Postal Telegraph Cable Co. v. State Roads Commission

Boyd, C. J., delivered the opinion of the Court. This is the second time this case has been before this Court. In State Roads Commission v. Postal Tel. Co., 123 Md. 73 , the judgment which had been entered for the Telegraph Company, after a demurrer to the declaration had been sustained, was reversed and a new trial awarded.

After the case was remanded, the defendant, the present appellant, filed five pleas. There was joinder of issue on the first and second (which were the general issue pleas), and the third, fourth and fifth were demurred to. The demurrer having been sustained, the defendant filed three amended pleas, which were also demurred to, and the demurrer was sustained to each of them. An agreement was entered into between the attorneys which recited that the defendant de ²⁴⁵ dined to further amend, and it was agreed “That the general issue pleas filed heretofore be stricken out and that all errors of pleading, if any, with respect to the said three special amended pleas as amounting to the general issue plea, and all other technical errors of pleading be and they axe hereby waived.” Judgment by default was entered and the damages were assessed by the Court at $191.50.

Prom the final judgment rendered this appeal was taken. The declaration is set out in full in the opinion in the former appeal. By Chapter 116 of Laws of 1910, a number of new sections were added to Article 91 of the Code, enlarging the powers of the State Loads Commission, which was created by Chapter 141 of the Acts of 1908, and by Section 32P (now Section 48 of Article 91 of Bagby’s Code) it was authorized to acquire and maintain the Conowingo. Bridge across the Susquehanna Liver for the purpose of connecting the system of State Loads in Harford and Cecil Counties.

The case as now presented may be thus stated: The State Loads Commission on August 22nd, 1911, purchased that bridge. For some years before the purchase the appellant had regularly paid the Conowingo Bridge Company $95.J5 every six months for the use thereof and continued to pay that sum up to July 1st, 1911. There is no allegation of an express contract or agreement in the narr. by which the appellant was to have the use of the bridge or was to make the semi-annual payments for any definite time, but it did in fact use the bridge and at least for the years 1906 to 1911, inclusive, made the semi-annua.1 payments above spoken of for such use. No change has been made in the use of the bridge, but since the State Loads Commission purchased it the appellant has refused to pay anything, on the ground that it is now a free public bridge of the State and a portion ánd continuation of the State system of free public roads and highways, and it notified the State Loads Commission that after August 22nd, 1911, it would use it free from any demand or exaction of the plaintiff or any tolls or other charges ²⁴⁶ whatsoever.

Whether that notice was before or after the purchase is not clearly stated in the pleas. In the second plea it is alleged that the company had accepted and was entitled to the benefit of the Post Roads Acts of Congress; that the roads leading to each end of the bridge were post roads, and that the defendant had maintained its structures over said roads to either end of the bridge prior to August 22nd, 1911, without payment of charges of any kind therefor; that immediately after the acquisition of the bridge by the plaintiff it became a public bridge of the State of Maryland, and as such a portion and continuation of the public roads of the State and of the Post Roads of the United States, and the defendant became entitled to construct, maintain and operate its lines of telegraph and to erect the necessary fixtures for sustaining the cords or wires of said lines over, upon and along said bridge. It also relies on the Act of 1868, Chapter 471, Section 129, which is now Section 359 of Article 23 of the Code. The plea admits the payment of the $95.75 every six months, but alleges that there was no express agreement or known understanding between the Bridge Company and the Telegraph Company.

It is contended by the Telegraph Company that the pleas present defenses which were not passed upon in the former case and which it claims preclude recovery. There can be no doubt that any question not presented by the demurrer to the declaration, which was all that was before the Court on the prior appeal, can now be considered by us without requiring us to review our former decision. It would oftentimes save the time of the courts as well as a useless expenditure of money by litigants, if some method of procedure could be adppted by which all defenses could be required to be presented in the first instance, except in very unusual cases, but we have not yet reached the millenium in legal procedure. The brief filed in the other case by the present appellant began by stating that “for some years prior to the institution of this suit had an agreement with the Conowingo ²⁴⁷ Bridge Company, a private corporation, under which the appellee used the bridge across the Susquehanna River, connecting Harford and Cecil Counties, for the purpose of carrying its wires used in its said business of a Telegraph Company across the said river.” But in the first amended plea (we will refer to the amended pleas as the first, second and third, although those which they amended were marked third, fourth and fifth), it is alleged that the wires were upon the bridge prior to August 22nd, 1911, “without any contract or express agreement with said Conowingo Bridge Company or known understanding of any kind other than as herein recited,” and in the second “that said payments were exacted of and paid by said defendant without an express agreement or known understanding with said Bridge Company.” Just what is meant by the expression “known understanding,” as used in the pleas, is not altogether clear, as the defendant would scarcely want to be understood as having no means of knowing why the sum of $95.75 was paid every six months to the Bridge Company, or how that sum was fixed, but the first plea does state that the defendant’s wires, eleven in number, as stated in the plea, or twelve, as stated in an agreement of attorneys in the record, are strung above and along said bridge, and alleges that they, together with the necessary fixtures for sustaining them, are so removed from the traveled parts of the bridge as in no wise to interfere with the public use thereof.

