O'Brien v. Baltimore Belt Railroad

Alvjey, C. J., delivered the opinion of the Court. The Court below passed its order refusing the injunction upon consideration of the allegations of the bill and the exhibits filed therewith, without reference to the answer of the defendant, which had been previously filed. The answer was properly before the Court, and the defendant was entitled to have it considered, if material, in determining the question whether the injunction should issue. Lynn vs. Mt.

Savage Iron Co., 34 Md., 624 ; Adams’ Doct. Eq., 356, and notes. We entirely agree, however, with the learned Judge below, that, without regard to the answer, the bill fails to present a case for an injunction. The plaintiff is the owner of a lot of ground, with improvements thereon, situate on the east side of Howard street, between Camden and Lee streets, and conducts there the business of a livery stable.

Howard street at this place, is eighty-two and a half feet wide; and the plaintiff is only an abutting proprietor on the street, with no estate in the bed thereof; but as abutting owner of property on the east side of the street he claims to be entitled to the full, free and unobstructed use of the entire width of the street, as one of the public highways of the city. ³⁶⁹ The defendant company was incorporated under the general railroad incorporation law of the State, for the purpose of constructing and operating a railroad through parts of Baltimore City and parts of Baltimore County; and finding it necessary to tunnel a part of the way through the city, the company applied to the General Assembly of 1890 for authority to construct such tunnel, and that authority was given by the Act of 1890, ch. 139. By the first section of that Act it is provided that the company “shall be authorized to construct its railroad, or any part thereof, in such tunnel, under such ordinance or ordinances, as may be passed b}r the Mayor and City Council of Baltimore, relating to the route of said railroad through the City of Baltimore, and the mode, terms and conditions of the building and construction of said railroad within said city. ’' Immediately after the passage of this Act, the Mayor and City Council of Baltimore, by special ordinance, designated the route of the road, and made elaborate provisions in regard to the mode, terms and conditions of the construction of the road through the city. By the first section of the ordinance is defined the route of the road; and, as it affects Howard street, it is provided that it shall run from a certain point “in a northerly direction to the Avestern side of Howard street, betAveen Montgomery and Lee streets; thence along, in, and occupying the Avestern route half of HoAvard street, parallel Avith the eastern line of said street, and distant therefrom forty feet, measured from said eastern building line to the eastern limit of said railroad, to the south line of Camden street; said railroad, from where it intersects the west line of Howard street to its intersection with the soxxth line of Camden street, to be depressed Avithin a wall exit; thence along axid under Howard street by a tunnel to the northerly side of Richmond street; thence, ” &c. And in a proviso to the same section of the ³⁷⁰ ordinance it is required “that all open cuts in any street, lane or alley in this city, authorized to be built under the provisions of this ordinance, shall be protected on both sides by a granite coping at least two feet high, with neat iron rail on top.” The plaintiff charges in his bill that the defendant company intends to proceed forthwith in the construction of its roadway, and to dig up the west half of the bed of Howard street, in front of his property on the east side of that street, to a depth of from ten to twenty-four feet below the present surface of the street.

That said plan is known as an open cut, and that when said open out is made, Howard street, between Lee and Camden streets, will be forever destroyed as a public highway, to the extent of said open cut, and will be devoted, to that extent, to the exclusive use of the railroad company. The plaintiff denies the authority of the Mayor and City Council to grant to the railroad company any such exclusive right to the use of the streets of the city; and insists that such use will create a new' and additional servitude on the bed of the street, which the Mayor and Council have no right to impose; but even if such new and additional servitude be rightfully imposed, it is insisted that the use of the bed of the street can only be availed of by the railroad company, upon paying to the abutting lot owners just compensation for such use. The plaintiff further charges that no condemnation proceedings have been taken, and none are contemplated; nor is it contemplated by the railroad company that any compensation whatever shall be made to the plaintiff' or other abutting lot owners who will he affected by this open cut in the bed of the street. He therefore charges that .if the defendant company is allowed to proceed in the manner it proposes, without first making just compensation, it will be in violation of section 40 of the 3rd Article of the Constitution of this ³⁷¹ State, and also in violation of the 14th Amendment of the Constitution of the United States.51 And he therefore prays that the defendant may be enjoined in the use of the street until just compensation is made, for what he alleges will be a serious injury to his property.

It is not charged or in any way claimed that the plaintiff will be deprived of or seriously hindered in the right of access to his property from the street, by the making of the cut. Eor is it alleged or shown that the foundations of the plaintiff’s buildings, abutting on the street, will be in any manner undermined or impaired by the cut proposed to be made in the street. The street, after the cut is made, will still remain, in front of the plaintiff’s property on the east side of the cut, about forty-one feet wide'. There is no question, therefore, presented here as to the right of the plaintiff to compensation for obstructing access to his property from the street; nor is there any pretence that there will be any physical invasion of his private property abutting on the street.

The foundation of the right to relief asserted by the plaintiff is the fact that he is an abutting owner of property on the street, and the making of the open cut will deprive him of the use of that part of the street, as at present enjoyed by him. 1. The first contention urged.on behalf of the plaintiff is, that the Act of the General Assembly of 1890, ch. 139, in conferring special authority upon the defendant company to construct its railroad in a tunnel within the limits of the city, did not confer authority to construct any part of such road by way of open cuts in the streets; and that the Mayor and City Council exceeded their authority in attempting to confer power upon the company, by ordinance, to construct any part of its road in the streets of the city, by way of open cuts. But if we recur to the terms of the grant of power by the Legislature to the Mayor and City Council, it will at once appear that the power ³⁷² granted was ample to justify the ordinance that was passed. The Mayor and City Council were authorized to designate hy ordinance the route of the road, and also-to prescribe the mode, terms and conditions of its construction.

The right to prescribe the mode and conditions of its constrution, certainly embraced the power to authorize, by ordinance, the making of any part of the road by open cuts, if found to be proper and necessary in the construction of'the road on the route designated. But apart from the special terms of the statute, the company was authorized to construct such part of its road in a tunnel as should he found necessary; and the grant of that power carried with it, by reasonable implication, all that is necessary and proper for the exercise of the power. Properly graded approaches are indispensable to the use of a tunnel as part of a railroad, and therefore the power to make such approaches must exist. In Transportation Co. vs. City of Chicago, 99 U. S., 640 , the Supreme Court of the United States said that the grant of power by the Legislature to build a bridge or construct a tunnel, carried with it, of course, all that was necessary for the exercise of the power.

And in the case of Dodge vs. The County Commissioners of Essex, 3 Metc., 380 , Ch. Justice Shaw laid down the principle as being unquestionable, that “an authority to construct any public work carries with it an authority to use the appropriate means. An authority to make a railroad is an authority to reduce the line of the road to a level, and for that purpose to make cuts, as well through ledges of rock as through banks of earth.” It is plain therefore that there is no foundation for this first contention of the plaintiif. 2. The next question, and that which is the prineijjal question of the case, is, whether the plaintiif, being only an abutting owner on the east side of Howard street, with no freehold or leasehold estate in the bed of the ³⁷³ street, has such an interest therein, by reason of his abutting proprietorship, as to entitle him to he compensated therefor, by the railroad company, before using the street; su.ch compensation to be ascertained and rendered in the manner and according to the provision of the 40th section of the 30th Article of the Constitution of this State ?

Or, to state the question in a more concise form, whether the use of the street by the railroad company, in the manner proposed, and under the conditions stated, would be such talcing