88 Md. 447 | Md. | 1898
delivered the opinion of the Court.
This suit was instituted by the receivers of the. Baltimore and Ohio Railroad Company to recover from the mayor and city council of Baltimore the expenses which plaintiffs incurred in consequence of the construction of a sewer by the city under a portion of the railroad company’s tracks. There is no dispute about the facts. From eighteen hundred and sixty-one until the present time the company has held by a prescriptive right, if by no other title, the actual possession of a lot of ground about sixty-six by sixty-six feet in size. Whether this adverse possession gave the company a fee simple estate in the lot, or merely an easement — a right of way over it — is for the purposes of this case immaterial. The lot is situated in the bed of what is now Scott street within the city limits. Upon the lot four tracks of the railway are located at right angles to the line of the street. These tracks have been thus located and have been continuously used by the company, certainly since eighteen hundred and sixty-one, and probably for a much longer period. By ordinance No. 9 of 1884-5, the mayor and city council provided for the opening of Scott street. The street crosses the tracks at grade. The usual proceedings were had. The return and plat made by the commissioners for opening streets show that the lot above alluded to and described in the street-opening proceedings as Lot B, was dealt with as follows: “To the Consolidated Gas Light Company of Baltimore, or
Some sixty or seventy feet west of Scott street the railroad tracks cross Chatsworth run on an iron bridge. This run was originally an open stream, but later on parts of its bed in another section of the city had been converted into a city sewer. Kranz v. M. & C. C. of Balto., 64 Md. 491. After the sewer along Scott street' was finished, the water in that part of Chatsworth run, which was still an open stream and which was near the
When the evidence on both sides was closed the defendant asked ten instructions, all of which were refused; and in lieu of those requested by the plaintiffs the learned trial Judge gave one prepared by himself. From these rulings the single bill of exceptions found in the record was taken. The verdict and judgment were against the city and it has appealed.
The ascertainment of the respective rights of the city and the company in these intersecting ways — the street and the railroad bed — and a clear perception of the correlative and consequent duties incumbent on each of the parties, will solve the fundamental inquiry in this controversy; and the solution of that inquiry will indicate with but little further discussion the proper disposition to be made of the other questions raised by the rejected prayers.
It appears without dispute or contention that for at least thirty-seven years the railroad company has been in the open, continuous, undisturbed and unchallenged possession of a right of way for the tracks of its main line over this lot, with little or no variation in their alignment, claiming ownership, occupying and using the land for the movement and passage of its numerous trains. That this long, notorious and adverse user ripened into a vested right many years before the ordinance to open Scott street was passed, cannot be and has not been denied. This was a property right, perfect and complete, owned and actually possessed by the railroad company prior to the time that the city took the first step under the ordinance just alluded to. Nothing that was done in virtue of that ordinance, or in the execution of its provisions, abridged or extinguished or impaired that property right in the most remote degree. As a consequence when the city came to construct its sewer under that right of way, it was bound to construct
It must be borne in mind that the compensation claimed by the railroad company is claimed for the damages it sustained in consequence of the construction by the city of the sewer under the tracks — in consequence, therefore, of an actual invasion of the company’s right of way and not for mere consequential damages. The sewer is a part of the street, and that portion of it beneath the tracks being necessary for the use of all the rest of it, was a structure which the city was required to build in crossing- the company’s right of way. The building of the sewer being, then, a part of the construction of the street, and the right to cross the railroad tracks — the old right of way with the street — the new way- — being a right explicitly subject to the existence and the continuous use of the prior easement that had not been condemned, the duty to construct the crossing was incumbent on the city; and if in the discharge of that duty it caused the railroad company injury in the way already pointed out and to the extent sued for, it is bound to make compensation. This conclusion is
But it was vigorously contended in the argument that the decision in the case just referred to had no relation to this case; and it was insisted that the city was not liable at all, because what it did in the construction of the sewer and in the opening of Scott street was done in the exercise of its governmental functions. And the doctrine was invoked that a municipal corporation is not liable in an action for consequential damages to private property or persons (unless made so by statute) when the act complained of was done by its officers under and pursuant to authority conferred by a valid Act of the Legislature, and there has been no want of reasonable care or skill in the execution of the power. In support of this there were cited the well-known cases in which it has been held that an abutting proprietor cannot recover from the municipality the consequential damages he has' sustained by a change in the grade of a public highway; and it was argued that it was impossible to distinguish between an injury that leaves a house so high up or so low down by a change in. the grade of a street as to make it inaccessible, and an injury whereby a right of way is temporarily disturbed, so far as the consequential nature of the damages is concerned. But it is precisely because there is a distinction bétween the class of cases just alluded to and the group to which the one at bar belongs that the former are inapplicable to the decision of the latter. The distinction is this: In cases like the pending one, where an existing- way is crossed by a new way and the prior way cannot be crossed without the infliction of injury, the damages must be paid by those who construct the new road. In cases of the other class there is no occupation by the municipality of the individual’s property or easement. There is just, then, the distinction that exists between the occupancy and the non-occupancy of another’s property. If the municipality occupies in opening and main-training its street the private property — the right of way
It was claimed, and some of the prayers were framed upon the theory, that inasmuch as Chatsworth run in another portion of the city had for half a century been a city sewer which the mayor and city council were bound to keep in repair (64 Md. 491), and inasmuch as a part of that run, uninclosed, passed under the tracks of the railroad some sixty feet west of Scott street, and because the run had been used as a sewer prior to the location of the railroad; the city when it built the sewer under Scott street, sixty feet east of the old open run and then diverted the water from the open run into the new sewer, was not liable for the damages sued for. This proposition assumes that the diversion of the water from the natural sewer into the artificial sewer made the latter the same identical sewer that the former had been though separated from it by a distance of sixty feet, and that consequently the damages sued for were sustained, not by the construction of a new sewer across the right of wray, but by the repair of an old sewer which existed prior to the acquisition by the company of its right of way. The location of Chatsworth run was not changed by diverting the water from it into a ^totally different sewer — and that diversion could not convert a recently-constructed sewer into one having an existence prior to the inception of the company’s prescriptive right.
The prayers which denied a recovery on the ground that the city could not be held responsible for a change in the grade of its streets were properly refused, because the damages sued for are not damages caused by a change in the grade of a street, but caused by a change in the grade of the railroad and rendered necessary by the method in which the city constructed its street over and upon the company’s right of way.
If the company had had no easement — no property right in the lot in question — but possessed a mere license to lay its tracks across or along a public street, then the tenth prayer would have been right. Occupying a street already opened and graded, its occupancy would have been subject to the paramount right of the city to alter and change the grade and the company would have been bound to know that its use of the bed of the street for railway purposes would be liable at any time to be interfered with whenever the city authorities deemed it necessary for the public welfare. Kirby & Loane v. Citizens Ry. Co., 48 Md. 168. The effort to distinguish this case from N. C. R. Co. v. M. & C. C., supra, because in this the crossing is at grade whilst in that it was above grade is fully met by Chica. Mil. & St. P. Ry. v. Milwaukee, supra, and Cent. R. Co. v. Bayonne, supra.
The instruction given to the jury by the learned and able Judge of the Superior Court fully covered the whole law of the case, and as we find that he committed no error in the rulings complained of, the judgment will be affirmed.
Judgment affirmed zvith costs in this Court and in the Court below.