Northern Central Railway Co. v. United Railways & Electric Co.

Pearce, J., delivered the opinion of the Court. This action was brought by the Northern Central Railway Company to recover from the United Railways and Electric Company of Baltimore, the sum of $2,099.89, claimed to be due and owing as its proportion of the cost of repairs to two bridges known as the Charles street, and Maryland avenue bridges which respectively form a continuation of Charles street and of Maryland avenue, two of the public streets of Baltimore City, running parallel to each other. Both of these bridges cross the valley below in which flows the stream known as Jones’ Falls, and on the banks of which beneath said bridges are located the tracks of the Northern Central Railway. ³⁵² To avoid the repetition of long names, we shall in this opinion refer to the Northern Central Railway Company as the “Railroad Co.,” to the United Railways and Electric Company as the “Railway Co.” and to the Mayor and City Council of Baltimore, “as the City.” The declaration as filed, contained six counts, the first four being the common counts for money payable by defendant to plaintiff, and the fifth and sixth counts being special counts, which we shall request the reporter to have transcribed in connection with this opinion. The defendant pleaded the general issue, never promised as alleged, and demurred to the fifth and sixth counts, and the demurrer to each of these counts was sustained with leave to amend.

The plaintiff declined to amend these counts, but by leave of the Court amended the declaration by striking out the four common counts, whereupon judgment was entered on the demurrer for defendant, and plaintiff appealed. Before the ruling on the demurrer an agreement was filed that all ordinances of the city in anyway relating to the subject-matter of the suit should be considered as a part of the declaration in the case as fully as if the same had been set out at length therein. It will be seen by reference to the fifth count of the declaration, that it is there sought to recover upon the strength of the obligation alleged to be imposed by the condition in the grant of the city, upon the defendant as successor to the rights and obligations of the Baltimore City Passenger Railway Company, and of the Baltimore Traction Company, the cost of repairs between the tracks on these two bridges, and two feet upon either side thereof, upon the legal theory that these bridges are parts of the respective streets; and it will appear by reference to the sixth count that it proceeds upon the defendant’s theory that these bridges are not parts of these streets respectively; and upon the further legal theory that if they are not parts of said streets, then they are the private property of the plaintiff, and that the defendant can not occupy or use that property without making compensation for the increased cost imposed upon ^he, plaintiff as owner, by such use and occupation. ³⁵³ Three questions were raised at the argument: ist. Are these bridges parts respectively of Charles street and Maryland avenue, within the meaning of the ordinances of the city relating to the laying of street railways thereon? 2nd.

If so, is the plaintiff entitled to maintain this action upon the obligation alleged to be imposed by the condition in the said ordinances upon the defendant as successor to the rights and obligations of the original grantees? ' 3rd. If these bridges are not parts of these streets respectively, and therefore not within the scope of the supposed obligation can the plaintiff recover in this suit, the increased expense to which it is put by the use of its property by the defendant? In order to a proper understanding of the legal effect of the averments, of the declaration, it will be necessary to state the substance of some of the city ordinances which it was argreed should be considered as set out in the declaration, and also something of the physical situation at the location of these bridges before the passage of any of these ordinances. Previous to the year 1868, the railroad company after entering what were then the northern limits of the city went upon the west side of Jones’ Falls, down and across certain streets to its station on Calvert street in Baltimore City.

About the year 1868, its tracks under proper legal authority, after entering the nothern limits of the city were changed to the northerly or eastern side of Jones’ Falls, and in going to Calvert Station, crossed Charles and Eager streets at grade, Maryland avenue, North and Calvert streets not being opened as streets at that time beyond Jones’ Falls. In the year 1868, the property owners on Charles and Eager streets petitioned the city to raise the grade of Charles and Eager streets in order to cross the railroad above grade. This resulted in the passage of Ordinance No. 77 of 1868. The first section of this ordinance provided “that the grade 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 said railroad company to con ³⁵⁴ struct its railway tracks tender said streets." It must be noted here that Charles and Eager streets were then both graded and paved, and were in use as streets, and it was therefore provided by section two of that ordinance “that all expenses incurred in making said change of grade shall be paid by the Northern Central Railway Co.” This necessarily included the cost of maintenance of said bridges by which alone this change of grade was accomplished.

