34 Md. 463 | Md. | 1871
delivered the opinion of the Court.
The Act of 1787, chap. 23, passed at the April session, appointed commissioners to examine, survey, lay out and mark a public road from Baltimore town towards Frederick town, sixty-six feet wide, and to canse the same to be cut dozen, and well cleared fifty-two feet wide, and grubbed and stoned forty feet wide, and to agree with the proprietors of lauds, through which the same may pass, on the amount of compensation to which they may be entitled for damages, occasioned by the passage of said road through their lands, or in case of inability to agree, then to cause the same to be ascertained by an inquisition; and provided for the erection of gates or turnpikes, and the collection of tolls.
The Act of 1801, eh. 77, recited in its preamble that the said road had been surveyed, laid out, marked and bounded according to the provisions of the Act of 1787, that the same was opened and supported at a very great and expensive charge to the county, and provided new means for managing the same and keeping it in better repair. Amongst other things, it provided by the 4th section, that the supervisor, under the direction of the Levy Court, should cause it to be cleared sixty-six feet wide, and twenty-one feet, at least, bedded with wood, stone, gravel, or any other hard substance. The road was to be made, by the Act of 1787, by straightening and widening the old road, and by making the new, and plats were to be returned to the clerk of Baltimore county, and to the commissioners of Baltimore town.
The Act of 1801, by its 5th section, contemplated that the old road, on the bed of which the location of the new road
By the Act of 1804, ch. 51, passed 12th of January, 1805, the President, Managers and Company of the Baltimore and Frederick Town Turnpike Road were incorporated, with power to make a turnpike road in, over and upon the bed of the road mentioned in, and provided for, by the Acts of 1787 and 1801. This company was empowered to change the location, when desirable, but that power was not exercised, so far as this case is concerned. Nor is it necessary in this case to refer to other provisions of the charter than the 17th section which provides that twenty feet at least shall be bedded with wood, stone, gravel or other hard substance well compacted together, “and so nearly level in its progress as that it shall in no place rise or fall more than will form an angle of four degrees with an horizontal line,” and which should be forever, during the continuance of said corporation, maintained and kept in good and perfect order and repair; and to the 19th section, which provides that the company may be authorized to collect tolls, when on having petfeeted the road for distances of ten miles, the Governor shall permit it by license under his hand and the seal of the State; and to the 39th section, which provides that the company shall proceed to carry on the work within two years from the passage of the Act, and complete the same to Frederick town in six years, to Middletown in two years thereafter, and to.
Then follows the Act of June, 1809, eh. 2, which enacts that the said turnpike road from Baltimore to Frederick town, and thence to Middletown, and thence to Boons-borough, as then located, turnpiked and licensed, he and the same is thereby confirmed; and the Act of 1811, ch. 202, reciting in its preamble that it is represented by the petition of the three corporations, created by the Act of 1804, ch. 51, that, since the passage of the Act of 1809, all said companies have completed the whole of said roads, and enacting that all of said roads, as located, turnpiked and licensed, be confirmed.
The questions touching this case arising on a review of these several Acts of Assembly are, what were the powers of the Baltimore and Frederick Town Turnpike Road Company in respect to grading the bed of its road, in part or in whole, prior to the Acts of 1809 and 1811, and how have these powers been affected, if at all, by those Acts? It is clear that whilst the company was obliged to grade twenty feet in width, it was authorized to grade the whole sixty-six feet, if it thought best. To what extent was it authorized to cut down and fill up the road bed, in the process of grading?
The Act of 1787 required the commissioners appointed thereby to cut down and well clear fifty-two feet of the sixty-six feet of width of the public road and common highway. The extent of cutting down is not specified. The duty was to cut down, as much as was practicable, until the best condition of road attainable was reached, as was useful and beneficial to the road, within limits of reasonable cost. In Tyson vs. The Commissioners of Baltimore County, 28 Md., 510, this Court said, “ the law casts upon the defendants not only the right, but the duty to protect the public roads from injury,
The commissioners under the Act of 1787, and the other authorities provided by the Act of 1801, had the right, wo think, and it was their duty, to cut down the bed of the road, from time to time, to any extent that was useful and beneficial to the road, and promoted the convenience of the public in using it, and this right and duty were transferred to the
The learned counsel of the appellant argued that the Act of 1809, operated as an agreement between the Legislature, the land owner and the company, that the then existing status of the road, in respect to grading, was to be its determinate condition, and that from thenceforth abutting property holders could not be interfered with by any new or changed grade. That thenceforth they were to hold their property exactly as the road then stood, so far as grading was concerned. We are unable to concur in this view. If this were true in respect to the angle of elevation or depression,
Whether the right of way under the Acts of 1787 and 1S01, or either, were acquired by purchase, condemnation, or dedication, the result is the same. It was acquired under the Act of 1787 or of 1801. The recital to the Act of 1801 indicates that it had been then acquired. The 1.1th section of the Act of 1804, shews that it had been before that time acquired. In either case, the purchase, grant or dedication was of the right of way sixty-six feet in width, for any and all the uses
.By the Act of 1860, eh. 34, the appellee was incorporated with power to construct a horse passenger railway, from the city of Baltimore to the village of Ellieott’s Mills, and by the 6th section was authorized, provided it could obtain the assent of the Baltimore and Frederick Town Turnpike Company, which consent the latter company was authorized to give, to construct the railway upon the bed of the turnpike road, with power to alter the grade thereof, subject only to such regulations and conditions- as might be prescribed by the turnpike company. On the 11th of March, 1861, a contract was entered into between the appellee and the turnpike company, by which, amongst other things, the former was empowered to construct its railway on the bed of the latter, in the centre thereof and with a flat rail, within the city limits, and thence on the southern line of the turnpike, or near thereto, unless where deemed necessary by the superintendent of the latter and the engineer of the former, to the proper construction thereof, it be changed to the northern side, with a T rail. The ordinary travel on the turnpike is not to he interfered with. The railway company is authorized to grade the turnpike bed, and when this is done the whole width of the latter is to be graded, and all costs, charges, expenses and damages connected in any way with the change, are to be borne by the railway company. The railway company did grade the bed
