Western Maryland R. Co. v. Owings

• Decision Date: 13 March 1860
• Citation: 15 Md. 199
• Parties: WESTERN MARYLAND RAIL ROAD COMPANY, and others, v. HENRY H. OWINGS, and others. WESTERN MARYLAND RAIL ROAD COMPANY v. EPHRAIM BERRYMAN.
• Court: Maryland Court of Appeals

15 Md. 199

WESTERN MARYLAND RAIL ROAD COMPANY, and others, v. HENRY H. OWINGS, and others.

WESTERN MARYLAND RAIL ROAD COMPANY v. EPHRAIM BERRYMAN.

Court of Appeals of Maryland.

March 13, 1860

A court of equity has jurisdiction to prevent, by injunction, a railroad company from making its railroad over the land of a private citizen where the company has not paid or tendered compensation for the use of the land, as provided in Art. 3, sec. 46, of the Constitution of the State.

In such case, the allegation in the bill that the company is proceeding without any legal authority and license, and has not paid or tendered compensation for the use of the land, is sufficient to authorize the granting of an injunction without reference to the question whether the damage complained of is irreparable or not.

APPEALS from the Equity side of the Circuit Court for Baltimore county.

These appeals are taken from orders of the court below, (PRICE J.,) granting injunctions upon bills filed, the one on the 16th of February 1858, and the other on the 24th of May 1859 by the appellees against the appellants. The allegations of the bills and the purport of the injunctions are sufficiently stated in the opinion of this court. From the orders granting the injunctions the defendants, having first filed their answers, appealed.

The causes were argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.

Coleman Yellott, for the appellants, after arguing that the allegations of the bills, in other respects, were not sufficient to warrant the granting of the injunctions further insisted:

That the fact, that the alleged trespass was committed by a corporation, does not give the complainants any superior equity. Their right to the remedy of an injunction depends upon the character of the damage about to be sustained, and not whether it was to be inflicted by a corporation or an indi vidual. A careful examination of the cases cited by the appellees will show that they do not sustain the position taken by their counsel. Full effect can be given to the constitutional provision (Art. 3, sec. 46) that " the Legislature shall enact no law authorizing private property to be taken for public use without just compensation," without adopting the construction contended for by the appellees' counsel. If any chartered company enter upon the lands, without having paid or tendered " just compensation, as agreed upon between the parties or awarded by a jury," the company would be trespassers, but whether such trespass would be restrained by injunction would depend upon its nature, just as if it was about to be committed by an individual. This view seems to have been adopted by the court in 7 Md. Rep., 516, Steuart vs. The Mayor & City Council of Baltimore, where it is said: " The persons so entering would be responsible, in damages, to the owner of the property."

Of the cases referred to by the appellees, it will be found that in 1 Eng. Railway Cases, 158, the injunction was refused; that in 4 Johns. Ch. Rep., 53, 54, the corporation were about to destroy the stable, greenhouse, fence, and landmarks, of the complainants; that in 31 Eng. Law & Eq. Rep., 249, 258, the decision turned upon the construction of a certain Act of Parliament, and the injunction was refused; and that the case in 2 Dow., 521, was one from Scotland, and turned upon the construction of certain Acts of Parliament, and was an action for damages.

The bills in the present cases merely aver that no compensation has been paid or tendered by the defendant, the Western Maryland Railroad company. They do not aver that a jury had, or had not, been summoned to assess the damages. It may have been that a jury had met according to law, and had decided that the complainants were entitled to no damages. Such a supposition is neither an improbable one, nor at all inconsistent with the averments made in the bills. It frequently happens that the owner of land is entitled to no compensation, for the reason, that his property is benefitted and increased in value by the laying of a railroad track through it.

It is also to be observed, that, after the filing of the bill in Berryman's case, but before the filing of that in Owing's case, the Act of 1858, ch. 420, was passed, and by the 4th section of that Act, the Western Maryland Railroad company were authorized to enter upon and use the lands necessary for their purposes, even before paying or tendering payment of damages, provided they gave bond of indemnity to meet such damages as might be afterwards recovered. Such was the existing law at the time the bill in Owing's case was filed. According to this law, every averment of the bill, in that case, may be assumed to be true (in regard to non-payment, or tender of consideration) and yet the company may not have been trespassers; the bill not averring that no bond of indemnity had been given. It may be said, in reply, that this Act is void, because in violation of the provisions of our Constitution. My answer is, that the court below could not decide upon the constitutionality of an Act of Assembly, upon an ex-parte decision upon an application for an order for an injunction. In deciding upon such application, the court must assume that the Act is constitutional, and the same rule will govern the appellate court, in deciding the appeal from such an order. 1 Am. Railway cases, 156, 162, Dessing vs. York & Cumberland Railway company.

R. J. Gittings, and A. W. Machen, for the appellees:

That a railroad company, in violation of the Constitution and of its charter, is taking actual possession of the land of a private person, and constructing their road upon it, without his consent, or the payment, or tender, of compensation, legally ascertained, constitutes a proper case for the interference of equity by injunction. 1 Md. Ch. Dec., 248, Harness vs. Ches. & Ohio Canal Co. 7 Md. Rep., 500, Steuart vs. Mayor & C. C. of Balto. 1 Bald., 231, Bonaparte vs. Camden & Amboy R. R. Co. 7 Smedes & Marshall, 568, Stewart vs. Raymond R. R. Co. 2 Dow, P. C., 521, Shand vs. Henderson. 4 Johns. Ch. Rep., 53, Varick vs. Corporation of New York. 2 Story's Eq., sec. 927. 1 Eng. Railway Cases, 154, Dunn Nav. Co. vs. North Midland Railway Co. 31 Eng. Law & Eq. Rep., 252, Pinchin vs. London & Blackwall Railway Co.

The whole argument on behalf of the appellants depends upon the proposition, that in cases, such as are set out in these bills, as in an ordinary case of trespass, some special and irreparable mischief must be shown to justify the interference of equity. But this is supported by no authority, whilst, on the other hand, there is abundant authority to support the position of the appellees. Chancellor Kent, after asserting the constitutional right of the owner to receive compensation before his land is taken says: " The government is bound, in such cases, to provide some tribunal for the assessment of the compensation or indemnity before which each party may meet and discuss their claims on equal terms; and if the government proceed, without taking these steps, their officers and agents ...