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

• Decision Date: 24 February 1864
• Citation: 21 Md. 93
• Parties: THE NORTHERN CENTRAL RAILWAY COMPANY v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

21 Md. 93

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

Court of Appeals of Maryland.

February 24, 1864

APPEAL from the Circuit Court of Baltimore City:

The appeal in this cause was taken from a pro forma order of the Circuit Court for Baltimore city, overruling a motion of the defendant, now appellant, to dissolve an injunction which had been previously granted, enjoining the appellant from constructing, grading or laying with rails their branch railroad or way, upon, along or across certain streets in the city of Baltimore, or from altering the grade of any of said streets, or from proceeding with the work of building the said road, except with the consent, and under the supervision of the Mayor of the city of Baltimore, and the city commissioner.

The material facts of the case are thus stated by BARTOL, J delivering the opinion of this Court:

" The order of the Circuit Court, overruling the motion to dissolve the injunction in this case, was passed by agreement of counsel pro forma, and comes before us on this appeal, unaffected by the weight of a judicial determination in favor of the appellee.

The decision of the case turns upon the true construction of the Act of 1853, ch. 191, and of the ordinance of the city of Baltimore, approved the 20th day of June 1854.

By the Act of 1853, ch. 191, the appellant was authorized to construct a lateral branch railroad, from a point on the main stem, to the water line of the north-west branch of the Patapsco River, east of Jones' Falls, and to carry this into effect, was invested with the powers, rights and privileges granted in the original charter and ‘ the supplements thereto.’ The Act contains a proviso ‘ that the assent of the Mayor and City Council of Baltimore shall be first had and obtained, before any part of said branch railroad shall be constructed within the limits of the city.’ By the ordinance of June 20th, 1854, (No 55,) the assent of the Mayor and City Council was given to the appellant to extend their road to tide-water, as authorized by the Act of 1853, ch. 191. This is the first section of the ordinance; by subsequent sections of the same ordinance various provisions are made, prescribing the route through the city to be pursued by the branch railroad, its mode of construction, & c. The ordinance contains fourteen sections, of these it is only necessary to notice the second, sixth and seventh. The second authorizes the railroad company to use locomotive engines on the extension reserving to the city the right, at any time, of regulating their speed within the city. The sixth provides, that before the appellant shall proceed to lay all or any part of the road on any of the streets authorized by the ordinance, the city commissioner shall, by the city surveyor and the engineer of the company, establish the grades of all the streets through which the said road may pass. The seventh enacts and ordains, that the laying of the track as provided for in this ordinance, through any or all the streets above named, shall be under the supervision of the Mayor and city commissioner.

The bill filed by the appellee charges, ‘ that the appellants have introduced the lateral branch of their road within the limits of the city, and are now and have for some time past, been in the act of grading the same, and laying the rails thereon through the city and along and out the streets thereof, without the consent of the Mayor and the city commissioner, or under their supervision, but on the contrary, are proceeding with the construction of said branch or lateral road against the direction and express commands of the Mayor and city commissioner, and in defiance of the said law and ordinance. ’

The bill further charges, that the appellants have altered the grades of several streets which have heretofore been graded and paved, especially the grades of Lancaster, Harrison and Patuxent streets, and the grades of many of the other streets, whose grades have been established between Belair Avenue and the grounds of the Canton Company in the city of Baltimore; especially the grade of Fayette street, which the appellants in the location and construction of their lateral road, have threatened to raise four feet in height, all which they are now in the act of closing, and threaten to complete the same without the consent of the Mayor and city commissioner, or under their supervision, in contempt of said law and ordinance, and to the great damage and inconvenience of the public, and the irreparable injury of the complainant.

