Baltimore & Ohio Railroad v. Maughlin

Digges, J., delivered the opinion of the Court. On March 19th, 1927, the plaintiff (appellee here), filed in the Circuit Court for Montgomery County the following bill of complaint: “1. That she is the owner of a tract of land, situate, lying and being in the County of Montgomery and State of Maryland, more particularly described in ‘Exhibit A’ filed herewith as part hereof and hereinafter referred to. “2. That the Baltimore and Ohio Railroad Company has instituted proceedings to condemn said land for its use and occupation, claiming the right to do so under the provisions of its charter granted by the Maryland Legislature in 1826, Chapter 123, together with the supplements and amendments thereto, and the defendant, Joseph B. Pyles, Sheriff of Montgomery County, will, on the 24th day of March, 1927, summon a jury for the purpose of assessing the damages for the taking of said land, all of which will more fully and at large appear by reference to the application of the defendant company and the plat thereto attached, the warrant of the Justice of the Peace, and the notice served upon your oratrix by the said Sheriff, copies .of which are filed herewith as part hereof marked ‘Exhibit A.’ “3.

That the said defendant company has constructed its said railroad through said Montgomery County and is operating said road under and by virtue of the authority granted to it by the Maryland Legislature at its session in 1865, Chapter 70, and is ³⁶⁹ known as the Metropolitan Branch of the Baltimore and Ohio Railroad Company. “4. That your oratrix is advised that the said defendant company has no legal right to proceed to condemn her land under the provisions of its charter and the amendments thereto aforesaid, but is required to comply with the provisions of Article 33A of the Code of Publie General Laws of Maryland, none of which has been done in this case, and that your oratrix is desirous that the condemnation proceedings shall be conducted under the provisions of Article 33A of the Code aforesaid, but is remediless in the premises without the aid and intervention of this Honorable Court. “5. That the defendant, the Baltimore and Ohio Railroad Company, is a corporation duly incorporated under the laws of the State of Maryland, and the defendant, Joseph B. Pyles, Sheriff of Montgomery County, is a resident of said county and state. “To the end, therefore, “1. That the defendant, the Baltimore and Ohio Railroad Company, its agents, attorneys and employees, and the defendant, Joseph B. Pyles, Sheriff of Montgomery County, may be enjoined from further proceedings with the condemnation of your oratrix’ land until the defendant shall have complied with the provisions of Article 33A, of the Code of Public General Laws of the State of Maryland. “2.

