Anne Arundel County v. Baltimore & Annapolis Railroad

Wilner, J., delivered the opinion of the Court. As one might reasonably surmise from its corporate name, the Baltimore and Annapolis Railroad Company (B & A) once ran a railroad between Baltimore and Annapolis. It has not done so, however, since 1969 — not regularly, not at all. For at least four years, Anne Arundel County (the county), wherein most of the track is located, has been vainly seeking an authoritative determination from someone that the line has been abandoned in order that some more constructive use might be made of the right-of-way. 1 It has done, it thinks, all that it could do before the Interstate Commerce Commission (I.C.C.), and thus turned to the State courts for more complete relief.

Believing that the matter still rested within the exclusive jurisdiction of the I.C.C., however, the Circuit Court for Anne Arundel County, by granting a motion raising preliminary jurisdiction under Maryland Rule 323 (a) (10), declined to entertain the county’s Petition for Declaratory Judgment. The county has appealed. (1) The County’s Position The county’s claim rests upon a reverter clause in the deed ³⁵² by which the B & A’s predecessor in title received part of its right-of-way. 2 There were actually two deeds — one in 1888 and one in 1905 — but the latter, for all practical purposes, is the critical one. In that deed, the Curtis Creek Mining, Furnace and Manufacturing Company (Curtis Creek), a Maryland Corporation, granted the right-of-way in question to B & A’s predecessor subject to the following proviso: "that if the land hereby conveyed shall ever be used for any other than legitimate railroad purposes or in case the said Railroad Company, its successors or assigns, shall at any time cease active operation as a freight and passenger carrying railroad for the space of one year, then the land hereby conveyed shall revert to the said party of the first part [i.e., Curtis Creek], its successors or assigns. . ..” The county’s interest in this condition emanates from a quitclaim deed dated August 7, 1978, in which Francis C. Harwood, representing himself to be the sole surviving director of Curtis Creek, conveyed to the county "whatever right, title and interest grantor may have” in the 66-foot wide right-of-way in question.

The county thus claims the right to "enforce” the reverter clause, and, by it, to assert the extinguishment of the right-of-way granted in that deed, its own title to the fee simple estate, and its right of exclusive possession of the land and "whatever railroad paraphernalia may remain” upon it. The county’s petition alleged, in relevant part, that (1) the 1888 and 1905 deeds conveyed "easements for railroad purposes only and become extinguished when railroad operations cease for the period of one (1) year over the property of the grantor,” (2) after Hurricane Agnes in 1972, "all use of the aforesaid easement for railroad purposes ceased and has not been since resumed,” and (3) B & A had challenged the existence and validity of the county’s ³⁵³ asserted interest in the property. Upon this basis (supplemented by other averments), the county asked the court to declare that "use of the right of way” in question "has been terminated and abandoned,” that the county, as successor in title to Curtis Creek, "now holds said fee under the right of way and is entitled to its exclusive possession” subject to certain rights of the Baltimore Gas and Electric Company, 3 and that the county "is entitled to possession of whatever railroad paraphernalia may remain in the said easement. ...” In dismissing this petition, the court concluded that to do otherwise would require it to decide whether the right-of-way had been "abandoned by the railroad,” which would "infringfe] upon the jurisdiction of both the [I.C.C.].. . and the Federal District Court.” The court did allow the county, however, to file an amended action "raising the issue of whether the right of way has reverted to [the county],.. .” The county, to date, has declined that invitation. (2) The Issue The issue before us is clearly a jurisdictional one: did the circuit court have "subject matter” jurisdiction to entertain the county’s petition and to declare what, if any, rights it has in the property.

In this regard, there is no doubt as to the court’s statutory jurisdiction to make a declaration of the county’s rights or status under a deed. See Md. Ann. Code, Courts article, §§ 3-403, 3-406, 3-409. The question is whether that jurisdiction may be exercised in this case — whether it has been superseded, and thus suspended, by a conflicting and superior jurisdiction of the I.C.C. Unfortunately, this question is not a simple one; it is made complex in part because of the intricate procedural background of this dispute, in part because the relevant Federal law has been twice amended during the course of the ³⁵⁴ various proceedings, and in part because the full scope of the Federal preemption with respect to the title questions raised in this case is not altogether clear. (3) Procedural Background The procedural antecedents of this case began in or before January, 1973, with an application to the I.C.C. by one of B & A’s customers (Alco-Gravure, Inc.) for an order requiring the railroad to restore service on the six-mile segment of its line running from Baltimore City to Glen Burnie.

Service on that portion of the line had apparently ceased in 1972 as the result of flooding and other damage wrought by Hurricane Agnes. B & A responded, in part, with its own application of January 11, 1973, for authority to abandon operations over its entire 21.4-mile line, including, we presume, the right-of-way at issue in this case. In the course of the ensuing administrative proceedings on these two applications, which were consolidated by the I.C.C., a question arose as to whether B & A had, in fact, already abandoned operations on the line (or at least the six-mile segment of it) without I.C.C. approval, in violation of then 49 U.S.C. § 1 (18). 4 The question was serious enough to cause the I.C.C. to commence an action against B & A in the U. S. District Court alleging that an illegal abandonment had occurred and seeking injunctive relief. See former 49 U.S.C. § 1 (20). 5 On April 29, 1975, while B & A’s application for permission to abandon was still pending before the I.C.C., the U. S. District Court concluded that there had indeed been an unlawful abandonment within the meaning of § 1(18) of title 49.

