Peddicord v. Baltimore, C. & E.M. Pass. Ry. Co.

• Decision Date: 20 June 1871
• Citation: 34 Md. 463
• Parties: JOHN PEDDICORD v. THE BALTIMORE, CATONSVILLE AND ELLICOTT'S MILLS PASSENGER RAILWAY COMPANY.
• Court: Maryland Court of Appeals

34 Md. 463

JOHN PEDDICORD v. THE BALTIMORE, CATONSVILLE AND ELLICOTT'S MILLS PASSENGER RAILWAY COMPANY.

Court of Appeals of Maryland

June 20, 1871

APPEAL from the Superior Court of Baltimore City.

This was an action of trespass brought by the appellant against the appellee, to recover damages for alleged injury to certain leasehold property of the former, in Baltimore county. The facts of the case are sufficiently stated in the opinion of the Court.

Exception: The plaintiff at the trial below offered the following prayer:

That the turnpike company had no right to empower the defendant to change the bed of the turnpike road in front of the plaintiff's premises, as the evidence shows was done by the defendant, for its use as a railroad track, except by the agreement of the plaintiff, as he is in law the owner as termor of the bed of the turnpike in front of his premises to the middle of the said turnpike, subject merely to the servitude of such property, for the uses of such turnpike company, according to the grade as it was accepted by the Act of 1809, ch. 2, and that the plaintiff is entitled to recover such damages to his termor interest, as the jury find were the consequences before and at the time of the institution of this suit, of the defendant's conduct in altering the grade of the road to the centre of the turnpike, in front of the plaintiff's premises, and the use of such land for railroad purposes.

The defendant asked the Court to instruct the jury as follows:

1. That in connection with the other Acts of Assembly offered in evidence by the plaintiff, the Legislature had the constitutional power to enact the Act of 1860, chap. 34, also offered in evidence by him, and if the jury shall find that the agreement of the 11th of March, 1861, offered in evidence by the plaintiff, was made by and between the defendant and the President, Managers and Company of the Baltimore and Fredericktown Turnpike Road; and that under and in pursuance of said agreement, the defendant graded the bed of said turnpike road, and constructed thereon a horse railway, as shown by the evidence, then the plaintiff is not entitled to recover damages from the defendant, for or on account of the said grading of the turnpike and construction of said railway thereon.

2. If the jury find from the evidence that the defendant and the President, Managers and Company of the Baltimore and Fredericktown Turnpike Road made the agreement of the 11th of March, 1861, offered in evidence by the plaintiff, and that under and in pursuance of said agreement, the grading and excavation complained of by the plaintiff, and described in the evidence, were done and made by the defendant on the bed of the said turnpike road, then under said agreement, and the Acts of Assembly offered in evidence by the plaintiff, that is to say, the Acts of 1787, ch. 23; 1790, ch. 32; 1801, ch 77; 1804, ch. 51; 1809, (June,) ch. 2, and 1860, ch. 34, it was lawful for the defendant to do and make such grading and excavation, and the plaintiff cannot recover damages therefor in this action.

The Court rejected the prayer of the plaintiff and granted the prayers of the defendant. To this action of the Court, the plaintiff excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before BARTOL, C.J., MAULSBY, MILLER and ALVEY, J.

Charles Marshall and Wm. Henry Norris, for the appellant.

The use of the highway for the purpose of a railway, is a new and distinct servitude, not acquired by the consideration paid for the use of the property as a highway, and such new use of the land entitles the owner to new compensation, and to damages resulting from such new use. This Court has decided that by the condemnation or purchase of property by a corporation, no right is acquired in the property beyond what is necessary to enable the corporation to accomplish the purpose for which it is allowed to acquire the property. All other rights to the property, not inconsistent with those so acquired by the corporation, remain in the owner. Kane vs. The Mayor, &c., 15 Md., 240.

All the right to this property acquired by the turnpike company, was the right to use the land as a highway. To lay a railway upon an established street or highway, is a new servitude entitling the property owner to damages, whether the railway company employ steam or horse-power. Williams vs. N.Y Central R. R. Co., 16 N. Y., 97; Williams vs. Natural Bridge Plank Road, 21 Mo., 580; Nicholson vs. N.Y. & N.H. R. R. Co., 22 Conn., 74; Gardner vs. Boston, &c. R. R., 9 Cush., 1; Tate vs. Ohio & Miss. R. R., 7 Porter, (Ind.,) 479; Haynes vs. Thomas, 7 Porter, 38; People vs. Kerr, 27 N. Y., 188; Crawford vs. Delavin, 7 Ohio N. S., 459; Street Railway Co. vs. Cumminsville, 14 Ohio N. S., 523; Douglass vs. Boonsborough Turnpike Co., 22 Md., 237, 238; Ford vs. Chicago & N.W. R. R., 14 Wis., 609; Pomeroy vs. Mil. & Ch. R. R., 16 Wis., 640; Veazey vs. Penobscot R. R., 49 Maine, 119; Craig vs. Rochester City and B. R. R. Co., 39 Barb., 494.

