Association of Independent Taxi Operators, Inc. v. Yellow Cab Co.

Marbury, C. J., delivered the opinion of the Court. The amended bill of complaint which is before us in this case was filed by the Association of Independent Taxi Operators, Inc., and certain individual members who own and operate taxicabs under permits of the Public Service Commission. It may be noted here that, under our decisions, the corporate plaintiff, as described in the bill, is not a proper party plaintiff (Maryland Naturopathic Ass’n, Inc. v. Kloman, 191 Md. 626 , 62 A. 2d 538 . Beckett v. Housing Authority, 198 Md. 71 , 81 A. 2d 215 , this term), but as the individual plaintiffs undoubtedly have the right to bring such a suit, that question is not important to our decision.

The defendants are the Yellow Cab Company, the Northern ¹⁸⁶ General Railway Company, the Pennsylvania Railroad Company, the Mayor and City Council of Baltimore, and the Police Commissioner of Baltimore City. The purpose of the suit is to define the status of the taxicab stand at Pennsylvania Station in Baltimore. The facts, as developed in the hearing, are adequately stated by the chancellor in the following words: “In 1911, the Pennsylvania Railroad, either as owner or as lessee of the Northern Central Railway Company, erected the Pennsylvania Station on the site of the old Union Station, on a plot of land near Jones Falls, between Charles Street and St. Paul Street, in Baltimore City. The Station consists of a large stone building, south of which there is a driveway running from St. Paul Street to Charles Street, in a generally east and west direction, approximately forty feet wide and 400 feet long.

The driveway connects with St. Paul Street at grade on the east, and with Charles Street at grade on the west, and is used for ingress and egress to and from the Pennsylvania Station, it being south of the principal passenger entrance of the Station. The driveway serves vehicles bringing passengers to and from the Station, and is paved with asphalt paving similar to that on Charles and St. Paul Streets. It is carried by a steel and concrete structure which was built at the same time as the Station, and in some respects forms an integral part of the Station building. Below the driveway is a lower station level, approximately at the same elevation as the railroad tracks; and leading down to this lower level on the south side of the driveway is a ramp, which is used for access to the baggage department of the railroad, and perhaps for other purposes.

There are no gates at either Charles or St. Paul street end of the driveway. . “The driveway was constructed at the expense of Pennsylvania Railroad, and the cost was later charged back to the Northern Central Railway, as ¹⁸⁷ the basic owner. The relation between those two corporations is that the Northern Central Railway has title to the land; the Pennsylvania Railway is lessee under a lease for 999 years, executed in 1914 but dated back to 1911. The Pennsylvania Railroad is the operator of the station; it pays for the cleaning and lighting and the removal of snow and the paving of the driveway. It also polices the driveway, and Pennsylvania Railroad Police are assigned to that duty.

On the driveway there are various signs for the direction of traffic, indicating, among other things, that traffic must be from east to west. Lines are painted on the pavement, indicating parking areas, and there is a raised platform or safety zone directly opposite the main entrance to the Station, by which there are created at least two traffic lanes for passenger vehicles approaching the Station. The northernmost or ‘inside’ lane, that is the one next to the Station, has signs on it indicating that it is for the use of Yellow cabs and the testimony is that the Pennsylvania Railroad police and the Yellow Cab Company together reserve this ‘inside’ lane for the use of Yellow cabs exclusively in so far as they are able to do. The southernmost or ‘outside’ lane is used by private vehicles and by taxicabs other than Yellow cabs.

Both the Station and the driveway are open twenty-four hours a day, every day in the year, except in so far as repairs make partial closing necessary. “There has been no cab stand designation made by the Police Commissioner for a cab stand in the driveway in front of the Station. The legal status of the driveway does not depend upon a designation by the Police Commissioner, however, but upon other considerations. In 1921, the Pennsylvania Railroad entered into a contract with the taxicab company which was the predecessor of the present Yellow Cab Company, which contract has been renewed continuously from time to time by contracts ¹⁸⁸ which have been introduced in evidence. The last renewal was made by a letter dated December 2, 1947, under which the previous agreements were extended under an arrangement whereby Yellow Cab Company pays the Pennsylvania Railroad Company $750 per month for the privileges set forth in the prior agreements as modified.

