New Central Coal Co. v. George's Creek Coal & Iron Co.

• Decision Date: 21 February 1873
• Citation: 37 Md. 537
• Parties: THE NEW CENTRAL COAL COMPANY and Alexander Shaw v. THE GEORGE'S CREEK COAL AND IRON COMPANY.
• Court: Maryland Court of Appeals

37 Md. 537

THE NEW CENTRAL COAL COMPANY and Alexander Shaw v. THE GEORGE'S CREEK COAL AND IRON COMPANY.

Court of Appeals of Maryland

February 21, 1873

Appeal from the Circuit Court for Allegany County, in Equity.

The opinion of the court contains a sufficient statement of the case.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, ALVEY and ROBINSON, JJ.

William Walsh, for the appellant.

If the appellee's land was exempt from appropriation to public use--if the applicant had no power to condemn because its charter was void, or did not want the land for public use, or if for any other cause, the proceedings to condemn were erroneous or unfair, if the jury did not consider, value and allow all proper items of damage--all these matters were open before the court of law on the question of ratifying or rejecting the inquisition.

A Court of Equity has no power to interfere with the execution of the provisions of the appellant's charter. The proceedings to condemn were in fieri, and all objections were available before the court of law. Under the charter the court of law is a special jurisdiction having exclusive authority to set aside, confirm or order a new inquisition. Equity could only interfere after confirmation for some want or abuse of power. Wilm. & Susq. R. R Co. v. Condon, 8 G. & J. 443; Balto. & Havre de Grace Turnp. Co. v. N. C. R. R. Co. 15 Md. 193; Hamilton v. A. & E. R. R. Co. 1 Md. 553, 569; Balto. & Havre de Grace Turnp. Co. v. Union R. R Co. 35 Md. 221; Stevens v. Middlesex Canal, 12 Mass. 466; Stowell v. Flagg, 11 Mass. 364; Calking v. Baldwin, 4 Wend. 667; Kerr on Injunctions, sec. 342; Western Md. R. R. Co. v Patterson, 37 Md. 125.

If the appellant's charter was a valid law of the State they had a right to exercise the franchise granted by it, and the court could not rightfully restrain them. The Constitution of 1867 did not purpose to repeal private Acts of Assembly. Its object was to prescribe the boundaries of future legislation and not to annul private grants of past Legislatures. Art. 3, sec. 48, expressly confirms such previous grants by reserving to the Legislature the power to alter and amend them, where such power was reserved in the original Acts. The charter of the appellants passed in 1865, cannot be "an Act of incorporation passed in violation of this (the 48th) section."

All Constitutions and laws speak to the future and not to the past. General legislation does not repeal or alter prior special legislation. Cooley on Const. Limit. 62, 370; Birkenhead Dock v. Laird, 4 De G. M. & G. 732; Fitzgerald v. Champneys, 2 John. & Hem. 31.

The appellant's charter was accepted by the corporators as soon as it was granted. The grant was solicited by the corporators, and needed no special acceptance to be shown by proof, because acceptance is presumed. But acceptance is proved also. Ellis v. Marshall, 2 Mass. 269; Middlesex Husbandmen & Manuf. v. Davis, 3 Met. 133; Newton v. Carberry, 5 Cranch C. C. 632; Angell and Ames on Corp. sec. 83.

The terms of the appellant's charter are the same as the Frostburg Coal Company's, (Act of 1844, ch. 135,) which was held to create the corporators, a body corporate at once, and to authorize them to exercise all the franchises of the company without any previous acts done on their part. Frost v. Frostburg Coal Co. 24 How. 278; Penobscot Boom Corp. v. Lamson, 16 Maine, 224.

The Act of 1872, ch. 50, amending the appellant's charter and enlarging its powers, is a legislative declaration of the nonrepeal of the charter, and would be sufficient to cure all defects of organization, if any existed. Franklin Co. v. Hart, 31 Md. 59; Basshor v. Dressel, 34 Md. 503.

