Northern Cent. Ry. Co. v. City of Baltimore

• Decision Date: 08 March 1877
• Citation: 46 Md. 425
• Parties: THE NORTHERN CENTRAL RAILWAY COMPANY v. THE MAYOR AND CITY COUNCIL OF BALTIMORE. THE NORTHERN CENTRAL RAILWAY COMPANY v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

46 Md. 425

THE NORTHERN CENTRAL RAILWAY COMPANY v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

THE NORTHERN CENTRAL RAILWAY COMPANY v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

March 8, 1877

Bernard Carter, for the appellant.

It is the duty of the tribunal having proper jurisdiction of the matter in cases of this kind, to declare that the highway shall be constructed on that plan as shall interfere as little as possible with prior existing rights and easements is fully established. See Manser vs. N. & E. R R., 2 Eng. Rail. Cases, 380; Tuckahoe Canal Case, 11 Leigh, 79, 80, 81; Kyle vs. Aub. & Roch. R., 2 Barbour's Chancery, 490.

The proceedings for the condemnation and opening of these streets were not had until the beginning of the year 1875; the appeal being taken March 20th, 1875. The railway of the appellant where these streets when opened would cross, had been constructed and been in active use for a considerable period before the institution of said proceedings, (in point of fact prior to the year 1870, though the date is not given in the record.) We have to consider the case then of an existing road, (or highway so to speak,) and all the easements properly appertaining thereto, belonging to the appellant, and in active use, proposed to be crossed by another road, way or street, (by whichever of these names we may choose to designate it,) which latter or new road or way, it is now to be taken as conceded, can only be constructed across the former or older road or way, with a due regard to the preservation and proper enjoyment of the last mentioned road by "a viaduct or raised way." (Court's opinion beginning of of 1st paragraph.)

In such cases, those proposing to carry a new road or way across the old or existing road or way, must do so by such structure as will interfere as little as possible with the older right, and that said structure must be built and maintained at the sole cost and expense of those desiring to construct the second or new road or way.

In support of this proposition, we refer to the following authorities. Morris Canal Co. vs. The State, 4 Zabriskie, (N. J.,) 62; Manser vs. N. & E. R. R., 2 Eng. R. Cases, 380; Tuckahoe Canal Case, 11 Leigh, 79, 80, 81; The King vs. Kerrison, 3 Maule & Sel., 526; The King vs. Inhabitants of Kent, 13 East, 220; The King vs. Inhabitants of Lindsey, 14 East, 317; Richardson vs. Biglow, (SHAW, Ch. J.,) 15 Gray, 156, 157; Purley vs. Chandler, 6 Mass., 454; Washburne on Easements, 197, (star page;) City of Lowell vs. Proprietors of Locks, &c., 104 Mass., 22; City of Hannibal vs. Han. & St. Joe R. R., 49 Missouri, 481.

The principle running through these cases is, that where there is an existing easement, whether in the shape of a highway, or road, or way, or water-course, either natural or artificial, and another or newer easement is created or to be exercised, those who are interested in the latter, whether it be the public who wish to make a highway across an existing railroad, or a railroad company which wishes to make its railroad across an existing highway, must, in the first place, cross the existing way in such mode and by such structure as will interfere as little as possible with the prior right, and must, in the second place, be at the cost of this structure.

If the prior road or way cannot be crossed without damage to it, then the damage must be assessed and paid, if there is a right to cross given expressly or by necessary implication.

But even the right to cross or interfere at all with the prior easement, will not be presumed to have been intended to be granted by the Legislature, unless the presumption is a necessary one. New Central Coal Co. vs. George's Creek Coal & Iron Co., 37 Md., 564; Union R. R. vs. Balt. & Havre de Grace Co., 35 Md., 224.

The principle above referred to is thus stated by Chief Justice PARSONS, in 6 Mass., 454, stated, and adopted by Washburn on Easements, p. 197, (star page.)

"If the public locate a way across an existing water-course, either natural or artificial, the public must make and maintain a bridge across the same. But if the owner of the soil constructs a water-course under a highway already existing, he must make and keep in repair the bridge."

