Brehm v. State Roads Commission

The State Roads Commission is empowered by the Act of 1931, chapter 539 (Code [Supp. 1935], art. 89B, sec. 13) to abolish a railroad grade crossing of a state highway whenever it shall appear to the commission to be dangerous to public safety or to impede public travel; and to do so it may carry a highway over or under a railroad at the site, or may vacate, relocate or change the lines, width, or direction of the highway, and open a new highway in its place. And there is a second grant of power in an Act of 1935, chapter 537 (Code [Supp. 1935], art. 89B, sec. 32A): "to build and improve roads and bridges, including any and all projects for elimination of highway hazards existing or found to exist at crossings of highways with railroads * * * with funds received from the United States Government or any agency thereof * * * and for this purpose the State Roads Commission may exercise any of the powers conferred upon it by this Article or elsewhere." The appellant, by a bill in equity below, complained that the removal of a railroad crossing on a road by which he passed from his farm in Harford County to the main highway between Baltimore and Philadelphia, wrongfully cut and blocked that road, and deprived him of this convenient, lawful access to the main highway. He was given a new outlet crossing the railroad by a bridge, but he complained that it was much farther to one side of his farm and would leave him at an increased distance from places on the other side, that the bridge is too light for some of his farm traffic, and that there was fraud and illegality in proceedings by which the elimination of the crossing was placed at the command of the State Roads *Page 414 Commission, and by which the elimination was accomplished. The relief sought was a permanent injunction against the closing of the old road to the grade crossing and on to the main highway, the Philadelphia Road.

The farm is one of 521 acres, on the shore of the Bay, south of Havre de Grace, and extends inland to the railroad right of way. From time immemorial there has been a road, until recently a private road, serving the Brehm farm and two farms to the south of it on the peninsula formed by Swan Creek. Running north from the lower farms and over the Brehm farm to the northwest, it has reached the railroad at Oakington Station, crossed, and then extended a short distance over the land of a neighbor to the Philadelphia Road. The railroad company regularly maintained gates and watchmen at the crossing.

The Philadelphia Road has been under reconstruction, with the aid of the Federal Works Progress Administration, and some grade crossings on it have been removed. In the substitution in this instance of an outlet to the south, over land of a neighboring owner, a bridge of the old Philadelphia Road, 4306 feet to the southwest of the grade crossing, has been utilized, and the result of the diversion to it is that travelers to the north from the Brehm farm have a mile and a half added to their distance. The distance to the south is shortened. The mere increase of distance for travel in the one direction, the proceedings being proper, would not constitute a taking of the landowner's property for public use, and so require compensation to be paid for the taking.

Const., art. 3, sec. 40. Extensions of meaning of the words "taken for public use" to include incidental damage or injury, are adopted in this state only in the restricted situations described in recent cases, and, as has been stated, cannot be enlarged without making "an extension of the constitutional prohibition amounting to an amendment such as has been adopted in many other states, but which the people of this state have not yet seen fit to make." Krebs v. State Roads Commission, 160 Md. 584 , 594, 154 A. 131 , 135; Ragan v. Susquehanna *Page 415 Power Co., 157 Md. 521 , 146 A. 758 ; Baltimore v. Himmelfarb, 172 Md. 628 , 630, 192 A. 595 ; Balto. O.R. Co. v. Gilmor, 125 Md. 610 , 94 A. 200 . The proceedings complained of were these.

On November 12th, 1935, the chief engineer of the railroad company wrote the engineer of the State Roads Commission that in connection with grade crossings that had been on statements of their two engineering departments for possible elimination by the use of government funds, the company had often called attention to the crossing at Oakington, and it was urged that the elimination of that crossing be now carried forward. Emphasis is laid on a supposed initiation of the proposal by the company, but if it did initiate it, and would profit by the elimination, the project would not by reason of those facts be any the less a public one, within the authority of the State for public improvements. "It is perhaps rare for an application to be made to the county commissioners of a county to open, alter, or close a road, excepting when one or more persons are specially interested in having it done." Baltimore v. Brengle, 116 Md. 342 , 348, 81 A. 677 , 680; Jenkins v. Riggs, 100 Md. 427 , 59 A. 758 ; Dobler v. Baltimore, 151 Md. 154 , 166, 134 A. 201 . Section 18 of article 89B provides that: "The State Roads Commission may proceed with respect to any such crossing upon its own motion, or upon the petition of any railroad company or companies whose tracks cross or are crossed at grade." From the time of the letter from the railroad engineer the project went forward.

