Pennsylvania Railroad v. Consolidation Coal Co.

Bartol, C. J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Allegany County in equity, continuing and making perpetual, an injunction which had been granted upon the bill of the appellees, restraining the appellant from using a crossing over the railroad of the appellees, known as the Potomac Wharf Branch of the Cumberland and Pennsylvania Railroad Company. The order of the Circuit Court was passed upon bill, answer, replication and proof. The appeal was heard at the last term, and has been re-argued under the order of this Court.

The several Acts of incorporation of the appellees, and their respective rights in the railroads and branches held and operated by them, are stated in the bill, these need not be particularly mentioned; but the roads of the appellees may be treated for the purposes of this case as belonging to the Cumberland and Pennsylvania Railroad Company; and will be spoken of as the Cumberland and Pennsylvania Railroad and its Potomac Wharf Branch. It appears from the record, that the Cumberland and Pennsylvania Railroad, has for a number of years been engaged in transporting coal from the State line opposite Piedmont, through the coal region of the George's Creek Valley to Cumberland, connecting by its main line with the Baltimore and Ohio Railroad, and thence with the basins of the Canal, and by its Potomac Wharf Branch with the Poto ¹⁶⁰ mac River, and thence by water with the Canal. On the west of Cumberland is a narrow defile through Wills’ Mountain called the Narrows, through which a stream flows called Wills’ Creek. On the east side of this stream is located the Cumberland and Pennsylvania Railroad; and at the eastern end of the Narrows, its Potomac Wharf Branch deflects in a south-western direction, crossing Wills’ Creek and extending to the Potomac.

In 1816, the appellant company was chartered under the Act of 1810, ch. 416, and the amendment thereto of 1814, ch. 202 ; the termini of its proposed road as stated in the certificate were, “some convenient point in the City of .Cumberland, Allegany County, State of Maryland, and some suitable or convenient point at or near Ellerslie, in the County and State aforesaid.” It appears that Ellerslie is at or near the Pennsylvania line. In constructing its railroad, the appellant encountered insuperable obstacles in entering Cumberland. The only approach to the city from the west, being through the Narrows, an attempt was made by the appellant to secure, by condemnation, a right of way on the east side of the creek through the Narrows, but the whole available space on that side having been condemned for the use of the Cumberland and Pennsylvania Railroad Company, this attempt was ineffectual; then it became necessary to cross the railroad of the appellees, and also the Potomac Wharf Branch, but doubts existed whether under its charter, and the provisions of the general Acts of 1810 and 1814, the appellant had the power to cross an existing railroad. Under these circumstances, the Act of 1818, ch. 192, was passed; and the construction of this Act, is the first and most important question to be considered.

