Brady v. Road Directors for Allegany County

Osvfutt, J., delivered the opinion of the Court. Some time prior to November 26th, 1924, a bridge over the Potomac River, connecting Main Street in Westernport, Maryland, with Ashfield Street in Piedmont, West Virginia, was destroyed by flood. It had been constructed and maintained jointly for many years by the Road Directors of Allegany County and the County 'Court of Mineral County, West Virginia,, and when it was washed away they constructed, nearby, a temporary bridge to- take its place pending the completion of a new’ permanent- bridge. The temporary bridge was placed in a different location from the old one in order to have the clearance necessary for the construction of the new permanent bridge.

To afford the travelling public convenient access to the temporary bridge it became necessary to cross a lot sixty feet in depth belonging to the appellants, which separated it from Main Street. The Road Directors thereupon contracted with the appellants for the uso of that lot of ground free of charge for a period of six months. At the expiration of that period the permanent bridge was still uncompleted, and it then appeared that it would probably require an additional twelve months to finish it, and the appellee applied to the appellants for an extension of the privilege of using the lot for an additional ⁴⁹⁶ period of twelve months for a valuable consideration, but they refused to rent, lease or otherwise contract with the appellee for the use of the same. In that situation the appellee applied to the Circuit Court for Allegany County for a warrant directed to the sheriff of that county directing him to summon a jury to assess the damages which the appellants would sustain by tbe use of tbe said lot as a highway for the period of twelve months.

On that application the court signed a nisi order, and the respondents by way of cause filed an answer in which they denied that the court had jurisdiction to issue the warrant prayed for, and alleged that the petitioner had no power or authority to condemn the land or any interest in it. A hearing was had and testimony taken in connection with the issues made- by these pleadings and at its conclusion the court issued the warrant. A jury was summoned and sworn and its inquisition returned. Exceptions were filed to that inquisition, hut tbe court overruled tbe exceptions and ratified tbe inquisition, and from that order the respondents -appealed.

The facts essential to a consideration of the questions presented by tbe appeal, in addition to those already referred to may be thus stated: Westemport was incorporated by chapter 40 of the Acts of 1868. The Road Directors of Allegany County were incorporated by chapter'262 of the Acts of 1904. The County Commissioners of Allegany County were authorized by chapter 103 of tbe Acts of 1868 “to levy such -sum or sums of money as they deem necessary in their judgment, to aid in the construction of a bridge across the Potomac River at Westemport, in Allegany County, Maryland.” The County Commissioners of Allegany County, in conjunction with the County Court of Mineral County, West Virginia, did construct the bridge referred to in that act and have since maintained it, renewing and repairing it from time to time as was necessary. Before this proceeding it was destroyed by flood, and the ■appellee, in conjunction with the County Court of Mineral ⁴⁹⁷ County, West Virginia, made plans for its reconstruction and had let contracts for a part of the construction work.

On the 18th day of April, 1924, the appellee contracted with the appellants for the use of their lot, which was needed as a public way or approach to the temporary bridge. Under the contract the right to so- use it for1 six months was granted to the appellee, and no charge was. made for the use during that period, and the appellants agreed to renew the contract upon application by the appellee within the period of six months. Bo such application was made and the appellants then began to collect toll from persons crossing their land in going to and from the bridge. After the six months had expired the appellee, being of the opinion that the construction of the new bridge would not be completed within twelve months from that time, applied to the appellants for the use of the ground for a valuable consideration for that period, but was unable to reach an agreement with them as to such use.

Thereupon the appellee by its attorneys filed the petition referred to above, supported by the affidavit of its chairman, for the condemnation- of the land as a way or approach to the bridge for twelve months, and the subsequent proceedings resulted in the condemnation of the property and the award of damages to the owners for such use. We have treated these facts as un contradicted, for while the appellants denied that the temporary bridge had been constructed or paid for by the appellee, and denied that the use of the land was necessary to the public convenience, and denied that the appellee had been unable to agree with th'e owners, if the court had jurisdiction to1 entertain the application at all, they are concluded by the finding of the jury and the subsequent ratification of the inquisition upon those facts. The appellants objected to the ratification of the inquisition for reasons which may be thus summarized, that is to say: (1) because all acts of the appellee in connection with the permanent and the temporary bridge were ultra. vires and therefore void; (2) that there was no duty resting upon ⁴⁹⁸ the appellee to -condemn the land; (3) that the appellee had no power to condemn land for the purpose set forth in the petition within the corporate limits of Westemport; (4) that the petitioner had never by any valid corporate act decided that It was necessary to- condemn the land; (5) that the petition showed on its face that the appellee had never been requested to open a public road over the land in question, and that no notice had been given nor had any hearings, in reference thereto' been held; (6) that the proceedings show on their face that the public had adequate means of communication between Westemport and Piedmont; (7) that the jury had no- opportunity of finding for the .appellants because the form given them by the sheriff made no provision for a verdict in their favor; (8) that it did not appear on the face of the proceedings which of the appellants owned the land, and (9) that the statutes; under which these- proceedings had been held were repealed by “article 33A of the Code of Public 'General Laws of Maryland.” Although we have stated them all, it is unnecessary for us to consider any of these objections except those which deny that the trial -court had jurisdiction of the- subject matter of the proceedings, and those which assert that the statutes under which this proceeding was instituted have been repealed; for if that court had jurisdiction of the subject matter, and if those statutes are unrepealed and this proceeding-was properly instituted under them, its determination is final, and cannot be reviewed on appeal to this court. The reasons for that rule and the eases exemplifying its application have been so exhaustively treated in an opinion filed in this Court by Judge Pearce in Dolfield v. Western Maryland R. R. Co., 107 Md. 584 , that the citation of further authority seems unwarranted.

