52 A. 752 | Md. | 1902
In eighteen hundred and thirty-five the Baltimore and Port Deposit Railroad Company, now forming part of the Philadelphia, Wilmington and Baltimore railroad system — a railroad operated by steam — laid its tracks along Canton avenue in the city of Baltimore, in pursuance of authority obtained from the Mayor and City Council. In eighteen hundred and ninety-six the Mayor and City Council gave to the Central Passenger Railway Company — a street railway company — permission to construct its tracks along Wolfe street in the city. Wolfe street intersects Canton avenue at right angles. When the railway company undertook to cross the track of the railroad company at the intersection of Canton avenue and Wolfe street, the railroad company interposed an objection and in June, eighteen hundred and ninety-seven, filed in the Circuit Court of Baltimore City a bill of complaint for an injunction to restrain the street railway company from interfering with the steam railroad company's track, until the former company would enter into an agreement to pay, not only the cost of making the crossing, but the subsequent cost of keeping the crossing in repair; which repairs, it was insisted, should be done under the supervision and according to the direction of the engineer of the railroad company. The bill was answered. Later on the street railway company under an agreement with the steam railroad company, made the crossing at its own expense, and the question as to the relative rights and obligations of the two companies with respect to the maintenance of the crossing was reserved for the future determination of the Court. Finally, the case came on to be heard and the Circuit Court decreed on April the third, nineteen hundred and two, that an injunction should issue to restrain the street railway company from further using the crossing over the track of the steam railroad company at the intersection *438 of Wolfe street and Canton avenue, until the railway company would execute "an agreement for the maintenance of said crossing in the terms set forth for that purpose in the agreement filed with the bill of complaint." From that decree the street railway company has appealed. The precise question, therefore, is, was the Circuit Court right in restraining the railway company from using the crossing until the company would execute an agreement binding itself to maintain at its own cost in the future and for all time the above-mentioned crossing?
The bill as originally filed was designed to restrain the construction of the crossing unless the street railway company would agreed to do two things; first, to construct the crossing at its own cost, and, secondly, to main that crossing when constructed, for all time, and to maintain it in accordance with the requirements which the steam railroad company's engineer might prescribe. With the first of these demands we are not now concerned further than as the legal principles which are applicable to that situation may throw light upon the second; and we are not concerned with the first demand because by the agreement alluded to the crossing was actually constructed at the expense of the street railway company.
The adjudged cases are quite in accord in holding that when a new road or way is constructed across an old road or way the owner of the new way must not only bear the expense of making and keeping in repair the new way, including the cost of such structural changes in the old way as are rendered necessary by the construction of the crossing; but he must, in addition, make compensation to the owner of the old way for the property or easement appropriated for the occupancy of the new way. Mayor,c., Balto. v. Cowen Muraay,
It is indisputably true that a railway or a railroad company which, under authority obtained from the city, lays its track along or across an opened and subsisting city street, acquires thereby no exclusive right to the use of the street; but it does not thence follow that it secures no rights of any kind which another company subsequently seeking to use the same track or a part of the same track is bound to recognize. In the assertion of the opposite conclusion lies the fallacy of the appellant's contention. There may well be no exclusive right in the company to the use of the street as against the public generally or as against a parallel or competing road, and yet there may be, and certainly there is, a right in the company to use its owntracks upon the street, and to use them to the exclusion of any other company, unless the other company procures the right to use those tracks upon making due compensation. This has been distinctly decided in North Balto. Pass. Ry. Co. v. North Av.Ry. Co.,
There is, then, some right which the first occupant has inits tracks that can not be appropriated by the second occupant under a claim of a right to use the street.