It seems tó be' entirely just equitable that the railroad company should bear the cost and expense of taking up the pavements already laid, and cutting through them in changing the route of the railroad for its convenience in the accommodation of the public. From this ordinance of 1868 it will thus be seen that the railroad company was obligated to the city to keep in repair the whole bridge forming the northerly extension of Charles street. By Ordinance No. 44 of the year 1859, the Baltimore City Passenger Railway Company was granted the right “to lay double tracks upon Charles street from the northern limits of .the city to Read street, thence along Read street to Calvert street, &c.” But as a condition of said grant, sec. 11 of said ordinance provided “that the owners and proprietors of said railways shall keep the streets covered by said tracks, and extending two feet on the outer limits of either side of said tracks, in thorough repair, at their own expense, and shall free the same from snow and other obstructions, in doing which they shall not cause to be obstructed the other portions of the street on either side of the railway tracks authorized by this ordinance to be constructed, arid for non-compliance the Mayor and City Council may impose such reasonable fines not exceeding twenty dollars per square, to be collected as other city fines are now collected.” So much for the bridge over Charles street, and we now come to the bridge over Maryland avenue. Maryland avenue was not opened as a public street across the valley of Jones’ Falls until some time after 1877.

In the meantime, in March, 1877, the case of the Northern Central ³⁵⁵ Railway Co. v. Baltimore 46 Md. 425 , was decided in which it was held that the city must pay for the bridges necessary to carry North and Calvert streets across the valley of Jones’ Falls, when those streets were opened across said valley, and as the result of that decision the bridges now continuing said streets were constructed. Subsequently Maryland avenue was opened across said valley, and the City accordingly built the bridge necessary for that purpose, and paid both the cost of its construction and maintenance up to the year 1882. Then ordinance No. 40 of 1882 was passed, as a supplement to Ordinance No. 150 of 1880 (which related to the Baltimore Union Passenger Railway Co.) and by said ordinance No. 40 of 1882, the Baltimore Union Passenger Railway Co. to all whose rights and obligations the Railway Co. in this case has succeeded, was granted the right “to lay down and construct double tracks upon Biddle street, from the intersection of said Railway Co’s, tracks upon Park avenue to Maryland avenue, and like double tracks upon Maryland avenue from Biddle street to the northern limits of the city,” the latter authority embracing that part of Maryland avenue supplied by the said bridge, and said ordinance further provided “that said tracks should be constructed, used and operated under the terms and conditions mentioned in ordinance No. 150 of 1880. The terms and conditions mentioned in that ordinance, are stated therein in the exact language of Ordinance No. 44 of 1859, which so far as it relates to the repair of said tracks, has been transcribed in full in the preceding part of this statement of the facts.

