Pitznogle v. Western Maryland Railroad

Pattison, J., delivered the opinion of the Court, This is an appeal from a judgment of the Circuit Court for Washington County condemning the right, title and interest of the appellants in a parcel of land lying and being near Hagerstown, Maryland. The appellee, The Western Maryland Railway Company, filed its petition in the Court below against the appellants under Chapter 117 of the Acts of 1912, in which it alleges that it “desires to acquire the said parcel of land to be used for the purpose of locating its railroad tracks, switches, yard ■ tracks and side tracks * * * on part of the same, and for the location of a substitute private road on the remainder thereof in place of the existing private road which the petitioner desires to close and to use for railroad purposes, said private road being known and designated as the Startzman road. All of which above described parcel of land it will be necessary for the petitioner to have and use for the said purposes, for the private working and operation of its railroad and for the proper handling of its railway business, and for said private road.” ■ The land sought to be acquired by the appellee is particularly' described in the petition and its location is shown by the following plat therewith filed as a part of said petition: ^{676 677} The defendants demurred to the petition, contending, 1st, that Chapter 117 of the Acts of 1912, the Act under which the petition was filed, is unconstitutional; and, 2nd, that the petition is insufficient as a basis of a judgment of condemnation, because all of the land sought to be acquired thereby is not, as alleged in the petition, to be used for railroad purposes, but a part of it is to be used “for the location of a substitute private road in place of the existing private road,” which is to be closed and used by the petitioner for railroad purposes. The questions here raised and relied upon by the defendants as affecting the constitutionality of this Act, were fully presented and argued in the recent case of Ridgely v. Mayor and City Council of Baltimore, Ante page 567, and this Court there held the Act constitutional, in adopting the opinion of Judge Burke, sitting in the lower Court, in which the objections urged against the validity of the statute were fully and ably discussed by him.

Therefore, we think it unnecessary to further discuss this objection of the defendants made in support of the demurrer. There is no prohibition in express terms against the taking of private property for private use found either in our Constitution of the Declaration of Eights, but it is too clear to be questioned that there is such an implied prohibition contained in section 40 of Article 3 of the Constitution of this State, which provides that “The General Assembly shall enact no law authorizing private property to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation.” Arnsperger v. Crawford, 101 Md. 251 . This constitutional prohibition, as was said by Judge Alvey in the case of New Central Coal Company v. George’s Creek Coal and Iron Co., 37 Md. 559 , “Is but declaratory of the previously existing universal law, which forbids the arbitrary and compulsory appropriation of one man’s property to the mere private use of another, even though com ⁶⁷⁸ pensation be tendered.” And “the Legislature cannot make a particular use, either public or private, merely by so declaring it. If it could do so the constitutional restraint would be utterly nugatory.” Arnsperger v. Crawford, supra; New Central Coal Co. v. George’s Creek Coal and Iron Co., Supra.

Whether the use for which private property is taken is public or private, within the meaning of the above provision of the Constitution, is a judicial question to be determined by the Courts. Van Witsen et al. v. Gutman, 79 Md. 405 . It is not contended by the defendants that the use-of the land for railroad purposes is a private and not a public use, but they contend that the use of a part of the land for the location of a private road in substitution for the existing private road, which is to be closed and nsed by the plaintiff company for railroad purposes, is a private use of said land, and that in as much as the petition does not state or designate how much and what part of the entire parcel of land so sought to be condemned is to be used for the location of said private road, and how much and what part is to be used for railroad purposes, the whole must fall. The correctness of this contention must be conceded should we hold, under the facts and circumstances of this case, that the use of a part of said lands for such private road or way is a private use and not a public use.

But is it a private use? In determining this question we are to be controlled by the facts, circumstances and necessities of this case. The increase in the business of the plaintiff company, as disclosed by the testimony, necessitates an enlargement of what is known as the yards west of Hagerstown, which is folly explained in the record. The road as it now runs is seven hundred feet south of the Pitznogle lands, but by the removal of curves in it, the road will thereafter run about parallel with the south line of said lands, and its center line will be, as it appears from the plat, at the nearest point, about thirty feet, and at the farthest point not over forty feet from said lands.

