Baltimore County Water & Electric Co. v. Dubreuil

Boyd, J., delivered the opinion of the Court. Two bills in equity were filed against the Baltimore County Water and Electric Company; one by Mr. and Mrs. George A. Dubreuil, and the other by Mr. Douglas H. Gordon, in each of which an- injunction was prayed for, to prevent the company from digging a trench or laying its water mains along that portion of Lake avenue which lies within the bounds of the properties owned by the respective plaintiffs. It is admitted that the lines of the deeds of Mrs. Dubreuil and Mr. Gordon extend to the center of Lake avenue, embracing the southerly side thereof, and that the defendant company was digging a trench along that side of the avenue, within those lines, for the purpose of laying one of its water mains. A preliminary injunction was issued in each case, and after the defendant answered, testimony was taken, which by agreement was used in both cases.

After hearing,the injunction was made perjpetual in each case. A mandatory injunction was also granted, requiring the defendant to remove such mains as were already laid on the properties of the respective plaintiffs, and to refill the trenches, each bill containing a prayer for such mandatory injunction. The cases being similar, they'were argued together in this Court, and will be disposed of in one opinion. The company had obtained permission from the Highways Commission of Baltimore County to lay the mains in the bed of Lake avenue from Falls road to Bellona avenue, which included the part of Lake avenue on which these properties fronted, but it had not acquired, by ⁴²⁶ purchase or condemnation, the interests of the plaintiffs in the bed of that avenue.

The principal question, therefore, is whether water mains laid in the bed of Lake avenue, in which the plaintiffs owned the fee at the points involved, constitute an additional servitude. In the recent case between this company and the County Commissioners of Baltimore county, etal., antep. 154, the question before us was whether or not the Water Company could lay its mains and pipes in the highways of Baltimore county, without first obtaining the consent of the local authorities, and we held it could not, beyond certain territories therein referred to in which they had that power. In discussing the meaning of the expression “to extend its operations,” used in an amendment to its charter, by way of illustrating the necessity for obtaining from the State some such-power as that expression conferred, we stated a proposition of law, the correctness of which we do not understand to be questioned, but it is not conclusive of these cases. We there said that it could not be pretended that the Act of 1900, ch. 52, which was the one'relied on by the company, gave it power to use private property, without the consent of the owners, “and it would seem to be equally clear that neither the Legislature nor the County Commissioners could authorize this or any other water company to use county roads, if the fee belonged to the abutting owners, without their consent.” We then referred to some authorities which pointed out the distinction between the right to use streets in cities and towns, for laying gas and water pipes, and that to lay them in what we there spoke of as “county highways,” but the word “country” would have more accurately expressed our meaning, as we did not intend to say that a different rule from that applicable to streets in cities and towns was applied to other highways, simply because they were owned or controlled by the county, authorities, instead of by those of some incorporated city or town.

The law is well settled that, although the fee of streets in cities and towns is in the abutting owners, it is subject to the ⁴²⁷ paramount right of the public for all proper street uses, which include gas and water pipes, sewers, etc. Lights, water and drainage are so essential to the comfort, health, protection and convenience of the people of a city or town, that the original owner is conclusively presumed to have known, and to have consented, that such uses could be made of a street laid out over land formerly owned by him, however it be acquired by the municipality, and those claiming under him have no more rights in the streets than he had. Or, as a late book on municipal corporations expresses it, “Ordinarily the use of streets for such a purpose (supplying water) does not impose any additional burden or servitude, and the adjoining owners, therefore, are not entitled to compensation for such use, it being one of the common and anticipated purposes to which they may be put.” 2 Abbot on Mun. Cor., 1165. But the great weight of authority is to the effect that there is a distinction between the use of streets in cities and towns for gas and water pipes, and the use of country or rural highways.

See 14 Am. & Eng. Ency. of Law, 921; 30 Ibid. 438; 15 Cyc. 671; Ibid. 683, 2 Abbot on Mun. Cor., 1166; and Thorton on Oil and Gas, Sec. 505; where many cases will be found in the notes. In Mackenzie’s Case 74, Md. 47, the distinction is recognized and reasons given for it.

