Towers v. United Rys. & Elec. Co. of Baltimore

• Decision Date: 24 June 1915
• Docket Number: 44.
• Parties: TOWERS et al., Public Service Commission, v. UNITED RYS. & ELECTRIC CO. OF BALTIMORE.
• Court: Maryland Court of Appeals

95 A. 170

126 Md. 478

TOWERS et al., Public Service Commission, v. UNITED RYS. & ELECTRIC CO. OF BALTIMORE.

No. 44.

Court of Appeals of Maryland

June 24, 1915

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

"To be officially reported."

Suit by the United Railways & Electric Company of Baltimore against Albert G. Towers and others, constituting the Public Service Commission of Maryland. From a decree granting relief to complainant, defendants appeal. Affirmed.

Osborne I. Yellott, of Baltimore (W. Cabell Bruce, of Baltimore, on the brief), for appellants. Albert R. Stuart and Joseph C France, both of Baltimore (J. Stanislaus Cook, of Baltimore on the brief), for appellee.

BURKE J.

The United Railways & Electric Company of Baltimore was formed March 4, 1899, by the consolidation of a number of independent street railway companies theretofore existing in Baltimore city. The Baltimore & Loreley Railway Company was incorporated by chapter 227 of the Acts of 1894, and its name was changed to the Baltimore, Gardenville & Bel Air Electric Railway Company by chapter 248 of the Acts of 1896. By its act of incorporation, it was--

"authorized and empowered to make, construct, lay down and maintain a railroad with double or single tracks, with the necessary and proper switches, turnouts, side tracks and any and all mechanical devices and appliances suitable to operate an electric railway, and to run thereon cars and carriages drawn or propelled by electric or other motive power other than steam in Baltimore city and Baltimore county, beginning for the same at a point or near the terminus of the Baltimore City Passenger Railway, at the intersection of Gay street and North avenue, in Baltimore city; thence running along the Baltimore and Jerusalem turnpike or parallel thereto, to the corporate limits of Baltimore city; thence along said pike or parallel therewith in a northeasterly direction, through Baltimore county to a point at low-water mark on the Gunpowder river, in the town of Loreley, in Baltimore county, and north of the bridge of the Baltimore & Ohio Railroad, crossing said river in said county at said town; and the said railway is hereby empowered to connect with like railway or railways in Baltimore city."

This railway was one of the constituent companies which entered into the consolidation by which the appellee company was created.

The Baltimore & Jerusalem Turnpike Company was incorporated by chapter 143 of the Acts of 1867, and was authorized--

"to grade and make a turnpike road, beginning for the same at the limits of the city of Baltimore on the Bel Air road, and running upon and occupying the said Bel Air road from the said city to the old stage or Camp Chapel road, and from thence on said Bel Air road to the Little Gunpowder Falls, with power to diverge from the bed of said road when and where it may be desirable to said company, to use and occupy a width of thirty feet on each side from the center."

The turnpike was constructed from the city limits to a village called Jerusalem, in Harford county. The railway was constructed upon the turnpike under the following circumstances: By deed dated April 1, 1895, the turnpike company, in consideration of $5,000, granted to Simon J. Martenet, his heirs, personal representatives, and assigns, subject to existing mortgages on the pike, right of way, and franchises, "the right to construct and maintain and operate an electric railway upon the turnpike road of the said turnpike company from North avenue, in Baltimore city, to the end of said turnpike road, upon the following conditions." The conditions set out in the deed, 20 in number, related for the most part to the location, character, and construction of the railway. It was provided that Martenet, his personal representatives and assigns, should lay a double track along the center of said turnpike from North avenue to a point on said turnpike two miles northeasterly of North avenue, at or near Gardenville, with a flat or girder rail, and that from Gardenville a single or double track should be laid on the side of the turnpike. The seventh, seventeenth, and twentieth conditions are as follows:

"(7) That the said Simon J. Martenet, his personal representatives or assigns, shall within 12 months from the 1st day of April, 1895, construct at the cost and expense of the said Simon J. Martenet, his personal representatives or assigns, four miles of said electric railway from North avenue, in Baltimore city, northeasterly on said turnpike road, two miles thereof to be double track, and the remainder single or double track, as hereinbefore specified."

