Webb v. Baltimore & O.R. Co.
| Citation | 79 A. 193,114 Md. 216 |
| Parties | WEBB et al. v. BALTIMORE & O.R. CO. |
| Decision Date | 02 December 1910 |
| Court | Court of Appeals of Maryland |
Appeal from the Superior Court of Baltimore City; Henry D. Harlan Judge.
Action by F. Egerton Webb and another against the Baltimore & Ohio Railroad Company. Judgment for defendant, and plaintiffs appeal. Reversed, and new trial awarded.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and PATTISON, JJ.
Randolph Barton, Jr., for appellants.
Duncan K. Brent, for appellee.
The appellants, being tenants in common of two adjoining unimproved lots of land in the city of Baltimore, brought this suit at law against the appellee, the Baltimore & Ohio Railroad Company, for alleged injury to their fee-simple estate in said lots of land, resulting from the laying by the appellee of an additional track on Ostend street, upon the north side of which street said lots abut. The declaration alleges that Ostend street is a public highway upon which for many years the appellee has maintained its railroad tracks in front of the plaintiffs' said property, and on which it operated a steam railroad, but that the northern part of said street, for a width of about 20 feet, has been until recently unobstructed by tracks, or in any other manner; that recently, in virtue of an ordinance of the mayor and city council of Baltimore, the defendant has laid an additional track on the north side of said street immediately in front of the appellant's said property, and has raised the roadbed of the street under said track which is to be used in operating the trains of the appellee; that, in consequence thereof, the general public has been entirely obstructed from the roadbed of said street in front of the appellants' property for the whole distance between Russell and Ridgely streets, and it is not possible to use any portion of said street bed infront of their property for the passage of vehicles; that thereby their property has been entirely deprived of the use of Ostend street for the passage of vehicles, and its value greatly injured and depreciated, not only by such obstruction of the street, but also because the trains of the appellee will be much nearer to their property with greatly increased noise, dirt, and danger, affecting its rental as well as its salable value; and that, though the said ordinance authorized said obstruction, yet by the express terms of Code 1904, art. 23,§ 255, the appellee is liable in damages for the injury occasioned by such location of said track. The appellee pleaded that it did not commit the wrong alleged, and the case was tried before the court without a jury, resulting in a verdict for the defendant under the instruction of the court, and from the judgment on the verdict the plaintiffs have appealed.
It was admitted that the plaintiffs had title to the property in question, and that Ostend street was a street owned by the mayor and city council, with a right of control over it by them, and a copy of the radiance referred to was admitted in evidence authorizing the laying of the track in question. It was also admitted that the track on Ostend street between Russell and Ridgely streets was laid between May 1 and December 1, 1908.
Mr Sutton, a surveyor who made a plant of the locus in quo used in his examination, testified that there were three tracks in use at that point before the laying of the track in question, making now four in all of T-rail construction, and so laid that wagons cannot use the part where the tracks are laid; that the plaintiffs' lots at that point are not graded, being elevated above the street, and that there is an open ditch some 15 feet south of the north side of Ostend street, and no sidewalk or actual roadway, but a slope from the ends of the cross-ties of the new track to the bottom of the ditch, and from thence a slope up to the north building line of Ostend street; that it is 66 feet from the north rail of the new track to the north building line of Ostend street, and that the rule has always been to allow one-fifth of the total width of the street for a sidewalk on each side, leaving tree-fifths for the roadbed between the curbs; and that he had known Ostend street for 25 years, and has never at any time seen it used as a street between Russell and ridgely streets. There are no houses on Ostend street between Russell and Ridgely, but west of Ridgely there is a row of houses on the north side of Ostend street set back a few feet from the building line, with a narrow brick walk in front. East of Russell street, Ostend has not been opened for passage of vehicles north of these tracks, but south of the tracks there is a traveled way, part of which he thinks is on private property.
The plaintiffs then called Messrs. David M. Newbold, Jr., and John J. Hurst. Mr. Newbold is an attorney, associated with his father in real estate development in Baltimore city, and has known the property in question since 1905, and has frequently examined the property, and kept in touch with sales in that neighborhood as the representative of the plaintiffs. Their property founts 310 feet on Ostend street. One half of this frontage runs back 264 feet on Ridgely street to Stockholm street, and the other half runs back on Russell street 100 feet towards Stockholm street. The property in the rear of this latter half on Stockholm street is the only improved property in that block, and does not belong to the plaintiffs. Mr. Newbold said he knew the value of this property May 1, 1908; that 264 feet on Ridgely and 100 feet on Russell, 364 feet at $3 a foot capitalized, is $50, about $18,200. That was a fair value at that time. Property in that neighborhood has sold from $2 to $4.25 a front foot. This property is adapted for factory or commercial purposes, or for dwellings. It would cost about $3,000, or 55 cents a foot, to grade it, and he took that in account in his estimate of $3 a foot. After the new track was laid, the property was worth about $15,800. Before that, there was about 24 feet between the former north track and where the curb would be, affording adequate space for a wagon to drive between the track and curb, and to load and unload. Now the space is reduced in one place to ten feet. He estimated that after the blocking of the street by the new track, in order to restore the 24-foot space between the old north track and the place for the curb, it would be necessary to take off 14 feet of the property on Russell and the same on Ridgely street, thus moving back the whole Ostend street front. This reduces the combined frontage on Ridgely and Russell streets from 364 to 336 feet, or 28 feet, which, at the former valuation of $50 a foot, makes a loss in value of $1,400 to put the property in the same relation to Ostend street which it bore before the new track was laid.
Mr. Hurst is also an attorney devoting most of his time to real estate development, and admitted by the defendant to be an expert in that line. He knows this property, and owns three houses on the south side of Ostend street west of Warner street, which is the next street east of Russell. He testified that, if he owned the plaintiffs' property, he would set aside from ostend street enough to make up what was taken from the bed of the street by the railroad's last track, and would arrive at the value of that by valuing the amount of land left. His method of valuation was not precisely the same as Mr. Newbold's but the result was the same, viz., a loss of $1,400.
Upon this testimony the plaintiff rested, whereupon the defendant offered, and the court granted the following prayer "The defendant prays the court to rule as a matter of law that under the pleadings in this case there has been offered no evidence of damages to the property of the plaintiffs of such a character as to be legally sufficient to entitle the plaintiffs to recover, and therefore its verdict must be for the defendant." The exception to this ruling presents the only question raised by the record. The position of the defendant in its argument has, as we think, been correctly epitomized in the appellants' brief in these words: ...
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