Peddicord v. Baltimore, Catonsville & Ellicott's Mills Passenger Railway Co.

Maulsby, J., delivered the opinion of the Court. The Act of 1787, chap. 23, passed at the April session, appointed commissioners to examine, survey, lay out and mark a public road from Baltimore town towards Frederick town, sixty-six feet wide, and to canse the same to be cut dozen, and well cleared fifty-two feet wide, and grubbed and stoned forty feet wide, and to agree with the proprietors of lauds, through which the same may pass, on the amount of compensation to which they may be entitled for damages, occasioned by the passage of said road through their lands, or in case of inability to agree, then to cause the same to be ascertained by an inquisition; and provided for the erection of gates or turnpikes, and the collection of tolls. The Act of 1801, eh. 77, recited in its preamble that the said road had been surveyed, laid out, marked and bounded according to the provisions of the Act of 1787, that the same was opened and supported at a very great and expensive charge to the county, and provided new means for managing the same and keeping it in better repair. Amongst other things, it provided by the 4th section, that the supervisor, under the direction of the Levy Court, should cause it to be cleared sixty-six feet wide, and twenty-one feet, at least, bedded with wood, stone, gravel, or any other hard substance.

The road was to be made, by the Act of 1787, by straightening and widening the old road, and by making the new, and plats were to be returned to the clerk of Baltimore county, and to the commissioners of Baltimore town. The Act of 1801, by its 5th section, contemplated that the old road, on the bed of which the location of the new road ⁴⁷² ran, was twenty feet wide, and provided for ascertainment of damages to land owners for the additional forty-six feet for the new road, as shewn by the plat then returned and filed, or for the sixty-six feet where the new road had not been located on the bed of the old road, either by agreement with the land owners, or by condemnation. By the Act of 1787, the road was to be, forever afterwards, taken, held and adjudged, in all Courts of Law and Equity, a public road and common highway. By both Acts the jury of inquisition was to take into consideration the convenience and benefit, and the disadvantages occasioned to owners of land by reason of the passage of said road through their lands.

By the Act of 1804, ch. 51, passed 12th of January, 1805, the President, Managers and Company of the Baltimore and Frederick Town Turnpike Road were incorporated, with power to make a turnpike road in, over and upon the bed of the road mentioned in, and provided for, by the Acts of 1787 and 1801. This company was empowered to change the location, when desirable, but that power was not exercised, so far as this case is concerned. Nor is it necessary in this case to refer to other provisions of the charter than the 17th section which provides that twenty feet at least shall be bedded with wood, stone, gravel or other hard substance well compacted together, “and so nearly level in its progress as that it shall in no place rise or fall more than will form an angle of four degrees with an horizontal line,” and which should be forever, during the continuance of said corporation, maintained and kept in good and perfect order and repair; and to the 19th section, which provides that the company may be authorized to collect tolls, when on having petfeeted the road for distances of ten miles, the Governor shall permit it by license under his hand and the seal of the State; and to the 39th section, which provides that the company shall proceed to carry on the work within two years from the passage of the Act, and complete the same to Frederick town in six years, to Middletown in two years thereafter, and to. ⁴⁷³ Boousborough in two years thereafter, or in default, the right of the company to the road not finished, shall revert to the counties respectively. The 3d section of the Supplement of the same year, ch 101, reaffirms, in substance the same forfeiture provided for by the 39th section.

Then follows the Act of June, 1809, eh. 2, which enacts that the said turnpike road from Baltimore to Frederick town, and thence to Middletown, and thence to Boons-borough, as then located, turnpiked and licensed, he and the same is thereby confirmed; and the Act of 1811, ch. 202, reciting in its preamble that it is represented by the petition of the three corporations, created by the Act of 1804, ch. 51, that, since the passage of the Act of 1809, all said companies have completed the whole of said roads, and enacting that all of said roads, as located, turnpiked and licensed, be confirmed. The questions touching this case arising on a review of these several Acts of Assembly are, what were the powers of the Baltimore and Frederick Town Turnpike Road Company in respect to grading the bed of its road, in part or in whole, prior to the Acts of 1809 and 1811, and how have these powers been affected, if at all, by those Acts? It is clear that whilst the company was obliged to grade twenty feet in width, it was authorized to grade the whole sixty-six feet, if it thought best. To what extent was it authorized to cut down and fill up the road bed, in the process of grading?

The Act of 1787 required the commissioners appointed thereby to cut down and well clear fifty-two feet of the sixty-six feet of width of the public road and common highway. The extent of cutting down is not specified. The duty was to cut down, as much as was practicable, until the best condition of road attainable was reached, as was useful and beneficial to the road, within limits of reasonable cost. In Tyson vs. The Commissioners of Baltimore County, 28 Md., 510 , this Court said, “ the law casts upon the defendants not only the right, but the duty to protect the public roads from injury, ⁴⁷⁴ and keep them in proper repair for the use of the public; individual rights must be held and enjoyed in subordination to those of the public.” The commissioners under the Act of 1787 occupied the same relation to the road to bé made, and kept in repair, under that Act, as did the county commissioners to the public roads in question in the case in 28 Md. Their power to cut down was not confined, we think, to the original making or opening the road.

It was a power and duty, always continuing in those having charge of the road, to cut down from time to time, as they might be able, the road bed, until as near a level was attained as might be. The use of the public is promoted, not only by keeping in repair the road as originally opened, but also by reducing its elevations, and filling up its depressions from time to time as may be practicable. In the same case in 28 Md., the Court said that it was the duty of the Commissioners of Baltimore county to adopt the necessary means to prevent the public road in that case from being overflowed by water, and that they would not be justified in the neglect of that duty, merely because the natural flow of water had been allowed for any period to submerge the highway, to the inconvenience and detriment of the public. In that case the plaintiff claimed that inasmuch as the natural flow of the water which supplied his mill, was to overflow the public road, and had dope so ever since it had been laid out and used, the commissioners were not justified in erecting a wall to protect the road from the accustomed overflow, the effect of the erection being to damnify his mill.