The essential clause which is involved in these proceedings is the second paragraph of the agreement of September 10, 1921, which reads as follows: “ ‘Second. The Railroad Company hereby agrees that in so far as it legally and properly can, consistently with its public duty and contractual obligations, it will not permit other persons engaged in the same business to enter upon its premises at said station for the purpose of soliciting patronage, but it shall not be required to prevent local teamsters, hackmen or carriers of passengers and their baggage or others, from entering upon said premises with their vehicles, cabs, and teams at the instance of, and by arrangement with, departing or arriving passengers for the conveyance of passengers or their baggage or other property to and from said station ;■ nor shall this agreement apply to or prevent private teams and vehicles, in which no fare is charged, from entering upon its premises for the conveyance of passengers and baggage; nor shall this agreement apply to or prevent persons or corporations from entering upon the premises of the Railroad Company for the purpose of taking baggage or passengers to or from said station, under contracts heretofore made or which may be hereafter made with the said Railroad Company/ “The net result of the operation is simply this: both the Railroad Company and the Cab Company consider that under their agreements the Yellow cabs have the exclusive right to solicit patronage of passengers who are leaving the station, and they reserve the inner or northernmost traffic lane for ¹⁸⁹ Yellow cabs. Other cabs are allowed to come in and discharge passengers. The Railroad police make every effort to prevent other cabs from soliciting patronage within the driveway.

If the other cabs do not move on after having discharged their passengers, they are told to move by the Pennsylvania Railroad police. On the other hand, if passengers waiting for cabs solicit the other cabs at Pennsylvania Station, neither the railroad nor the Yellow Cab Company men make any effort to prevent such other cabs from taking passengers. The right of the Yellow Cab Company is regarded by the Railroad and by the Cab Company as an exclusive privilege, and both companies make every effort to enforce it. “It also appears from the evidence that certain persons use the driveway for the purpose of transportation from St. Paul Street to Charles Street, although such persons are not on railroad business. The testimony is quite indefinite as to how many persons use the station in that way, although it is clear that some do.” The complainants ask that the taxicab stand be determined as subject to the provisions of Ordinance No. 201, later known as Ordinance No. 126 , which prohibits certain areas designated by the Police Commissioner as taxicab stands from being for the exclusive use of one taxicab company (G. I. Veterans’ Ass’n v. Yellow Cab Co., 192 Md. 551 , 65 A. 2d 173 , 8 A. L. R. 2d 568), and ask for an injunction against the defendants to prevent them from attempting to arrest or molest the plaintiffs, or any other licensed taxicab operators, in the use of the Pennsylvania Station taxicab stand.

The chancellor decreed that the driveway was not a public street, that the use of it by taxicabs is not subject to the provisions of Ordinance No. 126, denied the other prayers of the amended bill, and, except as to the declarations in the decree, dismissed the bill. ¹⁹⁰ The appellants contend that the station drive is a public street, that the Railroad has no right to grant a practical monopoly to one taxicab company, that its contract with the Yellow Cab Company discriminates against the plaintiffs, and that the enforcement of the contract and the practices of the Railroad under it, should be enjoined, and this, whether or not the driveway is held to be a public street. The Railroad admits that, if the drivewáy is a public street, then it has no right to establish a taxicab stand on it especially for the use of any particular company, either in whole or in part. We will, therefore, consider this question first. Appellants give three reasons for their contention that the drive is a public street — one, there is a common law dedication; two, there is a statutory dedication; three, there was a twenty-year adverse user.

Under the theory of common law dedication, it is stated that the railroad built the present station between two bridges which run over the Pennsylvania tracks and form the respective beds of Charles Street and St. Paul Street. The drive which had previously existed in part was amplified and extended to St. Paul Street. See Ordinance No. 376, approved July 29, 1909, and Northern Central Ry. Co. v. United Railways Co., 105 Md. 345 , 66 A. 444 .