See I.C.C. v. Baltimore and Annapolis ³⁵⁵ Railroad Company, 398 F. Supp. 454 (D. Md. 1975). The Court specifically found not only a cessation of operations on the six-mile segment commencing from 1972 but also an intention on the railroad’s part to cease service "permanently or indefinitely.” See 398 F. Supp. at 462 . Upon these findings, on May 12, 1975, the Court enjoined B & A from further violation of § 1 (18) "in regard to the abandonment of the operations of a line of railroad” — i.e., the six-mile segment — until it "has received a certificate of public convenience and necessity from the Interstate Commerce Commission authorizing such abandonment....” 398 F. Supp. at 470 . These findings, and the order emanating from them, were affirmed on appeal.

See Interstate Commerce Commission v. Baltimore and Annapolis Railroad Company, 537 F.2d 77 (4th Cir.), cert. den. 429 U.S. 859 (1976). Following the Order of the District Court, B & A, on June 9, 1975, petitioned the I.C.C. to expedite proceedings on its abandonment application, contending that it would be wasteful to require it to expend vast sums to restore service over a six-mile segment of the line "when there is ripe for decision by this Commission the question of whether the present or future public convenience and necessity permit abandonment of operations over that line____” On May 26, 1976, the Commission issued an order concluding that B & A had provided no service south of Glen Burnie (i.e., covering the right-of-way in question here) since 1969. It stated, however: "Because no application for authority to abandon the entire right-of-way and no agreement to amend the instant application to cover a line abandonment has been reached, we cannot at this time approve an abandonment of the B&A right-of-way south of Glen Burnie. If at some time in the future such an application is filed we will incorporate the record herein, including the environmental impact statement, into that proceeding.

Our present analysis of the limited record herein, without the ³⁵⁶ advantage of B&A’s evidence on a line abandonment, indicates that an abandonment of the entire right-of-way between Glen Burnie and Annapolis has been justified.” (Emphasis supplied.) On October 1, 1976, the county, joined by the City of Annapolis, applied to the Commission for a certificate of convenience and necessity permitting that which the May 26 order declined to determine: abandonment of the 15.4-mile right-of-way between Glen Burnie and Annapolis. This was a quite different type of application from that which the B & A had filed; and it raised, for the first time, the real economic issue at stake here. The Interstate Commerce Act draws a rather clear distinction between the abandonment of service on a line and abandonment of the line itself. This was manifest in former § 1(18), and is equally clear from amendments enacted by Congress in 1976 and 1978. 6 The railroad was seeking only to discontinue operations over the line, not the right-of-way itself.

It desired to keep the valuable right-of-way, but to be excused from the obligation of running trains over it. The county, on the other hand, recognizing that there will be no service, wants the right-of-way. This, as we have said, is the heart and soul of this case. B & A, quite naturally, opposed the county’s application while pressing its own.

The county’s application was docketed as part of the pending proceedings (Docket AB-71), and thus was treated ³⁵⁷ under § 1(18) notwithstanding the enactment of § la in the interim. This was in accordance with a form of "grandfather” clause enacted as part of the 1976 law. 7 After considering the record in the consolidated proceeding and such additional evidence submitted by the parties, the Commission, by Report dated June 20, 1977, determined: "The evidence of record is that no operations have been conducted over this line of railroad since 1969. Further, the Commission has found that the present and future public convenience and necessity permitted abandonment of operations by B&A over its line of railroad between Glen Burnie and Annapolis, Maryland. Id, at 43, and protestant has presented no evidenc [sic] as to wny [sic] abandonment of the line should not be permitted.

We conclude, the[n], that the evidenc [sic] of record is sufficient to show the abandonment of said line of railroad to be permitted by the present and future public convenience and necessity.” (Emphasis supplied.) Under former 49 U.S.C. § 1 (20), the Commission was authorized to "attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require.” 8 In that regard, the county, desiring to use the "abandoned” right-of-way as a recreational corridor for hiking, bicycling, and horseback riding, asked the Commission, as a condition of the certificate, to require B & A to negotiate exclusively with it with respect to the disposition of the right-of-way. This, the Commission declined to do, noting prophetically: "In weighing whether or not to impose the requested ³⁵⁸ conditions, the practical aspects of such conditions must be considered. Conditions that are imposed on the certifícate of abandonment must be complied with in order for the carrier to abandon the line of railroad. However, the authority granted in a certifícate is merely permissive, not mandatory.

Thus, if a carrier, in whose name a certifícate is issued, does not wish to comply with the condition, it simply will not effect the abandonment. Hence, were we to impose conditions on the certificate sought by applicants which B&A found distasteful, that carrier could refuse to abandon the line, frustrating the imposition of conditions on the certificate. Although the conditions sought by applicants are for a valid public purpose, it is in the Commission’s discretion to impose such conditions. We do not see how issuing a certificate of public convenience and necessity containing the conditions requested by applicants would achieve their purpose, since B&A opposition thereto raises the strong probability that it would simply fail to take any action under the permissive certificate.

Therefore, we believe imposition of conditions on the certificate in this unusual factual situation would frustrate, rather than promote, the purposes of applicants and the Act.” 9 (Emphasis supplied.) The next relevant action occurred on February 21, 1978, when the Commission issued its "Second Corrected Certificate and Order” — this being, in effect, the certificate of convenience and necessity permitting abandonment of the 15.4-mile section of line. The Order implicitly required B & ³⁵⁹ A to cancel the tariffs applicable to the line as a condition of abandonment, and explicitly stated: "(2) If the authority granted by this certificate and order is exercised, the railroad shall submit two copies of the journal entries showing the retirement of the line from service, and shall