Hooper v. President of the Baltimore & Yorktown Turnpike Road

Bartol, C. J., delivered the opinion of the Court. We think the motion to dismiss this appeal ought to be overruled. The proof offered in this Court shows that the delay in the transmission of the record was not caused by the fault or laehes of the appellant. By an amendment of the record, which has been filed by counsel, it appears that the bill of exceptions was signed and sealed by the Judge of the Superior Court on the 21st day of May, 1870, the same day on which the judgment was rendered.

In our judgment, the questions of law raised by the appellant, and decided by the Court below, appear with sufficient distinctness by the bill of exceptions and the prayers of the appellant, bringing the case within the decisions of Tinges vs. Moale, 25 Md., 480 , and Thomas vs. Hunter, 29 Md., 408 , in which it was held, that where a case has been submitted to the decision of the Court upon law and fact, without the aid of a jury, this Court will review’ the decision upon questions of law, if the record plainly discloses the points or questions of law raised and decided by the Court below. ~We proceed, therefore, to examine the questions presented by the appellant’s prayers. As was said in Tinges vs. Moale, ⁵³⁰ “ we cannot examine the facts in evidence in the bill of exceptions, with a view to adjudge whether the finding by the Court was or was not correct.” There was testimony tending to prove the account of the appellee, which it would have been proper to submit to a jury, if one had been impannclled, and of the weight and conclusiveness of which it was the province of the Court, under the submission of the parties, to decide; the first and second prayers of the appellant were, therefore, properly rejected; they rested upon the theory of a total failure of evidence in support of the account sued on. The third and fourth prayers vested the defence upon the theory that because a horse railway had been constructed upon the bed of the turnpike road on one side thereof, which created an obstruction to the free and convenient use for horses and carriages of that part of the road occupied by the railway, being one-fifth of its width; and because the Act of Assembly of 1860, ch. 259, which authorized the construction of the railway, contained no provision for the condemnation of the rights of abutting land owners in the fee of the road, and no condemnation thereof was in fact made, therefore the appellant was not bound to pay toll for the use of the turnpike road. The third prayer claimed entire exemption from tolls for the reasons stated, and the fourth prayer claimed exemption to the extent of one-fifth of the tolls prescribed and authorized by the charter of the appellee.

Clearly there wras no error in rejecting these prayers.