Pennsylvania Railroad v. Mayor of Baltimore

Amass, J., delivered the opinion of the Court. This suit is for the cost of reAocating a water main on the west section of Eager Street bridge, in the City of Baltimore, over the tracks of the Pennsylvania Railroad Company. ⁷⁸ 111 the construction of the Eallsway over Jones Falls valley north of Eager 'Street, there were required, to support the viaduct, piers and arches, the proper placing of which was prevented by the location of the tracks of the railroad company on its property in said valley, so that it became necessary for Mr.. Hendrick, the chief engineer of the city, having charge of the construction of the Eallsway, to confer with Mr. Gamble Latrobe, an engineer, and at that time general agent and superintendent of the company, in reference to some plan for relocating said tracks, so as to make room for the piers. On its part, the railroad company desired greater overhead clearance for its trains, which involved a change of grade on Eager Street.

The contract between the parties, growing out of these conferences, is contained in the letter of Mr. Latrobe of October 11th, 1912, to Mr. Hendrick, and the letter of Mr. Hendrick in reply, dated October 14th, 1912, the two letters being as follows: “Dear Sir: “Referring- to my letter of October 5th and previous correspondence, and to a letter from the Mayor dated October 8th (which I received on my return to my office this morning-), relative to the crossing of the Jones’ Falls viaduct over our tracks: “I am very sorry to know that we seem to have been causing you some inconvenience, but it would be useless for us to give you a letter of introduction to our engineering department in Philadelphia, as they are not acquainted with this situation and have virtually nothing to do with it, this being a division matter which is in the hands of myself and the general superintendent at Williamsport, Pa. “We feel that the plan we finally agreed upon should be followed — that is, that the piers should be so arranged as to make provision for our future development without incidental expense to us, and that the head room of which we spoke should be given us. This would entail the elevation of Eager Street and ⁷⁹ would make necessary certain track changes incidental to the building of the new piers. As I have already told you, we are perfectly willing to assume the expense of the track changes, and we will also assume the cost of elevating Eager Street bridge to the proper height over our tracks. As you are aware, we own and maintain this bridge.

The city should assume the cost of the change of grade from the west end of the bridge as far out Eager Street as they consider it necessary to change it. The bridge on the east side of the Eallsway would have to he elevated if the grade is changed, as we see it, and, as stated, while we will stand for the expense of raising the bridge itself, all changes in grade to the outside of the bridges referred to should he borne by the city. This arrangement appears to be perfectly fair, and I should he glad to receive advice from you as to whether it will be satisfactory from the city’s standpoint. I shall also appreciate it if you will let us know at once how soon it will he necessary to begin this bridge work and what the actual grades will be as related to the existing street grades, so that we can work up our plans and estimates accordingly.

Will you kindly send us also a profile of Eager Street showing the existing and proposed grades, and oblige, “Yours respectfully, “G. Latrobe, “Geni. Agt. & Supt.” “Sewerage Commission of the City of Baltimore, “Chief Engineer’s Office, “Baltimore, October 14, 1912. “Mr. Gamble Latrobe, Gen. Agt. & Supt., “Aorthern Central Railway Co., “City. “Dear Sir: “I am in receipt of your letter of October 11th, with reference to our previous correspondence, and various conferences with you and your engineers, re ⁸⁰ garding the crossing of the Jones’ Falls viaduct over your tracks, between Eager and Chase Streets, and note that your company will agree to assume the expense of all track changes incidental to constructing the viaduct and any future changes you might care to make on Eager Street bridge, provided that the city will so arrange their piers as to make provision for the future development of your company (as per jdans dated September 11th, a blue print of which you secured during our recent conference in my office), giving you a twenty-foot overhead clearance, the height requested during this conference, and, further, that we would bear the expense of raising the grade of Eager Street 2.3 feet at this intersection with the viaduct, as per the yellow lines shown on the blue prints submitted to us with your letter of July 18th. “The above blue prints and correspondence were duly submitted to his Honor the Mayor and the Board of Estimates, resulting in their agreeing to adjust our viaduct along the above lines, and assuming the cost of raising the grade of Eager Street, as per the yellow lines on the blue prints submitted, your company to assume all other costs involved in your track and bridge changes. “As we have gotten together on this matter, I should think it would be necessary to have the proper papers drawn up and signed by both your company and the city. If agreeable, I will have the City Solicitor prepare them at once. “Yours truly, “Galvin W. Hendrick, “Chief Engineer. “P. S. — In order to expedite matters, I am sending this by special messenger. “C. W. H.” The following letter from Mr. Latrobe to Mr. Hendrick, dated October 15th, 1912, is in answer to the suggestion con- ⁸¹ rained in Hr.

