New York Min. Co. v. Midland Min. Co.
| Citation | 58 A. 217,99 Md. 506 |
| Parties | NEW YORK MIN. CO. v. MIDLAND MIN. CO. |
| Decision Date | 08 June 1904 |
| Court | Court of Appeals of Maryland |
Error to Circuit Court, Allegany County, in Equity; A. Hunter Boyd and Ferdinand Williams, Judges.
Condemnation proceedings to secure a right of way by the Midland Mining Company against the New York Mining Company. There was a judgment confirming the inquisition of a jury of condemnation, and the New York Mining Company brings error. On motion to quash writ of error. Writ quashed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, PAGE, PEARCE SCHMUCKER, and JONES, JJ.
Wm. H Dawson and Hon. John P. Poe, for plaintiff in error.
F.C. Hendrickson and Benjamin A. Richmond, for defendant in error.
The record now before us has been brought into this court on petition as upon writ of error to the circuit court for Allegany county for the purpose of assailing the validity of a judgment which finally ratified and confirmed the inquisition of a jury of condemnation. The appellee, a mining company duly incorporated under the general corporation laws of the state, owns certain coal lands in Allegany county from which bituminous coal is mined. The Cumberland & Pennsylvania Railroad is a common carrier, whose road is near to, though not immediately adjoining, the lands of the Midland Mining Company. The appellant, namely, the New York Mining Company, is also a coal-mining corporation, and owns land lying between the Cumberland & Pennsylvania Railroad tracks and the property of the appellee. To enable the Midland Mining Company to get its coal to market, it has a tramway constructed on its own land from the mouth of its mines to a tipple near the Cumberland & Pennsylvania tracks. The coal is brought from the mines down the mountain upon this tramway to the tipple. To get the coal which is thus brought to the tipple aboard the cars of the railroad for transshipment, it is necessary that a switch or siding connecting with the Cumberland & Pennsylvania Railroad should be constructed. After the siding is built, the empty coal cars will be brought from the main track of the railroad to the tipple on the appellee's property, so that the coal may be loaded, and so that, when loaded, it may be hauled to market. In order to construct this siding, the Midland Company must acquire two small portions of land owned by the appellant mining company, and lying between the railroad right of way and the appellee's property. Being unable to agree with the appellant in regard to the occupancy of these small parcels for the purpose of constructing this siding, the appellee made application by petition to the circuit court for Allegany county for a warrant directed to the sheriff, commanding him to summon a jury to condemn the land needed for the construction of this siding. It is alleged that the proceeding thus taken is authorized by sections 145 and 149 of article 23 of the Code of 1888, and that the method and details to be pursued are marked out in sections 248 to 253 of the same article of the Code. By section 145 any mining company, such as the appellee is conceded to be, is invested with full power to locate and construct a railroad beginning at or near its mines and running to any convenient point or points that may best suit the convenience and interest of the corporation, and to use and control such railroad and the necessary vehicles and appurtenances belonging thereto; provided, as declared by section 153, such railroad does not exceed 10 miles in length. Section 149 expressly empowers mining companies to obtain the land required for such railroads by condemnation. By section 248 it is enacted that condemnation proceedings for the acquisition of a right of way for such a railroad as a mining company is empowered to build must be commenced by filing a petition addressed to any judge of the circuit court for the county in which the land wanted may lie; and it is further provided that, upon its being made to appear satisfactorily to the judge that the land needed is necessary and proper to be condemned for the use of such corporation, he shall thereupon issue his warrant, directed to the sheriff, requiring the latter to summon a jury to meet on the land to be valued and condemned, on a day to be named in the warrant. Such a petition was filed, and in it the court was asked to direct the sheriff to summon a jury of 20 inhabitants of Allegany county, not related to either of the parties, and not stockholders in the petitioning company or in the appellant corporation, and not in any wise interested in the land to be condemned or in the controversy arising under the condemnation. A warrant was thereupon issued by Judge Williams to the sheriff as prayed, but the judge, in the warrant signed by him, directed the sheriff to summon a jury of 20 inhabitants of Allegany county "above the age of twenty-one