Upon this bill an injunction was issued, to restrain the appellants from proceeding with the work complained of. An answer was filed by the appellants which was excepted to for impertinence and insufficiency. These exceptions were afterwards obviated by striking out the portion excepted to as impertinent, and by an amended answer. This last admits that prior to the filing of the bill, the appellants had altered, as charged, the established grades of Lancaster, Hudson, Harrison, Patuxent, Curley, Potomac, Hull, Canton and Robinson streets, in the city, and had also raised Fayette street about four feet, at or about its intersection with the Havre-de-Grace turnpike.

A motion was made by the defendants to dissolve the injunction before granted, and a pro forma order passed by the Court below, (KREBS, J.,) overruling said motion, and continuing the injunction, from which order the defendants appealed.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J. J. M. Campbell, for the appellant:

The first question which arises, is as to the right of the city to an injunction, at the stage of progress in the work of the tide-water extension at which it was asked for.

It was the duty of the city to have intervened as soon as the grade of the lateral road was established, and before any work and expenditure on that grade had commenced. The answer which is responsive on this point, avers that upwards of three hundred thousand dollars had been expended upon the branch road, before the service of the injunction in this cause. But whether this averment be reponsive or not as to the amount of the expenditure, the bill itself shows, that a considerable expenditure must have taken place, from the state of forwardness in construction which it discloses. With a large outlay therefore on the part of the company, the city shows itself to have waited till a great advance had been made in the actual construction of the lateral road, and until the company had become so committed to the route and grade adopted, as to be incapable of changing them without the sacrifice of every dollar that had been laid out.

The mere adoption of the grade involved no expense, except the compensation of the engineer, who ascertained it. Notice of the establishment of that grade of the branch road was given to the city, by the first excavation or embankment which attempted practically to carry out the grade established, and notice was also thereby given to the city that the established grade interfered with the streets. Then, if ever, and before the company was hopelessly committed to a particular line and grade, should the city have come forward, and its failure to do so, whether construed as laches or acquiescence, disentitles the city to the preventive aid of Chancery, as against a party who is to suffer great loss, if not irremediable injury by such laches or acquiescence.

The principle involved in this objection is one of long standing, and well settled in Courts of Equity. A plaintiff who has lain by, and suffered a defendant to expend largely upon an undertaking, before he applies for an injunction to stop it, will be told he comes too late. Kings Lynn vs. Pemberton, 1 Scranton 252. Birmingham Canal Co. vs. Lloyd, 18 Vesey, 515. (Sumner's note, p. 517.) And the application of this principle to parties dealing with railway companies, is fully established by the following cases cited in the appellant's brief. Smythe vs. Smythe, 1 Swanst., 252. 1 Am. Railway Ca., 68 & 256. 2 Id., 210. 2 Sugden on Powers, 90.

In the view thus far taken, we have confined ourselves exclusively to the statements of the bill, but the answer is responsive as to the question of notice. It avers, that the city had full and timely notice of the plans adopted for locating, grading and constructing the railway, before the company proceeded to make its large expenditures on the work, and that it failed to make the objections before such expenditure.

Upon the whole, whether looking at the bill or answer, or both together, it is manifest, that the city has suffered the company to proceed so far without objection as to preclude itself from interference at the present stage of the work.

2. But passing from the point of laches or acquiescence, the great question of the case is the power of the city to pass the ordinance, for the violation of which the bill seeks the aid of Chancery by way of prevention. See Acts of 1827, ch. 72, and 1853, ch. 191. " Ordinance to authorize the Balto. & Sus. R. R. to extend their road to Tide-water," passed June 20th, 1854.

The appellant's counsel then reviewed the several sections of the Act of 1853, ch. 191, and argued that the 2nd, 6th and 7th are the only sections which profess to restrain the company's action in regard to crossing or interfering with the grades of streets, and these are the sections specified in the bill as violated or about to be violated. The question is whether the city had a right by way of ordinance to insist on the company's observance of these the 2nd, 6th and 7th sections, as the conditions of its assent to the passage of the lateral road through the city. The inquiry depends altogether upon the language of the...