Baltimore & Ohio Railroad v. Silbereisen

Boyd, C. J., delivered the opinion of the Court. On ETovember 28th, 1910, the appellee hied a bill of complaint against the appellant, in which he alleged that the railroad company had from time to time dumped a large quantity of earth and cinders upon his land which adjoins its right of way, and had negligently and knowingly allowed a great quantity of earth and cinders to be shoved and forced upon his land because of the.failure of the defendant to properly protect the embankment along its right of way. It then alleges that several days before the bill was hied the railroad company did by its agents and employees enter upon a part of the plaintiff’s land and was engaged in digging a ditch upon his property, into which they were preparing to place a pipe about thirty inches in diameter, that they were about to cut down and destroy valuable trees on said land, the destruction of which would do great and irremediable mischief and injury to the plaintiff, his property and estate. The bill prayed that the company be restrained and enjoined from entering or digging upon his property, or from cutting down or destroying the trees or any part thereof.

An injunction was issued as prayed, and on January 17th, 1911, an answer was hied, in which the defendant denied the allegations of the bill and demurred to the whole bill, because on its allegations the plaintiff had a plain, adequate and complete remedy at law. Whether the answer overruled the demurrer is now immaterial, as the Court below dismissed the bill and no appeal was taken. ETothing further was done until January 10th, 1913, when the railroad company asked to have the motion for the dissolution of the Injunction set down for hearing. An order was passed setting it down for hearing on January 16th, with leave to both sides to offer evidence, but on that date the company, with leave ⁴¹⁰ of the Court, filed a “motion or petition” consisting of twelve paragraphs, in which it is alleged that on December 9th, 1835, the company acquired by purchase the parcel of land for its right of way and other corporate purposes which is set out in a copy of a deed filed; that it took possession of it and appropriated it to its corporate purposes and uses and constructed over it a high embankment of an average height of about twenty feet to secure the necessary grade, and built its railroad tracks thereon; that it has since the date of the deed held and had possession of the whole of said parcel of land, within the bounds thereof as described in the deed, and has maintained the embankment and tracks and has used and enjoyed the whole extent thereof, without any interference or disturbance until the filing of the injunction by'the appellee; that at no time has the company invaded, or in any manner encroached upon the property of Silbereisen by its embankment, works or other railroad structures, and that any change in width or height or in position of said embankments has always been and is now within the limits of the property lines of the company; that on or about November 28th, 1910, in the necessary care and upkeep of the said embankment, and for the purpose of discharging its duty and obligation to provide safe, convenient and quick transportation of its passengers and freight, and wholly within the limits of its own property, it began to lay a drain or pipe line to carry off the surface water, when the injunction was obtained on the untrue and unwarranted statement that the drain and ditch were on the land of the plaintiff, and would cause him irremediable mischief and injury.

