Consolidated Gas, Electric Light & Power Co. v. Northern Central Railway Co.

Page, J., delivered the opinion of the Court. This is an appeal from a decree of the lower Court sustaining the demurrer of the appellant, and dissolving the injunction theretofore issued. The facts of the case as set out in the bill of complaint, ⁶⁷² show, that the appellant is a corporation of the State of Maryland created for the purpose of supplying among other things electricity “for lighting and power purposes, to the citizens of Baltimore City and County; for such business “it is necessary to erect poles along the highways” in order to string thereon wire cables and other appliances required for the proper' distribution to its customers of the current generated at its power houses. It is alleged, that desiring to erect a line of poles for such purposes, from the intersection of the county road with the appellant’s railroad, to a point mentioned in the bill, the appellee “on inquiry of the .owners of the land abutting on the said line of railway” learned from them that “they owned the land up to the centre of the railroad tracks” and that the railroad had no other or further rights than the operation of its trains over and upon said tracks as laid;” thereupon the appellant entered into negotiations with Mrs. Josephine L. Stewart “who owns the greater part of said land lying to the south of said tracks and with James Piper and Charles Morton Stewart who own the balance thereof, to secure from them as the owners of the said land, the right to erect the line of poles as aforesaid;” and the said parties entered into an agreement authorizing and empowering the appellant to erect the-poles on the lands abutting upon the said railroad tracks; the said agreement was filed with the bill together with the blueprint attached showing the location of each pole to be erected.

It is also shown that acting under this authority the appellant through it agents, proceeded to erect its line of poles, but upon two of them being erected, the appellees through its-agents and servants, cut them down and filled in the holes-which had been dug. That later on the appellant proceeded; to replace the poles, whereupon the appellees again appeared and cut them down, whereupon the appellant to avoid a. breach of the peace withdrew. The appellant avers that the-said poles so erected or to be erected, were and will be upon and over lands not the property of the railway company, and will not in any way interfere with the operation of trains over ⁶⁷³ and along its track, and that the public business of the appellant will be seriously hampered and interfered with by the unlawful action of the appellee in intermeddling with its poles as stated. The appellant therefore prayed that the defendant mentioned and its servants and agents may be restrained from interfering with the complainant in the erection, &c., of the said poles, &c. &c.

To this bill, the railroad company interposed its demurrer, and assigned as grounds therefor, ist. that the plaintiff has not stated in its bill such a case as entitles it to an injunction, nor 2nd. to any relief against the defendant. The learned Judge below sustained the demurrer and dissolved the injunction, and from that decree this appeal is taken. An objection to the sufficiency of the bill of complaint urged by the appellee in argument is, that the complainant has failed to set out a clear case upon which its equity rests, in that there is no deed or other instrument, filed on which, its equity can rest. The alleged right that the appellant seeks , to protect by the. injunction, is, to erect and maintain a line of poles for the purpose of carrying electric wires from and along the land of other parties named in the bill, along the tracks of the railroad, for the purpose of maintaining its business of serving the public with electricity.

It is not averred that it has any rights in and to the property, except as stated in the agreement made with Mrs. Stewart “who owns the greater portion of the said land,”, and with the two other persons who own the residue. This agreement made with these persons, “as owners of the land” under seal but not recorded, purports merely to grant unto the appellant, “permission to erect and maintain at its own risk and expense” &c. at the locations shown upon the plat, filed with the bill, electric light poles, &c. as set out in a copy of the agreement .filed among the proceedings. It does not convey any rights in the land, or. indeed anything, except a “permission” to erect and maintain poles upon the land. It would seem to be a very vio ⁶⁷⁴ lent construction of the agreement to construe it as intended by the parties thereto to vest in the appellant more than a mere authority to do an act or a series of acts upon their land, without passing any estate therein, and if this be correct it could not confer upon the appellant more than a mere license, the effect of which “amounts to nothing more than an excuse for the act of erecting the poles which otherwise would be a trespass.” If on the other hand the privilege could be regarded as of such a nature