Dundalk, Sparrows Point & North Point Ry. Co. v. Smith

Schmucker, J., delivered the opinion of the Court. The main question presented by this appeal is whether the incorporation of a railroad company, under, the General Incorporation Laws of this State, confers upon it the right to cross the navigable waters of the State without the consent of the Legislature. The appellant filed a petition, in the Superior Court of Baltimore City, for a mandamus requiring the Board of Public Works to take action upon and either approve or disapprove the plans, submitted to them by it under sec. 177 of Art. 23, of the Code, for the construction of bridges across three navigable creeks in Baltimore county. The Board of Public Works demurred to the petition and the Superior Court by its order of January 5th, 1903, sustained the demurrer and dismissed the petition.

From that order the present appeal was taken. ¹⁷⁹ The petition alleges that the appellant, having become duly incorporated under the General Incorporation Laws of the State to construct and operate a railroad between the towns of Dundalk and North Point in Baltimore County, found it necessary, in order to complete the road, to construct it across the three creeks already mentioned, which are alleged to be navigable streams. That, being ready to construct its railroad, it filed with and submitted to the Board of Public Works the plans and specifications of the bridges and other fixtures it proposed to erect to cross the said streams, and that it fully complied in every respect with all of the provisions of sec. 177 of Art. 23 of the Code and all other laws of the State as well as with the rules and regulations of the Board of Public Works relative thereto. But that the said Board decline and refuse to take any action on the plans and specifications so filed with them, for the alleged reason that the appellant has not shown proper authority to construct its bridges over these navigable streams, and they assert that the consent of the Legislature to the erection of the bridges must be obtained before they can take any action on the plans and specifications. The petition insists that the appellant acquired by its incorporation and especially by sec. 177 of Art. 23 of the Code, the power and authority to bridge the streams in question without first securnig the consent of the Legislature and that it is entitled to have its plans acted on by the Board and it prays for a mandamus to compel such action.

We think the learned Judge below was right in sustaining the demurrer to this petition. In ascertaining the nature and extent of the powers conferred upon the appellant by its incorporation in reference to the navigable waters of the State, we must keep in view all of the provisions of the Code bearing upon that subject and construe them in the light of the principles of the common law applicable to all grants of power from the State. There is no express grant of power to railroad companies to cross navigable waters found in the general law under which the appellant was incorporated. ¹⁸⁰ The State is undoubtedly the owner of the navigable waters within its boundaries and can make a valid grant of privileges or interests in or over them subject to the public rights of navigation and fishery. Browne v. Kennedy, 5 H. & J. 156 ; Wilson v. Inloes, 11 G. & J. 359 ; Phipps v. State, 22 Md. 380 .

It is however a familiar proposition of the common law that jn a grant by the State nothing passes by implication. The grantee takes only that which is given to him by express terms. This is true of grants by legislative action. Broom’s Legal Maxims, 5th ed., p. 607; Jones v. Latham, 20 Pa.

St. 411; State v. Kinne, 41 N. H. 239. Some recent cases have in so far modified the strictness of this doctrine as to hold that the granting by the State of a charter to a railroad company to build a road between specified points implies an authority to bridge such navigable streams as must necessarily be crossed in order to construct the railroad between its chartered termini. This has been held upon the ground that the Courts should give such a