Smith v. Baltimore & O.R. Co.

• Decision Date: 16 January 1935
• Docket Number: 76.
• Citation: 176 A. 642,168 Md. 89
• Parties: SMITH v. BALTIMORE & O. R. CO. ET AL.
• Court: Maryland Court of Appeals

176 A. 642

168 Md. 89

SMITH v. BALTIMORE & O. R. CO. ET AL.

No. 76.

Court of Appeals of Maryland

January 16, 1935

Appeal from Circuit Court, Montgomery County; Charles W. Woodward Judge.

Action by Harold C. Smith, trustee in bankruptcy, estate of William A. Waters, No. 6791, "W," against the Baltimore & Ohio Railroad Company and others. From a ruling sustaining demurrers to the declaration, plaintiff appeals.

Appeal dismissed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, and SLOAN, JJ.

James J. Hayden, of Washington, D. C. (H. Winship Wheatley, of Washington, D. C., on the brief), for appellant.

John S Stanley, of Baltimore, and John B. Gray, Jr., of Prince Frederick (Wm. Preston Lane, Jr., Atty. Gen., Joseph C Cissel, of Rockville, Allen S. Bowie, of Baltimore, William F. Prettyman, of Rockville, Kenneth H. Ekin, and Hershey Donaldson, Williams & Stanley, all of Baltimore, on the brief), for appellees. PARKE, Judge.

The record at bar is intended to have reviewed the ruling that the amended declaration of the plaintiff fails to state a cause of action. Each of the defendants raised this question by separate demurrers, which were severally sustained, with leave to the plaintiff to amend within ten days. The privilege was not exercised, and no judgment was entered on the demurrer, but the plaintiff appealed. A ruling on a demurrer to a declaration is not a final judgment from which an appeal lies; and the appeal must be dismissed. Miller v. West, 165 Md. 245, 249, 167 A. 696; Emersonian Apartments v. Taylor, 132 Md. 209, 210, 103 A. 423; Waddell v. Arnett, 146 Md. 477, 478, 126 A. 714; Poe's Pleading and Practice (Tiffany Ed.) vol. 2, § 826 p. 801.

The question of law was fully presented by the pleadings and will, if the court does not entertain it now, ultimately come again for a delayed consideration. Furthermore, the challenge made by the pleadings involves not merely an alleged invasion of the proprietary rights of the owner of the land, but the existence of important conditions and limitations with reference to the exercise by the state, through its corporate instrumentalities, of its sovereign power of eminent domain. It is these considerations which impel the court to express an opinion on the plaintiff's right of recovery. Shartzer v. Mountain Lake Park Association, 86 Md. 335, 338, 37 A. 786.

The declaration counts on the following facts: The plaintiff is the owner of a lot of land upon which he operates a garage and filling station. The property fronts on a public highway that crosses the railway of the Baltimore & Ohio Railroad Company in the town of Gaithersburg. Formerly, the surface of the lot and of the ground line of the buildings were on a level with the surface of the adjoining highway; but, in the autumn of the year 1930, the State Roads Commission of Maryland changed the grade of the highway by carrying the highway over the railway line by a bridge and its approaches so that the level of the surface of the plaintiff's land and of the ground line of the improvements is now twelve inches lower than the surface of the highway in front of the plaintiff's lot. There was no physical taking nor encroachment upon the land of the plaintiff; and the elevation of the grade of the highway was neither improperly nor negligently made.

The construction was a public improvement. The State Roads Commission was authorized by the General Assembly of Maryland to abate dangerous grade crossings of public highways by railways. One of the methods mentioned was to substitute another crossing by raising or lowering the highway so that it would be carried either over or under the highway. Code Supp. 1929, art. 91, §§ 38A to 38K; Acts 1931, c. 516; Krebs v. State Roads Commission, 160 Md. 584, 154 A. 131. So, in the absence of any allegations of fact in the declaration to the contrary, it must be accepted that the State Roads Commission had proceeded within its delegated power in the construction of the crossing. Poe's Pleading and Practice (Tiffany Ed.) vol. 1, p. 731.

Furthermore, the access of the lot to and from the highway remained, but was rendered inconvenient to the extent of the difference in level which was obviously susceptible of correction by the owner of the land. The effect of this alteration in grade of the highway is alleged to have been a great decrease and loss in business, and a decline in rental value of the lot and a depreciation in its market value.

On these averments, the action is brought against the State Roads Commission, which made the change, and the Baltimore & Ohio Railroad Company, which is charged with participation in the construction. The action, therefore, is not for any direct injury, but is for consequential damages to property rights from a lawful act of the state that was done, by one of her agents, in a proper manner, with due skill, and without negligence.

A long and consistent line of decisions by this court has denied a right of recovery where the facts are similar to those alleged in the declaration under consideration. The theory adopted by the court is that when a highway is acquired by gift, purchase, or the exercise of the power of eminent domain it was an implication of the acquisition, in whatever form, by the public agency, that the land acquired for the highway would and could be used not only for passage by the public, but also for its repair and alteration of surface, from time to time, as the public needs might require. The owners of land along streets and highways are charged with a knowledge of this right of the public to repair and change the surface of the highway, and, so, this principle applies to such proprietors, who must be held to have contemplated at the time when title was acquired, and so to have assumed, the lawful contingencies implicit in the location of their properties. Moreover, since consequential damages resulting to land from a mere change of grade, without any physical injury to the property itself, is not a taking within the meaning of the Constitution (article 3, § 40), the abutting landowner has no right of action, if the work is authorized by law, and is skillfully and not negligently done. For these reasons it has become an established general doctrine that there can be no recovery at law for damages to abutting property that have resulted from a mere change of grade in a highway on which the property binds.

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