| Md. | Mar 15, 1913
delivered the opinion of the Court.
This is an appeal from a judgment of the Circuit Court for Prince George’s County that the property described in the proceedings in this case and the interest and estate of all the parties to said cause be condemned. The petition was filed by the appellee against the Mayor and Common Council of Hyattsville and others, under the Act of 1912, Chapter 117, and none of the defendants answered excepting the appellant. A number of objections to the condemnation were made, which will be considered in the order presented in the appellant’s brief :
First. It is alleged that the petition is bad in substance ■and insufficient in law to form the basis of a judgment of ■condemnation. We do not deem it necessary to discuss this ■objection at length, as section 2 of Article 33a of the Code, as enacted by the Act of 1912, provides what shall be set forth in the petition, and there can be no doubt that this one sufficiently complies with those requirements.
Second. The next objection is that the appellee is not a duly, legally and validly incorporated company under the laws of this State, and is not, therefore, entitled to exercise the right of eminent domain. This objection is the most important one before us, and we must admit that it has not been entirely free from difficulty. The appellee was incorporated under the General Eail Eoad Law of the State in 1897. As the Code of 1888 was the one then in use we will refer to the numbers of the sections of Article 23 therein given, and will for convenience insert in brackets the numbers of the corresponding sections in the Code of 1912. Arti
In December, 1910, section 2 of that charter was amended so as to include Prince George’s county, it being in other respects the same as that section in the original certificate. It will be observed that the termini given in the certificate are “Washington, D.'C., and Gettysburg, Pa.” It is contended on the part of the appellee that the statute does not provide that the termini shall be in this State and hence it is not so required, but there can be no doubt that the Legislature did not attempt to authorize the construction of railroads between points outside of the State, for in the first place it had no power to do so, and as it was passing a General Eailroad Law for Maryland, when it required the certificate to specify what it stated in the second clause, it must have meant the places of the termini in Maryland, just as it did the county or counties, city or cities in Maryland. ' -
Section 161 (263) strongly indicates that the Legislature intended that the termini in this State should be in some way fixed in the certificate. That section confers powers which are essential to a railroad company and it says: “Such cor
The learned judge below was in error when he said in his opinion t-hat one of the termini mentioned in the charter of the railroad involved in the Speelman case was in West Virginia. As shown on page 27l of 67 Md. one of them was at a point in Allegany county, Maryland, opposite a place in West Virginia, and the other was at Cumberland, as construed by the Court. The principal questions in that case were: (1st), whether a railroad chartered under the General Laws of the State could between its termini cross into another State and then re-cross into Maryland; and
That opinion stated in so many words that “the law of this State requires the termini to be fixed in this State, with reasonable certainty,” and that was repeated in Union R. Co. v. Canton R. Co. It can not therefore be correctly said that this Court has never said that the termini should be fixed in this State. It is true that the termini named in the charter in the Speelman case were both in this State, but the validity of the charter was assailed and the expression was used in connection with the discussion as to whether a railroad so situated could cross into another State and then re-cross into this State. The statement as to the termini was probably made to avoid any misunderstanding, owing to what had been said as to the right to go out of the State, but however that may be it indicates what the views of this Court at that time were, and as late as 1907 it was quoted without qualification. It therefore seems clear to us that under a
The next question then is whether we can treat the dividing line between the District of Columbia and-Maryland and that between Pennsylvania and Maryland as the real termini in this State and whether those points are sufficiently definite to be a compliance with the statute. Inasmuch as it is settled by the two cases above cited that it is not necessary to name a city, town or village as a terminus, if the points at which this road was to cross the State lines are fixed with sufficient certainty that would be a substantial compliance with the statute, notwithstanding what we have said above. As it was said in the Speelman case that “The law of this State requires the termini to be fixed in this State with reasonable certainty,” and inasmuch as we have said that the Statute requires the termini to be in this State, if the route of the railroad is fixed with sufficient certainty at the State lines, the mere fact that there are references to points outside of the State, but close to it, would not necessarily make" the description invalid. If the lines of Washington are coextensive with those of the District, that would be sufficiently for the southerly terminus, for if, for example, one terminus of a railroad was Baltimore City, it would not be necessary to name the particular street or part of the city to or from which it ran. Whether or not those lines are co-extensive is not shown in the record, and as the attorneys for the respective parties differed at the argument as to that, we are not at liberty to determine that question under this record.
But if we assume that the lines of the City of Washington are not co-extensive with those of the District, and that the limits of Washington are still what they were before the changes were made in the government of the District, apparently, and so far as we can tell from the map, a line from Washington to Gettysburg, passing through the counties named in the charter and going by Westminster, would cross the District line into Prince George’s county and there would
Again it was said on pages 17-18: “In requiring that the termini shall be specified in its act of incorporation, it would seem that the only reasonable intent to be imputed to the law is that the railroad shall have such termini definitely ascertained and fixed so as to indicate its general direction and location. This would be sufficient in a special charter conferred directly by the Act of the Legislature. Wky should
It was said in Speelmarís case that: “The general railroad ■ law of the State is a remedial statute, and is therefore to be construed liberally. Good faith and reasonable certainty are all that is required. In passing that law, the Legislature distinctly recognized the benefit of railroads to the community and did away with the old cumbersome and expensive mode of obtaining by legislative action the right to build them. It was the manifest object of that law to enlarge and not to restrict the construction of railroads. The general railroad law (Act of 1816, Chapter 212) stands in the place of and is a substitute for the old special charter, and if the route laid down in the certificate of the Piedmont & Cumberland road would have been sufficiently certain in a special charter, we apprehend that it will be sufficient in this charter.”