It appears from the record, that this Act was the result of an agreement or arrangement between the railroad companies; it was drafted by the appellees’ counsel, and assented to by the officers of the respective companies. ¹⁶¹ Its object as stated in the title was “to enlarge the powers of the Pennsylvania Railroad Company in Maryland.” In the recital, after stating the incorporation of the appellant, for the purpose of constructing and operating a railroad from a point at the State line, near Ellerslie, to and within the City of Cumberland, and that the company is now ready to build said road into said city, with proper depot and terminal facilities for general freight and passenger traffic, and also to connect with the Chesapeake and Ohio Canal; the Act recites that “the only inlet for said railroad to said city or canal, is through the precipitous mountain gorge, near said city, known as the Narrows, through which the Cumberland and Pennsylvania Railroad is now operated on: the east side of Wills’ Creek.” It then proceeds to enact: “ That in order to enable the said Pennsylvania Railroad Company in Maryland, to carry out the purposes for which it was organized, as stated in the foregoing preamble, the said company is hereby granted express authority to cross the tracks of the Cumberland and Pennsylvania Railroad at a point immediately west of the western entrance of the Narrows; (then prescribes particularly the manner of such crossing above the tracks,) and to cross the Potomac Wharf Branch of said Cumberland and Pennsylvania Railroad, and to cross the National road leading from the City of Cumberland, such last mentioned two crossings to be either at grade or by substantial bridging or trestling over the same, as may be determined by the president and directors of said Pennsylvania Railroad Company, as being most advisable to reach, either their depot or said canal.” The Act then prescribes particularly in what manner the crossings shall be constructed if above grade, and the safeguards for the security and protection of the Cumberland and Pennsylvania Railroad ¹⁶² Company, if the crossing of the Potomac Wharf Branch he at grade. The Act then proceeds as follows: “And provided also, that after crossing the Cumberland and Pennsylvania Railroad, immediately west of the west end of the Narrows, the said Pennsylvania Railroad shall at that point cross to the west side of Wills’ Creek, and proceeding on a line on the west side of said creek, shall not recross said creek before reaching a point at least four hundred feet southeast of the National road bridge over said creek, and shall cross the Potomac Wharf Branch of the Cumberland and Pennsylvania Railroad at the point where said branch intersects the said National road; and provided also that after recrossing Wills’ Creek at the point above named, the line of the said Pennsylvania Railroad shall at no point infringe upon the line of condemnation, or right of way of the Cumberland aDd Pennsylvania Railroad, excepting at the point where it crosses the Potomac Wharf Branch of said road at its intersection with the said National road; and provided also that said Pennsylvania Bailroad after crossing Wills’ Greek, west of the west end of the Narrows, shall have the option, instead, of recrossing said creek at a point not less than four hundred feet southeast of the National road bridge, as above provided for, of remaining on the west side of said creek and crossing the Potomac Wharf Branch of the Oumberland and Pennsylvania Bailroad, at any point on the west side of Wills’ Greek, either above or at grade, as may be found most convenient and practicable ; and, the choice of either route herein above provided for shall be final; and provided also, that if the said Pennsylvania Railroad Company shall elect to construct its railroad upon that line hereinbefore described, which provides for its recrossing Wills’ Creek from the west side thereof at a point not less than four hundred feet south-east of the National road bridge; then and in that event, said Pennsylvania Railroad Company shall ¹⁶³ construct and is hereby required to construct from its main line aforesaid, a branch line on the east or west side of Wills’ Creek to a point on the basins of the Chesapeake and Ohio Canal at Cumberland, or in lieu thereof, said company may contract with any existing railroad company leading to said basin or basins for the transportation of its cars thereto ; said contract to be for a period of ninety-nine years, and renewable for a like period; and in crossing the Potomac Wharf Branch of the Cumberland and Pennsylvania Eailroad, with the branch road aforesaid, said Pennsylvania Eailroad Company shall have the same rights and be subject to the same conditions, regulations and limitations as are herein provided for the crossing of said Potomac Wharf Branch by the main line of said Pennsylvania Eailroad Company.” Sec. 2. Provides for notice of the proposed places of crossing, and also whether the same are proposed to be made at grade or above grade, and also for the making of a contract therefor, and confers the right to condemn, in case no contract is made. Sec. 3.

Confers the right upon the Pennsylvania Eailroad Company to cross the track or tracks of the Baltimore and Ohio Eailroad Company. The 4th and 5th sections are not material to be particularly noticed. We have copied at length all the provisions of the Act applicable to the case, because in construing a statute, every part of it must be considered. The particular provision which has given rise to most dispute is that designating the routes of the Pennsylvania Eailroad, giving to the appellant the option- between the routes prescribed, and making that option final.

