Baltimore & Havre de Grace Turnpike Co. v. Union Railroad

Robinson, J., delivered the opinion of the Court. The bill alleges that the complainant was empowered by its charter, granted in 1813, to build a turnpike road from Baltimore to Havre-de-Grace; that by subsequent' legislation the road was suffered to terminate twenty-three miles from the city; that the road was accordingly built at a cost of about $100,000, and licensed for taking tolls; and that the tolls received therefrom have averaged for some years past seven thousand dollars per annum; that there are now but three tollgates on the road — one near the City of Baltimore, another about ten miles therefrom, and the third about sixteen miles; that the portion of the turnpike between the second and third •mile-stones, and beyond the first gate, is nearly or quite level, and is preferred by those having fast horses to any other similar road anywhere in the vicinity of said city, and that with other advantages peculiar to said road, constitutes a great inducement to the use thereof and the travel thereon, and is a great source of profit; and that the tolls received from the first gate are the main source of revenue to the complainant. The bill charges that the appellee was chartered’ by the Acts of 1866, 1867 and 1870, for the purpose of making a railway wdth its terminus on tide-water at Canton, and that under its supposed powers for condemnation has summoned a jury and condemned two crossings over the turnpike road of the complainant, and selected for the same the part of the road above mentioned — one of said crossings being by a viaduct twenty feet high, intended for the termination of the railroad at Canton, and the other a grade crossing, to form a lateral connec ²²⁹ tion with the Philadelphia, Wilmington and Baltimore Railroad, and that the jury have awarded five thousand dollars as damages for such crossings. The bill then charges that the second crossing is ultra vires, and that either or both of said crossings will irreparably injure the complainant’s franchises; that the verdict of the jury is a mere pittance; that the complainant apprehends and charges that if either or both of the crossings be made, the travel would be so banished as not to leave receipts sufficient, probably, to keep the road in repair, as required by its charter, and, therefore, places in probable peril and jeopardy its corporate existence, and destroys all hopes of future dividends.

The complainant avers that its charter is a contract with the State of Maryland, and while it does not dispute that in the exercise of the power of eminent domain, the State has a right to provide for the condemnation of the road and franchises as an entirety, yet the State can pass no law impairing the obligation of contracts; that the complainant’s contract with the State was for a free and unobstructed road, and they are not bound to work a road so crippled as to furnish insufficient revenue to keep the same in proper condition, and necessarily to be managed in future under difficulties not now existing, and at constant peril of the forfeiture of its charter; nor can the State itself, nor any corporation professing to be by it authorized, fractionalize said contract or in any manner impair its validity. The bill then prays that the appellee may be compelled to condemn the charter of the complainant as an entirety, if it resorts to condemnation; that the proceedings already taken may be declared a nullity, and the company enjoined from making said crossings. It is conceded then, that the State may, in the exercise of the power of eminent domain, condemn the franchise of the complainant, but it is insisted that such condemnation must, be of the entire franchise and not a fractional part thereof. Whatever force there may be in this view, it is sufficient to- ²³⁰ say, that no attempt has been made on the part of the State, nor. by the appellee, to condemn the franchise of the appellant.

In authorizing the appellee to build a railroad between the termini fixed by its charter, the Legislature did not intend to condemn or revoke the franchise of the appellant, nor is such the effect and operation of the grant. If in the construction of the road of the appellee to tide-water at Canton, it is necessary to cross the turnpike road of the appellant, such a crossing cannot in any proper legal sense be considered as a condemnation of the franchise of the latter. On the contrary, its franchise — its corporate existence — its use of the turnpike road, with the right to collect tolls thereon — still remain, and the grant to the appellee is but an appropriation of the land, over which the franchise of