Central Passenger Railway Co. v. Philadelphia, Wilmington & Baltimore Railroad

McSherry, C. J., delivered the opinion of the Court. In eighteen hundred and thirty-five the Baltimore and Port Deposit Railroad Company, now forming part of the Philadelphia, Wilmington and Baltimore railroad system—a railroad operated by steam—laid its tracks along Canton avenue in the city of Baltimore, in pursuance of authority obtained from the Mayor and City Council. In eighteen hundred and ninety-six the Mayor and City Council gave to the Central Passenger Railway Company—a street railway company— permission to construct its tracks along Wolfe street in the city. Wolfe street intersects Canton avenue at right angles.

When the railway company undertook to cross the track of the railroad company at the intersection of Canton avenue and Wolfe street, the railroad company interposed an objection and in June, eighteen hundred and ninety-seven, filed in the Circuit Court of Baltimore City a bill of complaint for an injunction to restrain the street railway company from interfering with the steam railroad company’s track, until the former company would enter into an agreement to pay, not only the cost of making the crossing, but the subsequent cost of keeping the crossing in repair; which repairs, it was insisted, should be done under the supervision and according to the direction of the engineer of the railroad company. The bill was answered. Later on the street railway company under an agreement with the steam railroad company, made the crossing at its own expense, and the question as to the relative rights and obligations of the two companies with respect to the maintenance of the crossing was reserved for the future determination of the Court. P'inally, the case came on to be heard and the Circuit Court decreed on April the third, nineteen hundred and two, that an injunction should issue to restrain the street railway company from further using the crossing over the track of the steam railroad company at the inter ⁴³⁸ section of Wolfe street and Canton avenue, until the railway company would execute “an agreement for the maintenance of said crossing in the terms set forth for that purpose in the agreement filed with the bill of complaint.” From that decree the street railway company has appealed.

The precise question, therefore, is, was the Circuit Court right in restraining the railway company from using the crossing until the company would execute an agreement binding itself to maintain at its own cost in the future and for all time the above-mentioned crossing ? The bill as originally filed was designed to restrain the construction of the crossing unless the street railway company would agreed to do two things ; first, to construct the crossing at its- own cost, and, secondly, to main that crossing when constructed, for all time, and to maintain it in accordance with the requirements which the steam railroad company’s engineer might prescribe. With the first of these demands we are not now concerned further than as the legal principles which are applicable to that situation may throw light upon the second; and we are not concerned with the first demand because by the agreement alluded to the crossing was actually constructed at the expense of the street railway company. The adjudged cases are quite in accord in holding that when a new road or way is constructed across an old road or way the owner of the new way must not only bear the expense of making and keeping in repair the new way, including the cost of such structural changes in the old way as are rendered necessary by the construction of the crossing ; but he must, in addition, make compensation to the owner of the old way for the property or easement appropriated for the occupancy of the new way.

Mayor, &c., Balto. v. Cowen & Muraay, 88 Md. 447 ; N. C. Ry. Co. v. Mayor, &c., Balto. 46 Md. 445 ; Chi., Mil. & St. P. R. Co. v. Milwaukee, 97 Wis. 418 ; Kansas C. R. Co. v. Comrs. Jackson Co., 45 Kan. 716 ; In re First St. 66 Mich. 55 ; Cen. R. Co. v. Bayonne, 51 N. J. L. 428.

Whilst this is conceded by the street railway company to be he law when the new way crosses the private property of the ⁴³⁹ owner of the old way, it is denied that the doctrine is applicable where one railway track crosses another railway track on the bed of a city "street, to which street neither railway company has any other right than the permission given by the municipality to lay tracks thereon. And this distinction is alleged to exist because neither the first nor the second occupant of a pre-existing city highway has, it is claimed, any exclusive right to the use of the public thoroughfare ; and because the first occupant’s right, whatever it may be, is, in its inception and throughout its existence, subordinate to the same use of the highway by the second occupant, if the latter be granted a licence to use that highway. The lines of the pending controversy are thus sharply drawn and the case is narrowed down to the single inquiry as to whether the asserted distinction in reality exists. If it does exist to the full extent claimed then the decree is wrong ; if it does not exist then the decree is right.