It is objected, however, that these cases have reference to alongitudinal use of the tracks and not to the bisecting of a track at right angles and its use in that way; and, therefore, that whilst compensation must be made for the one use it need not be made for the other. But how can this difference in the method of using the tracks of the first occupant make a difference in the application of the unvarying legal principle which requires the owner of the new way to make and maintain the crossing over the old way; especially if a crossing of the track will to some extent appropriate a part of the track of the old way as it isactually occupied? The exclusive use spoken of in the case last cited; or the right to occupy the space covered by the tracks in the street, and to occupy that space to the exclusion of other tracks, has relation to the whole length of the track, and therefore, to every *442 part of its length, and hence to those portions of it which must be cut and removed so that crossing frogs may be inserted. It is obvious, then, that the cutting and removal of so much of the track as must be taken up to permit the crossing structures to be laid, is an interference with and an invasion of the exclusive right of the steam railroad company to use its own tracks on the street; and it can make no possible difference that the interference or invasion has been occasioned by a right-angle intersection rather than by a longitudinal use except as to thequantum of damage inflicted. Precisely the same right is invaded in each instance, and it is the right to actually occupy the space covered by the track, and to occupy that space to theexclusion of other tracks. If the longitudinal use of the tracks is an invasion of that right (and it is definitely settled in this State that it is) then the transverse or rectangular use of the same tracks is also an invasion of the same right, differing not in kind, but merely in degree.
There are, as already stated, two elements of damage in the ordinary crossing of an established way by a new way, and these are, first, the cost of the construction and of the maintenance of the new way including structural changes in the old way made necessary by the building of the new way; and secondly, the value of the easement or property belonging to the owner of the old way and which may be impaired or appropriated by the new way.
Both of these must be paid by the person who constructs the new way. In cases such as the one at bar, where a railway crosses a railroad in the bed of a city street, the second of these two elements of damage does not exist, because when a steam railroad is located on a street the company takes its rights subject to the rights of the public to use the street in a reasonable and lawful manner, and since the street railway is not an additional burden to the street, but simply such a use as the public are entitled to have made of the street, the steam railroad takes its right in the street subject to the right of the street railway company to lay its tracks across the former's tracks, "and the steam railway is not entitled to recover *443
any compensation for such crossing as for an additionalburden." 3 Elliott on Railroads, sec. 1135. The cases cited by the appellant's counsel relate to this second element of damage and to nothing more. In Chicago, c., R. Co. v. Whiting St.Ry. Co.,
The common law doctrine that whatever structures are necessary for the crossing of an old way by a new way must be erected and maintained at the expense of the party under whose authority and direction the crossing is made is applicable to railways and railroads which intersect each other upon the public streets of a city, unless that doctrine be modified by statute. Outside of statutory provisions — and there are none such in this State — there is neither precedent nor authority for requiring the owner of the subsisting way to contribute any part of the expense rendered necessary to enable the owner of the new way to cross the old way. The crossing of the old way is made for the benefit of the second comer, and not for the benefit of the owner of the old way; and even though both occupants claim under licenses from the same municipality, common justice dictates that the one for whose exclusive benefit the crossing is made should defray the expense of constructing it. And as the continuance of the crossing is as much for his benefit as was the construction of it in the first instance, it is equally obvious that he should maintain it wholly at his own cost. That is all the decree appealed against determined, and that is all the steam railroad insists on.
There is included in the proposition just stated the following corollary, viz., that the engineer of the railroad company shall have the right to say when, and in what manner and to *445 what extent repairs or renewals shall be made, and that if they are not made by the street railway company that they may be constructed at its expense by the steam railroad company. As it is the duty of the street railway company to keep the crossing in repair so that it may be used not only by itself but by the steam road whose tracks the crossing in some measure interrupts, and as the steam road requires more durable and substantial construction than a street railway needs, it is altogether reasonable and proper that the decision of the questions as to when, in what manner and to what extent the repairs ought to be made should be left to the engineer of the steam railroad company.
Nothing said in this judgment is to be understood as justifying the demand made by the steam railroad company that the street railway company must pay one-half of the cost of safety gates or other similar appliances required under an exercise of the police power for the protection of the public at the crossing. Such appliances it is the duty of the steam railroad company to supply. Mayor, c., Balto. v. Cowen Murray,
This case does not present the question decided in Kirby v.Citizens R. Co.,
Interpreting the decree in the way we have, there is no error to be found in it, and it will accordingly be affirmed.
Decree affirmed with costs above and below.
(Decided June 19th, 1902.)
SCHMUCKER, J., dissents as to the proposition that the Street Railway Company must keep the crossing in repair at its own expense. *446