129 A. 682 | Md. | 1925
Some time prior to November 26th, 1924, a bridge over the Potomac River, connecting Main Street in Westernport, Maryland, with Ashfield Street in Piedmont, West Virginia, was destroyed by flood. It had been constructed and maintained jointly for many years by the Road Directors of Allegany County and the County Court of Mineral County, West Virginia, and when it was washed away they constructed, nearby, a temporary bridge to take its place pending the completion of a new permanent bridge. The temporary bridge was placed in a different location from the old one in order to have the clearance necessary for the construction of the new permanent bridge. To afford the travelling public convenient access to the temporary bridge it became necessary to cross a lot sixty feet in depth belonging to the appellants, which separated it from Main Street. The Road Directors thereupon contracted with the appellants for the use of that lot of ground free of charge for a period of six months. At the expiration of that period the permanent bridge was still uncompleted, and it then appeared that it would probably require an additional twelve months to finish it, and the appellee applied to the appellants for an extension of the privilege of using the lot for an additional *496 period of twelve months for a valuable consideration, but they refused to rent, lease or otherwise contract with the appellee for the use of the same. In that situation the appellee applied to the Circuit Court for Allegany County for a warrant directed to the sheriff of that county directing him to summon a jury to assess the damages which the appellants would sustain by the use of the said lot as a highway for the period of twelve months. On that application the court signed a nisi order, and the respondents by way of cause filed an answer in which they denied that the court had jurisdiction to issue the warrant prayed for, and alleged that the petitioner had no power or authority to condemn the land or any interest in it. A hearing was had and testimony taken in connection with the issues made by these pleadings and at its conclusion the court issued the warrant. A jury was summoned and sworn and its inquisition returned. Exceptions were filed to that inquisition, but the court overruled the exceptions and ratified the inquisition, and from that order the respondents appealed.
The facts essential to a consideration of the questions presented by the appeal, in addition to those already referred to may be thus stated: Westernport was incorporated by chapter 40 of the Acts of 1868. The Road Directors of Allegany County were incorporated by chapter 262 of the Acts of 1904. The County Commissioners of Allegany County were authorized by chapter 103 of the Acts of 1868 "to levy such sum or sums of money as they deem necessary in their judgment, to aid in the construction of a bridge across the Potomac River at Westernport, in Allegany County, Maryland."
The County Commissioners of Allegany County, in conjunction with the County Court of Mineral County, West Virginia, did construct the bridge referred to in that act and have since maintained it, renewing and repairing it from time to time as was necessary.
Before this proceeding it was destroyed by flood, and the appellee, in conjunction with the County Court of Mineral *497 County, West Virginia, made plans for its reconstruction and had let contracts for a part of the construction work. On the 18th day of April, 1924, the appellee contracted with the appellants for the use of their lot, which was needed as a public way or approach to the temporary bridge. Under the contract the right to so use it for six months was granted to the appellee, and no charge was made for the use during that period, and the appellants agreed to renew the contract upon application by the appellee within the period of six months. No such application was made and the appellants then began to collect toll from persons crossing their land in going to and from the bridge. After the six months had expired the appellee, being of the opinion that the construction of the new bridge would not be completed within twelve months from that time, applied to the appellants for the use of the ground for a valuable consideration for that period, but was unable to reach an agreement with them as to such use. Thereupon the appellee by its attorneys filed the petition referred to above, supported by the affidavit of its chairman, for the condemnation of the land as a way or approach to the bridge for twelve months, and the subsequent proceedings resulted in the condemnation of the property and the award of damages to the owners for such use.
We have treated these facts as uncontradicted, for while the appellants denied that the temporary bridge had been constructed or paid for by the appellee, and denied that the use of the land was necessary to the public convenience, and denied that the appellee had been unable to agree with the owners, if the court had jurisdiction to entertain the application at all, they are concluded by the finding of the jury and the subsequent ratification of the inquisition upon those facts.
The appellants objected to the ratification of the inquisition for reasons which may be thus summarized, that is to say: (1) because all acts of the appellee in connection with the permanent and the temporary bridge were ultra vires and therefore void; (2) that there was no duty resting upon *498 the appellee to condemn the land; (3) that the appellee had no power to condemn land for the purpose set forth in the petition within the corporate limits of Westernport; (4) that the petitioner had never by any valid corporate act decided that it was necessary to condemn the land; (5) that the petition showed on its face that the appellee had never been requested to open a public road over the land in question, and that no notice had been given nor had any hearings in reference thereto been held; (6) that the proceedings show on their face that the public had adequate means of communication between Westernport and Piedmont; (7) that the jury had no opportunity of finding for the appellants because the form given them by the sheriff made no provision for a verdict in their favor; (8) that it did not appear on the face of the proceedings which of the appellants owned the land, and (9) that the statutes under which these proceedings had been held were repealed by "article 33A of the Code of Public General Laws of Maryland."
