88 Md. 533 | Md. | 1898
delivered the opinion of the Court.
The appellant is the owner in fee of a tract of real estate in the “ annexed district ” of Baltimore City, abutting upon a street or way known as Union avenue. The lines of the tract extend to the center of the street. It is charged in the bill that the street is a private way, but after the proof was in the appellant, with commendable candor, conceded that the street must be regarded as having been dedicated to, and accepted by, the public as a public highway. The appellee is a corporation, created under the general incorporation laws of the State, and the Acts of 1896, chap. 360, for the purpose of constructing and operating a single or double track railway, with electricity as the motive power, upon such streets or public highways in the city of Baltimore as shall be approved by the mayor and city council of Baltimore City, and in the county as shall be assented to by the County Commissioners. Its main stem is laid along the Falls turnpike in Baltimore City to Mount Washington in Baltimore County. By ordinances of the mayor and city council, the company is authorized to extend its system from a point at the intersection of Falls turnpike and Union avenue along the latter street and other streets to Park Heights avenue; and in pursuance thereof is now preparing to construct its tracks, poles and wires along the bed of Union avenue to the end thereof and beyond. The appellant charges in his bill that if it is so permitted to lay its tracks there will be no sufficient room on Union avenue on either side of the tracks for vehicles to pass or to stand along the kerb line of the adjoining property, and that the conse
The principles controlling the rights of an abutting owner have received a careful consideration by this
But the appellant has vigorously contended that the structure contemplated will subject the street to a new use, not included in any of the rights conferred by the dedication. Upon this theory of the case, however, the question will be not whether there are or will be incidental or consequential damages growing out of the construction of the road, but whether there will be such a subjection or appropriation of the reversionary interest of the appellant in the bed of the street as will amount to a constitutional “ taking.”
By the dedication of property to the uses of a street, the public acquires an easement of passing and repassing with all such incidents as properly belong thereto, but all other rights in the soil remain in the owner. Any use not incident to such right of passage is a new use — ■ an additional servitude to which the street cannot be subjected without first making proper compensation to the owner of the bed of the street. Chesapeake & Pot. Tel. Co. v. Mackenzie, 74 Md. 48. The laying of rails on a street and the running of cars thereon for the accommodation of persons desiring to use the street, is not a new use, because it is only a new mode of using the street for the purposes for which it was originally taken. Peddicord v. Railway Co., 34 Md. 343. The test therefore of what is a new use would seem to be found not necessarily in the nature of the structure nor in the number of the tracks but in the use itself; whether it is promotive of the objects and purposes for which the easement in the public was acquired. The municipal authorities of the city of Baltimore have had committed to them the power to regulate the use of the streets, and that power is a trust of which they cannot divest themselves. The primary use of the streets is not by any means that of
In Carli v. Stillwater Street R. Co., 28 Minn. 375, the company constructed its track upon an alley under the authority of an ordinance of the city. It connected two lines of railroad, and was maintained and operated by horses for the transfer of freight cars from one railroad to the other. It did not receive or deliver freight at any point on the alley nor did it cany passengers. The Court held that to be a new use, and said that it was evident from the facts that the road was “ not located on the street because its business is to be derived from the street . . . — the public travel, on the alley derives no aid or advantage from its location there, but is and must be-more or less impeded thereby. The construction of the track on the street cannot, therefore, be said t.o be in' aid of the public travel for which streets are created any more than it would be if it was part of a continuous line of railroad running through the city.” So in Briggs v. Horse R. R. Co., 79 Maine 367, it was said, “ if the railroad company exclusively occupy the land, shut off the street from it, deprive it of its character of bearing the easement of a street, use it not for street traffic, but for what is known as railroad traffic, the company may perhaps be said to make a new and different use of the land.” In holding there was not a new use under the facts of that case, the Court also said: “ The defendant is using the land as a street. Its railroad is a street railroad. Its cars are used by those who wish to pass from place to place on the street. A change in the motor is not a change in the use.” In our case of Hodges v. P. P. R. Co., 58 Md. 619, this Court said that the right to use the streets for a horse railway
Here the appellee having obtained full legislative authority, proposes to lay two tracks in the bed of Union avenue with poles and wires to supply the electricity. Union avenue is forty feet wide, and in places there will not be room enough for vehicles to pass or stand in the space between the tracks and the line of the street. But the street will not thereby be destroyed or seriously impaired for the ordinary uses of the public. Carriages, wagons and other vehicles can always pass unless the railway company blocks the street by permitting two of its cars, on different tracks, to remain stationary and side by side, and this it has no right to do for an unreasonable length of time. The proof shows that the weight of opinion among the property holders along the street is that the advantages of better and quicker transit outweigh any inconvenience that may result from the construction and operation of the road, and that the presence of the road with its two tracks will cause an increase in the value of the abutting property. It is difficult under these circumstances to understand how the construction of the two tracks with necessary poles and wires, and the running upon them cars propelled by electricity, can be regarded as burdening the street with a new servitude. The rights of persons pass
As to the other point raised by the appellant, it is sufficient to say that this Court has more than once held that the construction of the railroad being authorized by competent authority cannot be treated as a public nuisance. O’Brien v. B. B. R. Co., supra; Garrett’s case v. L. R. E. R. Co., supra.
If the appellant has received or shall receive injuries incident to the construction and operation of the road, the provisions of sec. 169 of Article 23 of the Code provide a remedy. The appellee corporation was created under the general provisions of the Code. By the Act of 1896, ch. 360, its name was changed and new powers given it. It is subject to the provisions of the general incorporation law of the State and liable under the 169th section for all injuries done to private persons by reason of the location of its road.
For the reasons assigned the decree must be affirmed.
Decree affirmed.