In that case it was said of “an ordinary road or highway in the country,” that “all the public acquires is the easement of passage and its incidents,” and that is in substance the'doctrine announced by most Courts. The appellant, however, contends that if it be conceded that laying gas or water pipes along a strictly country road, for the purpose of conveying gas or water from one distant point' to another, and not for the benefit or convenience of the abutting owners, is an additional servitude, still the nature of the locality and the character of the surroundings of Lake avenue are such as authorize the Court to apply the rule applicable to streets in cities and towns, and not that which is applied to country or rural highways, as those terms are-used by the Courts'. The solicitors for the appellant say in their brief: “There is no magic about a charter. ⁴²⁸ The question is what are the needs and requirements of the class of property holders whose homes abut upon the highways.” We are not inclined to take issue with them as to the effect of a charter or altogether as to the other statement. We can see no reason why the mere fact that a place is or is not incorporated should require the application of the one rule, to the exclusion of the other.

It is not a question of incorporation vel non, but when highways are dedicated to, or in any way acquired by the public, the real question as to what uses can be made of them must depend largely upon circumstances. It would not be reasonable to hold that the streets of an incorporated town can be used for water and gas pipes, and similar uses, without compensating the owners of the fee, while those of a town of the same general character, size, etc., but not incorporated, cannot be. The real question to be determined in such cases is, whether the proposed use of a highway is such as can reasonably be said to be within ‘‘the scope of the original easement.” After quoting at length from Western Union Tel. Co. v. Rich, 19 Kan. 517 , the Court, in American Tel. & Tel.

Co. v. Pearce, 71 Md. 543 , accepted the doctrine of the Kansas case, and said: “It recognizes the right of the land owner to compensation for every additional burden cast upon the land outside the scope of the original easement, and that whether a given structure creates an additional servitude is a question of fact, depending on the circumstances of each case, to be determined by the tribunal having jurisdiction to try the same, and before which it is tried.” The tribunal whose duty it is to determine the question is not to be governed alone by the mode of user first adopted, or by the conditions existing at the time the highway is acquired by the public. For example, if the easement when acquired be over land which is in the open country, but is so situated that it will probably be built upon, like a street of a city or town, and is afterwards so built upon, it would be wholly unreasonable to hold that the public must again compensate the owner of the fee before it can make such use of the highway as its then condition requires and justifies, provided ⁴²⁹ of course, they be within the scope of the original easement. Indeed we have many instances in this State of such changed conditions — where the highway when acquired by the public was in the open country, but subsequently became a street of a town. It could not be successfully contended that water and gas pipes could not be laid in such street without additional compensation to the owner of the fee, merely because the land was originally taken for a rural highway.

Reference to some of our decisions will show the view this Court has taken as to what is an additional servitude, either on city streets or country highways. In Peddicord's case, 34 Md. 463 , it was determined that the use and occupation of the bed of a turnpike for the purposes of a passenger railway was not a new and distinct servitude, entitling an abutting owner to a new compensation for such use of the land. It is true that the railway company was acting under a contract with the turnpike company, which had secured the easement by legislative authority, through purchase or condemnation, but if it had not been an authorized use of the road, the turnpike company could not have granted it to the railroad company, to the detriment of Peddicord. That road was in the country.

Then in Hiss v. Railway Co., 52 Md. 242 , we held that the Legislature had the power to authorize the railway company to construct and use a horse car railway bn Decker street, or Maryland avenue, in Baltimore County. In commenting on the distinction made by Judge Cooley between streets taken or dedicated for city or town purposes, and county highways, the Court said that, without determining whether that distinction was supported by authority, it “cannot and ought not to apply in this case; for although the way is not technically within the city limits, its location, in such near proximity thereto, as an entering way into the city and exit therefrom; and in fact, as an extension of one of the city streets it must and ought to be regarded as subject to the same burdens in the way of use which would legitimately fall on the street, of which it is, at the place in question, only an extension. * * * Under such cir ⁴³⁰ cumstances it must be supposed the dedicator intended it to be liable to all the uses of city streets, one of which, it was so absolutely certain that, in the growth of the town, it would become.” In that case the fee of the bed of the street was in the complainants, who were refused an injunction,although the