DeLauder v. County Commissioners

Pearce, J., delivered the opinion of the Court. Mrs. DeLauder, one of the appellants in this case, is the owner of a farm situated partly in Baltimore County and partly in Harford County, the two portions being separated by a stream called the Little Gunpowder Falls, and by a public road running through the Baltimore County part of the farm and parallel with the stream. Between this public road and the stream there is.a narrow strip of land belonging to the ⁵ Cotton Duck Company, over which Mrs. DeLauder has a private right of Way twenty or twenty-five feet in width, used by her for communication between the Baltimore County part and the Harford County part of said farm, and being the only means of communication possessed by her, and this action is brought to recover damages claimed for the alleged obstruction, or destruction, of this right of way. It appears from the evidence that this right of way had been used by the owners of the plaintiffs’ farm for more than fifty' years ; that at or about the point where it left the public road there was a drain crossing the road, covered with stone slabs, which carried off the water from a spring on the west side of the road to the east side, and thence to the falls, and which also carried off some of the surface water, but was not sufficient at all times to carry off all the surface water which came to the drain.

In 1899, the County Commissioners of Baltimore County removed this drain, and in its place constructed a wooden culvert five feet wide and about two and a half feet high, and about three and a half feet above the top of the old drain. This culvert was located just about where the old drain had been, and the bed of the* road was filled in for some distance on both sides of the culvert to make the grade of the approaches thereto easy, and the embankment thus raised was from three to four feet above the-adjoining ground on the east side of the road, and extended across the plaintiffs’ right of way. Along the sides of this embankment, and wholly, but just within the limits of the public road guard-rails were placed for the protection of the public, and the evidence was that the guard-rail on the east side of the road covers the entire entrance to the right of way, which could not be used, even if graded up to the level of the culvert, without removing the guard-rail, and that it is now impossible to get in or out of the right of way with a team. The testimony showed that the culvert improves the road and is beneficial to the public.

The declaration sets out the plaintiffs’ right of way, the construction of the culvert by the defendants, and the conse ⁶ quent destruction of the user of the right of way. The defendant pleaded that it was a municipal corporation, charged with the duty of keeping the public roads of the county in safe and good condition for travel, aud that it constructed the culvert in question upon one of these public roads ; that it was a useful and necessary improvement thereto, and was constructed with due care and skill and was maintained with like due care and skill, and that the culvert and its approaches are the obstructions to plaintiffs’ right of way complained of. To this plea the plaintiffs demurred, and the demurrer being overruled, the plea was traversed, and the case went to trial, resulting in a verdict and judgment for defendants. The plaintiffs offered five prayers, of which the first (which merely asserted that the plaintiffs upon the facts stated therein were entitled to the free use of the right of way) was granted, and all the others were rejected.

The defendant offered three prayers, of which the first and second were granted, and the third was rejected. The demurrer to defendants’ plea raises the question whether the defendant, in the discharge of its duty to the public, can render impossible and wholly destroy the plaintiffs’ user of the right of.way,” or, to state the proposition more generally, but not with less legal accuracy, whether it can take the plaintiffs' property without making compensation therefor. The same question substantially is also raised by plaintiffs’ second and third prayers, as well as the further question whether the defendants had the right so to locate said culvert and guard-rails as inevitably to cause injury to the plaintiffs, although otherwise the work may have been done with due care and skill. Property has been defined as “ the dominion, or indefinite right of user and disposition which one may lawfully exercise over particular things or subjects.” 19 Amer. & Eng.

Ency. of Law, 284. It extends to easements and other incorporeal hereditaments, which, though without tangible or physical existence, may become the subject of private ownership. Tripp v. Overocker, 7 Colo. 74 . Here the land over which the right of way was enjoyed was not the property of Mrs. DeLauder. ⁷ The right to use this land, within certain prescribed limits, was the only property right she had in the land, and it is this right of user which is alleged to have been taken by the defendants.

The plea does not deny the averments of the declaration, but is admittedly a plea in confession and avoidance. It is well settled in this State that as against a municipal corporation in the careful exercise of its right and power to grade and improve public streets or roads, and where there is no taking or actual physical invasion of property, there can be no cause of action for an unavoidable injury done. It was s)o decided in Balt. & Pot. R. R. v. Reaney, 42 Md. 132 , andin Green v. City and Suburban R. W., 78 Md. 304 .

The latter case was one of much hardship, but of clear law, for whilst by reason of the raising of the grade of the turnpike, Green was put to serious inconvenience and expense in changing the mode of ingress and egress to and from his premises, the means of ingress and egress was not destroyed. There was, therefore, no taking of any property right, and the damages suffered were consequential, and damnum absque injuria. So in O'Brien v. Balt. Belt R. R. Co., 74 Md. 375 , where a cut was made in the bed of the street in front of the plaintiff’s property, but the street, after the cut was made, remained forty-one feet wide.

The most that O’Brien claimed was that he was deprived of the use of the street, as it had before existed, and that his