Baltimore & Havre de Grace Turnpike Co. v. Union Railroad

35 Md. 224 | Md. | 1872

Robinson, J.,

delivered the opinion of the Court.

The bill alleges that the complainant was empowered by its charter, granted in 1813, to build a turnpike road from Baltimore to Havre-de-Grace; that by subsequent' legislation the road was suffered to terminate twenty-three miles from the city; that the road was accordingly built at a cost of about $100,000, and licensed for taking tolls; and that the tolls received therefrom have averaged for some years past seven thousand dollars per annum; that there are now but three tollgates on the road — one near the City of Baltimore, another about ten miles therefrom, and the third about sixteen miles; that the portion of the turnpike between the second and third •mile-stones, and beyond the first gate, is nearly or quite level, and is preferred by those having fast horses to any other similar road anywhere in the vicinity of said city, and that with other advantages peculiar to said road, constitutes a great inducement to the use thereof and the travel thereon, and is a great source of profit; and that the tolls received from the first gate are the main source of revenue to the complainant.

The bill charges that the appellee was chartered’ by the Acts of 1866, 1867 and 1870, for the purpose of making a railway wdth its terminus on tide-water at Canton, and that under its supposed powers for condemnation has summoned a jury and condemned two crossings over the turnpike road of the complainant, and selected for the same the part of the road above mentioned — one of said crossings being by a viaduct twenty feet high, intended for the termination of the railroad at Canton, and the other a grade crossing, to form a lateral connection with the Philadelphia, Wilmington and Baltimore Railroad, and that the jury have awarded five thousand dollars as damages for such crossings.

The bill then charges that the second crossing is ultra vires, and that either or both of said crossings will irreparably injure the complainant’s franchises; that the verdict of the jury is a mere pittance; that the complainant apprehends and charges that if either or both of the crossings be made, the travel would be so banished as not to leave receipts sufficient, probably, to keep the road in repair, as required by its charter, and, therefore, places in probable peril and jeopardy its corporate existence, and destroys all hopes of future dividends.

The complainant avers that its charter is a contract with the State of Maryland, and while it does not dispute that in the exercise of the power of eminent domain, the State has a right to provide for the condemnation of the road and franchises as an entirety, yet the State can pass no law impairing the obligation of contracts; that the complainant’s contract with the State was for a free and unobstructed road, and they are not bound to work a road so crippled as to furnish insufficient revenue to keep the same in proper condition, and necessarily to be managed in future under difficulties not now existing, and at constant peril of the forfeiture of its charter; nor can the State itself, nor any corporation professing to be by it authorized, fractionalize said contract or in any manner impair its validity.

The bill then prays that the appellee may be compelled to condemn the charter of the complainant as an entirety, if it resorts to condemnation; that the proceedings already taken may be declared a nullity, and the company enjoined from making said crossings.

It is conceded then, that the State may, in the exercise of the power of eminent domain, condemn the franchise of the complainant, but it is insisted that such condemnation must, be of the entire franchise and not a fractional part thereof. Whatever force there may be in this view, it is sufficient to-say, that no attempt has been made on the part of the State, nor. by the appellee, to condemn the franchise of the appellant. In authorizing the appellee to build a railroad between the termini fixed by its charter, the Legislature did not intend to condemn or revoke the franchise of the appellant, nor is such the effect and operation of the grant. If in the construction of the road of the appellee to tide-water at Canton, it is necessary to cross the turnpike road of the appellant, such a crossing cannot in any proper legal sense be considered as a condemnation of the franchise of the latter. On the contrary, its franchise — its corporate existence — its use of the turnpike road, with the right to collect tolls thereon — still remain, and the grant to the appellee is but an appropriation of the land, over which the franchise of the former is used, to another distinct public úse, not inconsistent with the user and easement of the appellant. This subsequent appropriation, it is true, may interfere with the travel on the road of the appellant to the extent of diminishing the tolls received on account thereof, but the injury and damages accruing therefrom, be they ever so great, are matters for the consideration of the jury in awarding compensation.

Whether adequate compensation has been awarded in this case, is not a question before us in this appeal. We deem it unnecessary to extend this opinion by a review of the many eases in which these questions have arisen, or of the principles upon which they have been decided. It is sufficient to say, that- after an examination of all the cases referred to, we are of opinion that the Legislature, in the exercise of the right of eminent domain, can authorize and empower a railroad corporation to cross another railroad or turnpike road, on making compensation, and whatever damage may result therefrom, the exercise of such a right cannot be considered as a condemnation of a franchise, nor the impairment of a contract, within the meaning of the Constitution of the United States. Boston Water Bower Co. vs. Boston and Worcester R. R. Co., 1 American Railway Cases, 323; Tuckahoe Canal Co. vs. Tuckahoe R. R., 11 Leigh, 70; White River Turnpike Co. vs. Vermont C. R. R., 21 Vermont, 591; Enfield Bridge Co. vs. Hart, and New Haven R. R., 17 Conn., 461; West River Bridge Co. vs. Dix, 6 How., 529; Richmond, &c., R. R., Co. vs. Louisa. R. R., 13 How., 79; Backus vs. Lebanon, 11 New Hampshire, 22; New Castle R. R. Co. vs. Penna. R. R., 3 Ind., 468; Peirce on Railways, 152, note 1.

But in addition to the viaduct crossing, intended for the railroad termination at Canton, the appellee claims the power under its charter, to build a lateral road connecting with the Philadelphia, Wilmington and Baltimore Railroad, and as incident thereto, the right to condemn a grade crossing over the turnpike road of the appellant. The grant of a right to take private property for a public use, or to subject property already appropriated to a public easement, to other and distinct easements and uses, is the highest exercise of legislative power, and such a grant ought to be conferred in language clear and unequivocal. The authority in this case to build a lateral road, we do not understand as being claimed under an express grant, but is said to arise by necessary implication under the 10th section of the Act of 1870, chapter 412, which authorizes all railroad companies upon equal terms, to run their locomotives and cars over the tracks of the appellee. It may be true, that every grant is intended to be beneficial, and carries with it such incidental powers as may be necessary to its exercise or enjoyment. If the exercise of the power granted draw's after it some other right necessarily incident, the law may be said to contemplate and sanction the exercise of that right. Now, what is the right granted by the 10th section of the Act of 1870? It is, that all railroad companies shall have the right upon equal terms to run their locomotives or cars over the railroad of the appellee. By its original charter, Act of 1866, chapter 119, this right was conferred only upon the Northern Central and the Western Maryland Railroad Companies, but the charter was amended by the Act of 1870, and all railroad companies were authorized.to use its tracks. The question is not whether these railroads are authorized to build lateral roads connecting with the railroad of the appellee, as incident and necessary to the beneficial enjoyment of the right to use the tracks of the appellee, but whether this section confers upon the latter the power to build lateral roads in every direction, connecting with all railroads running to Baltimore city. We are of opinion that it does not. No such power is expressly conferred, nor does it arise by necessary implication from the exercise of the right and privilege granted to the railroad companies — nor from the application of this section to the purposes and objects for which the appellee was chartered.

(Decided 16th February, 1872.)

We are of opinion, therefore, that the injunction ought to have been granted, so far as respects the condemnation of the grade crossing on the lateral road connecting with the Philadelphia, Wilmington and Baltimore Railroad, and the decree of the Court must be reversed and the cause remanded, in order that another decree may be passed in conformity with the opinion of this Court.

Decree reversed and

cause remanded.