Since this drive was constructed, the evidence shows that the general public had used it as a cut-through, and, while the chancellor did not permit all the evidence proffered by the plaintiffs to be heard, it is apparent that this has been done. No warning was given by the way of signs that the general public could not use the drive in this way, and the plaintiffs claim that the location, and the uninhibited use by the public, show an intention to dedicate, which has existed since the time the drive was constructed. We are unable to agree with this contention. It seems to be perfectly clear that the purpose of the driveway was to afford an ingress and egress to the Railroad property by those persons having business with the railroad.

As the station necessarily operates on a twenty-four-hour basis, and never closes, ¹⁹¹ the drive must remain open, and it is entirely impracticable (even if it would be good business or good common sense) for the employees of the Railroad to stop each vehicle entering the drive to enquire whether it is merely passing through, or whether the occupants have business with the Railroad. The fact that the Railroad did not do this, or put up a sign, does not evince any intention on its part that the drive should be used as a general public thoroughfare, and, in fact, the testimony given and offered shows that only a small proportion of the vehicles entering the driveway are those which use it as a passageway from St. Paul Street to Charles Street, and have no business with the Railroad. The evidence shows that the Railroad paves the drive, polices it, lights it, keeps it in repair, and pays taxes on it. Merely because it did not put up a sign forbidding general public use, or did not adopt some wholly impractical method of trying to ascertain the purpose of any vehicle entering the driveway, does not indicate an intention to dedicate.

The leaving open of land as a means of access to the owner’s premises and thereby permitting the public to use it for passage is slight, if any, evidence of such an intention. Tiffany, Real Property, 3rd Ed., Vol. 4, Paragraph 1102, page 341, and cases cited. Appellants further contend that there was a statutory dedication of the drive under the Act of 1908, Chapter 582. Under that act, as amended and codified as part of Section 691 of the Baltimore City Charter, it is provided that every private street, lane, alley, or way hereafter laid out and opened, which for a period of one year shall connect with any public street and the passage between such private street, etc., shall not be barred or obstructed by a wall, fence, either with or without a gate, “shall be conclusively presumed to have been dedicated by the owner or owners thereof to public use as public highways, * * Appellants point out that as the entrance to the drive was not barred and there was no gate there, the presumption attached the year after the bridge was constructed.

The City does ¹⁹² not agree with this contention. It suggests that the real reason for the passage of this statute was that in the case of Canton Co. v. Baltimore City, 106 Md. 69 , 66 A. 679 , 67 A. 274 , 11 L. R. A. N. S., 129, it has been held that a dedication could be revoked, and the statute was intended to change this. Whatéver may have been the purpose of the statute, we think there would be grave doubt of its validity if it should be applied in cases where the method of the construction and opening of a street or lane or drive clearly indicated that it was not intended to be dedicated to public use as such. As we have already shown, the drive was not intended for that purpose, and to permit it to be taken by the City under the statute would be an appropriation of private property without compensation.

We cannot assume that the Legislature intended to say that there would exist a conclusive presumption against a-property owner unless he did the things set out in the statute, where he did not lay out and open a street as a public highway, but evidently opened it only for the use of those people coming to do business with him — his customers, clients, patients, etc. A statute cannot effectually declare that title to property now vested in A shall be vested in B. Queen v. Anderson, 191 Md. 522, 532 , 62 A. 2d 612, 616 . As the chancellor remarked in his opinion, under the interpretation of the law claimed by the appellants, every private driveway in Baltimore City has become a public street. He gives as illustrations the driveway leading to Johns Hopkins University and that leading to Johns Hopkins Hospital, also the entrance to Sears, Roebuck & Company, and the entrance to St. Agnes Hospital. We might add the entrance to every filling station.

We are unable to adopt the contention of the appellant that intention is immaterial under the terms of the statute. It cannot constructively presume an intent that is contrary to the manifest intent. Mahoney v. Byers, 187 Md. 81 , 48 A. 2d 600 . The City has not attempted to take the point of view of the appellants that the driveway has been dedicated to the use of the ¹⁹³ public, and has not attempted in any way to accept it.