"(17) That the said Simon J. Martenet, his personal representatives or assigns, shall begin the construction of said railroad within 6 months from the date of these presents, and that four miles of said railroad shall be finished as aforesaid and in operation before the expiration of 12 months from the 1st day of April, 1895."

"(20) That said railway shall be finished to the end of said turnpike road within 5 years from the date of these presents: Provided, that in the event of the said Simon J. Martenet, his personal representatives or assigns, violating any of the agreements, terms, conditions, or provisions of this agreement, that is, any of the agreements, terms, conditions, or provisions in these presents set forth and specified, then and in that event all money previously paid as part of the consideration hereof and the franchise or right to lay tracks and to construct said railroad shall eo instanti become forfeited to said turnpike company, its successors or assigns: And provided also that upon violation of any of the agreements, terms, conditions, or provisions of this agreement the said turnpike company, its successors or assigns, shall eo instanti have the right to sell and grant to any other person or corporation the said right of way and privilege to construct, maintain, and operate an electric railway on said turnpike road, notwithstanding anything herein contained."

Subsequently, in May, 1895, Martenet, "in consideration of his agreeing to build an electric railway on said turnpike," secured agreements from the mortgage bondholders of the turnpike to release from the operation of the mortgages all the franchises, rights of way, and privileges given by the turnpike company to him, and also to release all the cars, poles, wires, rails, and all of the property of every kind to be acquired by him or his assigns in the construction and maintenance of the railway. These agreements were reported to the circuit court for Baltimore county in the receivership proceedings pending against the turnpike company, and by an order of that court passed June 4, 1895, trustees were appointed with authority and direction to execute formal releases from the liens of the mortgages. By the deed referred to Martenet secured for himself, his heirs, personal representatives, and assigns, the right to build the proposed railway on the turnpike, and the obligations of himself, his personal representatives and assigns, were fixed, and by the releases mentioned his franchises and railway property, etc., were freed from the operation of the mortgages. In this way he obtained the right and clear title to build the railway from the city limits to Jerusalem, the northeasterly terminus of the turnpike, and he obligated himself and his personal representatives and assigns to build the road in the manner and within the time provided and set forth in the deed.

By deed dated July 13, 1896, Martenet granted and conveyed to the Baltimore, Gardenville & Bel Air Electric Railway Company all the rights and franchises and privileges conveyed and granted to him by the turnpike company by the deed of April 1, 1895. On September 7, 1896, the Baltimore & Jerusalem Turnpike Company passed the following resolution:

"Resolved that the company does hereby confirm to Simon J. Martenet the right to construct, maintain, and operate an electric railway upon the turnpike from North avenue to the end thereof, and in consideration of the payments heretofore made by him the said Simon J. Martenet be released from the payment of any further sum or sums of money other than the sums heretofore paid by him, and that the said Simon J. Martenet shall have the option of constructing said railway for the entire length of the same on either side of said turnpike or in the middle thereof by either a single or double track."

When this resolution was passed Martenet had failed to perform his obligations under the deed of April 1, 1895; he had not paid the consideration expressed in the deed, and he had not completed four miles of the road within the limit of time specified therein; but shortly after the passage of the resolution the Baltimore, Gardenville & Bel Air Electric Railway Company constructed the road to Overlea, a distance of about 3 1/2 miles.

By deed dated March 4, 1899, the date of the consolidation, the Baltimore, Gardenville & Bel Air Electric Railway Company granted and conveyed to the United Railways & Electric Company of Baltimore all its railways, wherever located and owned, acquired, or operated, and which it was authorized to build, and all its property, real, personal, and mixed, and all its entire equipment, and all its rights in existing contracts or agreements with individuals or corporations, and all the appurtenances, rights, franchises, privileges, and especially the franchise to be a corporation, and all the franchises held by it, by any act, grant, or thing, or by virtue of any ordinances of the mayor and city council of Baltimore, or any permit of the county commissioners and any other franchises held by it in any manner whatsoever. The United Railways Company, by virtue...