Moores v. Bel Air Water & Light Co. of Harford County

• Decision Date: 20 June 1894
• Citation: 29 A. 1033,79 Md. 391
• Parties: MOORES v. BEL AIR WATER & LIGHT CO. OF HARFORD COUNTY.
• Court: Maryland Court of Appeals

29 A. 1033

79 Md. 391

MOORES

v. BEL AIR WATER & LIGHT CO. OF HARFORD COUNTY.

Court of Appeals of Maryland.

June 20, 1894.

Appeal, as upon writ of error, from circuit court, Harford county.

Proceedings in condemnation by the Bel Air Water & Light Company of Harford County against John Moores to condemn defendant's water right. From a judgment for plaintiff, defendant appeals. Appeal dismissed.

Argued before ROBINSON, C. J., and BRYAN, McSHERRY, BRISCOE, PAGE, and BOYD, JJ.

Geo. Y. Maynadier and E. M. Allen, for appellant. W. H. Harlan and Geo. L. Van Bibber, for appellee.

BOYD, J. The appellee is a corporation formed under the Public General Laws of Maryland, for the purpose of supplying the town of Bel Air and vicinity with pure water. The proceedings show that it is the owner of a parcel of land upon which is a spring forming one of the sources of Bynum's run; that the appellant is the owner of a mill seat on said run; and that he claimed the flow of water from said spring is appurtenant to said mill. Being unable to agree with the owner, and desiring to acquire, in perpetuity, the right to divert from its accustomed channel, and flow through the conduits to the town of Bel Air, so much of the water of the aforesaid spring as may be necessary and proper for the purpose of supplying pure waters, the company applied to one of the judges of the circuit court for Harford county (where the property is) for a warrant to the sheriff for the purpose of condemning the interest of appellant in the water rights. The judge issued the warrant the sheriff summoned the jury, and the inquisition was returned to the court, in accordance with the practice provided for by sections 248 and 253 of article 23 of the Code. These proceedings took place in the fall of 1892. Objections were filed to the ratification of the inquisition, which were overruled, and the award confirmed. The case was brought to this court by an appeal, and also by a petition in the nature of a writ of error. The appellee has made a motion to dismiss the appeal, because the action of the circuit court was final, and from its order of confirmation no appeal lies, and to dismiss the writ of error, because there was no application therefor within two months of the passage of the order by the circuit court finally determining all the questions raised by appellant in his application for said writ.

So far as the latter is concerned, the record shows that although the court overruled on March 20, 1893, the objections filed to the jurisdiction of the court, the award of the jury was not finally confirmed until the 31st of January, 1894. Until the final order was passed, there could be no application for the writ of error. Only part of the objections had been passed on by the court The application was therefore in time, and it cannot be dismissed on that ground.

As the motion to dismiss the appeal involves a consideration of the question urged by appellant, it will be unnecessary to pass upon it separately. The statute under which these proceedings were conducted gives no right of appeal or writ of error to this court. The appellant bases his right of appeal, however, on the theory that the court below had no jurisdiction to confirm the award, for the reasons assigned by him, and that, therefore, this court has the right to review the rulings of that court on what he contends to be jurisdictional questions. Section 33 of article 23 of the Code authorizes the formation of companies under the general corporation laws "for the purpose of supplying any city or town in the state with pure water." Section 246 of the same article provides that such companies "shall have power to acquire, possess and use all such land, water rights and other property, and shall have all such power as may be necessary for the purposes for which said corporation is formed," etc. Section 247 provides that if any such corporation cannot agree with the owners of any land or water rights which it may have power to acquire for the purpose of laying pipes or constructing its works, it may proceed to condemn and acquire the same in the manner provided for in sections 248 to 253 of that article. The sections last referred to direct how condemnation proceedings of such companies as they are applicable to shall be conducted. Application is made under section 248 to a judge of the circuit court of the county where the property to be condemned is, and, if it is made to appear satisfactorily to him that the land or materials (or water rights, under section 247) are necessary and proper to be condemned for the use of the company, he is required to issue his warrant to the sheriff, who is commanded to summon a jury. Sections 249 and 250 provide for impaneling the jury; and section 251 requires the jury to sign and seal an inquisition, which shall be returned to the clerk of the circuit court by the sheriff; "and, if no sufficient cause to the contrary be shown, the said inquisition shall thereupon be confirmed by the said court, at such times and after such notice as shall be fixed by its rules." An examination of the sections of the Code above referred to will conclusively show that the legislature has conferred a special jurisdiction on the circuit court to review, confirm, or set aside inquisitions returned under condemnation proceedings authorized by those provisions of the Code, and does not expressly give the right of appeal from its judgment As early as 1837 it was decided by this court in Condon's Case, 8 Gill & J. 443, that no appeal would lie in such cases. That case has been approved in numerous decisions in this court, many of which are referred to in a note of Brantly's edition of the early Maryland Reports, and need not be cited here, as the law is too well settled to be questioned. But, of course, the cases all proceed upon the assumption that the circuit court has not exceeded its jurisdiction thus conferred on it, and, as already stated, the appellant bases his right of appeal on the want of jurisdiction of that court.

It seems clear to us that most of the objections urged in argument could unquestionably only affect the regularity of the proceedings, and do not involve the question of jurisdiction. As is said in George's Creek Coal & Iron Co. v. New Cent. Coal Co., 40 Md. 435: "Our inquiry must be confined to the question whether the circuit court, by these proceedings, has in any respect exceeded the power and jurisdiction conferred upon it by the statute under which it acted." If the court below had the power and jurisdiction to confirm the inquisition by which the water rights of appellant in Bynum's run were undertaken to be condemned, its action cannot be reviewed in this court. In Rayner v. State, 52 Md. 368, it was urged that this court could review on writ of error the action of the circuit court on an appeal from the justice of the peace, because the statutes under which Rayner was tried were unconstitutional and void....