North Baltimore Passenger Railway Co. v. North Avenue Railway Co.

Alvey, C. J., delivered the opinion of the Court. The hill was filed in this case by the plaintiff, the present appellant, against the defendant, the appellee, both being street passenger railroad companies, for the purpose of obtaining an injunction against the defendant ²³⁵ company, to restrain this latter company from using the street railroad tracks of the plaintiff company, on North avenue, in the City of Baltimore, between McMeckin street and Charles street, or from laying an inside and outside rail on the road of the plaintiff, as provided in ordinance No. 23, approved April 8th, 1891. The defendant company answered the bill, and proof was taken to be used at the hearing of the application for the injunction. A hearing was had upon bill, answer and proof; and the Court by its order of the 29th of October, 1891, granted an injunction to restrain the defendant company from laying rails for its track or tracks, on North Avenue, inside the rails of the tracks of the plaintiff company; but the injunction prayed for was refused in all other respects.

This appeal is taken only from that part of the order that refused the injunction as prayed; and therefore it presents no question on that part of the case covered by the injunction granted. The plaintiff ooinpany was incorporated by the Act of 1872, ch. 369, as the Baltimore, Peabody Heights and Waverly Passenger Railroad; but by subsequent Act, that of 1880, ch. 488, the name was changed to that of the North Baltimore Passenger Railway Company. By the original Act of incorporation, it was provided that the corporation thereby created should be “invested with all necessary power to lay down and construct, maintain, use and operate, passenger railways in the City of Baltimore, on all such streets or parts of streets as may be desigmated in any ordinance or ordinances which may be passed on the subject by the Mayor and City Council of Baltimore, and upon siich terms and subject to such conditions us may be made by such ordinance or ordinances, and to receive and take such tolls,” &c. Before the passage of this Act of incorporation, the Mayor and Cit\r Council had, by ordinance, passed on the 28th of March, 1872, given license or authority to certain ²³⁶ individuals to .construct passenger railroads on certain streets of the city; and, after the incorporation of the plaintiff company, the rights and authority conferred by the ordinance of the 28th of March, 1872, were assigned and transferred t& the plaintiff company.

After this assignment, the Mayor and City Council, by ordinance No. 74 of 1872, approved June 7th, of that year, ratified the assignment to the plaintiff company; and, in addition to the powers conferred bjr the original ordinance, the city conferred power on the plaintiff company to lay its tracks on and use North avenue from John street to the corner of Charles street and North avenue. By the third section of this last mentioned ordinance, the city made the following reservation: “If at any time hereafter the Mayor and City Council of Baltimore shall grant to any other road the.right to lay railway tracks and run thereon city passenger cars on North avenue west from John street, they shall then have power to grant to such other road to run their cars upon the tracks of the Baltimore, Peabody Heights and Waverly Railroad, [now the North Baltimore Company] on North avenue, between Charles and John streets, under such regulations and upon the payment of .such sum or sums of money .to said Baltimore, Peabody Heights and Waverly Railroad as shall be agreed upon and fixed by the Mayor, City Commissioner, and the president of said Baltimore, Peabody Heights and Waverly Railroad, or a majority of them.” It was under this last mentioned ordinance of 1872, the reservation in which has just been recited, that the plaintiff company proceeded to construct and operate its road of double tracks on North avenue, between McMechin street on the west, and Charles street on the east, of Jones’ Falls; the rails of the plaintiff’s road being laid on the bridge of the city constructed over the falls. This road has been, up to the present time, operated exclusively by horse power. ²³⁷ In May, 1889, the defendant company was incorporated under the general railroad incorporation law of this State, (Code, Art. 23) a,nd hy the certificate of incorporation the company is declared to he incorporated “for the purpose of constructing and running a passenger railway in the City of Baltimore, the whole line of said road being located in said city, and the termini of said road being therein,” etc. In the certificate of incorporation there is nothing said as to the motive power intended to he employed, whether animal or. mechanical; hut hy subsequent proceeding it appears that electricity was intended to be used as the motive power of the road. By the Act of the General Assembly of 1890, ch. 217, this charter of the defendant company was amended, the amendatory Apt.providing that the company should he authorized and empowered to consolidate with such other roads as it might cross or connect with, to aid such roads in construction, and to lease or purchase such road or roads.