That part of the Act is printed in italics. On the 11th day of June, 18⁷⁸, Mr. Healey, then president of the appellant, gave notice in writing to the vice-president of the appellee, that the Pennsylvania Eailroad Company ¹⁶⁴ has decided to abandon the plan of recrossing Wills’ Creek below the National road bridge, and notifying him that the Pennsylvania Railroad Company proposes at an early date to make a crossing at grade over the Potomac Wharf Branch, at a point designated in the notice on the west side of Wills’ Creek, and offering to pay $100 for the easement of said crossing in perpetuity. On the 16th day of August following, Mr. Mayer, President of the Cumberland and Pennsylvania Railroad Company, in a letter addressed to Mr. Williams, attorney of appellant, said, uthe proposal for crossing” (the Potomac Wharf Branch at the east end of the Narrows,) “ made to me by Mr. ,-Healey in writing, and believed to he dated June 11th,-1878, has been accepted by me.” The appellant proceeded to construct its road to the Potomac Wharf Branch on the west, side of the creek, and some distance beyond, and located -and was engaged in constructing its road across the;&reek to the east side thereof, some distance below; and considering it was entitled to make the crossing of Potomac Wharf Branch under and by virtue of a contract with ■the Cumberland and Pennsylvania Railroad Company, proceeded to make the crossing against the will of the latter company, and to restrain and prevent the appellant from using the crossing, the hill in this case was filed and the injunction granted. We shall refer to the alleged contract hereafter, at present, we are considering only the construction of the Act of 1878.

The contention on the part of the appellees is, that after exercising the option provided for in the Act, and electing to cross the Potomac Wharf Branch on the west side of the creek, it is hound to construct its road to its terminus entirely on the west side of the creek, and has no power or right to cross to the east side thereof. That the option given by the Act, is a choice between a line entirely on the east side of the creek and one on the west side, and having elected the latter, the election is by ¹⁶⁵ the terms of the law, final. This construction was adopted by -the Circuit Court, and one of the grounds upon which the injunction was made perpetual, was that assuming the contract for the crossing existed, as the appellant contends, such contract was made with a view and purpose of pursuing the western side route, and constituted a part of that route; and that the unauthorized deflection from the line prescribed by tbe Act, deprived the appellant of the right to the crossing. On this point we think the learned Judge of the.Circuit Court was in error.

If the provisions of the law were observed, and a contract made as alleged, the appellant was entitled to cross the Potomac Wharf Branch at the point where the crossing was made. A departure from the statutory line afterwards, even if such departure was made, would give to the appellees no good cause of complaint, or any ground for maintaining the injunction. But we do not stop to discuss that point at length, because according to our construction of the Act of 1878, we think the appellant, after electing to cross the Potomac Wharf Branch on the west side of the creek, is not compelled to construct its road to its terminus on that side. The only routes designated and prescribed by the Act are to the places of crossing the Potomac Wharf Branch, on the east side or the west side of the creek.

Beyond those points the Act is altogether silent, so far as respects any designation of route. It provides, that after crossing the Potomac Wharf Branch at its intersection with the National Road, it shall not inflinge upon the line of condemnation or right of way of the Cumberland and Pennsylvania Railroad. This is the only thing-said, with respect to its route, after crossing the Potomac Wharf Branch on the east side of the creek. In the same manner there is no designation or prescription of the route beyond the crossing of the Potomac Wharf Branch on the west side of the creek, nor any thing in the law requiring the appellant ¹⁶⁶ to continue its route on the west side of the creek, after crossing the Potomac Wharf Branch, if it shall so elect, on that side.

The error, it seems to us, into which the appellees have fallen is in construing the Act, as intending to prescribe the entire route of the appellant’s road from its entrance into the Narrows to its terminus. There is nothing in the law to warrant this construction. The road was entitled to go to “ some convenient point in the City of Cumberland.” This is the terminus fixed by its charter, and recognized by the Act of 1878. That terminus might be on either side of Wills’ Creek.

The Act of 1818 was intended to enlarge the powers of the appellant, and ought not to be construed as limiting them, except such a construction be justified by the plain words of the Act, or by reasonable inference from its provisions. It was not necessary, looking to the circumstances under which the Act was passed, and to the views and objects of its projectors, that the road, after it had got through the Narrows, should be restricted to one side or the other of Will's’ Creek. That is an inconsiderable stream, and is referred to in the law only as a geographical feature in the description of the route. In considering the provisions of the Act, it seems to us that its main and leading purpose, was to confer upon the appellant the right to cross the railroads of the appellees, and to give to the latter full and complete protection of its right of way, and security at the crossings, so as to interfere, as little as practicable with its business operations.

