Frederick Gas Co. v. Abrams

¹³⁷ Finan, J., delivered the opinion of the Court. The dispute leading to this appeal arose when the Frederick Gas Company, Inc. (Gas Company), appellant, installed a four-inch natural gas transmission pipe line in unpaved 26 foot wide Mott Road, a county road in the Urbana district of Frederick County. Since the Gas Company felt that the installation was in a developing suburban area, it did not feel obligated to compensate the owner of the property which abutted the road for any taking of his property; to the contrary, Donald H. Abrams, t/a Mott Industrial Limited Partnership, appellee, who owned the property, maintained the area was rural and therefore he was entitled to compensation. In the lower court, the case turned on the factual issue as to the character of the neighborhood, i.e., whether urban or rural.

The chancellor found the area to be rural and relying upon Baltimore County Water Co. v. Dubreuil, 105 Md. 424, 427 , 66 A. 439 (1907), held that the Gas Company was compelled to acquire an easement from the property owner by way of a negotiated acquisition or by condemnation, within six months from the date of the court’s decree or be subject to an order of court requiring the removal of the pipe line. In this appeal, since we are bound under Maryland Rule 886 to accept the finding of fact made by the chancellor, unless clearly erroneous, the only question we see before us is one of law, which, otherwise stated, is whether the rule established in Dubreuil is still viable. In Dubreuil , the utility sought to lay water mains along the bed of Lake Avenue for a distance of approximately one mile in Baltimore County. The Court described the abutting property as “gentlemen’s country residences, undeveloped property.” It further added the properties “vary in size from ten to forty or fifty acres and most of them are improved by handsome residences which are some distance back from the avenue and have their own water supply.

It is true there are a number of small towns, villages and developments within half a mile, or ¹³⁸ less, of this avenue, but with the exception of the houses near the corner of Falls Road there are very few fronting on it.” The court further voiced the opinion that the property had not reached the stage of development where the avenue had changed from a country highway to a street, “as would justify us in applying to it the rule applicable to streets in cities and towns.” Because of the importance of Dubreuil , in relation to the case at bar, we deem it necessary to analyze in some detail the opinion rendered for the Court by Judge Boyd, later Chief Judge. In discussing the then state of the law on this subject the opinion reads: “The law is well settled that, although the fee of streets in cities and towns is in the abutting owners, it is subject to the paramount right of the public for all proper street uses, which include gas and water pipes, sewers, etc. Lights, water, and drainage are so essential to the comfort, health, protection and convenience of the people of a city or town that the original owner is conclusively presumed to have known, and to have consented, that such uses could be made of a street laid out over land formerly owned by him, however it be acquired by the municipality, and those claiming under him have no more rights in the streets than he had; or, as a late book on municipal corporations expresses it: ‘Ordinarily the use of streets for such a purpose [supplying water] does not impose any additional burden or servitude, and the adjoining owners, therefore, are not entitled to compensation for such use; it being one of the common and anticipated purposes to which they may be put.’ 2 Abbott on Mun. Cor. 1165. “But the great weight of authority is to the effect that there is a distinction between the use of streets in cities and towns for gas and water pipes, and the use of country or rural highways. * * * ¹³⁹ “* * * In Mackenzie’s case, 74 Md. 47 , the distinction is recognized and reasons given for it. In that case it was said of ‘an ordinary road or highway in the country,’ that ‘all the public acquires is an easement of passage and its incidents,’ and that in substance is the doctrine announced by most Courts.” 105 Md. at 426-427 .

Our predecessors in attempting to arrive at the heart of the issue in Dubreuil , stated: “The real question to be determined in such cases is, whether the proposed use of a highway is such as can reasonably be said to be within the scope of the original easement.” The Dubreuil court further noted that in 1889, the Maryland Court of Appeals in American Tel. & Tel. Co. v. Pearce, 71 Md. 535 , 18 A. 910 (1889) adopted the “scope of the original easement doctrine” as set forth in Western Union Tel. Co. v. Rich, 19 Kan. 517 , and quoted Pearce to the effect: “* * * It recognizes the right of the landowner to compensation for every additional burden cast upon the land outside the scope of the original easement, and that whether a given structure creates an additional servitude is a question of fact, depending on the circumstances of each case, to be determined by the tribunal having jurisdiction to try the same, and before which it is tried. * * *” 71 Md. at 543 . As was noted in Dubreuil an antithetical rule applies to public right-of-ways in urban areas, as contrasted with rural areas.