Hpon this intervening narrow strip of ⁶⁷⁹ land, for a distance of several hundred feet westward from the Schlotterheck lands, and occupying the most of it, is located a private road or "way, which, at the point named, turns southward and crosses the proposed track of the railroad. This private road or way, known as the Startzman road, in which Startzman and others have at least an easement, is used by them in reaching the Clearspring pike north of the railroad from their respective homes. It is shown that the whole of this intervening space, including the road or way thereon, is required for railroad purposes, that is, for laying the tracks, sidetracks and switches of said road, and this is also true of at least a portion of the land that they have sought to condemn. Without the use of this road or private way for the purposes that we have mentioned, the plaintiff would be defeated in its proposed plan of straightening its road and of enlarging its yard, and to close this road without substituting for it another road or way would deprive those entitled to its use of the means of leaching the pipe from their homes, and they would not be permitted to condemn a private road or way (Arnsperger case) in substitution for the road lost to them, resulting from its necessary use for railroad purposes, which this Court has* time and again said was a public and not a private use.

The right of eminent domain having been conferred upon the plaintiff by legislative enactment, it has the undoubted, right to condemn, if need be, the aforementioned Startzman road or private way for railroad purposes, and in our opinion it was not intended by the framers of the Constitution that there should be no adequate relief from the conditions-that we have mentioned, resulting from the taking of said private, road for public use. The condemnation of a part of this land, here sought to be condemned, for a substitute private load or way is incident to and results from the taking, by reason of public necessity, of the existing private road for public use, and the use of it for such purposes should, we. think, be regarded as a public use within the meaning of the Constitution. ⁶⁸⁰ The Legislature of this State has, by enactment of section 278 of Article 23 of the Code of 1912, declared it lawful for a railroad company, where its tracks cross any public or private road or way, “to carry said road or highway over its tracks by an overgrade crossing, or to carry it under its track" or tracks by an undergrade crossing, and to make such crossings, such corporation may divert any road or highway, so crossed or to be crossed, from its present or existing location; and for entering upon, taking or appropriating any building, gardens, yards, or other lands which may be necessary for the new route and the location of said road so diverted, said corporation may proceed as in case of land necessary for its railroad.” It is contended by the plaintiff, although controverted by the defendants, that this statute is applicable to the present case, but assuming, without deciding, that it does not apply, the uses for which private property is permitted to be taken thereunder are similar in character to the use here proposed to be made of the land sought to be acquired in these proceedings, and the validity of this statute, so far as we are informed, has never been assailed because of its contravening the Constitution of this State, in permitting private property to be taken thereunder for private and not for public use, although, no doubt, it has been many times availed of when the necessity for its application arose in the construction of railroads. In the case of Van Witsen et al v. Gutman, supra, it was held by this Court that the use to which the defendant, Mrs. Gutman, under an ordinance of the Mayor and City Council of Baltimore, appropriated the property of the plaintiff in an alley upon which his lands abutted, was a private and not a public use. In discussing that case, this Court said: “The extinguishment of their (the plaintiffs’) interest does not appear to enure in any way to the public service, nor to tend to the relief of any public necessity, nor promote any public interest, nor to subserve any public purpose, nor, in short, ⁶⁸¹ to have any relation to the public convenience or public welfare.” This ‘can not be said of the use to which the lands here sought to be condemned are to be appropriated, for the extinguishment of the defendant’s interest in the property here mentioned enures to the public service and has connection with and relation to the public welfare.

Upon the Court below overruling the demurrer, the defendants answered and the plaintiff filed its replication, whereupon the Court, on the 13th of September, passed its. ci’der directing the sheriff to “summon twenty good and lawful men of Washington county to appear at the Court House on the 17th day of September, 1912, at the hour of 9.30 A. M., to act and serve as jurors at the hearing and determination of said case.” The sheriff’s return thereto was “Jurors summoned as commanded.” Eor some reason not disclosed by the record the case was not heard on the 17th, but on September 19th, two days thereafter, at which time the defendants moved to quash and annul the said order of Court passed on September 13th. This motion being overruled, the defendants then moved to quash the proceedings of the sheriff under said order, and particularly his return thereto. This- motion, too, was overruled, whereupon the. defendants entered a “challenge to the array,” which was denied them, when the defendants refused the list of