Those opinions undoubtedly contain very broad statements, but one of them was delivered over twenty-five years ago and no change has been made in the statute. There is one fact worthy of consideration, and that is that if this charter be declared invalid by reason of the alleged defect spoken of, the parties in interest could at once take out a new charter,
A number of special charters have been granted in this 'State in which one or both of the termini were more uncertain and indefinite than those in this charter, if we treat the termini in this State as the points where the route crosses the 'State lines from Washington and Gettysburg. The B. & O. R. R. Co.’s charter authorized the construction of the road ■from the City of Baltimore to some suitable point on the ■Ohio Eiver, to be by the president and directors determined. The AVashington branch of that road was authorized to be ■constructed from such point or place on the line already built, not exceeding eight miles from the City of Baltimore, •as the said company might deem most convenient, to the line •of the State adjoining the District of Columbia, in a direction towards the City of Washington, and others might be mentioned. AVhile it is true they were special charters, in view of what has been said in Bpeelmarís case and that of the Canton R. Co. in reference to such charters, it would be •going very far to hold that this company although chartered ■under the general law would not have sufficiently described its termini, if it had named as one the point on thé District line at or about a point where a road from AVashington to
Third. Objection is also made because Hyattsville is not mentioned in the charter as one of the cities through or near which the road was to run. The law can scarcely mean that every incorporated town or village through or by which the road is eventually laid out must be described in the charter. It is next to impossible in most cases for the incorporators of a railroad to know in advance the precise route the road will ultimately take. It can sometimes only be definitely ascertained after a number of expensive surveys are made, and until the corporation comes into existence there would be no way of providing for such expenses unless the incorporators themselves furnish the means. It certainly would not invalidate a charter by leaving one of them out, for it could not be assumed that a road would necessarily pass
Fourth. The objection that the charter says: “The capital stock of said company shall be one hundred thousand dollars,” instead of stating it as the amount necessary to construct the road, does not seem to us to be a substantial one. It is impossible in many instances to know in advance what the construction of a railroad will actually cost, as that depends upon so many conditions which are necessarily undetermined when the charter is taken out — especially if a departure from the contemplated route becomes necessary— but when the charter stated the amount of capital stock of the company, presumably it meant the amount necessary as-far as that could be determined.
Fifth. As the Public Service Commission seems to have given its consent to the construction of the part of the road which affects the appellant we can not see how it can object on the ground that its consent only covers part of the road. The provision referred to in the order of June 20th, 1912, does not attempt to affect the construction, but it says “that before such construction is begun over, upon or under any public road or street a' copy of the order or ordinance by which the use of such road or street is granted shall be filed in these proceedings.”
Sixth. It is contended that the appellee can not condemn a right of way over the highway known as Columbia avenue. If the appellant’s point be correct, then any municipality
Seventh. The fact that appellant is vested with power of ■supervision and control over its highways can make no difference. The same may be said of other public authorities having control over highways. Hor is there any force in the suggestion that the charter of Hyat-tsville is a public local law, as such is the case with every municipal corporation within the State. If it has any right in Columbia avenue, as it contends it has and probably has, just why such right can not be condemned if an agreement can not be made, is not satisfactorily shown. Of course when a railroad company crosses a highway, the crossing is subject to the existing public right to use it, and the right to cross must be exercised so as not to unnecessarily interfere with the right -of the public to use it. Care should be taken in the construction of the crossing and for the protection of the public.
The order of the Court “that said property described' in the proceedings in this case and the interest and estate of all the parties to said cause therein be condemned,” should be limited to the purposes of a crossing and subject to the rights of the public. Section 5 of Article 33a says: “The title acquired in any condemnation proceeding under this
In our judgment, then, the general railroad law of this State requires the termini to be fixed in this State, and naming two cities out of the State as the termini would not ordinarily be sufficient to show a compliance with the statute in that respect. But we are also of the opinion, as indicated and explained above, that if it be shown by evidence that a road running from Washington, D. C., to Gettysburg, Pa., through the counties and at or near the towns mentioned in this charter, will cross the State lines within such distance that the points of crossing can be said to be fixed with reasonable certainty, in the light of the decisions above referred to and of what we have said, such points can be treated as the termini in this State, and hence, if such be the case, the description of the termini in this charter must be treated as a substantial compliance with the requirement of the statute. And if it be shown that the lines of Washington and of the District of Columbia are eo-extensive that is sufficient for the southerly terminus. The record shows that the judgment of condemnation was entered on the petition and exhibits and the answer and exhibits, without other evidence. As we think they were insufficient of themselves we will reverse the judgment and remand the case for further proceedings, in reference to this and other matters indicated in this opinion or properly arising at the rehearing.
Judgment reversed, and case remanded, the costs in this Court to be paid by the appellee.