And for such other and further relief as the nature of her case may require. “May it please your Honors to grant unto your oratrix the state’s writ of subpoena directed to the said Baltimore and Ohio Railroad Company, a corporation duly incorporated under the laws of the State of Maryland, and to the defendant, Joseph B. Pyles, Sheriff of Montgomery County, and residing therein, commanding them to be and appear in this Court on some certain day to be named therein, in person or by solicitor, and answer the premises and abide by and perform such decree as may be passed therein.” ³⁷⁰ Accompanying the bill of complaint, as a part thereof, was filed this exhibit: “Exhibit A. “Notice. “Copy. “Application. “To: John Jones, Esquire, Justice of the Peace of the State of Maryland, in and for the County of Montgomery: “Sir: Whereas, The Baltimore and Ohio Railroad Company cannot agree with Eleanor Ray Maughlin for the purchase or use and occupation of the land owned by said Eleanor Ray Maughlin wanted for the construction of its railroad, roadbed and tracks necessary for the same, which land is described as follows, that is to say: Beginning at a point on the present southerly right of way line of The Baltimore and Ohio Railroad Company, said point being the intersection of the said southerly right of way line with the line dividing the lands of Eleanor Ray Maughlin from the lands now or formerly of Mamie Ray Custer, said point being distant 45.51 feet measured south 27° 23' West from station 1485 plus 17.3 on the proposed center line between two main tracks of The Baltimore and Ohio Railroad Company, said point also being distant 38.17 measured south 27° 23' West from station 1494 plus 65.21 on the center line of the present main track of The Baltimore and Ohio Railroad Company; thence South 27° 23' West 25.00 feet along said dividing line; thence North 75° 34' 14" West 90.09 feet to the original land line which formerly divided the lands of Aloysius Reid .from- the lands of Samuel P. Nicholls; thence North 50° 49' East 30.22 feet along said original land line to a point on the said present southerly right of way line, said point being distant 49.28 feet measured south 50° 49' west from station 1485 plus 76.22 on said proposed center line between two main tracks of The Baltimore and Ohio Railroad Company, said point also being distant 40.00 feet measured south 50° 49' west from station ³⁷¹ 1495 plus 28.00 on the center line of the present main track; thence south 75° 36' 14" East 77.77 feet along said present southerly right of way line to the point of beginning, said parcel containing 0.047 acres of land, more or less; and is more particularly shown on the plat hereto annexed, and made a part of this application ; being part of the land situated in Montgomery County, Maryland, devised to said Eleanor Ray Maughlin by the Last Will and Testament of Sarah E. Boyd, made on the fifth day of April, A. D. 1925, and recorded among the Records of The Register of Wills of Montgomery County in Liber P. E. W. LTo. 2, folio 461; therefore application is hereby made to you to issue your warrant, under your hand and seal, directed to the Sheriff of the said Montgomery County, directing him to summon a jury of twelve inhabitants of said Montgomery County, not related nor in anywise interested, to meet on said land on a day to be named in your warrant, not less than ten and not more than twenty days after issuing the same, to value the damages which the said owners of said land first above described will sustain by the use and occupation aforesaid, according to the provisions of the Act of the General Assembly of Maryland, incorporating the said The Baltimore and Ohio Railroad Company, being the Act of 1826, Chapter 123, together with the supplements and amendments thereto. “Talbott & Prettyman, “Attorneys for The Baltimore and Ohio Railroad Company.” “Warrant. “To Joseph B. Pyles, Sheriff of Montgomery County: “Sir: In pursuance of the foregoing application and the provisions of the Acts of Assembly therein referred to, you are hereby required to summon a jury of twenty inhabitants of the said County of Montgomery above the age of twenty-one years, and qualified to act as jurors under the laws of this state, not related ³⁷² nor in any wise interested, to meet on the land described in the application and the plat hereto annexed on the 24th day of March, in the year nineteen hundred and twenty-seven; and if at said time and place any of said jurors summoned do not attend, you shall immediately summon as many jurors as may be necessary with the jurors in attendance to furnish a panel of twenty jurors in attendance and from them the said The Baltimore and Ohio Railroad as one party and the said Eleanor Ray Maughlin as the other party, or their respective agents may each strike off four jurors; and the remaining twelve shall act as the jury of inquest of damages; and before they act as such you shall administer to each of them an oath or affirmation, as the case may be, that he 'will justly and impartially value the damages which the said owner will sustain by the use or occupation of the land, so as aforesaid required by the said company.’ And you will see that the said jury reduce their inquisition to writing, and sign and seal the same and thereupon you shall return it to the Clerk of the Circuit Court for Montgomery County, and this shall be your warrant therefor. “Witness my hand and seal this 12th day of March, A. D. 1927. “John Jones. (Seal) “Justice of the Peace for Montgomery County, in the State of Maryland. “Served by leaving copy of the within application, warrant and plat with the defendant, Eleanor Ray Maughlin, this 14th day of March, A .D. 1927. “Jos. B. Pyles, Sheriff.” The defendant (appellant here) on the same <lay filed a general demurrer in these words: “The defendant, The Baltimore and Ohio Railroad Company, a corporation, by Talbott and Prettyman, its solicitors, demurs to the whole of the plaintiff’s bill of complaint, and particularly to the third and ³⁷³ fourth paragraphs thereof, and as grounds for such demurrer says: “(a) That it discloses no substantial cause for relief. “(b) That by section 2 of chapter 70 of the Acts of the General Assembly of Maryland of 1865, this defendant was authorized in the construction and repair of its Metropolitan Branch and in contracting for the right of way for the same and entering or using and excavating any land wanted for the use of the same, and in the condemnation of land or material or other property or of right of way, etc., and every other particular in which the same are applicable, may have and exercise, in regard to the railroad thereby authorized all and singular the powers given to the said Baltimore and Ohio Railroad Company in order to the constnxction or repair of its Railroad from the City of Baltimore to the Ohio River by the original charter or act incorporating the said company, or by any supplement thereto, so far as the said supplements may relate to the said road from the City of Baltimore to the Ohio River, and then said Baltimore and Ohio Railroad Company in the construction, repair and use of the said railroad by said act authorized shall be subject to the restrictions and limitations affecting the railroad from the City of Baltimore to the Ohio River so far as the same are applicable. That by the original charter or act incorporating the Baltimore and Ohio Railroad Company, same being chapter 123 of the Acts of the General Assembly of Maryland of 1826, this defendant was expressly authorized and empowered to condemn land for the use of its said road by the method herein sought to be enjoined. “(c) That the act of the General Assembly of Maryland, chapter 123 of the Acts of 1826 constitutes a contract between the State of Maryland and this defendant not subject to repeal or alteration without the consent of this defendant whereby among other things the right was conferred upon this defendant to condemn land by the method here sought to be enjoined.

That ³⁷⁴ such right is a valuable right which has not and. cannot be without its consent contravened or modified, and that this defendant ought not be hindered or impeded by any person or persons in the exercise of such right. “(d) That the condemnation of the plaintiff’s property here sought to be enjoined is proposed to be exercised in strict accordance with the terms of the Act of the General Assembly of Maryland passed at its session of 1826, chapter 123, which act of assembly, so far as it affects the right of condemnation so conferred upon this defendant, has not been repealed, altered, or modified either by the Act of 1865, chapter 70, or by any other act of the Legislature of Maryland, nor have same been surrendered or abandoned by this defendant, and that this plaintiff has no right in law or equity to restrain or enjoin or otherwise prevent the exercise by this defendant of the rights so conferred. “And for other reasons to be assigned at the hearing.” The cause was heard on the demurrer. Whereupon the chancellor, by his order of March 25th, 1927, overruled the demurrer, and from this order the defendant appealed. As will be seen, the ground of the demurrer relied upon by the defendant is thait the defendant company was incorporated by the act of the General Assembly of Maryland passed at its session of 1826, chapter 123; that under the provisions of said act the defendant was authorized to condemn land by the method sought to be enjoined in this case; that the said charter so granted constitutes a contract between the State of Maryland and the defendant, not subject to repeal or alteration