years, and qualified to act as jurors under the laws of this state," who were not related to either of the owners--that is, the New York Mining Company, and the Midland Mining Company, the petitioner--and who were not in any wise interested in said lands, and who were not stockholders in either of said corporations. The sheriff accordingly summoned a jury, which met on the premises after due notice had been given to the appellant company; and the jury, after having been impaneled and sworn, then and there proceeded to value the damages the appellant would sustain by the use and occupation of the land needed by the appellee company for the construction of the siding heretofore mentioned. The appellant attended by counsel on the premises when the jury assembled, and from a panel of 20 persons struck off 4 names, and, the appellee company having also erased 4 names, the remaining 12 constituted the jury of inquisition. Upon the return of the inquisition by the sheriff to the circuit court, the appellant company filed eight objections to its ratification. Testimony was taken, and the objections were heard by the court below and were overruled, and the inquisition was finally ratified and confirmed. Thereafter the appellant company filed its petition in the circuit court for Allegany county, alleging that there were errors in the action of the court in confirming the inquisition, and praying that the record be transmitted to this court as upon writ of error, so that the rulings of the lower court might be here reviewed.
Of the eight objections filed to the ratification of the inquisition, five are relied on in the petition for a writ of error, whilst the other three are not alluded to. Of the five which are assigned as grounds of error, the second, third, and sixth original objections aver, in substance, that there was no necessity for the condemnation of the appellant's property for the construction of the siding, inasmuch as the appellee, by adopting another and different route, could reach the Cumberland & Pennsylvania Railroad without crossing the appellant's property. The first, second, and fourth reasons assigned in the petition for a writ of error are substantially the same as the second, third, and sixth objections filed against the confirmation of the inquisition. The fourth objection to the confirmation of the inquisition, which is the third reason assigned in the petition for a writ of error, is, in effect, that the siding to be constructed is not such a railroad as is authorized under the sections of the Code heretofore alluded to, because in point of fact it will be, when completed, a mere switch to be operated by the Cumberland & Pennsylvania Railroad for the Midland Mining Company, and will be of no public use or benefit whatever; consequently, that the condemnation proceedings are an attempt to take the property of one corporation for the private use and benefit of another corporation without warrant of law. The eighth objection to the ratification of the inquisition, which is the fifth reason assigned in the petition for a writ of error, is, in brief, that the warrant directing the sheriff to summon a panel of 20 inhabitants of Allegany county, from amongst whom the jury of inquisition was to be obtained, was not issued in conformity with the requirements of law, and that the appellant's rights as to the class of persons from whom the jury should have been selected were thereby abridged, to the detriment and injury of the appellant, and that in consequence all the proceedings taken and had under that warrant are ultra vires and void.
A motion has been made in this court to quash the writ of error upon the ground that the judgment of the court below is final and conclusive, and, being pronounced upon a subject-matter exclusively within the jurisdiction of that tribunal, and no appeal or writ of error having been provided by law, there can be no review by this court of the action of the lower court. It is conceded by the appellant that no appeal lies to this court from the order of the court below ratifying the inquisition, because none is provided by statute (Swann v. M. & C.C. Cumb., 8 Gill, 150); but it is insisted that the ob. 220jections jections which were interposed to the ratification of the inquisition, and which were overruled, present jurisdictional questions, and that such questions, when brought up on a writ of error, are open for consideration by this court. Margraff v. Cunningham, 57 Md. 585. It is obvious, therefore, that the fundamental inquiry is whether the questions as to the existence of a necessity for the condemnation of the particular land sought to be acquired, and as to whether the switch or siding proposed to be constructed is a railroad within the meaning of the sections of the Code empowering the mining company to condemn land for the construction of a railroad, and...
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