Later cases make it clear that the distinction is better stated as being a different rule for rural as contrasted with non-rural areas. The latest expression of the law with regard to non-rural areas is found in Green v. Washington Suburban Sanitary Commission, 259 Md. 206 , 269 A. 2d 815 (1970), wherein Judge Digges writing ¹⁴⁰ for the Court paraphrased our comments in Turner v. Washington Sanitary Commission, 221 Md. 494 , 158 A. 2d 125 (1960) stating: “* * * in that case we held that in a developing suburban area the right-of-way for a public highway extends not only horizontally over the surface of the land for the purpose of travel but also vertically below the surface of the roadbed for the purpose of laying sewer and water lines.” 259 Md. at 219 . The Gas Company in the instant case would contend that the rule followed by our predecessors in Dubreuil and Pearce is archaic, that its raison d’etre is no longer valid. State v. Cohen, 166 Md. 682, 688 , 172 A. 274 , 94 A.L.R. 427 (1934).

They argue, and with some logic, that decades ago property owners in urban areas being accustomed to the amenities of city life took for granted, and were conclusively presumed to have known, that the servitude against their property created by public right-of-ways was broad enough to include provisions for utility facilities which were necessary for telephone communication, electric lighting, gas heat, chlorinated water and indoor plumbing. Whereas, conversely, their “country cousins” did not expect to enjoy or have at their doorstep the comforts provided by utilities associated with urban life. As a consequence, rural property owners were not considered to have granted, within the scope of the easement, anything more than surface rights. Chesapeake & Potomac Tel.

Co v. McKenzie, 74 Md. 36, 47 (1891). Now, the appellants contend that with the passage of time the distinction in the life style between the city dweller and the rural resident has largely disappeared. They argue that not only do most rural residents enjoy one or more of the utilities identified only with urban living a few years ago, but that it is unrealistic to assume that he does not now expect the full complement of modern conveniences. In support of its contentions the Gas Company relies ¹⁴¹ heavily upon Pittsburgh National Bank v. Equitable Gas Co., 421 Pa. 468 , 220 A. 2d 12 (1966) and Zeigler v. Ohio Water Service Co., 18 Ohio St. 2d 101 , 247 N.E.2d 728 (1969).

In these cases the Supreme Courts of Pennsylvania and Ohio both rejected the doctrine which distinguished the scope of an easement for a public right-of-way in a borough or a municipality as contrasted with a public right-of-way in a township or outside the municipal limits. Before discussing these cases it is essential that we understand at the outset that the rural area vis a vis the non-rural area dichotomy recognized by our predecessors in Dubreuil was never as inflexible as the Pennsylvania and Ohio rule, which bound these jurisdictions to the artificial distinction imposed by the borough-township concept and the municipal limits rule, as our discussion of these cases will reveal. In Pennsylvania the development of the law was such that in Sterling’s Appeal, 111 Pa. 35 , 2 A. 105 (1855), the court concluded that in a township any use of a public right-of-way, other than for travel, constituted an additional burden on the servient tenement for which compensation had to be paid to the abutting property owner. By contrast, in McDevitt v. People’s Natural Gas Co., 160 Pa. 367 , 28 A. 948 (1894), it was held that a public right-of-way in a city or borough may be used for any public service without additional compensation to the abutting property owner.

The inflexibility of this artificial distinction was further reinforced in Duquesne Light Co. v. Duff, 251 Pa. 607 , 97 A. 82 (1916). It should be noted that the Pennsylvania rule permitted no latitude for suburban areas outside the limits of a city or borough, such as was recognized by the Maryland Court in Turner v. Washington Sanitary Commission, supra. In Pennsylvania, prior to the Pittsburgh National Bank v. Equitable Gas Co. case, if the public way was not in a city or borough the rule applicable to rural areas automatically applied. There was no room, by way of a finding of fact, to equate a developing suburban area with an urban area or city so as to apply the urban rule as was done by this ¹⁴² Court in Turner v. Washington Sanitary Commission, wherein we held that the city or urban rule applied to a suburban area which in that case was Georgia Avenue, extended, in Montgomery County.

The law in Ohio was similarly as inflexible as that of Pennsylvania. Ohio rested its distinction on public right-of-ways within a municipality as