Therefore, the Act provides that after crossing the appellees’ road west of the west end of the Narrows, the appellant’s road shall cross to the west side of the creek, and proceed on a line on that side, and not recross the creek till it reaches a point at least 400 feet below the National road bridge. When it reached that point, it would be below the Narrows and might recross to the east side without interfering with the right of way of ¹⁶⁷ the appellees except at the crossing. Then the Act provides, in effect, that if it recrosses the creek at that point, so as to make it necessary to cross the Potomac Wharf Branch on that side, the place of such crossing shall be at the intersection of that branch with the Rational road. There the designation of the route in the Act stops.

Then the option is given instead of recrossing the creek at the point designated and crossing the Potomac Wharf Branch on the east side, to remain on the west side and cross the Potomac Wharf Branch at any convenient point on the west side. Here also, the designation of the route by the Act terminates. And it is provided that the “choice of either route herein above provided shall he final.” The only routes herein above provided are to the crossing places of the Potomac Wharf Branch. It was not the purpose of the Act to prescribe any route beyond those points, that the appellant was free to determine under its charter.

The option given in the law is between crossing the the Potomac Wharf Branch on the east side, and crossing it on the west side of the creek. These are the material subjects provided for in the Act. The option of remaining on the west side and crossing the Potomac Wharf Branch on that side, is placed in antithesis to what goes before, viz., recrossing the creek and crossing the Potomac Wharf Branch on the east side. The word remaining in this connection, cannot, we think, be properly construed as requiring the road of the appellant to continue on the west side to its terminus ; hut to remain on that side until it has crossed the Potomac Wharf Branch.

It was not necessary for the purposes of the law that the route beyond that point should he prescribed. In the circumstances existing at the time it was passed, so far as appears in the record, there was no reason whatever, looking to the interests of the public, or to the objects and purposes of the law, why the road should he required ¹⁶⁸ to remain on the west side of Wills’ Creek until it reached its terminus. It is not material to the question that after the passage of the Act, the officers of the appellant contemplated extending their road on the west side of the creek. Nor have we anything to do with the events which have since occurred, inducing the appellant to construct its road on the line now proposed, or with the motives of the appellees in opposing them.

The question here is a question of the powers of the appellant under its charter and under the law. By its charter and under the provisions of the Acts of 1870 and 1874, it would clearly have the power to recross Wills’ Creek, to the east side below the Potomac Wharf Branch, and according to our construction of the Act of 1878, there is nothing in its provisions to restrain or limit its powers in this respect. Some stress has been laid by the appellees in argument, upon that provision of the Act of 1878, requiring the appellant to construct a branch line to the canal on the east or west side of the creek.. This obligation is imposed only in case the road shall cross to the east side of the creek, at the particular point designated in the Act, viz., “ not less than 400 feet below the National road bridge, and shall cross the Potomac Wharf Branch at the place designated on that side; and it is argued that the appellant may escape this obligation by crossing the creek lower down.

This objection it seems to us is not substantial, it by no means follows that the purpose declared in the Act, that the road of the appéllant shall connect with the canal, could be defeated by recrossing the creek lower down. But it appears from the record, that the appellees’ contention grows out of the fact, that the appellant is about constructing its road upon the east side of the creek, so as to reach and connect with the principal basins of the canal on that side. ¹⁶⁹ But the provision referred to, does not in our opinion aid or support the appellees in their construction of the Act. If the law fails to provide for the appellant’s road connecting with the canal, except in the particular event or contingency named in the Act, it affords no reason why its provisions shall, in other respects, he construed to limit or restrict the powers of the appellant. There is no provision in the Act requiring the road to reach or connect with the canal, if constructed entirely on the west side of the creek.

