St. James African Methodist Episcopal Church v. Baltimore & O.R. Co.
| Decision Date | 10 January 1911 |
| Citation | 79 A. 35,114 Md. 442 |
| Parties | ST. JAMES AFRICAN METHODIST EPISCOPAL CHURCH, OF HAVRE DE GRACE, HARFORD COUNTY, v. BALTIMORE & O. R. CO. |
| Court | Maryland Court of Appeals |
Appeal and Error from Circuit Court, Harford County; Geo. L. Van Bibber, Judge.
Condemnation proceedings by the Baltimore & Ohio Railroad Company against the St. James African Methodist Episcopal Church of Havre De Grace, Harford Country. From the judgment, the Church appeals and brings error. Appeal dismissed, and writ of error quashed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, THOMAS PATTISON, and URNER, JJ.
P Leslie Hopper and James J. Archer, for appellant.
Fred. R. Williams and Stevenson A. Williams, for appellee.
This is an appeal from an order of the circuit court for Harford county passed on the 18th day of February, 1910, overruling objections to an inquisition, confirming and ratifying the inquisition of the jury in the condemnation proceedings, and directing a judgment in favor of the appellants against the appellee for the sum of $3,000.
There was no objection or exception in the court below to the award of damages, but the objections rest upon the validity of the power and authority of the appellee to condemn the property sought to be taken. These objections are: First, because the property is a public cemetery, and the appellee has no power to condemn it, under section 133, art. 23, of the Code of Public General Laws of 1904, which provides that no lanes alleys, streets, roads, canals, or public thoroughfares of any sort shall be opened through the property of any cemetery company incorporated under the provisions of this article which is used or appropriated for the purpose of burial. Secondly, because the taking of 1.29 acres, which is about two-thirds of the cemetery, will destroy the entire cemetery. Thirdly, because the appellee has no power under its charter to condemn more than 66 feet wide, and the land sought to be condemned in these proceedings is for a right of way which exceeds in width 66 feet. And, fourth, because it was a public cemetery in actual use by the public for the burial of the dead, at the time of the institution of these proceedings.
It is well settled and conceded by the appellant in this case that the action of the circuit court in condemnation cases is exclusive and final, and, unless the circuit court exceeded its jurisdiction, an appeal will not lie to this court, because the proceeding is a special and limited statutory one, from which the law provides no appeal. Hopkins v. P. W. & B.R. R. Co., 94 Md. 265, 51 A. 404. As was said in the Hopkins Case, supra, the only ground upon which the present appeal can be maintained is that the appellee had no right at all to make the condemnation complained of, and for that reason the circuit court exceeded its jurisdiction in confirming the inquisition. If such be the case, the decisions support the right of appeal. George's Creek Coal & Iron Co. v. New Central Coal Co., 40 Md. 425; B. & O. R. R. Co. v. Waltemyer, 47 Md. 331; Herzberg v. Adams, 39 Md. 312.
In the present case, the facts upon which the objections are based, and upon which the questions of ultra vires arise, briefly stated, are these: The appellant is a religious corporation formed for the purpose of religious worship, according to the rules, regulations, and discipline of the African Methodist Episcopal Church, and incorporated under the general incorporation laws of the state. On the 4th of February, 1895, the appellant acquired title to what is called "Square No. 28 of Reed's addition to Havre De Grace," containing on or about two acres of land. This square was used as a church cemetery, that is, one-half of the square was laid off into lots about 20X24 feet with walks about 4 feet wide between the lots. Twenty-eight of these lots were sold by the trustees of the church, and there are about 150 or 160 persons buried in these lots. According to the testimony, any person can be buried there who complies with the regulations prescribed by the trustees, and the lots are sold to any person who desires to buy, provided they comply with the rules and regulations of the trustees. The entire part of the square proposed to be taken by the appellee and condemned by the proceedings was unoccupied, except one lot, which contained two graves, and the appellee and the owner of this lot agreed upon a price to be paid for it. And it appears there were no other graves in any part of the two-thirds of square No. 28, proposed to be taken by the appellee; but it was an unoccupied part of the cemetery. The appellee is a public service corporation, and by virtue of its charter (chapter 123 of the Acts of 1826, and its supplements thereto), operates its Philadelphia Branch Railroad from Camden station, Baltimore City, through Baltimore, Harford and Cecil counties, and other places. It because necessary, as stated by the appellee, in its brief, in order to standardize its tracks for safe approach to its new bridge over the Susquehanna river at Havre De Grace, Harford county, on its Philadelphia Branch, to relocate its center line in Harford county, between its station at Havre De Grace and the west end of its bridge, which is 90 feet above the river. There were four cemeteries between those points, either contiguous to its present right of way or closely adjacent thereto, and according to the evidence, and the surveys, it was found almost impossible to relocate the line effectively, without running an impossible line, or interfering with one or the other of two of the cemeteries. The appellee, after a thorough examination into the possible locations, adopted what is called the "compromise line," and decided upon the relocation of the line, to be laid through the unoccupied portion of the church cemetery here in question; that is, taking about two-thirds of square No. 28 of Reed's addition to Havre De Grace. The trustees and the appellee having failed to agree upon the purchase price, the unoccupied part of square No. 28 containing 1.29 acres was condemned and the damages assessed at $3,000.
The question, then, we have to decide, is whether or not, upon these facts, the appellee possessed the power to condemn the property here in question.
The objection that the appellee has no power to condemn a public cemetery is not presented on this record, because, it is clear, that the appellant is not within the terms of section 133, art. 23, since it is not "a cemetery company incorporated under the provisions of the Code." Nor is it a cemetery company incorporated under article 23, § 20, class 5 of the Code of Public General Laws "for forming, laying out and maintaining cemeteries in this state." The proof shows that it was a private cemetery, belonging and attached to the church of the appellant, and not a public cemetery within the terms of article 23 of the Code. Now, whether the language of the appellee's charter (Act 1826, c. 123, §§ 14, 15 and 17), wherein the power to condemn is given, is broad enough to include a public cemetery, incorporated under article 23 of the Code, and, if so, whether this power is repealed or qualified by the terms of article 23, § 133, which provides that no lanes, roads, or public thoroughfares of any sort shall be opened through the property of any cemetery company incorporated, etc., it is not necessary to inquire, because we all agree that, under the facts of this case, the appellee had a valid power to condemn the unoccupied part of the cemetery here in controversy. By section 15 of chapter 123 of the Acts of 1826, the appellee had power to condemn any land or any improvements which may be wanted for the construction or repair of any of the roads or any of their works for the purchase or use and occupation of the same. And by section 17 it is further provided any lands, materials, or other property in order to the construction or repair of any part of the road or roads or their works or necessary buildings.
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