It remains to inquire whether the appellant has been injured, and can recover on the ground that the road bed, which was dedicated to the uses of a highway, has been applied to a new use or servitude, as contended by him. It must be borne in mind that the turnpike company had a right to use sixty-six feet, blit was compelled only to'use twenty feet, for the purpose of a highway, and that of any use which it might make of the sixty-six feet, so only that no part of it was diverted to other uses than of a highway, the appellant had no right to complain. It is not alleged that the turnpike company has appropriated any part of the twenty feet to any other purpose than that of a stoned passage way, according to its charter. Has it devoted any other part of the sixty-six feet to a purpose inconsistent with the objects of its own being, is the question ? It has granted to the appellee the right to use part of the sixty-six feet for a passenger railway, in consideration of tolls or rent to be paid. The use so granted does not, in the language of the Court in 14 Ohio, 528, “ exclude or seriously interfere with the original modes in which the highway was used; but simply adds another, in furtherance of the same general object.” The test applied by the Court in that case to the power of the Legislature in the management and control of easements acquired for public highways, is that they cannot be diverted to other purposes than those for which they were acquired, nor enlarged so as to to accumulate additional burdens upon the land, or destroy or impair the incidental rights of the owner, appurtenant to his land located upon the highway; the distinction being between those things which fairly belong to the grant, and those which are reserved to the owner, or by law attach as incidents to his property.
Intending to confine this opinion strictly to the case before us, and, therefore, not to declare whether this test would be
It has been hereinbefore said that the easement of the turnpike company, attached to the public highway by the Acts of 1787 and 1801, before the charter was granted to the turnpike company, included the right to dig down the hills and fill up the valleys to such extent as might be requisite to attain as near a level as might be, and by the charter granted to it, it was made incumbent on the turnpike company so to dig down and fill up as that its road should in no place rise or fall more than would form an angle of four degrees with an horizontal line. This being the burden to which the land was subjected by its original appropriation to the purposes of a public highway, and it having been subjected by the railway company, under its license or grant from the turnpike company, to so much only of that burden as wras the minimum which it was the duty of the latter company, by its charter, to impose on it, we are unable to see the burden on the land additional to the burden originally imposed by its dedication to the purpose of a highway, or in what manner its value to the owner has been impaired by the construction of the railway track, more than if it had been cut down, graded and covered with stone, or other hard substance, by the turnpike company, or how the passage over it of a car on iron rails, for the conveyance of passengers, could be more injurious to the land and the rights of the owner, than the passage of an omnibus over the stone bed.
It is true, that when the right of way was originally acquired, and when it was granted to the turnpike company, it
It was maintained by the appellant that the construction and use of the railway track is an occupation of the soil, permanent and exclusive, and consequently imposed on the laud a burden or servitude beyond the mere easement which had been created by the Acts of 1787 and 1801, and granted to the turnpike company by the Act of 1804, and by it assigned to the railway company, and 39 Barbour, 494, and similar cases were referred to. It is not necessary to analyze those cases. They may or may not be law under the facts and circumstances existing in them, and it will be time enough to attempt to reconcile the conflicting authorities, or to determine by which of them this Court will be bound, when the necessity shall arise. The franchise of this appellee to use the road bod of the turnpike company is vested only in, or
The proper construction of the contract between the two companies is, that if the railway company shall do any act outside or beyond the rights of the turnpike company which wore assigned to it, or for which the turnpike company might be liable in damages, it shall pay the damages for its wrong doing. That contract cannot, we think, be construed into a provision by the turnpike company, in behalf of abutting land owners, that the railway company shall pay them compensation for the exercise of rights which it derived from the turnpike company, and for which the contract provides payment to the latter. We cannot concur, therefore, in the position maintained by the learned counsel for the appellant that a right of the appellant to recover damages was created by the contract between the companies, or that it made any provision for the benefit of the appellant in this case.
The authorities cited by the appellant’s counsel go to establish the position that when the public has defined the extent of a use in a highway which it requires, then the rights of adjacent property holders attach to the condition so defined, and it cannot be changed without compensation, on the same principle upon which they were entitled when their property was originally taken for public use. Or, that a change of a defined and established public use is an appropriation to a new use, though it may be of the same nature with the old. This proposition can only apply however when the public has exhausted the right of user acquired by it, and not when it has, by one or more acts of user, only partially exercised its right, continuing vested with a remainder of the use, to be exercised when, in its judgment, occasion may arise. As in the eases referred to in 6 Wheaton and 20 Howard, a municipal corpo
Conceding to this position all the force that may be claimed for it, it does not, we think, apply in this case. Here the use defined by the Acts of 1787 and 1801, was that the road bed should be cut down, according to our construction, to as near a level as might be, and by the charter of the turnpike company, that it should be graded down to an angle of, at most, four degrees; and the fact that it had not been cut down to as near a level as might be, and that it had not been graded by the turnpike company so nearly level, as that it did rise and fall more than formed an angle of four degrees with an horizontal line, cannot be construed into an abandonment of the powers defined by the Acts of Assembly and by the charter, to do it at any time.
We trust that nothing can bo found in this opinion which may tend to hinder an efficient discharge of the duty of this Court, in whatever cases may arise, involving the protection of private rights against that class of encroachments which were alluded to in the closing argument of the appellant’s counsel with force and eloquence.
Judgment affirmed,.