Ordinance No. 753 of 1922 accepts only those streets which have been heretofore “unconditionally dedicated”, and that is not the case with the station drive. And the Pennsylvania Railroad was only a lessee from the Northern Central and could not bind the latter company in any event. Under all the circumstances, without attempting a discussion of the numerous cases on the subject heretofore decided, we conclude that there was no statutory dedication of this drive under the Act of 1908. The third reason given by the appellants that there has been a twenty-year adverse user is put upon the same basis as the first proposition that there was a common law dedication, namely that the public has driven through this driveway for more than twenty years, going from one street to another without any business at the station, and therefore there is a prescriptive right to its use.

We are unable to find that this use has been adverse and under a claim of right. Such use by the public of railroad property is considered permissive and not adverse. New York Central R. Co. v. Arthelia, 190 Misc. 555 , 74 N. Y. S. 2d 507. While it is true that the chief of the special police force of the Railroad said that the Railroad tried to discourage the use of the driveway by people other than station patrons, he said that was done to keep from congesting traffic in the driveway.

There is nothing to show that anybody has ever been stopped, or any arrest has ever been made, and it seems perfectly apparent under the circumstances that there might be a tacit permission for people to go through, provided they do not interfere with the invited traffic having business wtih the station. User, to establish prescription must be adverse and not by license. Easter v. Overlea Land Co., 129 Md. 627, 633 , 99 A. 893 . To translate such permitted use into adverse and hostile use, so as to take away tacitly the Railroad’s property by prescription would be to make a mountain out of a molehill.

Our conclusion, therefore, ¹⁹⁴ is that the driveway is not a public street, but is the private property of the Railroad Company. Appellants, however, as we have stated, argue that their case does not depend upon the driveway being public. They say that a railroad is a common carrier, has a duty to provide facilities for ingress and egress from its station, and it cannot, without discrimination, favor the use of those facilities by one taxicab company in preference to another. They base this contention both upon the common law and upon the statutes.

An early case .on the subject was decided by the Supreme Judicial Court of Massachusetts in 1888. That is Old Colony R. Co. v. Tripp, 147 Mass. 85 , 17 N. E. 89 . In that case, the railroad company made a contract with a firm owning job wagons to carry all baggage and merchandise brought by passengers to .the station in the city of Brockton, and notified other proprietors of job wagons not to come on its premises for the purpose of soliciting baggage, but allowed them to come on the station to deliver baggage and to take away baggage for which there might have been previous orders. Tripp continued to come upon the premises and solicit baggage, whereupon he was sued for trespass and the railroad got a verdict with nominal damages.

The court said: “The station was a passenger station. Passengers taking and leaving the cars at the station, and persons setting down passengers or delivering merchandise or baggage for transportation from the station, or taking up passengers or receiving merchandise that had been transported to the station, had a right to use the station buildings and grounds, superior to the right of the plaintiff to exclusive occupancy. All such persons had business with the plaintiff which it was bound to attend to in the place and manner which it had provided for all who had like business with it. The defendant was allowed to. use the depot for any business that he had with the plaintiff.

But he had no business to transact with the plaintiff. He had no merchandise or baggage to deliver to the plaintiff, or to receive from it. His ¹⁹⁵ purpose was to use the depot as a place for soliciting contracts with incoming passengers for the transportation of their baggage. The railroad company may be under obligation to the passenger to see that he has reasonable facilities for procuring transportation for himself and his baggage from the station, when his transit ends.