It is contended by the appellee, that the appellant is not entitled to damages by reason of the change of grade, because the turnpike company, by its charter, was required to establish the same grade, that is an inclination of four degrees with a horizontal line, and the new grade made by the appellee accords with this provision of the charter, and the turnpike company could lawfully authorize the appellee to do what it might have done by its own power.

While the Act incorporating the turnpike company, required its grades to be at an angle of four degrees with a horizontal line, the charter only authorized the company to acquire such rights of property as might be necessary for its purposes, by purchase, and did not give it the power to condemn anything except materials. The company took the road as already established by the commissioners of review, with no authority to acquire any new rights of property except by purchase. The appellee, therefore, could not acquire from the turnpike company any right to change the grade of the road, without compensation to the land owner.

The change of grade in this case, was not made by the appellee under any authority of the turnpike company for its own purposes, but by the authority conferred upon the appellee by its charter, subject only to the conditions which the turnpike company was authorized to impose upon the exercise of the power conferred upon the railway company by the Act of 1860, ch. 34.

The question between the parties, therefore, is not whether the Legislature could authorize the railway company to avail itself, with the consent of the turnpike company, of rights which the latter may be supposed to have possessed under its charter, but it is, "could the Legislature confer upon the railway company, a power distinct from and independent of any power which the turnpike company may have had, to make alterations in the grade of the turnpike, for the purposes of the defendant only, and not required for the purposes of the turnpike company, by which the rights of the plaintiff as between him and the turnpike company, which had been enjoyed more than fifty years, are impaired, and an injury done to his property which, but for the benefit of the defendant, would not have been done, and at the same time, deny compensation to the plaintiff?"

Whatever may be the law as to the power of the Legislature to subject land, already taken as a highway, to the additional use of a railway, without compensation to the owner for damages arising from such new servitude, it is competent for the Legislature to require the railway company to make compensation for such new use, and in this case, the Legislature has in fact required the defendant to make such compensation. Bradley vs. N.Y. & N.H. R. R. Co., 21 Conn., 294; Seneca R. R. vs. Auburn, &c. R. R., 5 Hill, 170; Act of 1860, ch. 34, and the contract between the railway and turnpike companies.

While the sixth section of the Act of 1860, ch. 34, permits the defendant to use the highway and to change its grade, it requires as a condition, that it shall enjoy this right, subject to the regulations and conditions imposed by the turnpike company. It makes those regulations in fact a part of the law itself, as much so as if they had been incorporated in its text. Upon examining the regulations, it will be seen that they expressly provide that the railway company shall pay all damages caused by the change of grade.

The contract shows clearly that such changes were to be made at the expense, for the use, and upon the responsibility of the railway company alone, and the railway company is as much bound to comply with this regulation to pay damages inflicted by itself, upon property owners, as it is to pay the turnpike company for the use of the road. And if there be a doubt as to the true construction of the charter of the defendants, the public should have the benefit of the doubt. Taggart vs. W. Md. R. R. Co., 24 Md., 588; Douglass vs. Boonsborough Turnpike Co., 22 Md., 238.

Arthur W. Machen and I. Nevett Steele, for the appellee.

The authority of the turnpike company to make a change of grade is clear. Acts of 1787, ch. 23, ( April); 1790, ch. 32; 1801, ch. 77; 1804, ch. 51; 1809, ch. 2, ( June); Goszler vs. Corporation of Georgetown, 6 Wheat., 593; Smith vs. Corporation of Washington, 20 How., 135; Callender vs. Marsh, 1 Pick., 418; Ely vs. City of Rochester, 26 Barb., 133; Plate Glass Co. vs. Meredith, 4 T. R., 794; Tyson vs. Commissioners of Baltimore County, 28 Md., 528.

The change made in this instance was highly beneficial to the turnpike road as such, and was proper and necessary, without reference to the question of the construction of the horse railway...