Pub. Serv. Comm'n of Md. v. Philadelphia, B. & W. R. Co.

• Decision Date: 17 January 1914
• Citation: 89 A. 726,122 Md. 438
• Parties: PUBLIC SERVICE COMMISSION OF MARYLAND v. PHILADELPHIA, B. & W. R. CO. et al.
• Court: Maryland Court of Appeals

89 A. 726

122 Md. 438

PUBLIC SERVICE COMMISSION OF MARYLAND

v. PHILADELPHIA, B. & W. R. CO. et al.

Court of Appeals of Maryland.

Jan. 17, 1914.

Appeal from Circuit Court No. 2 of Baltimore City; Henry Duffy, Judge.

"To be officially reported."

Application to the Public Service Commission of Maryland to compel the Philadelphia, Baltimore & Washington Railroad Company and others to rebuild and operate the Nicholson Branch of the Kent County Railroad for the purpose of carrying freight in car load lots over such branch. An order granting the prayer of the petition was entered by the Commission, but set aside on appeal to the circuit court, from which the Commission appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Osborne I. Yellott, of Baltimore (W. Cabell Bruce, of Baltimore, on the brief), for appellant Charles H. Carter, of Baltimore (Bernard Carter & Sons, of Baltimore, on the brief), for appellees.

BRISCOE, J. The appellant in this case, and the defendant below, is the Public Service Commission of Maryland, created by an act of the General Assembly of the state passed at its January session, 1910, and approved by the Governor on the 5th day of April, 1910. Code of 1912, art. 23, §§ 413-468, Public General Laws.

The appellees, and plaintiffs below, are railroad corporations, and were incorporated for the purpose of constructing and operating railroads in the state and elsewhere, as provided by their charters.

The appeal in the case is from an order of the circuit court No. 2 of Baltimore city, passed on the 18th of July, 1913, making perpetual an injunction which had been granted on the 2d day of February, 1912, upon application of the plaintiff, enjoining and restraining the appellant from in any manner whatsoever enforcing an order heretofore passed by it on the 5th day of December, 1911, or an order passed on the 27th of January, 1913.

This controversy arose in May, 1911, upon an application of certain citizens and residents of Kent county, Md., requesting the appellant, the Public Service Commission of Maryland, to require the Philadelphia, Baltimore & Washington Railroad Company, one of the appellees and the lessee of the Delaware Railroad Company, to rebuild and to operate what is called the "Nicholson Branch" of the Kent County Railroad for the purpose of carrying freight in car load lots over this branch of the road. The branch road was constructed some time prior to 1880 from a point called Worton, a station on the Kent County road to a point called Nicholson; both points being in Kent county and a distance of 3.73 miles. It is known as a connection or spur of the "Chestertown Branch" of the Kent County Railroad, which latter branch extends from Chestertown, Kent county, on the Chester river to Massey, Kent county, "a point on the line of the Queen Anne's & Kent Railroad," from which point the latter road extended and formed a junction with the Delaware Railroad.

The case was heard by the Commission upon petition, answer, and proof, and by an order of the 5th of December, 1911, it was held that the Nicholson Branch of the road should be repaired and reconstructed, and freight cars were required to be operated thereon, in the same manner and furnish the same service thereon as prevailed prior to the year 1897, when the operation of the branch was discontinued. The order of January 27, 1913, passed by the Commission upon a rehearing of the case, was simply a denial of the application for a remodification of its findings and was a reaffirmauce of the first order. The circuit court, on the record now before us, and upon the application of the plaintiff below, vacated and set aside these orders, and granted an injunction restraining their execution and enforcement, as will appear from an opinion stating the reasons therefor and the orders set out in the record.

The court below held (1) that the "Nicholson Branch" was abandoned in 1897, and it is not within the power of the Public Service Commission by its order to revive the use of the right of way by railroad which had been lost, and (2) that the order of the Commission to rebuild this branch was unreasonable under the facts and circumstances of the case.

As we concur in the conclusion that the "Nicholson Branch" of the road was abandoned in 1897, and as this finding is decisive of the case, it will not be necessary for us to discuss the second proposition raised on the record.

The salient facts of the case are undisputed, in so far as they reflect upon the question of abandonment, and are briefly these: The Kent County Railroad Company was incorporated by the General Assembly of Maryland under chapter 148 of the Acts of 1856. Section 12 of the act provides: "That the said company be and they are hereby authorized to locate and construct a railroad from the waters of the Chesapeake Bay, in Kent county, or some point on the Chester river, in said county, to the north side of Sassafras river, in Cecil county (or to some point on the line of the Queen Anne's & Kent Railroad) as may be deemed most advisable, and also to locate and construct branches from said road, to any points in Kent county, as may be deemed advisable."

The Kent County Railroad under the charter granted, was built many years ago, from Chestertown, on the Chester river, to Massey, "a point on the line of the Queen Anne's & Kent Railroad," from which point the latter road extended to and formed a junction with the Delaware Railroad. Some time in the early 80's or late 70's the Nicholson Branch was constructed, but was never operated for passenger traffic, and its operation was dependent upon the removing of the peach crop of that section in car load lots. The operation of the road was discontinued in the year 1897 upon the failure of the peach crop, and, according to the testimony of all the witnesses, service thereon was never resumed, nor was it operated thereafter as a branch road.

It appears that the...