Two days later, on November 14th, 1935, the engineer of the Roads Commission wrote the County Commissioners of Harford County that he would recommend to the Government and the commission that it build the new road to eliminate hazards on grade crossings if the county commissioners would close the grade crossing as a public road and turn over to the state commission the right of way for the new road; and to this the county commissioners, in reply, assented, and plans and estimates for removal of the crossing were drawn accordingly. On January 23rd, 1936, Mr. Brehm, *Page 416 by his counsel, wrote the state commission a letter protesting against a reported plan to close the private road to his farm. In this there may have been a misunderstanding of the project, one that still prevails to an extent, for complaint is still made against the closing of the road across Mr. Brehm's land, while that part of the road has not been closed in the usual sense of the word, but has only been interrupted at the crossing beyond, over the neighboring land, to the Philadelphia Road. It is still open, as a county road now, to the railroad at Oakington, and without some further action will remain so after the elimination of the crossing, although any public or private right to pass over the tracks there will then have ended.

At the time of the correspondence described, the whole road over Brehm's land was a private road, as stated in the protest. And to this protest the state commission, by its chairman, replied that it had no authority to close any road, and did not assume the prerogative. It had plain authority to remove grade crossings on state highways, and was exercising it. Ten days later, on February 6th, 1936, the county commissioners received from Mr. Brehm a deed conveying the road or "right of way 40 foot wide and to include the bridge over Gashey's Run from the Pennsylvania Railroad right of way through the property of Henry A. Brehm to the outline of the property owned by Dr. S. Griffith Davis." The purpose of the conveyance was stated to be that of joining in converting the road to the main highway into a county road.

Subsequently, on April 13th, 1936, another deed, executed by both parties to the first, declared that the previous one was not intended to give, and did not give, the county any right to close the road, that on the contrary it was intended that the road should be kept open and maintained as a county road. On the following July 13th, 1936, at the request of the county commissioners, the State Roads Commission took over as a state road the crossing and section of roadway connecting with the Philadelphia Road, beyond that conveyed *Page 417 by Brehm. The rights needed for the substituted outlet over the bridge were then acquired by the state commission. On July 28th, 1936, an agreement between that commission and the railroad company looking to the alteration was executed, and in it the company agreed to contribute an amount which was equal to the cost of obtaining the rights of way for the new section of road to the bridge; and the commission agreed to close the crossing.

On the following October 13th, 1936, Mr. Brehm's counsel wrote the railroad company asking what was planned, and was told in reply of its agreement to eliminate this grade crossing. Counsel then protested to the county commissioners against the project as a closing of the road conveyed to the county, in violation of the confirmatory deed. The county commissioners answered that they had no information of the matter. The protest was then heard by the chairman of the state commission in person.

And two months later, an inquiry for the result of that hearing brought another statement that the agreement had been made. The suit followed. The chancellor concluded that the State Roads Commission was fully empowered to remove the crossing and to provide the new outlet, as described, and that the complainant was not entitled to an injunction if notice of the plan were given. Sections 18 and 20 of article 89B, enacted in 1931, required that the commission should fix a time and place for a hearing of persons interested, and give such notice as it should deem reasonable, and although the Act of 1935, or section 32A, did not mention this requirement, the chancellor held that its general reference to exercise of the powers otherwise given in the Article imported the provision.

It was decreed that the plan to remove the crossing was otherwise valid, and would furnish no ground of complaint, but that the project should be restrained until the notice and opportunity to be heard were given. An injunction was then issued for that purpose. A formal notice of hearing was advertised as required, and the hearing held, and subsequently the commission *Page 418 ordered that the crossing be legally vacated, abandoned, and closed. It is objected that the hearing was legally inadequate because no witnesses were called on behalf of the state commission, no argument was made or brief filed on its behalf, and a report which it had from its engineer on this crossing was not produced.

Sections 18 and 20, requiring the