Hendrick’s letter that it would be well to have a more formal contract: “The Pennsylvania Railroad Company, “Baltimore, Md., October 15, 1912. “Mr. Calvin W. Hendrick, “Chief Engineer, Sewerage Commission. “American Building, Baltimore. “Dear Sir: “Referring to your favor of October 14th relative to the crossing of the Jones’ Ealls viaduct over our tracks, between Eager and Chase Streets, at Baltimore : “I cannot see that anything should be necessary further than my letter of October ,11th to you and your reply of October 14th accepting our terms covering the work. I know that my statements will stand, and I have no reason to doubt that yours will, and no doubt that will suffice. The bridges are ours to maintain and 1 can see no reason for preparing a more formal agreement. “Will you be kind enough to let me have the information and profile asked for in my letter of October 11th as promptly as possible, and oblige, “Yours respectfully, “G. Latrohe, “Geni. Agt. & Supt.” The plan agreed upon necessitated the crossing of Eager Street by the Eallsway between the east and west bridges of the company at a grade 2.3 feet higher than the former grade at that point, and the raising of the floors of the east and west bridges to meet the surface of the Eallsway at said grade.

It may be well here to refer to the history of said bridges and of the Avater main attached thereto by the city prior to the construction of the Fallsway; and this is taken from the brief of appellant, its correctness not having been questioned by appellee: ⁸² “Prior to September 26, 1868, the railroad of the Northern Central Railway Company, from Union Station and north of it on North Charles Street to Calvert Station, its southern terminus in Baltimore City, consisting then of two or more tracks, was constructed on the east side of Jones’ Palls in Jones’ Palls Valley, and crossed Eager Street, which runs east and west across the valley, at grade, as well as Charles Street, ranning north and south. .“Such was the condition of things at Eager Street when Ordinance No. 77, approved September 26, 1868, was passed by the Mayor and City Council of Baltimore, which ordinance, after reciting that it was desirable that railroads should cross streets below the grade thereof, and that the owners of a majority of the front feet of ground on Charles and Eager Streets have petitioned the Mayor and City Council of Baltimore asking that the grades of said streets be changed to accomplish the above object as respected the Northern Central Railway, it was ordained by the first section of said ordinance as follows: “ 'Section 1. Be it enacted and ordained by the Mayor and City Council of Baltimore, That the grade of Charles Street between Hoffman and Lanvale Streets and the grade of Eager Street between North and Burén Streets be raised and changed under the direction of the Mayor and City Commissioner so as to enable the Northern Central Railway Company to construct its railway tracks under said streets; and all open • cuts along Hoffman and other streets shall be tunnelled by the said Railway Company. “ 'Section 2. That all expenses incurred in making said changes of grade, including the tunnelling and repaving of all paved streets, shall be paid by the Northern Central Railway Company.’ “Under the above ordinance a fill waS made across Jones’ Palls Valley in the line of Eager Street from the west side of the valley to Jones’ Palls; and a stone ⁸³ arch was built over the falls, which flowed through about the centre of the valley, and the earth All carried over this arch to the east side of the falls, where a bridge abutment was constructed; and another abutment was constructed on the east side of Jones’ Falls Valley, and then an iron bridge with a wooden floor constructed across and between these two abutments spanning the tracks of the Northern Central Railway Company below. Thus Eager Street was upon an earth All or embankment from the west side of the valley to the east side of Jones’ Falls, and from the east side of Jones’ Falls to the east side of the valley it was on the iron bridge with the wooden floor. “In the early part of 1884, the Northern Central Railway Company, desiring more tracks on its road between Union Station and Calvert Station than the space on the east side of the falls permitted at Eager Street, applied for and obtained an ordinance from the Mayor and City Council of Baltimore, Ordinance No. 88, approved May 24, 1884, authorizing it to lay additional tracks under Eager Street on the west side of the falls by cutting away the embankment aforesaid between the west side of the valley and the west side of the falls, and substituting therefor a bridge to carry Eager Street from the west side of the valley, where a bridge abutment was built, to the west side of the falls, where another bridge abutment was built, the bridge being on the then grade of Eager Street, and, after giving the above authority, said ordinance provides: 'and the said company (the N. O. Ry.