But this Court held otherwise. See also Goszler vs. Corporation of Georgetown, 6 Wheat, 593, and Smith vs. Corporation of Washington, 20 How., 135 . The commissioners under the Act of 1787, and the other authorities provided by the Act of 1801, had the right, wo think, and it was their duty, to cut down the bed of the road, from time to time, to any extent that was useful and beneficial to the road, and promoted the convenience of the public in using it, and this right and duty were transferred to the ⁴⁷⁵ President, Managers and Company of the Baltimore and Frederick Town Turnpike Eoad by the Act of 1804. Their charter obliged them to discharge this duty to the extent that the twenty feet to be stoned, &c., should in no place rise or fall more than -would form an angle of four degrees with an horizontal line, but did not relieve them from the duty, or perhaps more certainly did not take from them the right, to so construct the road as that the angle should be so much less as the convenience of the public might demand, and as might be accomplished by the use of reasonable means.

The company did not comply with this condition of the 17th section of its charter, but constructed the road so that it did rise and fall at a greater angle than four degrees with an horizontal line. The Governor nevertheless issued his license authorizing the collection of tolls. Still the road had not been completed “according to the true intent and meaning of the original Act,” in the language of the Supplement of 1804, ch. 101, and remained liable to revert to the respective counties through which it passed, and to relieve it from this liability ■was, we think, the intent and effect of the Acts of 1809, ch. 2, and 1811, ch. 202. These Acts are nearly or quite identical, and the fact that both were sought for by the company, evidences an apprehension on its part that it was not quite safe from a claim that its property and franchises might be forfeited, until it had obtained an affirmation, and then a reaffirmation, by the Legislature on that point.

The learned counsel of the appellant argued that the Act of 1809, operated as an agreement between the Legislature, the land owner and the company, that the then existing status of the road, in respect to grading, was to be its determinate condition, and that from thenceforth abutting property holders could not be interfered with by any new or changed grade. That thenceforth they were to hold their property exactly as the road then stood, so far as grading was concerned. We are unable to concur in this view. If this were true in respect to the angle of elevation or depression, ⁴⁷⁶ why would it not be also true in respect to the embankments on the side of-the road, and to the width to which the twenty feet of stoned way might have been cut through elevations.

It is presumable that, in its infancy, the company was anxious to collect tolls as soon as possible, and that its efforts were directed to doing first only so much as might be necessary to enable it to reach that result; and therefore that it cut down all elevations only to the width required, leaving on either side large embankments between the cuts and the fences of abutting land owners. Those embankments might be of great value to the land owners in affording them facilities in making and repairing their fences, by giving them access on both sides of their lines of fence. And as they might be gradually removed, in the course of the operations of the company, the removal might be especially hurtful in leaving their posts unsupported, and so throwing down the fences, or necessitating a removal of them within the lines of the land holders. And in many other respects, the construction of the stoned way twenty feet wide only, would leave the remainder of the" sixty-six feet convenient and useful to adjoining land owners.

If the existing condition of the road in 1809, were by that Act made its determinate condition in respect to grading, it would follow that the same effect must result in all other respects, and if the property holder acquired rights forbidding a change of that condition by a change of the grades by the company, he acquired the same right to demand that the condition should not be altered in any other respect which detracted from his convenience. Whether the right of way under the Acts of 1787 and 1S01, or either, were acquired by purchase, condemnation, or dedication, the result is the same. It was acquired under the Act of 1787 or of 1801. The recital to the Act of 1801 indicates that it had been then acquired.

The 1.1th section of the Act of 1804, shews that it had been before that time acquired. In either case, the purchase, grant or dedication was of the right of way sixty-six feet in width, for any and all the uses ⁴⁷⁷ and purposes to ■which the company was authorized by its charter to apply it, and the adjoining owners of property held cum onere, and transmitted their titles cum onere. Our conclusion is that the turnpike company acquired, by its charter, the right to grade, pave and use in any manner that would promote the benefit and convenience of the public, for the purpose of a public highway, the whole sixty-six feet of road way, or any part thereof, not less than twenty feet wide, and to grade the same to any angle less than four degrees, and that it retained that right! up to the contract entered into between it and the appellee, and that the holding of the appellant was subject to that right by the company. .By the Act of 1860, eh. 34, the appellee was incorporated with power to construct a horse passenger railway, from the city of Baltimore to the village of Ellieott’s Mills, and by the 6th section was authorized, provided it could obtain the assent of the Baltimore and Frederick Town Turnpike Company, which consent the latter company was authorized to give, to construct the railway upon the bed of the turnpike road, with power to alter the grade thereof, subject only to such regulations and conditions- as might be prescribed by the turnpike company. On the 11th of March, 1861, a contract was entered into between the appellee and the turnpike company, by which, amongst other things, the former was empowered to construct its railway on the bed of the latter, in the centre thereof and with a flat rail, within the city limits, and thence on the southern line of the turnpike, or near thereto, unless where deemed necessary by the superintendent of the latter and the engineer of the former, to the proper construction thereof, it be changed to the northern side, with a T rail.

The ordinary travel on the turnpike is not to he interfered with. The railway company is authorized to grade the turnpike bed, and when this is done the whole width of the latter is to be graded, and all costs, charges, expenses and damages connected in any way with the change, are to be borne by the railway company. The railway company did grade the bed ⁴⁷⁸ of the turnpike where the property, of which the appellant is lessee, abuts on it, to the same angle to which the turnpike company was required by its charter to