Northern Central Railway Co. v. Mayor of Baltimore

Grason, J., delivered the opinion of the Court. These two cases came before Baltimore City Court upon appeals from the Street Commissioners of the City in the matter of assessments of damages and benefits to the appellant in the condemnation and opening of North and Calvert streets from John street to North avenue. They were tried together before the Court, without a jury, and two exceptions were taken by the appellant, the first to the exclusion of the evidence set out in the exception, and the second to the rejection of its two prayers. By an agreement of counsel the opinion of the Judge of the City Court is made part of the record, and all such parts of it as hear on the construction and interpretation of the laws and ordinance of the State and City, and all other matters of law therein decided, shall be considered as rulings by the City Court, and upon this appeal shall he subject to review to all intents and purposes as if embodied in formal instructions.

The judgments were in favor of the Mayor and City Council, and from them the Railway Company has taken these appeals, the facts and principles of law being exactly the same in the two cases, and both argued together. After a very careful examination of the cases and the authorities cited hv the counsel of the respective parties, •we are of opinion that the City Court erred in rejecting the appellant’s prayers, which, we think, correctly present the law as applicable to these cases. The law is well settled that when a new way or road is opened or made across a way or road, already existing and in use, the new way must he so constructed as to cause as little injury as possible to the old way or road. Manser vs. Northern and Eastern R. R. Co., 2 Eng.

Railway and Canal Cases, 391, marg. The proof in these cases shows that the appellant’s tracks were laid and their road was in use some time before the proceedings to condemn and open North and ⁴⁴⁵ Calvert streets were commenced, and that the whole of its land is necessary for the tracks of its road, and that the opening of the said streets across it at its present grade would very seriously injure its usefulness as a railroad, while the streets themselves, looking to the formation of the ground and the existing grade of other streets of the city, would be very inconvenient to the public, and the crossings at the railroad extremely dangerous. If, on the other hand, these streets were carried over the low land of the appellant by embankments or fillings, so as to raise them to a level with the grades of other streets, those parts of the tracks of the appellant’s road would be destroyed, and barriers interposed to the running of its trains from the places where the embankments would be made, to its Calvert street station. We agree, therefore, with the learned Judge of the City Court, that the only mode in which the proposed streets can cross the tracks, without great injury both to the appellant and appellee, is by viaducts, or raised ways of some description.

Such crossings seem to have been contemplated by Ordinance No. 77, approved September 26th, 1868, the preamble of which recites that “itis desirable that railway tracks in the city should be so constructed as that they should cross or pass along the streets below the grade thereof whenever practicable.” North and Calvert streets must therefore cross the land and tracks of the appellant by viaducts or raised ways so as to allow its trains to pass below. The next material and important question in these cases is, at whose cost and expense such viaducts or raised ways shall be constructed and maintained? At common law it is undoubtedly the rule that where a new way or road is made across another which is already in existence and use, the crossing must not only be made with as little injury as «possible to the old road or way, but whatever' structures are necessary for such crossings must be erected and maintained at the expense of the party under whose ⁴⁴⁶ authority and direction they are made. And if the old road or way cannot he crossed without damage to it, and the right to cross is given, such damage must he assessed and paid.

This principle is recognized as settled law in many well considered cases, among which we refer to Morris Canal vs. The State, 4 Zabriskie, 62 ; Richardson vs. Bigelow, 15 Gray, 156 ,157 ; Perley vs. Chandler, 6 Mass., 454 ; Lowell vs. Proprietors of Locks and Canals, 104 Mass., 22 ; Manser vs. Northern and Eastern R. R. Co., 2 Eng. Railway and Canal Cases, 387; The King vs. Kerrison, 3 Maule & Selwyn, 532 : King vs. Inhabitants of Lindsey, 14 East, 320, 321. The counsel of the appellee admitted this to he the established common law principle, hut contended that the rule was changed in the cases now under consideration, and the burden of constructing the viaducts was imposed upon the appellant by the City Ordinance No. 77, of 1868, before referred to, and it was upon this ordinance alone that the decision of the City Court was based. It is entitled “An Ordinance to alter the grade of certain streets in the City of Baltimore and the preamble recites “ that' it is desirable that railway tracks in the city should he so constructed as that they should cross or pass along the streets below the grade thereof whenever practicable ; and that whereas the Northern Central Railway Company desires to remove the tracks of railway leading to Calvert station from their present location to the north-eastern side of Jones’ Falls, and desires so to construct its new tracks as that whenever they cross or pass along streets, the said tracks shall be constructed below the grade of said streets whenever such method of construction is practicable ; and whereas the owners of a majority of the feet of ground fronting and binding on the streets in the first section of •this ordinance, have presented to the Mayor, and City Council of Baltimore their petition asking the grades of said streets may be changed between the points named in ⁴⁴⁷ said first section of this ordinance." It plainly appears from this preamble that the change of the grades of the streets mentioned in the petition and ordinance, was authorized to be made for the common benefit of those owning land on said streets, and of the public generally.

The first section provides that the grades of Charles street, between Hoffman and Lanvale streets, and of Eager street, between North and Burén streets, shall be raised by the Mayor and City Commissioner, so as to enable the Railroad Company to construct its railway tracks under said streets ; and the section then closes in the following words: “and all open cuts along Hoffman and other streets shall be tunelled by the said Railway Company." It is contended that the closing clause of the section just quoted imposes upon the Company the burden of constructing the viaducts for North and Calvert streets over its land and railway tracks. It is clear that the main object to be accomplished by the enactment of the ordinance was to raise the grades of Charles and Eager streets, between the points named, to enable the appellant’s road to be constructed below said grades, and this, as we have before stated, was to be done for the common benefit of the land owners whose property fronted on the streets, and of the public generally. It was contended by the counsel of the appellee that the ordinance also conferred benefits on the appellant by giving it a new and better route for its road from the city limits to its Calvert street station ; but we cannot perceive how any benefit to it was intended or was conferred by the ordinance in question, further than by-raising the grade of Charles and Eager streets. The appellant, at the time of the passage of the ordinance, already had its railway constructed and in use from the city limits to its Calvert street depot, and if it desired to change its location to the northeast side of Jones’ Falls it' had full power and authority to make such change by the’ Act of 1849, ch. 532, sec. 2, and irrespective of the ordi ⁴⁴⁸ nance No. 77 of 1868..

It cannot, therefore, be held that the appellant is hound, under the ordinance, to construct the necessary crossings over its tracks as a consideration for the benefits and privileges granted to it by the ordinance, as was contended by the counsel for the appellees. At the time the ordinance was passed Charles street was an important channel of communication and travel between the city and country, and the track of the appellant crossing it at grade