Susquehanna Power Co. v. Jeffress

• Decision Date: 24 June 1930
• Docket Number: 56.
• Citation: 150 A. 788,159 Md. 465
• Parties: SUSQUEHANNA POWER CO. ET AL. v. JEFFRESS.
• Court: Maryland Court of Appeals

150 A. 788

159 Md. 465

SUSQUEHANNA POWER CO. ET AL. v. JEFFRESS.

No. 56.

Court of Appeals of Maryland

June 24, 1930

Appeal from Circuit Court, Harford County; Walter W. Preston, Judge.

Action by Thomas N. Jeffress against the Susquehanna Power Company and another. From the judgment, defendants appeal.

Reversed.

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

Stevenson A. Williams, of Bel Air (Fred R. Williams, of Bel Air, on the brief), for appellants.

Robert H. Archer, Jr., of Bel Air (John Paul Jones, of Washington D. C., and J. Glasgow Archer, of Bel Air, on the brief), for appellee.

PARKE J.

The middle of the waters of the Susquehanna river is the boundary line between Cecil county and Harford county, and one of the public highways of these two counties was united by a tollbridge spanning the river near Conowingo in Cecil county. This highway became one of the thoroughfares of the state and as early as August 22, 1911, the state roads commission of Maryland acquired all the property and franchise rights of the corporation which had owned and maintained the tollbridge. Some years later the Susquehanna Power Company began the development of the water power of the Susquehanna for the generation and delivery of electricity. The project was based upon the construction of a high dam across the river whose impounded water would create an extensive lake by submerging a large contiguous area, with its highways. The level of the lake was above the tollbridge mentioned, and the plan of the power company involved the destruction of the bridge and its approaches and the permanent flooding of a section of the highway at both entrances to the bridge. As a condition to the state's consent to this appropriation of public ways, certain obligations were imposed. Among them was to supply a passage of the river by public travel by the construction of a concrete highway which was to unite the original highway at points in Cecil and Harford counties to the east and west of the river banks, and have for its midway section a roadway constructed upon the breast of the dam. Acts of 1927, c. 316, p. 558; Huffman v. State Roads Commission, 152 Md. 566, 137 A. 358. The power company fulfilled its undertakings after several years of vast labor, and, having provided the new highway and put the state in its possession, was empowered to destroy and cover with the rising waters of the lake the old bridge and its approaching roadway. As a final step in these proceedings, the state on November 14, 1927, by deed of record granted to the power company the bridge, its structure and approaches, and those parts of the highway leading to its ends as might be required for the ultimate spread of the lake, with the provision that the rights of the public in the highways affected should continue unimpaired to the edge of the waters of the lake. So those sections of the public road to the east and west of the shores of the resultant lake remained public ways. However, the filling of the lake was gradual and its limits were not found by the slowly rising water for some weeks. It was during this period that the plaintiff's alleged cause of action arose.