Again, in 15 Gray, 156, 157, (above cited,) in a case where the defendant had an easement in the shape of a race-way, and plaintiff had also an easement in the shape of a right of way on a line which would cross this race-way, Mr. Chief Justice SHAW thus states the law with his usual precision:

"The plaintiff's was not an actual way built or in use, but was a right of way, and as such carried with it the right of fitting it for actual use; but defendant was in the actual use of his race-way. Could both of these rights be enjoyed together without interference? We think they could. Defendant had a right to a race-way sufficiently wide and deep to carry off the water from the mill. If plaintiff could not use his right of way otherwise, he had a right to build a bridge over the race-way. The land travel could be carried over the stream, but stream could not be carried over the way; it must retain its level. Necessity, therefore, would determine how both these rights could co-exist, and both be beneficially used.

Then comes another rule, that he who enjoys the benefit of an easement in another's soil, must be at the expense of fitting, maintaining and repairing it. If, therefore, the plaintiff would enjoy the benefit of a way, either a footway or carriage-way, over the defendant's race-way, he must erect a suitable bridge over it."

Again, in the City of Lowell vs. Proprietors of Locks, &c., 104 Mass., 22, the Court say:

"It may be true where a highway is located over land across which the owner, intending to make a beneficial use thereof, has commenced the construction of a water-course, that the public easement must be subject to such prior appropriation, so that the original cost of the bridge, and the burden of its support will be on the public. In such a case, the bridge should be ordered as a part of the original location and construction of the way."

Again, in the case of Morris Canal Co. vs. The State, 4 Zabriskie, 62, it was held that where a canal having been in existence, a highway was subsequently desired by the public and laid out, the public must build and pay for the bridge required to carry the highway across the canal.

In this case, Justice ELMER says that, "at common law, counties were chargeable with making and repairing public bridges within their limits, unless some other person or bodies corporate were shown to be liable."

Again, in 14 East, 317, (King vs. Inhabitants of Lindsey,) in a case where authority was given to improve a canal and river by making "navigable cuts" alongside, and these new cuts crossed an old highway in such a way as to make a bridge necessary,--

LE BLANE, J., says: "The authority given to the company to make the 'cut' which rendered the highway impassable without a bridge, must create in them an obligation to erect the bridge; although the word authorize in the Act would not of itself create the obligation."

And BAYLEY, J., says: "The bridge is rendered necessary for the purposes of the company, but not for the purposes of the inhabitants of the parish. The latter might have continued to use the ford (the old highway) as they did before the works, executed by the company for their own benefit, deprived them of the use of it."

It is to be noted in reference to the case just cited, that in that case, it happened that the older easement was that of the public, viz., the highway, which was interfered with by the newer one belonging to the private company, and so of course in that case the private company had to build a bridge. But of course, as is abundantly shown in all the cases, it makes no difference whether the public or the private company happen to own the older easement, it is this older one which has to be protected. And referring again to the language of BAYLEY, J., quoted above, and applying it to our case, we may say--

"The bridges over Calvert and North streets are rendered necessary for the purposes of the public to enable them to have a highway to the northern boundary of the city, but not for the railway company, which would be very glad to have no bridge or highway over their tracks. The latter (the R. R. Co.) might have continued to use their railway (the existing easement) as it did before the opening of streets about to be opened, made a bridge necessary."

To the same effect are the cases of King vs. Inhab. of Kent, 13 East, 220; and King vs. Kerrison, 3 M. & Sel., 526.

It is perfectly apparent that the whole scope and object of the Ordinance of 1868, No. 77, was to indicate how the railroad should pass streets, that is, below the grade thereof, and not at all to deal with the general question of who was to defray the cost of the construction of the streets over the railroad tracks, the only streets in reference to which anything was designed to be provided on the subject of their costs were the streets then already paved, in reference to which it was provided that they should be restored to their former condition at the cost of the railway company.

That, in this view, the cost of the construction of the bridges or tunnels, though to be constructed by us, form an element of the damages to be awarded to us, we regard as conclusively established by the following authorities. Grove vs. Ches. & O. C. Co., 11 Gill & J., 398; Tyson vs. County Commissioners, 28 Md., 525; Kyle vs. Auburn & R. R., 2 Barb. Ch., 490; Dealon vs. Boston and Concord R., 24 N. H., (4 Foster,) 186; Ibid., 114; March vs. Ports. & Con. R., 19 N. H., 372; 40 Penn., 56.

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