Hodges v. Baltimore Union Passenger Railway Co.

Robinson, J., delivered the opinion of the Court. This is an application on the part of certain lot owners on Park avenue, to restrain the appellees from laying down tracks for a horse-railway on the bed of said street. In support of its right to construct the railway in question, the defendant corporation relies, 1st. On Ordinance No. 150, of the Mayor and City Council of Baltimore, authorizing certain parties and their assigns, to build a horse railway on certain streets named in the Ordinance, upon terms and conditions therein prescribed. 2dly.

Its charter under the general railroad law to build a street railway, between certain termini in said city. 3dly. The Act of 1882, ch. 41, authorizing the defendant corporation to construct and operate a street railway in conformity with the Ordinance No. 150; and to charge such rates of fare as may he prescribed by the Mayor and City Council, and to lease and operate other railways in said city. Other grounds in addition to these are also relied on, but, in the view we take of the case, it is unnecessary to state them here. The right of the defendant corporation to build a street railway, is not therefore based solely on the Ordinance No. 150, of the- Mayor and City Council, and the question whether the municipal authorities, in the absence of express legislation on the subject, had the power to authorize a joint stock company or its assigns to use the streets of the city for the purposes of a horse railway, does not necessarily arise. ⁶¹⁹ Whatever conflict, if any there he, in the decisions of the several States on this question, it is well settled that the Legislature in the exercise of its sovereign powers may authorize the use of the streets of a city or town for such a purpose, and that such a use is not an additional servitude for which adjoining lot owners are entitled to compensation.

Cooley Const. Limitations, 547-560; 1 Red. Railways, 314-326; Elliott’s Case, 32 Conn., 579 ; Hinchman’s Case, 2 C. J. Green, 76; West vs. Bancroft, 32 Vt., 367 ; 21 Illinois, 522. The right thus to rise the streets of a city for a horse railway, is not based, it is true, either upon the ground of public convenience or public necessity, because the Legislature has no power to take the property of the citizen for a public use without just compensation.

It rests, however, on the ground that such a use is neither inconsistent with, nor does it in any manner supersede, the ordinary uses for which the street was dedicated as a highway—that «the easement thereby acquired was the right to use the streets of a city, not only according to the then existing modes of travel and transportation, but all such other modes as may arise in the ordinary course of improvement; and that a horse railway is but one of the legitimate contingencies within the objects and purposes for which the street was dedicated to the public, and which we must therefore presume, was within the contemplation of the parties, at the time damages were assessed to abutting owners. 1 Redfield on Railways, sec. 320; 2 Dillon on Municipal Corp., 719; Railroad Co. vs. Leavenworth, 1 Dillon C. C., 393; Elliott vs. Fairhaven and Westville Railway Co., 32 Conn., 519 . We do not see on what grounds such a use can be said to be the imposition of an additional servitude. The motive power is the same, and the iron 1 rails, although laid on the bed of the street, do not materially interfere with or obstruct other modes of travel and transportation. ⁶²⁰ On the contrary, the railway in itself offers a quick and rapid transit from one part of the city to the other, thus-affording greater advantages and facilities in the use of the street as a public highway. Nor is there any invasion of the legal rights of adjoining owners.

Their title to the land subject to the public easement remains the same, and they have the same access to their property and to the use of the street as a highway. The cars may, it is true, be an annoyance, -but not greater, perhaps; than other modes of conveyance running at regular periods. But, be this as it may, it must happen in the very nature of things, that streets will be used for legitimate purposes which may be to some extent an annoyance to persons living upon them; but this is an incident to all city property and for which there is no legal remedy. Assuming then that the Act of 1882, ch. 47, authorizing the defendant corporation to construct a horse railway on certain streets of the city of Baltimore is a valid Act, we are of opinion that the use of Park avenue for this purpose is not such an invasion of the rights of the complainants as to entitle them to an injunction.

The question then resolves itself into this, is the Act of 1882 a valid exercise of legislative power ? This Act is assailed on two grounds. First, it is said to be in conflict with sec. 48 of Art. 3 of the Constitution, which provides that corporations may be formed under general laws, but shall not be created by special Act of the Legislature. The answer to this objection is that the defendant does not derive its charter under the Act of 1882.

On the contrary, it was incorporated under the general law of 1876, ch. 242; and the Act of 1882 merely amends its charter and confers additional powers and privileges. The