Brown v. Philadelphia, Wilmington & Baltimore Railroad

Miller, J., delivered the following opinion: I assent to the affirmance of the order refusing this injunction, but do so upon the sole ground that the power ⁵⁴⁶ still remained in the company to have the condemnation-in question made. As to this branch of the case I concur-in the views expressed in the opinion of the Court. But if the company had exhausted its powers of condemnation before the proceeding to take the complainant’s land was-instituted, then it was acting’ ultra vires, and in such case I am clearly of opinion the landowner has the right to he protected by a Court' of equity against such an unlawful taking of his property. I have expressed my views upon this subject in the. dissenting opinion filed in the case of’ The Cumberland and Pennsylvania Rail Road Company vs. Pennsylvania Rail Road Company in Maryland, 57 Md., 280 .

Alvby, J., delivered the opinion of the Court. The application for an injunction in this case is based upon the theory, that the power and right of the appellee to take land by condemnation for the purposes of constructing or keeping in running condition its line of railroad from the eastern terminus of its bridge over the Susquehanna river to the town of Port Deposit, has been exhausted; and that, without other legislative authority than it lias, its attempted exercise of that power is simply null and void. The road was constructed under the authority conferred by the Act of 1853, ch. 138. By that Act the appellee obtained its power and authority to construct- its bridge across the Susquehanna river at Havre-de-Gfrace ; and the grant of that privilege was upon the condition that the appellee should make and construct a railroad from the eastern terminus of the bridge thus authorized to be constructed to the town of Port Deposit.

It was provided that such railroad, when constructed, should be regarded as part of the existing railroad of the appellee, and should have all the privileges, exemptions and immunities of the then existing railroad of the company. Authority was conferred upon the company to enter upon any lands necessary for the construction of the road, buildings, etc., and to hold the same in fee simple; and such lands were authorized to be acquired by agreement or contract with the owners thereof, or where such agreements could not be made, it was provided that the company should have the same power and authority to have condemned such lands, as might be necessary for the purposes of said railroad, as was conferred on the company for the condemnation of lands, etc., by the Act of 1831, ch. 288, to incorporate the Baltimore and Port Deposit Railroad Company, since consolidated with and at the time of the passage of the Act of 1853, forming part of the appellee. It was then provided that the railroad authorized to be made ⁵⁴² should he completed and in good order for the running of cars, within six months after the bridge was so far completed as to admit of the passage of cars. In the original Act of incorporation of the Baltimore and Port Deposit Railroad Company, (Act of 1831, ch. 288,) to which reference was made, it is provided that whenever it shall he necessary for the company to have, use, or occupy any lands, etc., in order to the construction or repair of any part of the road or roads, the company is authorized to acquire the same hy agreement or condemnation, and where condemnations are taken, the inquisitions are required to be returned into Court, and hy the Court to he confirmed, if no sufficient cause to the contrary he shown. .

According to the allegations of the bill, the bridge was completed in the year 1866, and the road from the bridge to the town of Port Deposit was completed for the running of cars in 1867. In acquiring lands to he used for the bed of the road and other necessary purposes, the appellee purchased of Jacob Tome, in 1856, a certain piece of land, and took a deed therefor, and entered into the possession and use thereof, and constructed its road over the same, and still so occupies it. In 1863 and 1867 the appellant brought actions of ejectment against the appellee, in the Circuit Court for Cecil County, for the recovery of this land, which had been acquired from Tome; and in 1879 the appellant obtained a verdict, and in March, 1880, there was judgment thereon for the land so held by the appellee. . The title derived from Tome having thus proven defective, the appellee thereupon took proceedings under the provisions of the Act of 1853, ch. 138, to have condemned such portion of the land, so recovered hy the appellant, as was necessary for the use and operation of its road; and the inquisition was regularly executed and returned into the Circuit Court for Cecil County, for confirmation or rejection, according to the direction ⁵⁴³ of the statute.

The appellant appeared in Court and objected to the ratification of the inquisition, and then and there insisted, as ground of objection to the inquisition, that inasmuch as the bridge and the road had been completed, within the meaning of the Act of 1858, oh. 138, the appellee had no longer any right or power to condemn the land for the use and occupation of its road, against the consent of the appellant. But the Court overruled that