Dolfield v. Western Maryland Railroad

Pearce, J., delivered the opinion of the Court. This appeal is taken from a decree of the Circuit Court of Baltimore City sustaining a demurrer to the plaintiff’s bill of complaint, and dismissing the bill. The bill alleges that the plaintiff, Alexander Y. Dolfield, is the owner of a parcel of land now within the limits of Baltimore City and along the line of the Western Maryland Railroad Company, which will be designated herein as the Railroad Company. That said Railroad Company is a corporation under certain special acts of the General Assembly of Maryland with authority to construct, repair and operate a railroad between certain points in said State, and with authority for said purposes, to acquire by purchase or condemnation such lands as might be required for its railroad tracks, buildings, stations, etc.; the width of said railroad between its terminals and through the plaintiff’s land aforesaid, being expressly limited by its charter, and the amendments thereof to a distance not exceeding sixty-six feet.

That the Railroad Company had long before the institution of this suit, acquired by condemnation a right of way sixty-six feet wide through the plaintiff’s lands, upon which said railroad has been constructed and is now operated, and that thereby the said Railroad Company completely exhausted all the powers granted to it for the acquisition of any other part or parcel of the plaintiff’s said lands. That nevertheless, on October nth, 1905, the defendant for the purpose of constructing its railroad of a greater width than sixty-six feet, instituted condemnation proceedings for the purpose of acquiring thereby an additional strip of the plaintiff’s land one hundred and thirty-two feet wide, contiguous to the sixty-six feet ⁵⁹⁰ now occupied by said railroad, and that said additional strip was not necessary for the construction of its said railroad not exceeding sixty-six feet in width. That in pursuance of said attempted condemnation the usual proceedings were had and were returned to the Superior Court of Baltimore City where the plaintiff excepted to, and protested against, the ratification of the inquisition and return made in said proceedings, and to the entry of any judgment thereo.n, but that said Court overruled said exceptions, and attempted to ratify said inquisition, as appeared by a certified copy of said proceedings filed as a part of the bill. That the defendant had no power or authority to condemn the lands so sought to be condemned, because the lands theretofore acquired were sufficient for the construction of its railroad not exceeding sixty-six feet in width, and because the lands sought to be condemned were neither necessary nor susceptible of being used for the mere purpose of building a railroad not exceeding sixty-six feet wide, and that therefore the pretended condemnation was null and void.

That the defendant nevertheless is about to enter upon said lands and to excavate the same and construct thereon both cuts and fills which will work an irreparable injury to the plaintiff That the Superior Court was without jurisdiction in the said condemnation proceedings which are in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, and of Article 23 of the Declaration of Rights in the Constitution of the State of Maryland. The bill then prayed an injunction restraining the defendant from entering upon said lands; also that the condemnation proceedings and the judgment entered thereon be declared null and void, and for such other and further relief as the case should require. To this bill the defendant demurred. It appears from the certified copy of the condemnation proceedings that though the plaintiff entered an appeal on June 25th, 1906, from the order of the Superior Court ratifying ⁵⁹¹ said inquisition; passed on April 27th, 1906, he never prosecuted any appeal or sent up any record to this Court, but filed the present bill on January 31st, 1907.

Although this case was heard on demurrer to the bill, the allegations of the bill as to the charter powers of the defendant must be taken as if reciting the actual provisions of the charter, and it is therefore necessary to ascertain precisely what powers of condemnation were granted. The defendant was incorporated by chapter 304 of the Acts of 1852 under the name of the Baltimore, Carroll and Frederick Railroad Company. By sec. 14 of that Act, the said corporation was “invested with all the rights and powers necessary for the construction and repair of a railroad, either from the city of Baltimore, or from some suitable point on the Baltimore and Susquehanna Railroad, to be determined by the president and directors, to the town of Westminister, and thence westwardly to some point on the Monocacy river in the direction of Hagerstown, not exceeding sixty-six feet wide, with as many sets of tracks as the said president and directors may deem necessary, and they may cause to be made or contract with others for making said railroad, or any part of it, and they, their agents, or those with whom they may contract for making any part of the same, after the purchase or condemnation thereof, in the manner hereinafter prescribed, may enter upon and use and excavate any land which may be wanted for the site of said road, or the erection of warehouses or other works, necessary to said road, or for any other purpose necessary or useful in the construction or repairs of said road or its works, and may make and construct all works whatsoever which may be necessary and expedient in order to the proper completion of said road.” Section 15 provides for the condemnation “of any land, earth, gravel, or stone which may be wanted for the construction or repair of said road, or any of its works,” when they cannot agree with the owner or owners thereof; prescribes the method of procedure, the return of the inquisition to the Circuit Court of the county, and the -confirmation ⁵⁹² thereof by said Court, before said inquisition shall become effective, and provides no appeal from the action of said Court. By the Act of 1853, ch. 37. the name of the defendant was changed to “Western Maryland Railroad Company.” ■ Chapter 71 of 1872, was enacted to amend the Act incorporating the Western Maryland Company, and to give additional powers to said company.

