54 A. 628 | Md. | 1903
The main question presented by this appeal is whether the incorporation of a railroad company, under the General Incorporation Laws of this State, confers upon it the right to cross the navigable waters of the State without the consent of the Legislature.
The appellant filed a petition, in the Superior Court of Baltimore City, for a mandamus requiring the Board of Public Works to take action upon and either approve or disapprove the plans, submitted to them by it under sec. 177 of Art. 23, of the Code, for the construction of bridges across three navigable creeks in Baltimore county. The Board of Public Works demurred to the petition and the Superior Court by its order of January 5th, 1903, sustained the demurrer and dismissed the petition. From that order the present appeal was taken. *179
The petition alleges that the appellant, having become duly incorporated under the General Incorporation Laws of the State to construct and operate a railroad between the towns of Dundalk and North Point in Baltimore County, found it necessary, in order to complete the road, to construct it across the three creeks already mentioned, which are alleged to be navigable streams. That, being ready to construct its railroad, it filed with and submitted to the Board of Public Works the plans and specifications of the bridges and other fixtures it proposed to erect to cross the said streams, and that it fully complied in every respect with all of the provisions of sec. 177 of Art. 23 of the Code and all other laws of the State as well as with the rules and regulations of the Board of Public Works relative thereto. But that the said Board decline and refuse to take any action on the plans and specifications so filed with them, for the alleged reason that the appellant has not shown proper authority to construct its bridges over these navigable streams, and they assert that the consent of the Legislature to the erection of the bridges must be obtained before they can take any action on the plans and specifications.
The petition insists that the appellant acquired by its incorporation and especially by sec. 177 of Art. 23 of the Code, the power and authority to bridge the streams in question without first securing the consent of the Legislature and that it is entitled to have its plans acted on by the Board and it prays for a mandamus to compel such action.
We think the learned Judge below was right in sustaining the demurrer to this petition. In ascertaining the nature and extent of the powers conferred upon the appellant by its incorporation in reference to the navigable waters of the State, we must keep in view all of the provisions of the Code bearing upon that subject and construe them in the light of the principles of the common law applicable to all grants of power from the State. There is no express grant of power to railroad companies to cross navigable waters found in the general law under which the appellant was incorporated. *180
The State is undoubtedly the owner of the navigable waters within its boundaries and can make a valid grant of privileges or interests in or over them subject to the public rights of navigation and fishery. Browne v. Kennedy, 5 H. J. 156;Wilson v. Inloes, 11 G. J. 359; Phipps v. State,
It is however a familiar proposition of the common law that in a grant by the State nothing passes by implication. The grantee takes only that which is given to him by express terms. This is true of grants by legislative action. Broom's Legal Maxims, 5th ed., p. 607; Jones v. Tatham, 20 Pa. St. 411; State v.Kinne,
The present case differs from those last referred to, all of which arose under the laws of other States, in this important particular. Sec. 92 of Art. 23 of the Code, which contains the General Law of this State for the creation of various kinds of corporations including railroad companies, plainly declares, "No bridge shall be erected on a navigable river unless authorized by an Act of the General Assembly." It is true that this section, which constituted part of the General Incorporation *181 Law of 1868, now appears as codified under the head of Companies for the Erection of Bridges, but its application is not thereby necessarily confined to corporations of that class.
As was said by our predecessors in State v. Popp,
Nor do we think that sec. 177 of that Article, which was enacted in 1876, operated to repeal sec. 92. The obvious purpose of sec. 177 was not to grant the power or authority to railroad companies to bridge navigable streams but to regulate the method of bridging them by such railroad companies as possess the right to do so. Its provisions relate solely to theplan of the proposed bridge and the place of its location
which are both put by the law under the supervision and control of the Board of Public Works. The Board are given the power to approve or disapprove the plans, with the right of an appeal by the railroad company to the Circuit Court in the event of a disapproval of its plans by the Board. There is no express repeal of sec. 92 by the Railroad Act of 1876, which enacted sec. 177, and as the two sections under consideration are not inconsistent with each other they must both stand and being in pari materia
must be construed together although passed at different times.Canal Co. v. Railroad Co., 4 G. J. 1; State v. R.R.Co.,
The streams involved in the present suit, Jones' Creek, *182 North Point Creek and Shallow Creek, are said to be unimportant ones, but the principle involved is an important one to a State like ours which has much navigable water within its boundaries. The future development and progress of the commerce of the State may be largely influenced by the judicious management and control of this navigable water and it is therefore important to strictly maintain the doctrine that no grant by the Legislature of any right in or control over any portion of it will be upheld which rests upon mere implication or construction or anything short of a clear and direct expression of the legislative will.
The decree appealed from will be affirmed.
Decree affirmed with costs.
(Decided April 2d 1903.)