98 A. 232 | Md. | 1916
The appellee, the Washington County Railroad Company, owns and operates a railroad between Hagerstown and Weverton, in Washington County, Maryland. That company in these proceedings is seeking to condemn certain lands for a branch or lateral road starting at a point upon its main line near the southern limits of Hagerstown and ending at Security. The land sought to be condemned belongs to the appellant, Anna T. Kenly, wife of Davies L. Kenly, and upon said land William P. Towson holds a mortgage.
The chief questions presented by this appeal are, first, whether the appellee company is authorized and empowered under its charter provisions to condemn land for the construction and use of a branch or lateral road; and second, which of the parties to these proceedings has the right to open and close the case. The first of these questions was first raised by demurrer to the first paragraph of the plaintiff's *3 petition in which the power of the plaintiff to construct branch or lateral roads and to condemn lands for such purpose is alleged; and upon its being overruled, the question was again raised by demurrer to the first paragraph of the defendant's answer, which was sustained. We will in this case treat this question as properly raised by these demurrers, although we are not to be understood as so deciding. The second question was raised by the defendant's motion, which was overruled, asking that they be permitted to open and close the case.
First. The appellee company was incorporated or chartered by Chapter 334 of the Acts of 1864. By that Act it was "invested with all the rights and powers necessary to construct a road or roads from Hagerstown to any point on the line of the Baltimore Ohio Railroad east of Harper's Ferry within the limits of Frederick or Washington County, in the State of Maryland." In the construction of the road therein mentioned the power of condemnation was specially conferred upon the company. The Act, however, was silent as to the company's authority and power to construct branch or lateral roads and its power to condemn for such purposes. But Chapter 64 of the Acts of 1866, which amended the original charter, provided that "the Washington County Railroad Company shall have and exercise, in the survey, location, construction and use of the said railroad, and otherwise, all the powers, rights, privileges and immunities which the Baltimore Ohio Railroad Company was and is authorized to have and exercise in relation to its railroad from the City of Baltimore to the Ohio river."
The charter of the Baltimore Ohio Railroad Company, Chapter 123 of the Acts of 1826, conferred upon that company the power and authority "to make or cause to be made lateral railroads, in any direction whatsoever in connection with said railroad from the City of Baltimore to the Ohio river, and in the construction of the same, or their works, shall have, possess and may exercise, all the rights and powers hereby given them in order to the construction or repair of *4 the said railroad from the City of Baltimore to the Ohio river."
It is by virtue of the aforegoing provision of the Amendatory Act of 1866 authorizing and empowering the Washington County Railroad Company to exercise "in the survey, location, construction and use" of its road, "and otherwise, all the powers, rights, privileges and immunities" that were conferred upon the Baltimore Ohio Railroad Company by its charter in relation to its railroad, that the plaintiff claims the power and authority to condemn the land in question for the construction and use of said lateral or branch road.
The effect of the reference made by the Amendatory Act of 1866 to the charter of the Baltimore Ohio Railroad Company was to make the provisions of the charter of the latter company, to which allusion or reference is made, a part of the charter of the Washington County Railroad Company. Hamilton v. The Annapolis Elk Ridge Railroad Co.,
The additional powers conferred upon the appellee company by the reference to the Charter of the Baltimore Ohio Railroad Company embraces all the powers, rights, privileges and immunities possessed by it in respect to the survey, location, construction and use of its road and otherwise, and includes, we think, the power and authority to construct lateral or branch roads to be used in connection with its main line and to exercise the power of condemnation in the construction of such lateral or branch roads.
Second. As to the second question presented by this appeal the decisions in the different States are not in accord, but as this question depends very much upon the statutes in force in the different jurisdictions, this want of harmony may be largely owing to the difference in the provisions contained in such statutes. So far as we are informed this question has never been presented to this Court for its determination, although it has been the universal practice in the Courts *5
of this State to accord to the petitioner in condemnation proceedings, both under the present and prior statutes, the right to open and close the case. This question however was in 1900 decided by the Circuit Court for Frederick County in the case ofBaltimore Ohio Railroad Co. v. Henry Wilson, No. 1802 Miscellaneous Docket of that Court. In that case JUDGE McSHERRY, the late Chief Justice of this Court, in the opinion prepared by him, and concurred in by his associates, JUDGES MOTTER and HENDERSON, discusses this question with his usual force and clearness. In it he says: "The ninth objection attacks the validity of the inquisition because the sheriff refused to allow the land owner's counsel to open and conclude the case before the jury. In support of this contention we were referred to Lewis,Em. Dom., sec. 426; Burt v. Wigglesworth,
It is true this decision was made upon a former statute and not upon the one now in force, but nevertheless, we think it applies with equal force to the existing statute. Under the present statute, Article 33A of the Code (Acts of 1914, Chapter 463) the condemning party institutes the proceedings by filing its petition, in which is set forth a description of the property asked to be condemned and the allegation that the petitioner is unable to agree with the owner or owners as to the value of said land, and asking that said property be condemned.
After the jury is selected and sworn and after they have visited and view the premises, the statute provides that upon the jury's return to said Court "the trial of the issues of law and fact in the case, relative to the right to condemn said land, and the damages which will be occasioned to the defendant owner or owners thereof by the taking, use and occupation thereof by the petitioner, and the amount of just compensation therefor to each defendant, and of all other issues which may properly arise in said case, shall be proceeded with before said Court and jury in the same manner and under the same rules of law and practice, pertaining to the admissibility of evidence, the instructions of the Court, and all other matters arising under said proceedings, as in other civil cases, except as herein otherwise provided."
The plaintiff is no less the actor under the existing statute than under the statute in force at the time the above decision was rendered. The petitioner by this statute is called the plaintiff while the landowner is, by it, termed the defendant. To say the least, the burden is upon the petitioner to show his right and power to condemn, and the necessity for condemning, the lands sought to be condemned, before he is entitled to the relief sought by the petition.
This Court has said in other cases (Baltimore v. Hurlock,
If we apply this test to the case before us it will be shown that the plaintiff was entitled to open and close, for had no evidence been offered, either by the plaintiff or defendant, a judgment should have been rendered against the petitioner.
Third. The evidence excluded under the first exception was thereafter admitted and consequently there was no injury to the defendant because of its exclusion at such time; and we are likewise unable to discover any injury to the defendant by reason of the rejection of the testimony under the second exception even should such testimony be regarded as admissible. The third exception was to the overruling of the defendant's motion, asking that he be permitted to open and close the case. This exception we have already passed upon. The fourth exception was to the refusal of the Court to permit a witness to answer the question "what did you get for the part of the Nigh farm you sold," and the fifth exception was to the action of the Court in not permitting the witness to state the price at which certain lots forming a part of the Kenly farm had been sold. In the fourth exception the witness had merely stated that the Nigh farm was about the same distance from Hagerstown as the Kenly farm, and in the fifth exception he had simply said that several lots had been sold from said farm. There was nothing in either of these statements showing the date of such sales, the location of said lots or the similarity of the lands sold to the lands sought to be condemned, and we can not upon these vague statements of the witness say that the Court below erred in the exclusion of such testimony.
As we find no errors in the rulings of the Court upon the questions presented by the exceptions, we will affirm the judgment of the Court below.
Judgment affirmed, with costs to the appellee. *9