After a most careful consideration of the Act of 1818, we are of opinion that the construction contended for' hy the appellees is erroneous. With respect to the alleged contract under which the appellant claimed the right to make the crossing in question, we think after a careful examination of the testimony, that the appellant is in error, and that no such final and complete contract existed. After the notice of the 11th of June, 1818, before referred to, and the acceptance thereof in the letter of Mr. Mayer, it appears from the evidence, that the place of crossing as designated in the notice, was changed hy mutual consent, and it further appears that it was also agreed and understood that a formal agreement in writing should be made conferring on the appellant the right to the easement, and specifying the manner in which it should he made and used, and securing to the appellees proper safeguards for their protection in the use of their road. This was a condition precedent to the completion of the contract.

Such an agreement was made with respect to the crossing at- the west end of the Marrows. As to the crossing of the Potomac Wharf Branch, the agreement in writing was not made and signed hy the parties. A written agreement, Exhibit B, was prepared hy the appellees; but the officers of the appellant objected to ¹⁷⁰ some of its provisions, and were not willing to execute it. In that state of the case, it was the duty of the appellant to tender to the appellees a written agreement, expressing the terms of the contract as modified; and failing in obtaining the execution thereof by the appellees, its duty was to take legal steps to obtain its rights, or to resort to its right of condemnation under the Act of 1878.

Without this, the appellant was not justified in making the crossing forcibly, and against the consent of the appellees, and for this reason, we think the order continuing the injunction was right, and ought to he affirmed. (Decided 16th December, 1880.) Order affirmed. ^{171 172} Miller, J., filed the following opinion, which was con curred in by Bowie, J.: The construction of the Act of 1878, ch. 192, seems to me to he in no wise essential to the decision of the present case, hut as it has been elaborately and ably argued by counsel on both sides, it is proper the Judges who heard the oral arguments, as well as those who have since considered the printed briefs, should express their views of it. It is also important the question should be thus considered by the Judges of this Court, because there is other litigation in reference to the location of the appellant’s road now pending and awaiting a settlement of the controversy over this statute. A wide difference of opinion as to its true construction exists both among the Judges of the Court below and of this Court.

Having given to the subject the best consideration I can, and being unable, on this point, to concur in the opinion of the Chief Judge, which expresses that of a majority of the Judges of this Court who have as yet considered the question, I shall with great deference give my own views thereon in this opinion. These views, I am authorized to state, are concurred in by Judge Bowie, who was one of the four Judges who alone heard the oral arguments. Before coming to the language of the statute itself, it is all important to ascertain and hear constantly in mind the natural features and conformation of the locality to which it refers, the roads and improvements existing in the vicinity at the date of its passage, and the .circumstances which gave rise to its enactment. It appears then that Wills’ Creek, a stream of considerable volume and breadth, flows through a mountain gorge near the City of Cumberland, called “ The Narrows,” and empties into the Potomac River, its mouth being within the city limits.

The city itself is located to the eastward of this gorge, and has been built up on both sides of this stream, hut the greater part of it lies on the east side thereof. ¹⁷³ The distance, following the creek, from the city limits to the Potomac, is not stated in the record, hnt from the plats of the locality exhibited to the Court in argument, I infer it does not exceed one mile. The old National turnpike road which was constructed many years ago, passes through the city on the east side of the creek until it reaches the eastern entrance to the Narrows, and there crosses the stream by a bridge and passes through the Narrows on its western side. The Cumberland and Pennsylvania Railroad having its terminus in that part of the city which lies east of the creek, had been located and constructed through the city and through the Narrows wholly on the east side of the creek, and did not cross to the west side until it had left for some distance the western entrance to the Narrows. This road which is practically owned by the Consolidation Coal Company, was chiefly used for the transportation of coal from the coal regions of Allegany County to the Baltimore and Ohio Railroad, and the Chesapeake and Ohio Canal.