Although we have stated them all, it is unnecessary for us to consider any of these objections except those which deny that the trial court had jurisdiction of the subject matter of the proceedings, and those which assert that the statutes under which this proceeding was instituted have been repealed, for if that court had jurisdiction of the subject matter, and if those statutes are unrepealed and this proceeding was properly instituted under them, its determination is final, and cannot be reviewed on appeal to this court. The reasons for that rule and the cases exemplifying its application have been so exhaustively treated in an opinion filed in this Court by Judge Pearce inDolfield v. Western Maryland R.R. Co.,
If the appellee had the right to acquire land for the purpose set out in its petition and if sections 331 to 337, article 23, C.P.G.L. of Md. are still in force, and this proceeding is properly instituted under the authority thereof, then whether the appellee had by valid corporate act decided that *499 it was necessary to condemn the land, or whether it had attempted and failed to agree with the landowner as to its use and the proper compensation therefor, or whether public convenience required its condemnation, or whether there were irregularities in the conduct of the sheriff or the jury, or whether the interests of the several owners in the property were properly described in the petition, were all matters for the consideration of the trial court sitting in the exercise of a special statutory jurisdiction at the trial of the exceptions to the ratification of the inquisition, and from its judgment upon them no appeal lies to this Court. Dolfield v. Western Maryland R.R. Co.,supra.
The important question presented by the appeal, therefore, is whether the court had jurisdiction of the subject matter of this proceeding, or stated in another way, whether the appellee had any power to condemn the land described in the petition for the purpose therein stated, but before considering that question we will first deal with the contention that this proceeding, if it can be maintained at all, should have been instituted under article 33A of the Code of Public General Laws of Maryland, and not under sections 331-337, article 23, Bagby's Code 1924. But in view of what was said in Koehler v. State Roads Commission,
The appellants, however, contend that the Road Directors of Allegany County had no power or authority to condemn the land in question under this proceeding, (1) because it had no right to open, close, alter, or relocate a road except upon petition and notice in the manner provided in chapter 262, Acts of 1904, (2) that it had not the power to condemn land within the corporate limits of Westernport, (3) because it had no power or authority to condemn a temporary use in land and (4) because it had no power or authority to construct or maintain the temporary or the permanent bridge.
Before considering separately these objections, we will restate briefly the situation of the appellee and the citizens of Westernport and Allegany County at the time these proceedings *501 were initiated. The two towns, Westernport in Maryland, and Piedmont in West Virginia, are separated by the Potomac River. The only safe and convenient means of communication between them for many years has been over a bridge constructed for their common convenience by the joint action of Mineral County, West Virginia, in which Piedmont is located, and the Road Directors of Allegany County. Commerce between the two towns had in course of time led to a considerable volume of travel over this bridge by the citizens of the two states. As a result of flood the bridge was destroyed and the only safe and convenient avenue of communication between the two states at that point became impassable. To serve the public convenience the appellee constructed a temporary bridge to care for the travel during the reconstruction of the old bridge, but access to that temporary bridge could only be had over private property. The owners of that property, after having allowed the use of it for that purpose for a period of six months, after the expiration thereof refused to permit it to be used any longer as an approach to the bridge except upon the payment of toll by such persons as had occasion to use the bridge.
