Pitznogle v. Western Maryland Ry. Co.
| Decision Date | 02 April 1913 |
| Parties | PITZNOGLE et ux. v. WESTERN MARYLAND RY. CO. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.
Condemnation proceedings by the Western Maryland Railway Company against Jeptha E. Pitznogle and wife. From a judgment for plaintiff defendants appeal. Affirmed.
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.
Frank G. Wagaman and Harry Brindle, both of Hagerstown, for appellants.
Charles A. Little, of Hagerstown, for appellee.
Judgment affirmed for reasons to be given in an opinion to be hereafter filed.
Judgment affirmed, costs in this court to be paid by the appellants.
This is an appeal from a judgment of the circuit court for Washington county condemning the right, title, and interest of the appellants in a parcel of land lying and being near Hagerstown, Md.
The appellee, the Western Maryland Railway Company, filed its petition in the court below against the appellants under chapter 117 of the Acts of 1912, in which it alleges that it The land sought to be acquired by the appellee is particularly described in the petition, and its location is shown by the following plat therewith filed as a part of said petition:
RPT.CC.1913026431.00010
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The defendants demurred to the petition, contending (1) that chapter 117 of the Acts of 1912, the act under which the petition was filed, is unconstitutional; and (2) that the petition is insufficient as a basis of a judgment of condemnation, because all of the land sought to be acquired thereby is not, as alleged in the petition, to be used for railroad purposes, but a part of it is to be used "for the location of a substitute private road in place of the existing private road," which is to be closed and used by the petitioner for railroad purposes.
The questions here raised and relied upon by the defendants as affecting the constitutionality of this act were fully presented and argued in the recent case of Ridgely v. Mayor and City Council of Baltimore, 87 A. 909, not yet officially reported, and this court there held the act constitutional, in adopting the opinion of Judge Burke, sitting in the lower court, in which the objections urged against the validity of the statute were fully and ably discussed by him. Therefore we think it unnecessary to further discuss this objection of the defendants made in support of the demurrer.
There is no prohibition in express terms against the taking of private property for private use found either in our Constitution or the Declaration of Rights, but it is too clear to be questioned that there is such an implied prohibition contained in section 40 of article 3 of the Constitution of this state, which provides that: "The General Assembly shall enact no law authorizing private property to be taken for public use, without just compensation, as agreed upon between parties, or awarded by a jury, being first paid or tendered, to the party entitled to such compensation." Arnsperger v. Crawford, 101 Md. 251, 61 A. 413, 70 L. R. A. 497. This constitutional prohibition, as was said by Judge Alvey in the case of New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. 559, "is but declaratory of the previously existing universal law, which forbids the arbitrary and compulsory appropriation of one man's property to the mere private use of another, even though compensation be tendered." And ' Arnsperger v. Crawford, supra; New Central Coal Co. v. George's Creek Coal & Iron Co., supra. Whether the use for which private property is taken is public or private within the meaning of the above provision of the Constitution is a judicial question to be determined by the courts. Van Witsen et al. v. Gutman, 79 Md. 405, 29 A. 608, 24 L. R. A. 403.
It is not contended by the defendants that the use of the land for railroad purposes is a private and not a public use, but they contend that the use of a part of the land for the location of a private road in substitution for the existing private road, which is to be closed and used by the plaintiff company for railroad purposes, is a private use of said land; and that inasmuch as the petition does not state or designate how much and what part of the entire parcel of land so sought to be condemned is to be used for the location of said private road, and how much and what part is to be used for railroad purposes, the whole must fall. The correctness of this contention must be conceded, should we hold, under the facts and circumstances of this case, that the use of a part of said lands for such private road or way is a private use and not a public use. But is it a private use? In determining this question we are to be controlled by the facts, circumstances, and necessities of this case. The increase in the business of the plaintiff company, as disclosed by the testimony, necessitates an enlargement of what is known as the yards west of Hagerstown, which is fully explained in the record. The road as it now runs is 700 feet south of the Pitznogle lands, but by the removal of curves in it the road will thereafter run about parallel with the south line of said lands, and its center line will be, as it appears from the plat, at the nearest point, about 30 feet, and at the farthest point not over 40 feet from said lands. Upon this intervening narrow strip of land, for a distance of several hundred feet westward from the Schlotterbeck lands, and occupying the most of it, is located a private road or way, which, at the point named, turns southward, and crosses the proposed track of the railroad. This private road or way, known as the Startzman road, in which Startzman and others have at least an easement, is used by them in reaching the Clearspring pike north of the railroad from their respective homes. It is shown that the whole of this intervening space, including the road or way thereon, is required for railroad purposes--that is, for laying the tracks, side tracks, and switches of said road--and this is also true of at least a portion of the land that they have sought to condemn. Without the use of this road or private way for the purposes that we have mentioned, the plaintiff would be defeated in its proposed plan of straightening its road and of enlarging its yard, and to close this road without substituting for it another road or way would deprive those entitled to its use of the means of reaching the pike from their homes, and they would not be permitted to condemn a private road or way (Arnsperger v. Crawford, supra) in substitution for the road lost to them, resulting from its necessary use for railroad purposes, which this court has time and again said was a public, and not a private, use.
The right of eminent domain having been conferred upon the plaintiff by legislative enactment, it has the undoubted right to condemn, if need be, the aforementioned Startzman road or private way for railroad purposes, and in our opinion it was not intended by the framers of the Constitution that there should be no adequate relief from the conditions that we have mentioned resulting from the taking of said private road for public use. The condemnation of a part of this land here sought to be condemned for a substitute private road or way is incident to and results from the taking by reason of public necessity of the existing private road for public use, and the use of it for such purposes should, we think, be regarded as a public use within the meaning of the Constitution. The Legislature of this state has, by enactment of section 278 of article 23 of the Code of 1912, declared it lawful for a railroad company, where its tracks cross any public or private road or way, "to carry said road or highway over its tracks by an overgrade crossing, or to carry it under its track or tracks by an undergrade crossing; and to make such crossings, such corporation may divert any road or highway, so crossed or to be crossed, from its present or existing location; and for entering upon, taking or appropriating any buildings, gardens, yards or others lands which may be necessary for the new route and the location of said road so diverted, said corporation may proceed as in case of land necessary for its railroad."
It is contended by the plaintiff, although controverted by the defendants, that this statute is applicable to the present case, but assuming, without deciding, that it does not apply the uses for which private property is permitted to be taken thereunder are similar in character to the use...
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