Baltimore & Liberty Turnpike Co. v. Moale

Stone, J., delivered the opinion of the Court. In 1814 the Baltimore and Liberty Turnpike Company entered into the following agreement, in the form of a deed, with the Baltimore and Randallstown Railroad Company: “This deed of right’ of way made this Hth day of September, 1814, &c., witnesseth, that in consideration of the sum of one dollar, the receipt of which is hereby acknowledged, the Baltimore and Liberty Turnpike ³⁵⁵ Company doth grant unto the said Baltimore and Randallstown Railroad Company, its successors and assigns, as much of the present road bed as may be necessary for the crossties and rails of the said Baltimore and Randallstown Railroad Company, with the free and unimpeached right of passing to and fro on said railway tracks at all hours of the day and night with passengers (no freight to be carried) from the City of Baltimore, where the said Baltimore and Liberty Turnpike Company commences under its charter, and the present terminus of said railway, as built to the Lake House, in Baltimore County; the said Baltimore and Randallstown Railroad Company to make use of either side of the Baltimore and Liberty Turnpike Road and its side roads it may elect, and to cross said road where it may be necessary to do so; subject however to the annual charge for said right of way or user the sum of one hundred dollars per annum, payable on the first day of January and July in every year in equal instalments of fifty dollars each, accounting from the first day of July, 1813 ; provided that the said Baltimore and Liberty Turnpike Company will receive the sum of sixteen hundred and sixty-six dollars in full demands for said right of way, if the said Baltimore and Randallstown Railroad shall wish to capitalize said annual payment at any time.” This deed was duly executed and recorded. The Railroad Company entered upon the right of way thus acquired, and executed a mortgage on their property, including the rails, to certain of its creditors. This mortgage some years afterwards was foreclosed, the rails were sold by the trustee and the whole proceeds distributed under the order of Court to the mortgage creditors.

At the time of the