Postal Telegraph Cable Co. v. State Roads Com'n
| Decision Date | 16 December 1915 |
| Docket Number | 19. |
| Parties | POSTAL TELEGRAPH-CABLE CO. v. STATE ROADS COMMISSION. |
| Court | Maryland Court of Appeals |
Appeal from Superior Court of Baltimore City.
Action by the State Roads Commission against the Postal Telegraph-Cable Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Walter H. Buck, of Baltimore (Watson E. Sherwood and Lemmon & Buck all of Baltimore, on the brief), for appellant. Leon E Greenbaum, of Baltimore, for appellee.
This is the second time this case has been before this court. In State Roads Commission v. Postal Tel. Co., 123 Md 73, 91 A. 147, the judgment which had been entered for the telegraph company, after a demurrer to the declaration had been sustained was reversed, and a new trial awarded. After the case was remanded the defendant, the present appellant filed five pleas. There was joinder of issue on the first and second (which were the general issue pleas), and the third, fourth, and fifth were demurred to. The demurrer having been sustained, the defendant filed three amended pleas, which were also demurred to, and the demurrer was sustained to each of them. An agreement was entered into between the attorneys which recited that the defendant declined to further amend, and it was agreed:
"That the general issue pleas filed heretofore be stricken out, and that all errors of pleading, if any, with respect to the said three special amended pleas as amounting to the general issue plea, and all other technical errors of pleading be and they are hereby waived."
Judgment by default was entered, and the damages were assessed by the court at $191.50. From the final judgment rendered, this appeal was taken.
The declaration is set out in full in the opinion in the former appeal. By chapter 116 of Laws of 1910 a number of new sections were added to article 91 of the Code, enlarging the powers of the state roads commission which was created by chapter 141 of Acts of 1908, and by section 32p () it was authorized to acquire and maintain the Conowingo bridge across the Susquehanna river for the purpose of connecting the system of state roads in Harford and Cecil counties. The case as now presented may be thus stated: The state roads commission on August 22, 1911, purchased that bridge. For some years before the purchase the appellant had regularly paid the Conowingo Bridge Company $95.75 every six months for the use thereof, and continued to pay that sum up to July 1, 1911. There is no allegation of an express contract or agreement in the narr. by which the appellant was to have the use of the bridge or was to make the semiannual payments for any definite time, but it did, in fact, use the bridge, and at least for the years 1906 to 1911, inclusive, made the semiannual payments above spoken of for such use. No change has been made in the use of the bridge, but since the state roads commission purchased it the appellant has refused to pay anything, on the ground that it is now a free public bridge of the state and a portion and continuation of the state system of free public roads and highways, and it notified the state roads commission that after August 22, 1911, it would use it free from any demand or exaction of the plaintiff or any tolls or other charges whatsoever. Whether that notice was before or after the purchase is not clearly stated in the pleas. In the second plea, it is alleged that the company had accepted and was entitled to the benefit of the post roads acts of Congress; that the roads leading to each end of the bridge were post roads, and that the defendant had maintained its structures over said roads to either end of the bridge prior to August 22, 1911, without payment of charges of any kind therefor; that immediately after the acquisition of the bridge by the plaintiff it became a public bridge of the state of Maryland, and, as such, a portion and continuation of the public roads of the state and of the post roads of the United States, and the defendant became entitled to construct, maintain, and operate its lines of telegraph and to erect the necessary fixtures for sustaining the cords or wires of said lines over, upon, and along said bridge. It also relies on Acts 1868, c. 471, § 129, which is now section 359 of article 23 of the Code. The plea admits the payment of the $95.75 every six months, but alleges that there was no express agreement or known understanding between the bridge company and the telegraph company.
It is contended by the telegraph company that the pleas present defenses which were not passed upon in the former case and which it claims preclude recovery. There can be no doubt that any question not presented by the demurrer to the declaration, which was all that was before the court on the prior appeal, can now be considered by us without requiring us to review our former decision. It would oftentimes save the time of the courts, as well as a useless expenditure of money by litigants, if some method of procedure could be adopted by which all defenses could be required to be presented in the first instance, except in very unusual cases, but we have not yet reached the millennium in legal procedure. The brief filed in the other case by the present appellant began by stating that it "for some years prior to the institution of this suit had an agreement with the Conowingo Bridge Company, a private corporation, under which the appellee used the bridge across the Susquehanna river, connecting Harford and Cecil counties, for the purpose of carrying its wires used in its said business of a telegraph company across the said river." But in the first amended plea (we will refer to the amended pleas as the first, second, and third, although those which they amended were marked third, fourth, and fifth) it is alleged that the wires were upon the bridge prior to August 22, 1911, "without any contract or express agreement with said Conowingo Bridge Company or known understanding of any kind other than as herein recited," and in the second "that said payments were exacted of and paid by said defendant without any express agreement or known understanding with said bridge company."
Just what is meant by the expression "known understanding," as used in the pleas, is not altogether clear, as the defendant would scarcely want to be understood as having no means of knowing why the sum of $95.75 was paid every six months to the bridge company, or how that sum was fixed, but the first plea does state that the defendant's wires, 11 in number, as stated in the plea, or 12, as stated in an agreement of attorneys in the record, are strung above and along said bridge, and alleges that they, together with the necessary fixtures for sustaining them, are so removed from the traveled parts of the bridge as in no wise to interfere with the public use thereof. In a later part of the plea it is said, "That the consideration moving from said company to defendant for the payments made by defendant to it as aforesaid was the right to defendant to use said bridge structure for its corporate purposes free of any right of interference therewith by the state of Maryland or other parties, public or private," and it is then alleged that by such transfer to the plaintiff of said bridge the plaintiff's right to demand or collect from the defendant charges of any kind became limited to such charges, if any, by the bridge company as were due and owing by defendant to it on August 22, 1911, and that said grant did not give plaintiff the right to collect from defendant any other charges.
It must be admitted that, when the case was formerly before us, we were led to believe by what the declaration alleged and by what the telegraph company said in its brief that the arrangement between that company and the bridge company was more definite than what is stated in the pleas. The declaration did not, however, allege that there was a contract or lease for a definite term, or that there was anything more than some arrangement between them by which the telegraph company, at the time of the purchase by the commission and for a long number of years prior thereto, was and had been using the bridge with the consent of the bridge company, and that the telegraph company had been paying the bridge company "rentals and income for the use thereof, which said rentals and tolls had amounted from the year 1906 to 1911 to the sum of $95.75 semiannually in each year, for which amount bills were regularly sent by the Conowingo Bridge Company to the defendant and paid by the defendant up to and including the installment due on the 1st of July, 1911." If we apply the ordinary rules applicable to landlord and tenant, that was sufficient to imply some kind of tenancy, for the telegraph company was in possession of and using the bridge with the permission and consent of the bridge company, and was regularly paying at stated periods a fixed sum for such use. So, if this case merely depended upon establishing that relation between those companies, we could have no difficulty.
The question, however, is whether under the conditions set out in the pleas the appellee can recover. We do not regard it as an open question whether the appellee can recover if the state could. We said in State Roads Commission v. Postal Tel. Co., 123 Md. 73, 91 A. 147, that:
etc.
We will not therefore discuss that question, which was fully argued...
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