Baltimore & Ohio R. R. v. Kane

Burke, J., delivered the opinion of the Court. The appellees on this record are the owners of a fee simple lot with improvements thereon located on the west side of Eutaw street in Baltimore City. The lot has a frontage of ²³³ twenty-five feet on Eutaw street with a depth of about seventy-one feet to an alley three feet wide which runs north to Hamburg street. The plaintiffs have a right to the use of this alley in common with others.

Access to the plaintiff’s property in the rear was had through the alley from Hamburg street—the property of the plaintiffs being located ninety-one feet from the south side of Hamburg street at its intersection with the west side of Eutaw street. The plaintiffs’ property was used for dwelling and saloon purposes—a saloon having been «inducted there for some time prior to the infliction of Iho injuries complained of in this case. There were two steps—one to the saloon and one to the dwelling—leading from the front on Eutaw street into the property. The Mayor and City Council lowered the grade of Eutaw street for a considerable distance, and in front of the plaintiffs’ property the grade of the street was lowered at the north end about five feet two inches, and at the south end about four feet nine inches-.

The effect of 1his excavation was to increase the elevation of the entrance and to- require the construction of eight additional steps in order to enter the saloon and residence. 'The Baltimore and Ohio Railroad Company by permission of the Mayor and City Council, constructed concrete approaches on the south portion of Hamburg street to a bridge which it entered over Eutaw street. The approaches and bridge were built to carry the traffic o-ver Eutaw street on which the railroad company had for many years- operated its ears. The work of constructing the appro-aches and bridge was done solely by the railroad company and the entire cost of the work was paid by it. The construction of the approaches to the bridge obstructed the lin ee foot alley mentioned, in that the concrete approaches were built across the alley to- a height of about six feet at the point of the intersection of the alley with Hamburg street.

The plaintiffs’ easements of light and 'air were not affected by the change of grade of Eutaw street, or by the construction of the bridge and -its approaches, hut the ingress and ²³⁴ egress to the property were interfered with in the manner stated. The effect of the whole change was to* require eight additional steps to get into the property in the front, and the construction of about the same number to get into the house in the rear. ..... The-plaintiffs sued the Baltimore and Ohio Railroad Company and -the Mayor and City Council in the Baltimore City Court to recover damáges for the injuries done their property by the change of the grade of Eutaw street and the obstruction of the alley referred to. They recovered a judgment against both defendants and both' defendants’ have appealed. • The work done by the Baltimore' and Ohio Railroad Company Was done ündér the -authority of Ordinance 387, approved August 16, 1909, known as “The Grade Crossing Ordinance,” and "which was "accepted' by Are Railroad Company.

This- ordinance was considered by the Court in the case of Walters and wife v. The Mayor and City Council of Baltimore and the Baltimore and Ohio Railroad Company, 120 Md. 644 . In that ease both defendants were held liable upon the ground that there had been a taking of the plaintiffs’ property for public' use- without compensation. The circumstances which led to the passage 'of ' Ordinance Ho. 387, and the reason and objects of the construction of'the bridge 'aild'' its approaches' were fully' stated by Judge Stock-bridge in Alé opinion 'in that case. His discussion of the history and provisions of the ordinance, and' the purpose to be subserved by the work authorized by it.' dispenses with a full consideration' of Arose matters in this 'opinion.

In view of Aie statement of facts contained in that 'opinion only a brief outline of the evidence in'this case need be stated in order to ascertain and apply the legal principles by which the rights, duties, and responsibilities of the parties to this case must be determined. It cannot be, and, indeed, it is not denied Arat the city in lowering the grade of Eutaw street pursued the method prescribed by law, and it must be admitted that in making the ²³⁵ excavations on Eutaw street in front of the plaintiffs’ lot it confined the work within the lines, of the street. As stated above the plaintiffs’ easements of light and air were not interfered with, and there was no actual physical invasion of their property. The work was done by the city through a contractor employed by it for that purpose and was paid for by it.