Co.) shall, as a condition of the privileges hereby given to it, always maintain and keep in good repair the bridge which it is hereby authorized to construct.’ “This ordinance also Axed the grade of Eager Street from North Street (now Guilford Avenue) to the bridge on the east side of the falls, the regrading and paving and all other expense in connection with the work to be paid by the Northern Central Railway C onipany. ⁸⁴ “When this bridge was completed in 1884 Eager Street was carried by it from the west side of the valley to the abutment on the west side of the falls, and then by a fill or embankment over the arch over the falls to the west abutment of the east bridge over the Northern Central Bailway, and thence by this bridge to the east side of the falls. “Thereafter, the city constructed its water main in Eager Street, and when the pipe came to the east abutment of the east bridge, which was built under the Ordinance of 1868, it rose to the surface and made an arch over the east bridge, dividing it into a north and south driveway, and then entered the ground again and ran under the surface of the fill between the said east and west bridges; and then when it came to the east abutment of the west bridge constructed under the Ordinance of 1884, it came to the surface again; but, instead of making an arch across the west bridge as it had done with respect to the east bridge, it ran across the bridge partly below and partly above the floor, dividing it also' into a north and south driveway, and rested on iron straps which were made fast to two beams in the centre of the bridge, running east and west, the under surface of the pipe being below the upper surface of the beams; and then over the pipe running east and west over the centre of the bridge was a wooden boxing extending above the surface of the floor 18 inches, completely covering the pipe; and after the pipe crossed the west abutment of the west bridge it made a right angle bend and went under the surface of the street again. “The main tracks of the Northern Central Bailway Company x>assing under the west bridge at Eager Street, which was built in 1884, continued on the west side of the falls to a point north of Eager Street between Eager Street and Chase Street, the next street north running east and west, and then crossed the falls on a bridge to the east side of the falls, and thence went north to Union Station, and has other numerous tracks in the valley on both sides of Jones’ Palls. ⁸⁵ “Such, was the situation at Eager Street and north, of it when, about the year 1912, the city was planning the construction of the Eallsway viaduct up Jones’ Falls Valley running north and south, which would cross all the streets running east and west across the valley, including Eager Street,” Coming now to the proceeding's of the company subsequent to the agreement between it and the city, as contained in the letters above referred to, it appears that, before beginning the work of raising the floor of the east bridge to meet the grade of the Fallsway, the company concluded that it needed more room for tracks between the east abutment and the west abutment, of the east bridge, and obtained the consent of the city to set the east abutment of said bridge back eastwardly eighteen feet, and to build a new concrete bridge between the east and west abutments. This bridge was constructed at the expense of the company. And inasmuch as this was a new structure and it became necessary, therefore, that the work of attaching the city’s water main to this structure, by reason of the removal of the old bridge at the company’s request and for its convenience, the company agreed, on the advice of its counsel, to pay, and did pay, the cost of carrying the pipe across this bridge, amounting to $4,392.01. It also agreed to build the concrete tunnel through the abutments and under the railroad between the abutments for the water pipe.

But as to the cost of relocating the water main on the west bridge, the company insisted it was under no obligation, either by the terms of the contract or by reason of any purpose or convenience of the company served by the change of location, or by reason of any necessity for such change growing out of the raising of the floor of the bridge to meet the new grade. IVith this conclusion we entirely agree. It is to be observed that, when the bridge was originally built, the water main was attached thereto by the city for its own convenience, and according to its own plans. It ran across the bridge partly below and partly above the floor, ,di ⁸⁶ viding it into a north and south driveway and rested on iron stops which were made fast to two beams in the centre of the bridge running east and west, the under surface of the pipe being below the upper surface of the beams.

Over the pipe was a wooden boxing extending above the surface of the floor eighteen inches. The correspondence in regard to the location of the pipe in relation to the change of the floor of the bridge shows beyond any reasonable doubt that the floor of the bridge was raised, at the request of the city engineer and at the expense of the company, much higher than the change of