What conveniences shall be furnished to passengers within the station for that purpose is a matter wholly between them and the company. The defendant is a stranger both to the plaintiff and to its passengers, and can claim no rights against the plaintiff to the use of its station, either in his own right or in the right of passengers. The fact that he is willing to assume relations with any passenger which will give him relations with the plaintiff which will involve the right to use the depot, does not establish such relations or such right; and the right of passengers to be solicited by drivers of hacks and job-wagons is not such as to give to all such drivers a right to occupy the platforms and depots of railroads.” There was a statute which provided for equal terms and facilities to all persons or companies, but the court construed that not to prescribe who had the right to use the depot, but to provide that all who had the right to use it must be furnished with equal conveniences, and said the statute applied only to the relations of railroads as common carriers and their patrons. The court concluded by saying: “We have not been referred to any decision or dictum in England or in this country that a common carrier of passengers and their baggage to and from a railroad station has any right, without the consent of the railroad company, to use the grounds, buildings, and platforms of the station for the purpose of soliciting the patronage of passengers, or that a regulation of the company which allows such use by partciular persons, and denies it to others, violates any right of the latter.” There is an annotation in 15 American Law Reports, beginning at page 356, which discusses all the cases on the subject decided up to that time, which was in ¹⁹⁶ 1920.

The annotation states, and this is clearly, borne out by the facts, that the decided weight of authority is to the effect that a railroad company may, so long as it thereby affords reasonable accomodation to the public, grant to one company or person the exclusive privilege of entering its station and depot grounds for the purpose of soliciting patronage from passengers. The jurisdictions so holding, with numerous cases in each, are the Federal courts, including the Supreme Court of the United States, Colorado, Connecticut, Georgia, Kansas, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Virginia, West Virginia, England, and Canada. On the other hand, the courts in a few jurisdictions have denied the right, and the cases in those jurisdictions are the ones relied on by appellant. These jurisdictions are Illinois, Indiana, Kentucky, Michigan (an early case in 1869, since admitted by the Michigan court to be not in harmony with the weight of authority), Mississippi, Missouri (an early case in 1890, since apparently discredited), Montana, and Pennsylvania (which seems to have held both ways at different times).

Since the annotation; there have been a number of later cases, all of which seem to have followed the majority rule. One of the latest of these is Demeter v. Annenson, 1947, 80 Cal. App. 2d 48 , 180 P. 2d 998 . In the opinion in that case are listed three more states following the majority, Alabama, Florida and Iowa, and another, Louisiana, by dicta.

California in that case held the same way. For us to attempt to even list all of the cases, without attempting to quote from them, would make this opinion, necessarily lengthy on account of the numerous points raised, a treatise of the law, rather than a decision of an actual question presented. There are, however, a few cases we should discuss. In 1905, the Supreme Court of the United States had before- it the case of Donovan v. Pennsylvania Company, 199 U. S. 279 , 26 S. Ct. 91 , 50 L. Ed. 192 .

This case ¹⁹⁷ had to do with the Union Passenger Station in Chicago, which was owned by the Pennsylvania Company. This station was used by five railroad companies, and, at that time, the average number of passengers arriving and departing was over 80,000 each day. The company had made an arrangement in 1894 with one particular hackman to furnish carriage and cab service to passengers arriving at its station, and had given him a carriage stand on the station property. That arrangement was terminated in 1902, and a similar arrangement was made with the Parmelee Transfer Company.

Certain hack drivers, including Donovan, gathered on the sidewalk in front of the station, entered the station without the company’s consent, and solicited incoming passengers and baggage for their vehicles. The railroad filed a bill to enjoin these defendants from so acting. There were two questions involved, the first of which was whether the company, having made an arrangement with Parmelee to furnish all vehicles necessary for the accomodation of passengers, could legally exclude from its station and grounds all hackmen or expressmen coming there for the purpose only of soliciting the custom and patronage of passengers. The second question, with which we are not here concerned, was the use of the sidewalk and street in front of the station.

The court said that while the railroad’s property must be devoted primarily to public use to the extent necessary for the objects of a railway, it could establish such reasonable rules with respect to its use consistent with the ends for which it was created, and not inconsistent with public regulations legally established for the conduct of its business. The court said: “It is required, under all circumstances, to do what may be reasonably necessary and suitable for the accommodation of passengers and shippers. But it is under no obligation to refrain from using its property to the best advantage of the public and of itself.