The Baltimore and Ohio Railroad Company had nothing to do with the actual work, nor was it under any obligation to pay for it. The work was not done under the ordinance, hut the city followed the usual methods used in lowering the grades of streets. The reasons which induced the city to lower the grade are given in the evidence of-Mr. Benjamin F. Fendall, one of the plaintiffs’ witnesses, who was at the time the work was done City Engineer of Baltimore City, and wbs in charge of the work in his. official capacity. Wo quote from his testimony which is undisputed : “The Hamburg Street bridge was started in August, 1910, and finished in August, 1911; that the west approach begins at about Warren and Hamburg streets and ends at the west side of Eutaw street, where the bridge proper, that is, the steel structure rests on piers and columns, begins to- cross the Baltimore and Ohio Railroad tracks, to the east side of Hamburg street and then the east approach started down to Sharp street; that the bridge proper extends across from Eutaw to Howard 'street and is in the bed of Hamburg street across the tracks of the Baltimore and Ohio Railroad; that the bridge' and approaches were actually constructed by the Baltimore and Ohio' Railroad; that the location for the approaches was furnished by the City of Baltimore; that before the grade at Eutaw street was changed the clearance at the bridge was about ten feet or eleven feet; that the cutting down of the grade at Eutaw street was done by the City of Baltimore and paid for it under contract with the McLean Contracting Company and this grading was done some time in 1911 about the time the bridge was completed.

Q. Can you tell us the reason of the city for lowering the grade of ²³⁶ Eutaw street from Henrietta down to Stockholm, for instance.? A. .You could not get under there with a high wagon, and'still less could you get under there with , an engine or train'or box car; that there was not enough clear-; anee under the bridge, that a big wagon required more than ten feet, and a railroad train or locomotive requires more than ten feet; that an engine is about eighteen feet;, and then some wagons could not get under ten feet; ;thafr for-wagon and road bridges the lowest clearance is, generally-twelve feet but that is rather a tight squeeze with a big load' of hay;' that the standard clearance for á railroad bridge is twenty-two or twenty-three feet, sufficient to clear with a man standing on' a box car; that he is not familiar with the new engines which are in use today, but that the old engines which were used on the B. & O. fourteen or fifteen years ago- could' get under seventeen feet six inches clearance; that he thinks the clearance under the bridge at Eutaw street-after the grade was lowered was- seventeen or eighteen feet as compared with ten feet before the grade was lowered, but' there is more clearance on the east side than on the west side, - as the grade of the bridge itself goes up slightly after it leaves the abutments, therefore, the bed of Eutaw street being level there would be more clearance on the east side than on the west * * *. The ordinance fixed the height of the bridge. It provided that- the bridge should start at a certain place and rise with a specified grade until it got to a certain other place.

That of course fixed the height of the bridge. That the physical ■ work of lowering'the grade at Eutaw street was done by McLean Contracting Company, who also built the concrete approaches and piers;, that the superstructure was built by a -bridge company; that in his' capacity as City Engineer he visited the work once a week, but, would also go down there 'whenever his assistants needed him for any purpose; that he did this during the whole period of construction of the bridge; that the lowering of'the grade ²³⁷ of Eutaw street was completed about the time the bridge was finished; that to au extent they went along together.” The city and the engineers of the Kailroad Company knew before the ordinance was passed that it would be necessary to lower the grade of Eutaw street in order to give sufficient clearance for trains. jSTo' traffic could have gone under the bridge except pedestrians and horses drawing vehicles that were not-more than ten feet high, and the city did not lower the grade any more than was absolutely necessary to allow engines and cars to go under the bridge. In testifying as to the adoption of the plan for carrying the traffic over the railroad "tracks, Mr. Eendall said: “We looked upon the matter as being one that the interest of the people of Baltimore generally' was the first thing to- be considered, but we also recognize that we would not he considering the interests of the people of Baltimore generally if we put the Baltimore and Ohio Kailroad out of business-. We bad to consider both interests.

But naturally we considered the interest of the people at large first- as the most important. Q. You did not do anything for the interest of the railroad other than a citizen that would he affected, different from the consideration you gave other people down there who- would he affected? A. JSTo-, sir. Q. You did not put them out of business, but you did not go out of your way to benefit them, that is correct, is it not?

A. That is absolutely correct.” Upbn the facts disclosed by the record' there can he no-doubt that the action of the city in lowering the grade of Eutaw' street, and in consenting to- the construction of the bridge and approaches was taken