It is indisputably true that a railway or a railroad company which, under authority obtained from the city, lays its track along or across an opened and subsisting city street, acquires thereby no exclusive right to the use of the street; but it does not thence follow that it secures no rights of any kind which another company subsequently seeking to use the same track or a part of the same track is bound to recognize. In the assertion of the opposite conclusion lies the fallacy of the appellant’s contention. There may well be no exclusive right in the company to the use of the street as against the public generally or as against a parallel or competing road, and yet there may be, and certainly there is, a right in the company to use its own tracks upon the street, and to use them to the exclusion of any other company, unless the other company procures the right to use those tracks upon making due compensation. This has been distinctly decided in North Balto.

Pass. Ry. Co. v. North Av. Ry.

Co., 75 Md. 233 ; and in North Balto. Pass. Ry. Co. v. Mayor, &c., Balto., 75 Md. 247 .

In the first of these cases it appeared that the North Baltimore Passenger Railway Company was, by an ordinance of the City Council ⁴⁴⁰ given the right to lay its tracks on certain named streets, and in the ordinance the city reserved the power to grant to any other road the privilege to use the same tracks, but under such regulations and upon the payment of such sum or sums of money to the first mentioned company as should be agreed upon by the Mayor, the City Commissioner and the president of the [company. The North Avenue Railway Company was afterwards incorporated and was granted by an ordinance of the city the right to use the tracks of the North Baltimore Passenger Railway Company on North avenue; and it was further given authority to use electricity as a motive power. The use of electricity necessitated changes in the road bed and' tracks of the North Baltimore Passenger Railway on North avenue. These changes it was alleged would occasion loss and injury to the North Baltimore Passenger Railway Company which owned the tracks, and it accordingly filed its bill of complaint for an injunction to restrain the North Avenue Company from interfering with the tracks.

Whilst this Court held that the North Avenue Railway Company had authority under the ordinance to change the North Baltimore Passenger Railway’s tracks, it also determined that compensation must be made to the latter company, and accordingly the injunction asked for was directed to be issued. And the ground upon which the relief was granted was distinctly this, that the North Baltimore Passenger Railway Company had a property right in its tracks though they had been laid on a city street, and that the property right thus owned could not be invaded without just compensation being paid even had there been no provision in the ordinance directing such compensation to be paid. This is made apparent by the following extract from the judgment of the Court as delivered by Chief Judge AlvEy : “But such change and disturbance are not to be allowed without just compensation to the plaintiff company.” The provisions of the ordinances are then cited and the judgment proceeds : “This, therefore, is the contract of the parties ; and it must be conformed to as a conditon precedent to the exercise of the right of the defendant to enter upon or tise in any manner the ⁴⁴¹ tracks and property of the- plaintiff. This provision of the ordinance is simply in accordance with the settled general rule of law upon the subject; 2 Dillon Mun.

Corp., sec. 727; Jersey City & B. R. Co. v. Jersey City & Hob. H. Ry. Co., 20 N. J. Eq. 61; and justice as well as the principle of analogy to cases resting upon the power of eminent domain, require that the compensation should be paid, if required, before the property of the plaintiff is appropriated to the use of the defendant company.” In the second case the controversy arose out of a claim made by the North Baltimore Passenger Railway Company to an exclusive right of trackway over a city bridge across Jones’ Falls. The claim was resisted and this Court, again speaking through Chief Judge Alvey, said : “Under a grant or license of the municipality to a street railroad company, to use the street for its tracks, it is only so much of the street as may be actually occupied that can be claimed to be exclusive of other tracks; and other parts of the street may be granted to a competing line