C. & P. Telephone Co. v. State Roads Commission

Briscoe, J., delivered the opinion of the Court. This is a suit by the State Roads Commission of Maryland to recover from the Chesapeake and Potomac Telephone Company, of Baltimore City, a corporation of the State of M aryland, the sum of $1,132.76, alleged to be due and owing the plaintiff by the defendant, for the use of its road bed for the telephone poles and wires of that company from the 22nd day of July, 1910, to the 1st day of January, 1915. The case was heard, in the Court below, upon an agreed statement, as. to the facts, which is set out in the record, and from a judgment, in favor of the plaintiff the defendant has appealed. The cause of action and the basis of the plaintiff’s claim are stated and appear, from the averments of the declaration and the agreed statement of facts, and briefly stated, ai'e these: On the 22nd day of July, 1910, the president, managers and company of the Baltimore and Yorktown Turnpike Road granted and conveyed to the plaintiff, the State Roads ⁴ Commission of Maryland, all of its right and title, in and over any and all of the roadbed of its turnpike, beginning at the limits of the City of Baltimore and extending in a northerly direction to a line dividing the States of Maryland and Pennsylvania, 'a distance of about 28.2 miles more or less.

At. that time and prior thereto-, the defendant had been maintaining and operating a telephone line, consisting’: of poles and wires on the turnpike road, under an agreement with the Turnpike Company dated the 26th day of July, in the year 1905, by which the defendant agreed to pay twenty-five cents a ye-ar for each and every pole maintained by it, and these payments had been regularly made by the defendant, to- the Turnpike Company, as rentals for the use of the roadbed, as provided for in the agreement. While there is no limitation as to time provided for in the agreement, the defendant has continued to use the road, in the same manner since its- acquisition by the plaintiff, as heretofore and is still so continuing to use it, but although demands have been made for payment accruing after the 22nd day of July, 1910, the defendant has refused to make any further payments, and this suit is brought to recover what it alleges to be a proper and reasonable charge, for the use of the road for its poles from the 22nd day of July, 1910, to the first day of January, 1915. There are two principal grounds of defense to- the action, made on the defendant’s demurrer to the declaration and presented by the defendant’s prayers, which were refused, at - the trial of the case. .The first contention is, that the- State of Maryland, prior to- the acquisition by the plaintiff o-f the turnpike road had by virtue of the provisions of section 359 of Article 23, of the Public General Laws of the State, applicable to telephone and telegraph companies, granted to the defendant the right to use all highways belonging to the State for its poles and wires and other fixtures and upon the acquisition by the S-tate of the turnpike road the defendant’s right to use the road, was ⁵ absolute and no longer conditional upon the agreement, with the former owner of the road. The point here made and advanced lias been presented, in various forms and phases to this Court, in a number of recent cases, and it seems to be well settled, by those decisions, that the Act of 1868, Chapter -171, see. 129, now section 359 of Article 23, of the Code, relied upon by the defendant, did not confer upon or give the right to- telephone or telegraph companies to make special use of the State’s property, without compensation or to- give to- these- companies the exclusive use of the highways of the State, free of charge.

In Postal Tel. Cable Co. v. Baltimore, 79 Md. 502 , this Court held, that the City of Baltimore had the right to charge a telegraph company for the use of its streets by telegraph poles erected thereon, and that the Act of Congress of July, 1866, entitling it to use the p-ost roads of the United States for the operation of its lines-, did not entitle these companies to use the roads- of the States, free of charge. This case was affirmed on appeal to the Supreme Court of the United States, in 156 U. S. 210 , 399, upon the authority of St. Louis v. Western U. Teleg. Co., 148 U. S. 92 , and 149 U. S. 470 .

In Postal Tel. Co. v. State Roads Commission, 127 Md. 254 , this Court held that section 359 of Article 23 of the Code was not an obstacle to recovery in that case, and further said, “that the- Act of 1868, Chapter 171, was in force when the case in 79 Md. 502 , was decided and regardless of whether it was intended to or did apply to foreign corporations, it simply provided that telephone companies could construct their lines as therein stated “without their being deemed a public nuisance or subject to be abated by any private party.” That certainly cannot be construed to give- the right to such a corporation to make special use of the State’s property without compensation.” In the recent case of Chesapeake and Potomac Tel. Co. v. State Roads Commission, 132 Md. 191 , it is said, “the gen ⁶ era! privilege accorded telegraph and telephone companies, formed under our incorporation law, to construct their lines on the public highways without thereby subjecting themselves to liability for the creation of a nuisance, does not place the State under any contractual or other obligation to permit any individual company, availing itself of the privilege and protection afforded by the statute^ to occupy and use the highways of the State without compensation.” It is clear, then, under the decisions of this Court, and the authorities cited, that the defendant corporation has no right to the exclusive use of the highways of the State, free from compensation, and it is competent for the State to recover for its benefit, compensation for the use of the portion of the highway thus appropriated. The second contention is, that the Legislature of the State, has not authorized and empowered the State Roads Commission to charge the telephone companies of the State for the use of the State roads and as the State itself has imposed no charge, the plaintiff cannot recover under the declaration in this case.

It may be conceded, that the Legislature has not delegated to the plaintiff authority to impose charges upon new users, or to create a new liability upon telegraph and telephone companies for the use of the State roads, but it can hardly be disputed that the State Roads Commission as an agency of the State, and as in this case, the assignee of the Turnpike Road, would not have the right or power to enforce a previous or an existing liability founded upon contract and which was acquired in the purchase of the turnpike road by the plaintiff. Section 320 of Chapter 141 of the Acts of 1908, now codified as section 35 of Article 91, of the Code, provides the method and confers the power upon the State Roads Commission to acquire by purchase or condemnation any and all existing turnpikes or any- sections thereof or any rights or interests therein, subject to any outstanding occupation, use ⁷ or franchise of any electric railway company or other public service corporation and thereafter all highways, however acquired hereinunder, shall be. State highways and shall he constructed, improved and maintained hy the Commission for the State and at its. expense, except as otherwise provided by the. Act itself.

By the deed and agreement of purchase dated the 22nd day of July, in the year 1910, hy and between the president, managers and company of the Baltimore and Yorktown Turnpike Company, grantors, and the State Roads Commission for and on behalf of the