The Cumberland and Pennsylvania Railroad Company had also built or acquired possession of a short branch road called the “Potomac Wharf Branch,” which diverges from their main road near the eastern end of the Narrows, and runs in a south-westerly direction across the National road and the creek, to a wharf on the canal basin or Potomac River, west of the creek. The Baltimore and Ohio Railroad also passes through the city, crossing the creek at a considerable distance to the eastward of the Narrows, and pursues its westward route along the left bank of tbe Potomac. The Chesapeake and Ohio Canal had also many years before been completed to Cumberland, and with basins and wharves for the shipment of coal, located some below and some above the mouth of Wills’ Creek. Such in the main, was the state of things, when in January, 1876, the appellant company was incorporated ¹⁷⁴ under the Act of 1870, ch. 476, known as the free railroad law.

The corporate name they assumed was, “The Pennsylvania Railroad Company,” and the termini for their road, for the construction of which they were incorporated, are, as expressed in their ertificate of incorporation, (and which the law requires to he so expressed,) “Some convenient point in the City of Cumberland, and some suitable or convenient point near Ellerslie in Allegany County.” The Act in question is an amendment to this charter, passed to give the corporation enlarged powers, and to remove difficulties in order to enable it to locate and construct the main line of its road between these termini; and this fact must be carefully remembered when the various provisions, and the language of the Act itself come to be considered. Now what powers had this company, and what could they do under their original charter? They could unquestionably select their Cumberland terminus at any point within the city limits they might think most convenient, but in making this selection, it was an absolute physical necessity that the point selected should be either in that part of the city which was on the east, or in that part which was on the west side of Wills’ Creek. If then they should select a point on the east side, they could locate and construct their road, (if there were no rights of other roads presenting an insuperable barrier) through the city and through the Narrows wholly on the east side of the creek, or they could cross the creek before reaching the Narrows and pass through them on the west side of the creek.

So if the selection were made on the west side, they could in like manner let the road remain wholly on that side of the creek, or cross it and pass the Narrows on its east side. In such case, these alternate routes, dependent upon an east or west side location of their Cumberland terminus are those which the natural features of the locality indicate as the most convenient ¹⁷⁵ and feasible, if not the only possible ones. Now let us suppose the company had first selected a Cumberland terminus and commenced the location of their road from that point, and had then found they had no power to cross “The Potomac Wharf Branch” road, and could not pass through the Narrows on the east side of the creek, because all the available space on that side had been condemned for the use of the Cumberland and Pennsylvania Railroad, so that they were compelled to pass the Narrows on the west side of the creek, and in that emergency they had applied to the Legislature for an Act to enable them to get out of the city, and through the Narrows from east to west. In- such case, it is hardly possible to suppose they would, if they had selected an east side terminus, have asked for or accepted any law which would have required them, or have prescribed a route which would have compelled them to cross the branch road, and the creek at more than one point, or, if they had selected a west side terminus, that they would have asked for or accepted any law which would not have permitted their road to remain on the west side of the creek until it reached the west end of the Narrows.

These considerations must also be borne in mind when we come to the provisions and language of the Act. The company however, did not select the Cumberland terminus first, and commence the location and construction of their road from that end. They commenced as they had the right to do, at the other terminus near Ellerslie, and located and built the road towards Cumberland, down and on the east side of the creek, until it reached the western entrance to the Narrows, and approached the tracks of the Cumberland and Pennsylvania Railroad. They then found they could not proceed through the Narrows on the east side of the creek without encroaching upon the right of way already condemned for the use of that road, and to do this it is conceded their charter gave them no power.

"But not ¹⁷⁶ only was their effort to make this encroachment successfully resisted, hut their power to cross the tracks of this road was denied, and at this juncture they applied to the Legislature, and the Act of 1878 was passed. I do not propose to discuss the question whether the Act of 1870, as amended by that of 1876, ch. 242, gave to corporations which it authorized to be created, power to construct their roads across the tracks of existing railroads, because I do not regard it as material to the construction of this law, or to the decision of the present case. The appellant company applied to the Legislature for the passage of this Act and accepted it, when passed, as an amendment to their charter. They are therefore not only entitled to all the privileges it confers, but are bound by all the conditions which it imposes.

It was conceded in argument that the law was drafted and most of its provisions agreed upon after consultation, and as the result of a mutual understanding between