The language of this Act is in many parts identical with that of the original Act, but wherever there is a variance the rights of the defendant are enlarged. Where the Act of 1853 gave all the powers necessary to construction and repair of the railroad, the Act of 1872 gives all powers necessary or convenient for that purpose. The western terminus was changed to Williamsport or Cumberland, and power was given to construct a designated lateral railway, also sixty-six feet wide, with as many sets of tracks as may be deemed advisable, “together with all buildings, stations, tanks, switches and other works, accommodations and equipments necessary or convenient for the operation of said main and lateral railway,” and the same power was given after condemnation, to enter upon, use, and excavate “any land required for the construction and repair of said railway, 017 the erection of warehouses or depots, switches, turn tables, workshops or other-works necessary for the road or for any other purpose necessary or useful in the construction or repair of the road or its works.” The Act further provided that “whenever the said company shall find it necessary to change the location or grade of any part of its road, whether heretofore made or hereafter to be made, it shall be authorized to make such changes *• * * and for such purpose shall have the same powers for the acquisition of land materials, and all other property, and to be exercised in the same manner as stated in the preceding section.” The contention of the appellant is that as the authority conferred upon the defendant is to construct a railroad “not exceeding 66 feet wide,” that this is a limitation upon the defendant’s power of condemnation, either in order to change ⁵⁹³ or add to its right of way, and that inasmuch as a right of way 66 feet in width has already been acquired, any further attempted exercise of the powers of condemnation would be ultra virus and void, and should be restrained by a Court of equity, and to sustain this position he cites a number of cases from other jurisdictions which he earnestly contends are conclusive for that purpose. The precise question here raised is not shown to have been presented to, and certainly has not been decided by any case in this Court, but in view of the provisions of the charter of this defendant, and of the general principles established by previous decisions in this State, we do not think there can be any serious difficulty in this case.

In Baltimore and Havre de Grace Turnpike Company v. Northern Central Ry. Co., 15 Md. 193 , the Railway Co. was proceeding under its charter to condemn part of the turnpike for a crossing for the Railway Co. These proceedings, while pending, were brought before the Superior Court by a writ of certiorari, and the writ was quashed on the ground that if the Railway Co. had no power to condemn the property, such want of power could be shown as cause against the confirmation of the inquisition. The charter of that company provided for the confirmation of inquisitions by the County Courts if no sufficient cause were shown to the contrary, but gave no appeal from the judgment of the County Court. In affirming the order of the lower Court, this Court said, “The words employed, as we think, embrace the questions suggested and argued in this cause, including as well the right of the appellee to condemn the franchise of the appellant, for no better cause could be assigned against the confirmation than want of power to condemn the particular property proposed to be taken.

We could not revise a judgment confirming the inquisition with- - out interfering with the exclusive jurisdiction of that Court;' It would perhaps not be going too far to say that we might rely upon this case alone as sufficient, for it is difficult to imagine any distinction in principle between an original lack of power to condemn the particular property in question, and ⁵⁹⁴ the exhaustion of a concededly original power by the exercise of the power. But there are other cases which confirm the case just cited. In Cumberland v. Pa. R. R. Co., and B. & O. R. R. Co. v. Pa.

R. R. Co., 57 Md. 275 , the case in 15 Md. supra, was cited “as showing that the question of the power to condemn the particular property in controversary was exclusively a question for the confirming tribunal.’' That was a case in which it was sought to restrain the Pa. R. R. Co. from proceeding with its work after condemnation of an easement of a. crossing. The injunction was refused by the lower Court on the ground that the jurisdiction to determine the matters in controversy was in the Circuit Couit sitting in review of the condemnation proceedings, and in affirming that decree, which was passed by Judge Alvey, this Court said, “Not only were the alleged grounds of objection open to the complainant by way of objection to the confirmation of the inquisition; but the said company did actually go into the said Court, and made objections to the confirmation of the inquisition; and if it did not make all the objections, jurisdictional and otherwise, that could be made to the confirmation, it was its own fault, and it cannot complain if there was any omission; and ¡fits objections did not receive due consideration by that Court, or were erroneously decided, it is still bound by the