It is then alleged that although the defendant company had filed its answer denying the allegations of the bill upon which the injunction was issued, and although the plaintiff did not proceed thereafter in said equity cause, yet on the - day of December, 1912, and on divers other days, between that day and the filing of the motion or petition, the plaintiff entered upon the land of the defendant and wrong ⁴¹¹ fully dug up and hauled away the earth aud soil for the distance of three hundred feet along the western line of said lot, of the width of four or five feet and of a depth of three feet, — all said acts having been done wholly within the lines of said lot of defendant which was then in its possession; “that the plaintiff claims title to a portion of the original tract under a common owner or grantor with the defendant, James Hill, but said Hill conveyed the parcel of ground to defendant in 1835, and did not convey the land which plaintiff claims until December 14th, 1851; that notwithstanding the possession of said lot with the embankments thereon by defendant, and in disregard of the terms of his own deed, and in violation and defiance of the rights of defendant for so many years possessed in undisturbed possession, the plaintiff made the said cut and built a line of fence upon defendant’s land; that said cut was made without any previous notice or warning to defendant and whilst the injunction was still outstanding, and that said cut has removed and destroyed the toe of the slope of the embankment and deprived it of the support, stay and anchorage afforded and given since 1835, so that it is now without proper support and stay, and is developing large cracks and fissures because of the removal of the toe of the embankment; that he has given notice +o defendant that he will make further encroachments and invasions upon its land by cutting down, digging up and removing more of the embankment. It is further alleged that since the issuance of the injunction, although it is to be laid upon and through its property, it has not proceeded with the laying of said pipe line, and that the water is damaging and injuring the embankment and property of defendant, and rendering the same unfit for its railroad purposes and uses; that' the excavating, removing and hauling away the earth and soil from the said embankment and the action of the surface water-upon it, by reason of the wrongful acts of the plaintiff, will, if not restrained, destroy the proper and safe grade for the opera ⁴¹² tion of the trains of the defendant and deprive the ties and rails of the tracks of a safe, secure and stable support, “so that public travel, and the movement of freight and trains and engines will be rendered unsafe, uncertain, interrupted and irregular by the sinking and sliding of the said embankment from the causes aforesaid; and will utterly and irreparably ruin and destroy the said embankment for the corporate purposes for which the defendant corporation for so many years past has been, and is now using and employing it,” etc.; “that it is absolutely imperative and essential in the discharge of the duties of the defendant corporation as a public carrier of freight and passengers under its charter powers and obligations that leave be granted to' the said defendant corporation to repair the mischief and harm done by the said wrongful acts of the plaintiff, by taking the necessary steps and precautions to' secure the said embankment from any further sinking, sliding and disintegrating by reason of the said wrongful acts of the said Louis Silbereisen.” The petition then prays (1) that upon final hearing said Silbereisen, his agents, etc., be perpetually enjoined from excavating, removing or hauling away the earth, soil and other material from any part of the said embankment and from any part of the land of defendant corporation within the lines of the deed from James Hill to it; that the said defendant corporation may be quieted in its right to the enjoyment of said land as above set forth, and be decreed to have the right to use and enjoy the same, etc. (2) That in the meantime, and until this' cause can be fully heard and determined said Silbereisen be restrained from excavating, removing or hauling away the earth, soil and other material from said embankment, and from any part of the land of defendant contained within the lines of said deed. (3) That in the meantime and until this cause can be fully heard and determined that the railroad company be given leave and ⁴¹³ permission to make the aforesaid embankment safe for public travel, and (4) for general relief. An order was passed on that, directing that an injunction be issued as prayed in the second paragraph of the prayer for relief and that “Leave be and the same is hereby given to the said Baltimore and Ohio Bailroad Company to make the aforesaid embankment safe and secure for public travel and use by the said railroad company in whatever way may be necessary within the limits of the property rights of the said Baltimore and Ohio Bailroad Company, provided, however, that if the said Baltimore and Ohio Bailroad Company shall, in so doing, encroach upon or enter upon the land of the said Louis Silbereisen, it shall be responsible therefor to him in damages, unless the said company shall otherwise agree with the said Louis Silbereisen.” That petition was filed under section 199 of Article 16 of the Code of 1912, which provides that, “The Court may at any stage of a cause or matter, on the application of any party thereto, or party in interest, by motion or petition, or of its own motion, order the issue of a mandate (affirmative injunction) or injunction, directing and commanding any party to such cause or matter, or any party properly brought before it under the existing practice, to do, or abstain from doing' any act or acts,” etc. The case of Horner v. Nitsch, 103 Md. 508 , and others cited in the notes to that section, sufficiently sustain the right of the Court to issue an injunction in a case of this kind, and to avoid the necessity of discussing it.

The plaintiff (appellee) filed an answer to the petition in which he denies that the embankment, as at present constructed, is of the same grade, width, slope or elevation it was when originally constructed, and alleges that the railroad company has been constantly moving over its road bed and expanding its embankment. He also alleges that all he did was on his own land and he only removed earth that was on his property. He admits that he has no claim to ⁴¹⁴ any part of the land conveyed to the defendant by the deed of James Hill. The whole property originally belonged to James Hill and as the deeds under which the appellee claims expressly limit the conveyance of his land to the lines of the property conveyed by said Hill to the railroad company, it is not contended by him that he has any right to the property so conveyed to that company, but the controversy is as to where the dividing lines between the properties are.

By agreement the case was set down for final hearing and decree on the bill of complaint, motion or petition of defendant, answers and testimony filed and taken. A large amount of testimony was taken in open Court and on February 27th, 1913, the Court decreed that the orders filed on November 28th, 1910 (granting an injunction to' the plaintiff), and January 3 6, 1913 (granting an injunction to the defendant) be rescinded, and that the petitions upon which they were passed be dismissed without prejudice to any proceedings at law that either of the parties may be advised to- take. From the order or decree dissolving the injunction and dismissing the petition of the railroad company it took this appeal. It will not be out of place to remark that this is the kind of casewhich could be settled more satisfactorily out of Court than in it, if each party is inclined to recognize the rights of the other.

The land in controversy must be of very little value, and while the railroad company has no right to encroach upon the property of the appellee without first acquiring the right to do so by legal means, the evidence tends to show that the drain pipe it was laying when the plaintiff obtained the injunction would have been to the advantage of both parties. If it be conceded that the embankment has spread beyond where it was when first built, that does not in any way settle the correct location of the divisional lines, but if the railroad company has encroached upon the appellee’s property, and it is necessary for its charter purposes, it should be purchased or condemned. ⁴¹⁵ Without deeming it necessary to discuss the evidence on the subject, we are satisfied that we cannot determine from the plats and testimony now before us where the divisional lines in fact are. The locations of neither party as made are sufficiently well established to justify a Court of Equity in passing a decree fixing then!. The question therefore to be determined is, whether under the evidence and circumstances the Court ought to have held the case until the lines can be properly established.

We cannot agree that the evidence did not show danger to this embankment by reason of the acts of the appellee. It may be that the slide will not be dangerous if it is taken care of, but if the appellant is to be limited to the line claimed by the appellee, it may also be