In a later part of the plea it is said: “That the consideration moving from said company to defendant for the payments made by defendant to it as aforesaid was the right to defendant to use said bridge structure for its corporate purposes free of any right of interference therewith by the State of Maryland or other parties, public or private,” and it is then alleged that by such transfer to the plaintiff of said bridge the plaintiff’s right to demand or collect from the defendant charges of any kind became limited to such charges, if any, by the Bridge Company as were due and owing by defendant to it on August 22nd, ²⁴⁸ 1911/and that said grant did not give plaintiff the right to collect from defendant any other charges. It must be admitted that when the case was formerly before us, we were led to believe by what the declaration alleged and by what the Telegraph Company said in its brief, that the arrangement between that Company and the Bridge Company was'more definite than what is stated in the pleas. The declaration did not, however, allege that there was a contract or lease for a definite term, or that there was anything more than some arrangement between them by which the Telegraph Company, at the time of the purchase by the Commission and for a long number of years prior thereto-, was and had been using the bridge with the consent of the Bridge Company, and that the Telegraph Company had been paying the Bridge Company “rentals and income for the use thereof, which said rentals and tolls had amounted from the year 1906 to 1911 to the sum of $95.75 semi-annually in each year, for which amount bills were regularly sent by the Oonowingo Bridge Company to the defendant and paid by the defendant up to and including the installment due on the first of duly, 1911.” If we apply the ordinary rules applicable to landlord and tenant, that was sufficient to imply some kind of‘a tenancy, for the Telegraph Company was in possession of and using the bridge with the permission and consent of the Bridge Company, and was regularly paying at stated periods a fixed sum for such use. So if this case merely depended upon establishing that relation between those companies we could have no difficulty.

The question, however, is whether under the conditions set out in the pleas the appellees can recover. We do not regard it as an open question whether the appellees can recover if the State could. We said in State Roads Commission v. Postal Tel. Co., 123 Md. 73 , that: “The suit was instituted in the names of the members constituting the Board of the State Roads Commission Tor and on behalf of the State of Maryland.’ If then the State is entitled to money due for ²⁴⁹ use of public roads, it was proper that tbe agency having charge and control of that department should bring suit in its behalf,” etc. We will not, therefore, discuss that question, which was fully argued and considered on the prior appeal.

The pleas do not present a different question in regard to that from what the demurrer to the declaration did. So what we are now really called upon to determine is whether the State, if the suit had been brought in its name, could have recovered under the facts set out in the pleas. The case is a peculiar one in some respects, and at least some of the defenses set up by the appellant are wholly without merit. Tt is not easy to understand why a corporation, such as tire appellant, should have been willing to pay and did pay for the use of a bridge, such as this, a definite and fixed compensation for a number of years, as long as the bridge belonged to a private corporation, but as soon as the State became the owner of the bridge by an expenditure of a large sum of money, should refuse to pay anything therefor, although its use of the bridge has not in any respect changed.

If the Bridge Company were still the owner there could be no question about its right to recover, and in our judgment there can be no doubt about the right of the State to recover something in some kind of proceeding. The case of St. Louis v. Western Union Tel. Co., 148 D. S. 92, on which the decision of this Court in Postal Tel. Co. v. Baltimore, 79 Md. 502 , was mainly based, and upon which the Supreme Court relied when it affirmed in 156 U. S. 210 the case in 79 Md., clearly sustains the right of the State to compensation and stated grounds upon which it can be recovered.

After speaking of the use of streets of a city by the Telegraph Company and showing that its use is different in kind and extent from that enjoyed by the general public, the Court, in speaking of a ruling below that the charge was a privilege or license tax, said: “To determine this question, we must refer to the language of the ordinance itself, and ²⁵⁰ by that we find that the charge is imposed for the privilege of using the streets, alleys and public places, and is graduated by the amount of such use. Clearly, this is no privilege or license tax. The amount to be paid is not graduated by the amount of the business, nor is it a sum fixed for the privilege of doing business. It is more in the nature of a charge for the use of property belonging to the city- — that which may properly be called rental. 'A tax is a demand of sovereignty j a toll is a demand of proprietorship.’ ” The Court also said: “Now, when there is this permanent and exclusive appropriation of a part of the highway, is there in the nature of things anything to inhibit the public from exacting rental for the space thiis occupied ?

Obviously not. Suppose a municipality permits one to occupy space in a public park, for the erection of a booth in which to sell fruit and other articles; who would question the right of the city to charge for the use of the ground thus occupied, or call such charge a tax, or anything else except rental? So, in like manner, while permission to a Telegraph Company to occupy the streets is not technically a lease, and does not in terms create the relation of landlord and tenant, yet it is the giving of the exclusive use of real estate, for which the giver has a right to exact compensation, which is in the nature of rental.” This Court in 79 Maryland quoted from that opinion where the Supreme Court, in speaking of the public streets, said: “While for purposes of travel and common use they are open to the citizens of every State alike, and no State can by its legislation deprive the citizens of another State of such common use, yet when an appropriation of any part of this public property to an exclusive