If the -appellee had the right to acquire land for the purpose set out in its petition and if sections 331 to- 337, article 23, C. P. G. L. of Md. are still in force, and this proceeding is properly instituted under the authority thereof, then whether the ap-pellee had by valid corporate act decided that ⁴⁹⁹ it was necessary to condemn the land, or whether it had attempted and failed to agree with the landowner as to its use and the proper compensation therefor, or whether public convenience required its condemnation, or whether there were irregularities in the conduct of the sheriff or the jury, or whether the interests of the several owners in the property were properly described in the petition, were all matters for the consideration of the trial court sitting in the exercise of a special statutory jurisdiction at the trial of the exceptions to the ratification of the inquisition, and from its judgment upon them no appeal lies to' this Court. Dolfield v. Western Maryland R. R. Co., supra. The important question presented by the appeal, therefore, is whether the court had jurisdiction of the subject matter of this proceeding, or stated in. another way, whether the appellee had any power to condemn the land described in the petition for the purpose therein stated, but before considering that question we will first deal with the contention that this proceeding, if it can be maintained at all, should have been instituted under article 33A of the Code of Public General Laws of Maryland, and not under sections 331-337, article 23, Bagby’s Code 1924. But in view of what was said in Koehler v. State Roads Commission, 125 Md. 444 , it is obvious (1) that those sections have never been repealed, and (2) that this proceeding was properly instituted under the authority thereof, if the appellee had the power to condemn at all.

In that case, as in this, land was sought to be condemned for highway purposes, and in that case as in this the proceedings were brought under the sections of article 23 to which we have just referred, the only material difference between the cases being that in that cage the land was sought for use as part of a state highway, while in this it is sought for use in connection with the county road system of Allegany County. And what was said by Judge Briscoe speaking for this Court therein is quite as applicable here. In dealing with that question he said: “It is clear that the object of the Act of 1912 was to- provide condemnation pro ⁵⁰⁰ ceedings before a jury in court instead of before a sheriff’s jury, in all eases, except those otherwise stated by the act itself. This is made plain and manifest not only by the title of the act, but by section 1 of the act, which is as follows: 'The state^ and -any municipal or other corporation^ commission, board, body or person, which under the laws of this State, has the right to- acquire property by condemnation, shall acquire such property, if condemnation proceedings be resorted to, in pursuance of, and under the provisions of, this article, anything in any other public general law or public local law or private or special statute to the contrary notwithstanding; provided, however, that nothing in this article contained shall apply to- or change the present law or procedure for the opening, closing, widening or. straightening of highways..’ - The proviso in the seventh section above cited specially provides that nothing in the article should apply or change the present law or procedure for the opening, closing widening or straightening of highways.

It is difficult to- understand how any serious contention can be made, in view of this proviso, that the law and procedure, then in force (Acts of 1908, chapter 141, and Acts of 1910, chapter 501), relating to- highways, were in any way intended to- be repealed or to. be affected by the act which excepted them from its operation.” The appellants, however, contend that the Eoad Directors, of Allegany 'County had no- power or authority to- condemn the land in question under this proceeding, (1) because it had no right to open, close, alter, or relocate a road except upon petition and notice in the manner provided in chapter 262, Acts of 1904, (2) that it had not the power to- condemn land within the corporate limits of Westemport, (3) because it had no- power or authority to- condemn a temporary use in land and (4) because it had no power or authority to construct or maintain the temporary or the permanent bridge. Before considering separately these objections, we will restate briefly the- situation of the appellee and the citizens-of Westemport and Allegany County at the time these pro ⁵⁰¹ ceedings were initiated. The two towns, Westemport in Maryland, and Piedmont in West Virginia, are separated by the Potomac Eiver. The only safe and convenient' means of communication between them for many years, has been over a bridge constructed for their common convenience by the joint action of Mineral County, West Virginia, in which Piedmont is located, and the Eoad Directors, of Allegany County.

Commerce between the two towns had in course of time led to a considerable volume of travel over this bridge by the citizens of the two states. As, a result of flood the bridge was destroyed and the only safe and convenient avenue of communication between the two states at that point became impassable. To serve the public convenience the appellee constructed a temporary bridge to care for the travel during the reconstruction of the old bridge, but access to that temporary bridge could only be had over private property. The owners of that property, after having allowed the use of it for that purpose for a period of six months, after the expiration thereof refused to permit it to he used any longer as an approach to the bridge except upon the payment of toll by such persons as had occasion to