Poole v. Falls Road Electric Railway Co.

Page, J., delivered the opinion of the Court. The appellant is the owner in fee of a tract of real estate in the “ annexed district ” of Baltimore City, abutting upon a street or way known as Union avenue. The lines of the tract extend to the center of the street. It is charged in the bill that the street is a private way, but after the proof was in the appellant, with commendable candor, conceded that the street must be regarded as having been dedicated to, and accepted by, the public as a public highway.

The appellee is a corporation, created under the general incorporation laws of the State, and the Acts of 1896, chap. 360, for the purpose of constructing and operating a single or double track railway, with electricity as the motive power, upon such streets or public highways in the city of Baltimore as shall be approved by the mayor and city council of Baltimore City, and in the county as shall be assented to by the County Commissioners. Its main stem is laid along the Falls turnpike in Baltimore City to Mount Washington in Baltimore County. By ordinances of the mayor and city council, the company is authorized to extend its system from a point at the intersection of Falls turnpike and Union avenue along the latter street and other streets to Park Heights avenue; and in pursuance thereof is now preparing to construct its tracks, poles and wires along the bed of Union avenue to the end thereof and beyond. The appellant charges in his bill that if it is so permitted to lay its tracks there will be no sufficient room on Union avenue on either side of the tracks for vehicles to pass or to stand along the kerb line of the adjoining property, and that the conse ⁵³⁵ quences will be, that the appellee will be allowed to appropriate the street to its own use without paying any compensation whatever to the appellant, who is the owner of one-half of the street in front of his property; and furthermore that the value of his real estate bordering on the street will thereby be greatly depreciated.

The prayer of the bill is that the appellee may be enjoined from placing any “ track, pole or wire upon any portion of Union avenue, included in the lines ” of the property of the appellant, and that he may have such other relief as his case may require. The appellee answered and evidence was taken. The proof shows, that if a double track is put upon the street the space left will not be sufficient to allow vehicles to pass or stand between the tracks and the kerb lines. There is some conflict as to the effect upon the value of property bordering along the avenue, but there is a preponderance of opinion in favor of the general desirability of the railway.

The question presented by the case, however, is whether, if the road be built according to the system and plan contemplated, there will be such an invasion of the rights of the appellant, as will warrant the Court in interfering by the writ of injunction. The contention of the appellant is that even if it be conceded that the street has been dedicated and accepted, yet the laying of two tracks in a street so narrow as Union avenue will amount to a use of the street not embraced within the rights that passed by the dedication, because such a use will “ necessarily deprive the street of one of its most important attributes,” and that this being so the appellant is entitled to an injunction, “ as owner of the reversionary interest in the street-bed, as well as of the fee in the adjoining lots,” in order “ to prevent the infringement of his constitutional right not to be deprived of his property without due process of law”; and also because the contemplated use will be an abuse of the street and a “ public nuisance, not sanctioned by the Legislature.” The principles controlling the rights of an abutting owner have received a careful consideration by this ⁵³⁶ Court, in O’Brien v. B. B. R. Co., 74 Md. 369 , and in Garrett v. Lake Roland E. R. Co., 79 Md. 280 . In the first of these cases, a railroad company having the proper legislative authority was about to dig up one-half of the street for the purpose of making an open cut for its roadway, without having first made or tendered compensation therefor to the owners of property bordering along the street. An abutting owner, having no reversionary interest in the bed of the street, sought to obtain an injunction preventing the making of the open cut upon the ground that the proposed action of the company amounted to a “ taking ” of his property within the meaning of the 40th sec. of the 3rd Article of the Constitution.

The open cut would not seriously hinder access to the abutting property, but it would deprive the abutting owner of the “ full use of the street as it then existed nor would there be any invasion of or physical interference with his private property. The Court held there was no “ taking ” within the meaning of the Constitution; and that if there should be a deprivation of the full use of the street, or a depreciation of the value of the property of the abutting owner by the construction of the road, such injuries would be “ of an incidental or consequential nature.” The bill, for these reasons, was dismissed. The next case (Garrett v. L. R. E. R. Co., supra) went even farther. There, a solid abutment sixteen feet in width, nine feet high and eighty-three feet long, had been erected nearly in the centre of the street, leaving not quite ten feet.between its western face and the property adjoining the street.

An abutting owner sought to restrain the completion of the abutment and to require the company to remove so much as had then been built. But it was held that though the abutment caused the abutting owner greater inconvenience in gaining access to his lot than he encountered before, yet this and the other injuries resulting therefrom, if any, are “ purely incidental and consequential,” for which the remedy of an abutting owner is in “ another and a different form.” In view of the principles so clearly laid down in these cases, it may be accepted as ⁵³⁷ the established law in this State that where fhe construction of a-railroad is authorized by competent authority and there is no invasion of or physical interference with the property of an abutting owner, there is no “ taking ” within the meaning of the Constitution, and the remedy by injunction to prevent consequential injuries resulting therefrom cannot be invoked. But the appellant has vigorously contended that the structure contemplated will subject the street to a new use, not included in any of the rights conferred by the dedication. Upon this theory of the case, however, the question will be not whether there are or will be incidental or consequential damages growing out of the construction of the road, but whether there will be such a subjection or appropriation of the reversionary interest of the appellant in the bed of the street as will amount to a constitutional “ taking.” By the dedication of property to the uses of a street, the public acquires an easement of passing and repassing with all such incidents as properly belong thereto, but all other rights in the soil remain in the owner.

Any use not incident to such right of passage is a new use — ■ an additional servitude to which the street cannot be subjected without first making proper compensation to the owner of the bed of the street. Chesapeake & Pot. Tel. Co. v. Mackenzie, 74 Md. 48 .

The laying of rails on a street and the running of cars thereon for the accommodation of persons desiring to use the street, is not a new use, because it is only a new mode of using the street for the purposes for which it was originally taken. Peddicord v. Railway Co., 34 Md. 343 . The test therefore of what is a new use would seem to be found not necessarily in the nature of the structure nor in the number of the tracks but in the use itself; whether it is