On November 15, 1927, the new concrete highway, which formed a link passing across the top of the breast of the dam and uniting with the old highway in Cecil and Harford counties, was opened for public travel as a state highway. Preparatory to this event, the state roads commission placed what are called bridge and road signs in both Cecil and Harford counties. These black and white signs were 5 feet long by 2 1/2 feet wide; and the lettering of the words at the top, "Bridge & Road Notice," were 2.75 inches high, while the body of the warning was in letters 1.3 inches high. The notice was over the name of the state roads commission and declared that the Conowingo Bridge and its immediate approaches would be closed to the public after November 14, 1927, and that thereafter the river crossing would be over the dam of the power company, and gave direction at what points the new way was to be taken. One of these notices was placed in Cecil county and one in Harford county at the points where the new concrete link entered the old roadway, and a third was placed in Cecil county at a point on the old roadway where it was crossed by a highway from Rowlandsville that intersected the concrete link. The notice at the junction in Cecil county of the concrete road with the old highway was affixed to two upright posts and was conspicuously placed for observation by the traveler at the side of the road. From this point to the Conowingo Bridge is said to be 4 1/2 miles, although the legend "Stone Road ends 4" appears on a signpost on the opposite side of the road to the notice. The other notice was similarly located at the intersection with the highway from Rowlandsville, approximately midway between the first notice and the Conowingo Bridge. The plaintiff testified that on a trip to and from Washington in his automobile he had passed the points where these notices were located twice after they had been set up along the roadside, and had driven by them on the night of his plunge into the river, but he had not seen either of the notices. Aside from these two notices, there was no other warning to the traveling public, nor any other indication, that the bridge was no longer open to public travel until at a place in the old highway 720 feet from the eastern abutment of the bridge. At this point the state roads commission, several days after the erection of the notices, built across the entire width of the roadway a barricade of railroad ties, stone, and four ton trucks of earth. This obstruction was made 5 feet wide at its base and about 4 feet high. On its top and near its center a sign was placed bearing the words "Road End" which were visible at night in the reflected light cast by the headlights of an approaching automobile. There is some uncertainty on the record as to when the road was thus made impassable, but there is no question that it was after the bridge and its approaches had been granted to the Susquehanna Power Company and had ceased to be a public thoroughfare. Furthermore, it is clear that the power company and its agent and codefendant, the Stone & Webster Company, were then in full possession and exclusive control of not only the bridge and its approaches, but also the contiguous area for as much as 1400 feet to the east measured from the end of the bridge. This area was the ascertained bottom of the water to be impounded by the dam thrown across the river 2 miles down stream. In fact, the scene described has been submerged under a great depth of water since the first part of 1928.

The Conowingo Bridge was intact when the state roads commission thus made its eastern approach inaccessible to vehicular traffic. Its demolition began with the dynamiting of a steel span on November 23, 1927, the burning of wooden spans on November 25, and the blowing up of six steel spans on the 28th, and the settling of the bridge structure in the water. Three steel spans remained, and these were taken down, transported in trucks, and two were used by the defendants in the building in Cecil county of a bridge over Conowingo creek. In the course of this and other work, the defendants had opened the barricades and had allowed the public to travel over the bridge, and the plaintiff had himself passed through during the daytime on November 18 and November 20, 1927.

On the Cecil county approach the defendants had removed about one-third of the southern portion of the barricade to permit their trucks to pass. At first the opening was kept closed by planks, but this was later abandoned, and the movement of the trucks gradually encroached upon the barricade until, when all the bridge material had been hauled off, one-half of the barricade had been removed and worn away.

Between the barricade and the end of the road at the eastern abutment of the removed bridge there was no obstruction or warning provided; and the road ended at the first abutment of the destroyed bridge with a sheer drop to the river.

The approach to the bridge from the Cecil county side was by a single roadway which was built upon an earth embankment of about 900 feet in length and had a macadam surface of from 16 to 18 feet in width, except at the entrance to the bridge, where it was not much wider than the traveled way. The roadway gradually ascended from a height of about 3 feet above the level of the ground to a height of from 20 to 25 feet at the abutment at the entrance to the bridge. The low land on either side of this approach was frequently covered during high water, and on the night of December 17 the river was in flood and had spread on either side of the approach to within 50 feet of the barricade.

The plaintiff testified that at no time had he seen the notices about the closing of the bridge to public travel, although he had passed them in the daytime on November 18th and 20th as well as on the night of December 17th. In the course of his testimony, the plaintiff twice denied having seen either the barricade in Cecil county or in Harford county, before the night of his injury, although he also testified that on November 18th he had noticed the "Road End" sign on the barricade on the Cecil side. It is clear that he necessarily saw both barricades. Fulton Building Co. v Stichel, 135 Md. 549, 109 A. 434; Sullivan v. Smith, 123 Md. 556, 91 A. 456. However, on December 17th he did see the Cecil county barricade surmounted by the sign whose warning, "Road End," was flashed to him from the reflected rays of the headlights of his automobile. The remaining half of the barricade confronted him as he approached on the right...