Canton Co. v. Baltimore & Ohio Railroad

Page, J., delivered the opinion of the Court. This is an appeal from the judgment of the Circuit Court for Baltimore County rendered in an action of ejectment brought by the appellant to recover possession of a strip of land which had been condemned by the appellee for railroad uses in 1885. Two exceptions were taken, one to the admission of evidence, the other to th'e action of the Court upon the prayers. The appellant to sustain its case offered in evidence, among other things, the proceedings whereby the land in question was condemned for the use of the appellee for the construction of its Philadelphia Branch Railroad, intended to be a connecting line of the Baltimore and Ohio Railroad Company, from its Station, on Camden street down and along Pratt street and Eastern avenue to the city limits, and thence to its yards at Bayview.' The appellee paid to the appellant the damages awárded amounting to $20,000, and entered into the possession of the property, but has made no further use of it than laying on it rails, which did not connect with' its other tracks and which were removed in 1898, without having been employed for any substantial use.

In 1886 the Philadelphia Branch of the' appellee was opened for business, but instead of following the route over this property for its connection with the main stem, a temporary line over other land to the ferry to Locust Point, was made use of until the year 1895, when the ferry line was discontinued for general business, and the connection was then made via the tunnel under Howard street over the tracks of the Belt Line Company. In 1890, that ’ company entered into an agreement with the appellee whereby it was stated that the Belt Line Company being about to construct a railroad from Camden station at a point of connection with the tracks of the main stem of the appellee at Hamburg street, midway between Howard and Eutaw streets, to a point of connection with the tracks of the Philadelphia Branch of the ²¹⁵ appellee, at the western end of the Bayview yard ; and it being desired by the parties that the appellee should enjoy the use of these tracks, &c., when completed — therefore it was agreed among other things that as soon as the said railroad was constructed, the appellee should have the right to use the same ; and in part consideration thereof the appellee stipulated to ship and cause to be transported and carried over the Belt Line during the continuance of the agreement all of its traffic of every kind passing through the city of Baltimore, &c., except such part thereof as was loaded at, or destined for, stations of the appellee on or adjacent to the water, or destined to or from Canton. Much of this, as well as other evidence, was offered for the purpose of showing that the appellee had abandoned the projected line across the land now in controversy, by reason whereof it was contended that the right of occupancy thereof had reverted to the appellant. The appellee, with a view of showing that the appellee had not intended to abandon the route across the lands in question, offered evidence tending to prove the circumstances attending the agreement with the Belt Line Company and the reason for not having yet completed the Pratt Street Branch.

One of its witnesses in the course of the examination was asked by the counsel for the appellee whether in his judgment it would be proper for the appellee to abandon definitely its projected line through the city, to which the witness replied that he would consider it “a very unwise thing to do,” and proceeded to give the grounds therefor; which substantially were that the capacity of the tunnel was now taxed to the utmost, and the business was still growing, and as soon as the capacity of the tunnel proved inadequate, the freight traffic would have to go over the Pratt street line “or some line substituted for it.” The counsel for the appellee thereupon remarked, “that is just what I wanted.” Objection was made to the question and answer, and this being overruled exception was taken to the ruling of the Court, as well as to the remark of counsel; and this constitutes the appellant’s first exception. With respect to the exception to the remark of coun ²¹⁶ sel, there was no ruling of the Court below and therefore nothing for this Court to pass upon. The question objected to was put to a witness who was an expert in 'railroad matters respecting a fact pertinent to the inquiry then being made. For reasons that will appear hereafter it was competent for the appellee to show all the facts and circumstances affecting the question of abandonment.