Having been thus incorporated, and given additional powers hy the amendatory Act of the Legislature, the defendant company obtained from the Mayor and City Council of Baltimore, ordinance No. 23, of 1891, approved April 8th, 1891. By that ordinance the right is given the defendant company to “lay down and construct double iron railway tracks for the purpose of its business, beginning, for the extension of such double tracks, on North avenue at its intersection with the east side of McCulloh street, the present terminus of the tracks of said company as heretofore authorized, and running thence on North avenue, eastwardly to Guilford avenue, and running thence on Guilford avenue and North street, southwardly, to the intersection of North street with Lexington street, and thence on Lexington street, westwardly, to Charles street, and on North street, southwardly, to the north side of Fayette street.” And ²³⁸ by the third section of this ordinance, it is declared that it shall he lawful for the defendant company to use the tracks now laid on North avenue by several named companies, among which is the plaintiff'company, “in the manner and to the extent to which it is lawful for the Mayor and City Council to grant to the said North Avenue Railway Company the rig'ht to use said tracks; and in any case in which the said railroads are entitled to the exclusive use of said tracks, and the said North Avenue Railway Company cannot agree with them for the joint use of their said tracks, then it shall he lawful for. the said North Avenue Railway Company to lay its rails inside and outside of said tracks of other roads; provided, that if inside and outside rails are laid, the distance between its rails and the corresponding’ rails of the other railroads shall not be less than six inches, nor more than two feet.” And then, in a distinct clause in the same section, is added this provision: “The right to run the cars of the North Avenue Railway Company on the tracks of the North Baltimore Passenger Railway Company (the plaintiff in this case) on North avenue, from Charles street to McMechin street, is hereby granted under the terms of ordinance No. 74, approved June 7th, 1872; but nothing herein contained shall be construed to grant any right or privilege to the said North Avenue Railway Company to lay any additional tracks on North avenue bridge.” By the fourth section, authority is given the defendant company to propel its cars by electricity, supported from overhead wires, upon and over any part of its railway now constructed or hereafter to he constructed, and to erect and maintain the necessary poles and wires for this purpose,” upon complying with certain terms prescribed. The Mayor and City Council of Baltimore are invested with full power and authority over the. streets of the city, including North avenue, and all the streets and ²³⁹ alleys of the city are declared to he public highways. Code Local Laws, Art. 4, secs. 806, 810, 814, 820.

The General Assembly of 1890, by Act, ch. 370, for the purpose of conferring additional authority on the Mayor and City Council, provided “that they shall have power to regulate the use of the streets, lanes and alleys in said city, by railway or other trades, gas or other pipes, telegraph, telephone, electric light or other wires and poles, in, under, over or upon the same,” &c. We have referred thus fully to the special terms and provisions of the statutes and ordinances involved, for the purpose of bringing them clearly in view, as upon their construction depends the decision of the principal questions presented on this appeal. The plaintiff in its hill charges that the defendant threatens and is about to proceed to dig up the bed of the plaintiff’s road on North avenue, and to lay rails thereon, inside and outside the tracks of the plaintiff under the pretended authority derived from the ordinance of the 8th of April, 1891; that the defendant threatens and intends to-tear up, move, and render impassable for horse cars, the said tracks of the plaintiff, whereby it will he prevented from exercising its franchise as a common carrier of passengers, and will suffer a great pecuniary loss in its business, incapable of definite' ascertainment. It further charges that it has ground to believe that it is the purpose of the defendant, under the supposed authority relied on by it, to take up the railway tracks of the plaintiff as they are now laid and constructed along North avenue from Charles street to McMechin street, and lay down in substitution thereof rails of a different character.

The right to do the things charged as being contemplated and intended ■ by the defendant, the plaintiff denies, and charges that the defendant has no right or power whatever to take up or interfere with, in any manner, the railway tracks of the plaintiff, or. the ²⁴⁰ structures on which they rest, nor to lay down any other rails or railway structure in lieu thereof. The plaintiff also charges that the defendant company, by reason of a defect or omission in its certificate of incorporation, has acquired no power to construct the street railway projected by it; also that it is attempting to evade the express provisions of the statute law of the State by erecting on North street, a part of the route of the defendant, as defined in the ordinance, an elevated railway; and that it also proposes an‘d intends to use electricity as a motive power for its cars, in violation of law. On these allegations, the prayer of the bill is, that the defendant company be restrained and forever enjoined from tearing up, removing, obstructing, or in any manner interfering with the railroad tracks of the plaintiff on North avenue, or any part of them, and from tearing-up or digging in the bed of said avenue, between the the plaintiff's road tracks thereon; and generally from in any manner hindering, obstructing, interfering with, ox-molesting the plaintiff in the use of its road, as now used and operated on said avenue. The defendant company, by its answer, controverts and denies the exclusive right or claim set up by the plaintiff, as against the defendant; and controverts the several grounds xxpon which the plaintiff relies for