Krebs v. State Roads Commission

Bond, C. J., delivered the opinion of the Court. The complainants are owners of property, and storekeepers, on the public road west of the grade crossing of the northern Central Railroad at Parkton, in Baltimore County, and they have applied for an injunction to restrain the abandonment of the crossing and consequent cutting off of the road to the east of them at that point, without payment of compensation for their loss and injury from the obstruction to passage. A demurrer to' their bill of complaint was sustained, and the bill was dismissed. And they appeal from that action.

It is averred in the bill that the village of Parkton is mainly on the east side of the railroad, along the highroad from Baltimore to York, Pa., which crosses the railroad there. The crossing has been immediately south of the station, and adjacent to the railroad property; and the appel ⁵⁸⁶ lants’ store is a short distance west of the crossing, abutting on the highway. Eighty per cent, of the trade of the store has come from the village across the tracks, and much of the trade from the west side has come from people going to and from the village. Part of the building used as a store has been rented for a barber shop, to, accommodate customers who likewise live mostly east of the tracks.

The Act of 1927, chapter 327 (-Code, article 91, section 38A), provided for the removal by the State Roads Commission of dangerous grade crossings, including, when necessary for the purpose, “vacating, relocating or changing the lines, width and direction” of the highway. And under these provisions the commission has proceeded to substitute an overhead crossing near Parkton on higher ground to- the south, and to' divert the road accordingly, to cross at the higher site. The main road is caused to turn from its former bed at a point to the southwest of the complainants’ property, and to rejoin the older bed only at a point beyond, or east, of the railroad, and beyond much of the village, so that the store, instead of being by road a few hundred feet from the village, is now from one-half to three-quarters of a mile distant. The bill avers that thus the removal of the old grade crossing, and the interruption of the old highway at that' point, will deprive the complainants of convenient access and leave their property in a cul-de-sac, causing a loss of its usefulness, value and business advantages.

This deprivation and loss, it is contended, will amount to a taking of property in a constitutional sense, and, therefore, compensation must first be paid them under article 3, section 40A, of the Maryland Constitution. It is also contended that the deprivation consequent upon the project will violate the prohibitions of the Fourteenth Amendment of the Constitution of the United ’States, and of articles 19 and 23 of the Declaration of Rights of Maryland, against deprivation of property without due process of law, or the law of the land. Further, it is contended that, even if there should be no violation of the Constitutions of the United States and the State in the removal of the crossing without compensation to nearby abutters, the complainants as such abutters ⁵⁸⁷ are secured a right to compensation for their loss in an express provision of section 38B of the Act of 1927, chapter 327, or article 91 of the Code, that “one-half of the expense of such alterations, changes, relocation and/or opening, including damages to adjacent property, shall be paid by such railroad and one-half by the State Roads Commission.” Taking the last contention first, the court is of opinion that this provision of the statute for division of expenses, “including damages to the adjacent property,” cannot be construed to provide for payment of consequential damages caused to owners of such lots abutting on the old section of road. The words, taken by themselves, are broad and vague in meaning, and seem to refer rather to an element of cost assumed to be understood without explanation here because otherwise provided for and defined.

Ko item of merely consequential damages has been allowed for elsewhere in the law, as an incident to a public improvement, and it has never been the practice in this state, up to this time, to provide for payment of consequential damages caused to an owner of abutting property. And a mere passing reference, such as that in the clause quoted, would not ordinarily be used to originate and announce a new policy, and secure a new private right. We infer that the reference is to damages to adjacent property customarily recoverable, under the law as it has stood in the past, upon the “alteration,- change, relocation and/or opening” of a road. Pettit v. Wicomico County, 123 Md. 128, 141 , 90 A. 993 ; Baltimore v. Garrett, 120 Md. 608, 611 , 87 A. 1057 ; Realty Improvement Co. v. Consol.

Gas Co., 156 Md. 581, 589 , 144 A. 710 . Unless there is a constitutional right to compensation, we conclude, there is no ground for an injunction at the suit of an injured owner of property abutting on the road near the old crossing. We are not to be understood as expressing an opinion on any question whether a statutory provision for payment of consequential damages, if not expressly made a condition to. the prosecution of the public improvement, would justify a resort to a court of equity for an injunction. ⁵⁸⁸ Narrowing the controversy still further, the court does not see in the prohibitions of the United States Constitution and that of the State, against deprivation of property without due process of law, any ground for relief not included in the requirement of article 3, section 40A, of the State Constitution, that private property shall not be taken for public use without just compensation to the property owner. And we do not understand the complainants, in argument, to contend for any additional ground of relief in those prohibitions.

