75 Md. 247 | Md. | 1892
delivered the opinion of the Court.
The facts of this case and the allegations of the bill are the same as those in the case just decided, of the-North Baltimore Passenger Railway Company against the North Avenue Railway Company, with the addition in this case of allegations in respect to what is claimed by the plaintiff as a right to lay down and use tracks on what is known as North avenue bridge over Jones’ Falls, to the exclusion of the North Avenue Railway Company. The city is about to tear down the old bridge and to reconstruct it with new material, and in an improved manner; and as this work may be in course of construction for a considerable time, the Mayor and City Council have provided by ordinance, passed in 1891, for the erection of a temporary bridge over the Falls to accommodate the public until the new bridge is completed. In fact the temporary bridge has already been constructed. The bridge that is about to be torn down for reconstruction is that referred to in the ordinance of the 8th of April, 1891, and over which the plaintiff company had laid its tracks.
This assertion and claim of the plaintiff of exclusive right of track-way over the bridge, both permanent and temporary, on North avenue, both the defendant company and the Mayor and City Council, by their answers, utterly deny, and insist that it is and will be within the power of the Mayor and City Council to allow any other company to place its own separate tracks on either the old bridge, over which the plaintiff company now has its tracks, or the temporary bridge, or the new bridge when completed.
The Court below refused the injunction, and this Court is of opinion that it was entirely correct in so doing.
That provision in the third section of the ordinance of the 8th of April, 1891, which declares that nothing therein shall be construed to grant any right or privilege to the defendant company to lay any additional tracks on North avenue bridge, was clearly not intended to secure to the plaintiff a monopoly of the right of way over the bridge; but was intended simply to avoid incumbering the bridge with unnecessary railroad tracks.
It is quite clear that the city has a perfect right to tear down and reconstruct the bridge to meet public exigencies, and the plaintiff company has no right to interpose an objection; nor is the city under any legal obligation to provide a temporary bridge for the use or accommodation of the plaintiff, while the old bridge is being reconstructed. Kirby & Loane vs. Railway Co., 48 Md., 168. On any temporary bridge that has been or may be constructed by the city, the latter would have not only the right to license the plaintiff company, but any other street railroad company to use such bridge, and neither could claim to have a monopoly of the right of way.
It is said, however, that by the ordinance of the Mayor and City Council providing for the erection of the temporary bridge, it is declared to be lawful for any passensenger railway company authorized to lay or maintain its tracks upon the present bridge, to lay and maintain its temporary tracks upon said temporary bridge for the purpose of making connection with the tracks of such railway company east and west of said bridge; and that as the defendant company is inhibited from laying additional tracks on the present bridge, it follows that it cannot lay tracks on the temporary bridge. But that is not the necessary legal consequence that must follow from the provision of the ordinance for the temporary bridge. Because that license was given to the plaintiff company by the ordinance, it does not follow that a similar license should not be given to the defendant company, to place tracks upon the temporary bridge. Indeed, it appears from the averments in the answers of both the defendant company and the Mayor and City Council, that such license has been given the defendant company, and that the license has been in fact executed, by the placing of a good substantial pair of railroad
It is clear we think that there is no equity or right for an injunction in this case, and the order appealed from must be affirmed, with costs, and the bill be dismissed.
Order affirmed, and bill dismissed.