Mayor of Hyattsville v. Washington, Westminster & Gettysburg Railroad

Briscoe, J., delivered tbe opinion of tbe Court. Tbis is tbe third appeal in tbis case. Tbe first is reported in. 120 Md. 128 , and tbe second, in 122 Md. 660 . Tbe facts and principles of law controlling tbe case were fully stated in tbe opinions filed and reported, on tbe former appeals, and need not be repeated in tbis case.

Tbe proceedings relate to tbe condemnation of a crossing for railroad purposes at Columbia avenue, in Hyattsville, Prince George’s County, in tbe matter of tbe petition of tbe AVashington, AVestminster and Gettysburg Railroad Company, tbe appellee hei’e, and tbe Mayor and Common Council of Hyattsville, tbe appellant. Tbe proceedings of condemnation were instituted in tbe Circuit Court for Prince George’s County, under tbe Act of 1912, Chapter 117, regulating tbe procedure for tbe acquisition of property for public use by condemnation, and on October 22nd, 1913, it was determined that tbe appellee was entitled to condemnation of so much of Columbia avenue as was prayed in tbe original petition, for tbe purposes of a railroad crossing. Tbe judgment or order of condemnation was affirmed by tbis Court on tbe second appeal, in 122 Md. 667 , in a very clear and full opinion by Ohiee J udge Boyd, covering tbe entire subject matter and tbe various contentions of tbe parties. Subsequently tbe appellee obtained tbe permission and approval of tbe Public Service Commission, of tbe State, as required by section 438 of Article 23 of tbe Code, as to tbe manner and tbe method of tbe crossing, as will appear by the order of tbe Commission, set out in tbe record.

Afterwards, on tbe 23rd of June, 1914, tbe appellee petitioned tbe Court for tbe appointment of appraisers to assess tbe value of tbe land condemned, under section 5, Chapter 117 ⁵⁷⁹ of the Acts of 1912, and a copy of the petition was served upon the defendant. Certain objections were filed on the part of the defendant to the appointment of any appraisers whatever, but the Court below, after a hearing on the petition, overruled the objections and on the 7th day of July, 1914-, by an order of that date appointed three appraisers pursuant to the provisions of section 5, Chapter 117 of the Acts, with certain directions, which will appear from the order set out in the record. Subsequently, the defendant filed a motion to strike out the order of July 7th, appointing the appraisers, and this motion upon hearing was overruled, by the Court below, on tbe 17th of July, 1914. And this appeal, is from the order of Court, appointing the appraisers, and also from an order of Court, overruling the defendant’s motion to strike out the previous order of July 7th, 1914-, appointing the appraisers.

A motion to dismiss this appeal has been made upon tbe ground; first, that the appeal is without warrant of law, and second, because tbe Act of 1912, Chapter 117,