In many decisions it has been held that, given an authorization by statute, the only limitation upon the power of the public body to proceed is that found in this prohibition against legislation for taking private property without compensation. The prohibitions against deprivation of property without due process of law have, indeed, been regarded as having the same effect in such case. Leonard v. Earle, 155 Md. 252, 261 , 141 A. 714 ; Moale v. Baltimore, 5 Md. 314, 321 ; Cumberland v. Willison, 50 Md. 138 ; Northern Transportation Co. v. Chicago, 99 U. S. 635 , 25 L. Ed. 336 ; Gibson v. United States, 166 U. S. 269, 275 , 17 S. Ct. 518 , 41 L. Ed. 996 ; Scranton v. Wheeler, 119 U. S. 141 , 164, 21 S. Ct. 48 , 45 L. Ed. 126 ; Sanguinetti v. United States, 264 U. S. 146, 148 , 44 S. Ct. 264 , 68 L. Ed. 608 . It is necessary to observe that the prohibition in the Maryland Constitution is confined, as is that in the Constitution of the United States, to a taking of private property for public use without compensation.

In about half of the states of the country, hardships to abutting owners, incidental to public improvements, have led to the addition of constitutional prohibitions against damaging, as well as against taking, private property without compensation. And in some of the states it is customary to have provisions for such incidental damages added to all legislative authorizations for public improvements. These facts make caution necessary in referring to the conclusions or reasoning of courts of other states upon similar questions. In this case the court has to consider the applicability of a requirement of compensation for a taking of private property for public use. ⁵⁸⁹ There is no dispute of the authority of the State Roads Commission, under the statute law, to make the change here considered.

Therefore the case is not one for special or peculiar damages from nuisance caused by the public body, or from a damaging condition caused by mere neglect of duties imposed upon the body with respect to the maintenance of highways. Garitee v. Baltimore, 53 Md. 422 ; Bembe v. County Commissioners, 94 Md. 321 , 51 A. 179 ; County Commissioners v. Watts, 112 Md. 353, 357 , 76 A. 82 ; Johnson v. Oakland, 148 Md. 432 , 129 A. 648 ; Libertini v. Schroeder, 149 Md. 484 , 132 A. 64 . And it is not one of a claim for damages from obstructing an existing street or road by a use that is not a highway use. Textor v. Railroad Co., 59 Md. 63 ; Garrett v. James, 65 Md. 260 , 3 A. 597 .

A taking of property, of course, involves a special and peculiar injury or loss to the property owner; but it involves something more. Garrett v. Lake Roland R. R. Co., 79 Md. 277, 282 , 29 A. 830 . And the distinction discussed in argument, between injury peculiar to an abutting owner and injury which he shares with the other members of the public, is not decisive, in this controversy. It is one of more relevancy in a controversy on the allowance of incidental damages, or damages from a nuisance or improper obstruction in an existing highway.

The bill avers a severe injury to the complainants and their business from the relocation of the public easement, with the abandonment of the site where it has been relied upon for a short, convenient, passage between the properties developed along the highway on each side. It is not that the properties are cut off from access to the traveled way in front of them, as in the cases of Walters v. Baltimore, 120 Md. 644 , 88 A. 47 , and Sanderson v. Baltimore, 135 Md. 509, 523 , 109 A. 425 . In those cases it was decided that, when a structure in a street, or a cutting down of grade, has left abutting property practically deprived of access to and from the street in front, then, even though there has been no physical invasion of the property, there has been a taking of it in the constitutional sense. Such a cutting off of access may, perhaps, be ⁵⁹⁰ regarded as analogous to the eases in which land abutting upon a public improvement has been flooded, and cases of those few other incidental occupations of abutting property which have been held to amount to “taking” under the original provision in the Constitution of the United States.

Pumpelly v. Green Bay Co., 13 Wall, 166, 20 L. Ed. 557 ; Northern Transportation Co. v. Chicago, 99 U. S. 635 , 25 L. Ed. 336 ; Gibson v. United States, 166 U. S. 269, 275 , 17 S. Ct. 578 , 41 L. Ed. 996 ; Sanguinetti v. United States, 264 U. S. 146, 148 , 44 S. Ct. 264 , 68 L. Ed. 608 . It is complained that a deprivation of access in some degree will follow here upon interruption of the short communication with the territory east of the tracks, and that, considering the location of the particular property, and the degree of inconvenience to it, and to the conduct of business in it, this interference with access should be classed with