs of Howard County, 117 Md. 175, 180, 82 A. 1058; Earp v. Phelps, 120 Md. 282, 287, 87 A. 806.

The Act of 1886, passed after the Act of 1868, in addition to other things, gave to corporations in the classification of appellee condemnation powers and added the requirement of 'necessity.'

In the case before this Court, as the property in question is private property, the only limitation therefore upon the appellee's right to condemn is whether the property or right sought to be condemned is 'necessary for its purpose in its discretion'.

There is no contention by the appellants that an electric line at the location here contemplated is not necessary. They contend, however, that such line should be placed underground and not overhead.

The question of necessity is one for the Court to decide. Ordinarily the question of public interest is legislative rather than judicial. It was said in Murphy v. State Roads Commission, ...