When Maryland avenue was opened and the bridge carrying it across the valley was'constructed by the city, the Railroad Co. had but two or three tracks crossing the line of the street under said bridge. The street when graded so as to conform to said bridge was carried on a fill or a bank both to the north and south end of the bridge, obstructing the Railroad Co’s, property beneath these fills and preventing the laying of additional continuous tracks on the property of the Railroád Co. Finding it necessary however to have these ³⁵⁶ additional tracks, the city and the Railroad Co. entered into an arrangement for the removal of both said fills or banks, and the extension of the bridge both north and south. This was for the convenience of the Railroad Co. and the city granted it the right to make those changes in Ordinance No. 132 of 1890, entitled “An Ordinance to authorize the Northern Central Railway Company to move the north abutment of the bridge which carries Maryland avenue over its tracks, and also to extend said bridge southward to the bridge over Jones’ Falls,” and this ordinance provided “that all the work authorized by this ordinance shall be done under the supervision and to the satisfaction of the City Commissioner, and at the sole cost and charge of said Railway Co,’’ and, “that the bridge over the tracks of the Railway Co. as well that now existing, as the extension thereof hereby authorized, shall always be maintained at the sole cost of the Northern Central Railway Co.”. It thus appears that the Railroad Co. is under legal obligation to the city to maintain both said bridges in repair, by virtue of the ordinances granting it, for its own convenience, rights and privleges in the streets extended by means of said bridges; and that the Railway Co. is under legal obligation to the city to keep in repair that portion of the beds of Charles street and Maryland avenue occupied by their tracks, and two feet on either side thereof, by virtue of the condition in the ordinances granting them authority to lay said tracks in' the beds of said streets; and if said bridges are parts of said streets, it also appears that this liability of the Railway Co. to the city applies as well to said bridges as to any other parts of said streets.

Upon that hypothesis therefore, both the railroad company and the railway company are liable to the city for the repair of said bridges, the former to the extent of all the necessary repair, and the latter to the limited extent provided in the grant of authority to lay its said tracks. The demurrer admits the averments of the declaration in both counts,-that the defendant recognized its" liability ever ³⁵⁷ since the passage of said ordinances, down to the month of March, 1903, and “provided for the repairs needed to the flooring of said bridges, between the tracks, and extending two feet on the out limits on either side of said track, either by furnishing the material and labor therefor, or by paying the plaintiff for the work and materials by it furnished for the same," but that since March, 1903, the defendant has refused further to recognize any liability in the premises, and has refused to pay for its proportion of the repairs then made by the plaintiff as set forth. ■ The first question for determination is whether these bridges are streets, or parts of streets, within the meaning pf the . word “streets,” as that word is used in the ordinances imposing the obligation upon the owners and proprietors of the railways in question to keep in repair “the streets covered by said tracks, and two feet on the out limit of either side of said tracks.” It is not necessary to maintain that a bridge connecting portions of a city street, and forming the only means of passage from one portion to another, is for all purposes, and under all circumstances, a part of said street. Our inquiry here is whether these bridges for the purposes of this case, are parts of these particular streets. It will be observed at the outset of this inquiry that under a grant from the city to the railway company of the right to lay Us tracks in the streets of the city, the railway company has laid its tracks on these bridges connecting portions of said streets, and that neither the city nor the railroad company has ever denied or questioned their right to do so under that grant.

The grant would have been of no practical value to the grantee if it had been obliged to terminate its tracks at each end of these bridges, and the railway would have been of no practical value to the travelling public as a means of conveyance nor to the city as a source of revenue for the park tax imposed upon the street railways. To exclude therefore the right to use these- bridges would be to nullify the practical advantages to the public and to both of the direct parties to the contract. But if the right so to use the bridges is a part of the contract then it must be subject to ³⁵⁸ the condition upon which the right is granted. In North Baltimore Passenger Railway Co. v. The North Avenue Railway Co. 75 Md. 243 , Judge Alvey has said, “Where a contract with a municipality is susceptible of two meanings, one restricting, the other extending powers of the other party, that is to be adopted which works least harm to the municipality, In other words where there is a want of plainly expressed intention, the construction should be beneficial to the public,” and that language was used in construing a grant made by the city to a street railway company for the use of its streets.

In the case before us every beneficial interest of the municipality requires the words streets to include these bridges, and the beneficial interest of the railway company demands the same construction. If we now place ourselves in the situation of the parties to this grant, as we have a right to do, and should do, in order to avail ourselves of the light of the surrounding circumstances, and the conduct of the parties at the time, it will be seen that the parties themselves have left no doubt of their construction of the grant. We have examined the charter of the Baltimore City Passenger Co., ch. 71 of 1862, and the charter of the Baltimore Union Passenger Co., ch. 47 of 1882, and neither of these corporations were by