It is apparent from this statement that while the appellee proposed to open a new road, it was not such a road as would render it expedient or proper for it to pursue the procedure provided in that part of section 216K of the Act of 1904 which requires the appointment of examiners, the filing of petitions, hearings, appeals etc. which might not be concluded until long after the need for the temporary use had ceased. But at the same time it is well settled that the appellee has no power of eminent domain unless the Legislature has directly or by necessary implication conferred that power upon it, and that in such a case the manner of procedure provided in the enabling act must be strictly followed. Lewis on Eminent Domain, sec. 240 et seq. It is, however, contended that the concluding clause of section 216K authorizes the appellee to condemn lands needed for public roads under the provisions of sections 331-337, article 23, Bagby's *502 Code, and that is the view taken by the trial court. It may be said that the language of that section is by no means clear, but bearing in mind the duties imposed upon the appellee by statute in respect to the roads and highways under its control and supervision, and the powers necessary to any adequate discharge of that duty, there is much force in that contention. The portions of that act germane to the question are as follows:
"All applications for opening, altering or closing roads shall be by petition to the Road Directors, and whenever any person or persons shall intend to petition said directors for opening, altering or closing any road, he or they shall give twenty days' notice thereof in one or more newspapers published in Allegany County, setting forth as near as may be the length and location of said road and the reason he or they have for opening, altering or closing the same; and counter petitions may be presented to the Road Directors at any time within fifteen days after the expiration of the twenty days' notice above provided for; and when any petitions are so presented, the said Road Directors shall appoint a day when the petitioners and counter petitioners shall be heard, and shall consider the same and such testimony as may be adduced before them, and shall determine the case in such manner as in their opinion shall be right and proper. Whenever the Road Directors decide it is expedient that a road be opened under the provisions of this section, they may contract with the owner or owners of the land through which the road is intended to be run for the right of way necessary for such roads. * * * and whenever the Road Directors shall deem it expedient that examiners should be appointed to view grounds for the purpose of opening, altering or closing a road, they shall appoint three persons as examiners, * * * but the appointment of the examiners shall not prevent the Road Directors from contracting with the owner or owners as above provided; or said Road Directors may proceed to condemn the lands that may be necessary for the laying out of new public roads *503 or for altering of existing roads under the provisions of sections 248 to 253, both inclusive, of article 23 of the Code of Public General Laws, title `Corporations,' and any and all amendments thereto."
It might be said that these provisions mean that, after the filing of petitions, a hearing etc. and after having determined that the public convenience required the opening of a new road, the appellee could either appoint examiners, or acquire the land by contract, or condemn it. But we think a more reasonable construction, and one more in harmony with the general powers and duties of the appellee, is that it was intended to confer upon the appellee, whenever in its judgment the public safety, convenience or welfare required it, the power to condemn land for a new road without requiring the filing of a formal application and the long drawn out procedure incident thereto.
But in view of what was said by this Court in Cumberland P.R.R. v. Penna. R.R.,
And in New York Mining Company v. Midland Co.,
And again in Dolfield v. Western Md. R. Co., supra, in referring to a statement in Hopkins v. P., W. B.R.R. Co.,
In this case, assuming that the appellee could not condemn except upon application or petition, and after notice and a hearing, nevertheless whether those steps had been taken was a question which the trial court had the right to decide, and having the power to decide them its decision in respect to them is final.
The contention that the lower court had not jurisdiction of the subject-matter of this proceeding also involves, as we have said above, these propositions: (1) that the appellee had no authority to condemn land in the town of Westernport, (2) that it had no power to condemn a mere temporary use of property, (3) that it had no power to build either the permanent or temporary bridge, or any way or approach in connection therewith.
The first and third propositions appear to have been answered by the case of Allegany County v. Seaber,
It was expressly decided in that case that the appellee was validly authorized by chapter 103 of the Acts of 1868 to *507 build the bridge and to maintain it, and that it was charged with the duty of keeping it in safe condition for public use. For the conclusion in that case necessarily assumed that in building and maintaining the permanent bridge the appellee acted within its statutory powers. And if it had the authority to construct, or to join with Mineral County in constructing, the permanent bridge and to maintain it as a necessary incident of that power, it must also have had the power to do such things as were reasonably necessary to prevent or lessen inconvenience to the public which might result from any interruption of the use of that bridge, and in our opinion the power to maintain the temporary bridge while the permanent bridge is under construction and to acquire by condemnation or otherwise land necessary to afford access thereto is fairly implied from the authority to build and maintain the permanent bridge.
The remaining objection to the jurisdiction is that the appellee had no power to condemn a mere temporary use of the land. No authority has been cited in support of that proposition and what authority we have found is the other way. Dillon, Mun.Corp. (5th ed.), par. 1025, note 2; Hepburn v. Jersey City,
Since therefore the appellee had the power to condemn the land in question, the Circuit Court for Allegany County had jurisdiction of the subject-matter of this proceeding, and from its judgment given in the exercise of that jurisdiction no appeal lies, and it follows that the appeal taken in this case must be dismissed.
Appeal dismissed, with costs. *508