The appellant's charter gives it all the rights and powers for surveying, locating and making its proposed railroad, which the charter of the Baltimore and Ohio Railroad Company gave it for the same purposes, in regard to its railroad. The appellant had a right, therefore, to enter upon the land, after the view, and pending the confirmation of the inquisition, for all purposes preliminary to the acquisition of the title to the land required. The bill on its face shows the entry was after view, and shows the pendency of the confirmation. All that is charged was of that preliminary character allowed by the charter and by general law applicable to this class of cases. It was not an entry under claim of consummated title in the appellant under its charter. If not lawful as an incipient step to the acquisition of the title, it was a mere trespass, not remediable by injunction. There is a broad and clear distinction between such preliminary acts, and that kind of "taking" of the land, which is prohibited by the Constitution, and in some cases restrained by injunction, until compensation is paid or tendered. There is no right to compensation until confirmation--no right to compensation while the party to receive it is resisting confirmation. Therefore, the injunction cannot rest on the ground of the "taking" of the land without compensation paid. The "taking" of the land prohibited by the Constitution, without previous compensation, is the permanent, physical occupation and appropriation of the land after confirmation; and not entries, surveys, examinations or acts with a view to test fitness of location, or, originate or continue proceedings to acquire the permanent use and title of the land.

As regards such preliminary acts, they are either lawful under the 17th section of B. & O. R. R. charter, (which section is part of the appellant's charter,) or they are lawful as incident to the exercise of the right of ultimately taking the land, or mere naked trespasses, not remediable by injunction, but are in no sense the very "taking" of the land meant and prohibited by the Constitution. Winslow v. Gifford, 6 Cush. 327; Cushman v. Smith, 34 Maine, 247; Steuart v. Baltimore, 7 Md. 501.

The appellee's lands are subject to the right of eminent domain to the same extent as if they belonged to a private citizen. Even the franchises of a corporation may be taken for public use, and a fortiori may its lands be so taken. Bellona Co.'s Case, 3 Bland, 442; West River Bridge Co. v. Dix, 6 How. 507; Perrine v. Ches. & Dela. Canal Co. 9 How. 72; Richmond Etc. R. R. Co. v. Louisa R. R. Co. 13 How. 71; Binghampton Bridge, 3 Wall. 51.

The use for which the appellant requires the land is a public use in the Constitutional sense. The railroads of the appellee, the Cumberland Coal and Iron Company and Mt. Savage Company, were all made by private mining corporations to carry the produce of their mines to market under legislative grants similar to the appellant's. Condemnations were made for them and confirmed by the courts, and acquiesced in by the profession and the people. It is too late for the appellee to raise the question now. It is certainly a matter of great and general public interest to obtain access to the coal fields of the State, and to furnish the markets with coal for forges, ships, railroads and domestic purposes, though such coal may be owned by a single person or corporation. Domestic comfort, travel, commerce, and almost every branch of industry, requires coal. The law does not look to whether one person or a thousand owns the coal, but to the universal public necessity of obtaining it. The law regards the question, not from the side of the owner or producer, but from the side of the great body of the public, who are the consumers. It is entirely overlooking the broad reasons that underlie the right of eminent domain to limit its exercise from the standpoint of the appellee's contention. The Legislature has always taken a different view of it, and the court will not go behind the legislative judgment of what public needs require. Gwynn v. Jones' Lessee, 2 G. & J. 173; Reddall v. Bryan, 14 Md. 444; Spring v. Russell, 7 Green, 273; Harvey v. Thomas, 10 Watts, 65; Hazen v. Essex Co. 12 Cush. 477; The People v. Smith, 21 N.Y. 597; Beekman v. Saratoga, Etc., R. R. Co. 3 Paige, 73; Hartwell v. Armstrong, 19 Barb. 166.

The appellant's railroad is located to connect with the railroad built by the appellee. The latter's charter granted to all citizens and corporations the right of connecting with its railroad by railroads to be made by them. What equity has the appellee to deny the appellant this right? It might be reasonably contended that the appellant would have a right to lay a road free over the appellee's land to make this connection. The appellee accepted its charter and made its road cum onere. Outside of the appellant's charter, there must be some mode of enforcing the right of access to the appellee's railroad. Bell v. The Midland Railway Co. 10 C. B. N. S. 287, (100 E. C. L. R.;) The Midland Railway Co. v. The Ambergate, Etc., Railway Co. 10 Hare, 359; Bishop v. North, 11 Mees. & Wels. 418.

But even if it were right to grant the injunction, the answer having denied all the substantial grounds of the bill, the court should have dissolved it. At least the injunction should have been so modified as to permit the appellant to obtain an order from the court of law for a new inquisition and to take all necessary proceedings to obtain the right of way. As the injunction now stands, the appellant can take no steps whatever to obtain this right of way and make the proposed railroad. The injunction, if allowable on any ground alleged in the bill, should have been granted, or continued in a much narrower extent, and only until the appellant had agreed with the appellee, or consummated its title to the right of way according to the provisions of its charter. But the injunction is unlimited in duration, and so comprehensive in character as to prevent the appellant from taking any steps under its charter to secure the right...