The theory of the appellant in objecting to this question and answer is stated in its several prayers, all of which were refused by the Court. In its first and third prayers, it is substantially affirmed, that if the appellee made the agreement with the Belt Line Road in 1890, and since then has transported its freight and passenger traffic, from its main stem to the Philadelphia division, over the line of that company, and not over the land in dispute; and (by its third prayer), if the appellee has adopted another and different route and has never completed its railway over the land- in question; then there was an abandonment of the rights of the appellee acquired by the condemnation; and in such case, the property has reverted to the appellant, and it has the right to recover the possession thereof. So that the question raised by this exception and these prayers is whether the specific intention of the appellee with respect to an abandonment of the land under the circumstances of this case is a material matter; or whether it must be conclusively presumed in this case as matter of law that there was an abandonment of the property by the appellee; and this is made to depend upon two fácts, viz., first, the non-completion of the road over the land or a non-user of the property for the purposes of-the- Philadelphia Branch; and second, that since the condemnation proceedings, the traffic of the appellee has been sent over the Belt Line Road; if these facts were found by the Court sitting as a jury, then there was a reversion of the property to the plaintiff, and the plaintiff would be entitled to recover. It seems to be well settled that when a corporation under condemnation proceedings “acquired for public purposes a mere easement in land, 'its right and title to the property so ac ²¹⁷ quired are dependent upon the use of the property for public •purposes, and when such public use becomes impossible, or is abandoned its right to hold the land ceases, and the property reverts to its original owner.” Many of the authorities to .sustain this proposition are to be found cited in io A. & E. Enc.

Law (2 ed.), 1198; Lewin on Eminent Domain, sec. 596. Here the condemnation was, “for the use and occupation in perpetuity by said company of said parcel of land for its Philaphia Branch Railroad,” and the damages of $20,000 assessed, and paid by the appellee were assessed for that purpose, and no other. To deprive it now of the possession of the land for that purpose, there must be shown- that it has lost its right, either by reason of the fact that such use having become impossible (which is not contended), or that by some act, or the omission of some act, it was bound to perform, the appellee must legally be regarded ás' having abandoned it. It would appear to be entirely unreasonable to hold that a mere nonuser could have that effect; because to so hold, would make it impossible for a corporation to make any provision for the future by securing more property-than was then required but would be needed thereafter.

Nor ought the” mere fact that another route has been established be sufficient per se; since .that would prevent a railroad from acquiring two routes, having the same terminals. It is certainly conceivable that a railroad company, might deem it advisable to take under condemnation proceedings more or other property than it could then use. Or haying taken it for present uses, it might become financially embarrassed, so that their plans would have to be postponed. In such cases it should not be held that while it is awaiting developments of its business, or the reestablishment of its financial ability, it must lose whatever expenditures it may have incurred in the acquirement of property, which for the present cannot be made use of, but are absolutely necessary for the carrying out of their plans.

In Pittsburg, F. W. & C. Ry. Co. v. Peet, 25 Atl. Rep. 612 , (19 L. R. A. 467), the Court said: “When a railroad company condemns land, it is of necessity the judge of how much is re ²¹⁸ quired for its use; the company had a right, when it condemned the property to regard and. make provision for its future as well as its present needs.” It has accordingly been frequently held, that while non-user, is strong evidence tending to show abandonment, yet it will not per se operate as abandonment, unless there is some decided and unequivocal act of the owner inconsistent with the continued existence of the easement; or unless, the non-user has been for a considerable period, without a valid reason or excuse for its neglect. Eddy v. Chase, 140 Mass. 471 ; People v. Albany, &c., R. R. Co., 24 N. Y. 261 .

This Court in Vogler v. Geiss, 51 Md. 410 , has said that while a party entitled to a right of way or other mere- ease-ment in the land of another may abandon and extinguish such •rights by acts in pais, and without deed or other writing; yet that such acts relied on to effect such result “must be of a decisive character;” and whether they amount to an abandonment or not, “depends upon the intention with which it was done and that, is a subject for the consideration of the jury. A cesser of the use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as an express release of the easement, without any reference •whatever to time.” And this seems to be in accordance with authority as well as reason. In 2 Wood on Railroads, sec. 242 (ed. 1894), the principle is thus stated: “The question as to whether there has been