Potomac Edison Co. v. Routzahn

Markell, J., delivered the opinion of the Court. These are cross-appeals from an order granting an injunction directing defendant to discontinue transmission of electricity and remove from the poles on certain real estate the wires and other equipment for that purpose, with leave to defendant to remove the poles and also stone and dirt fill and stone and concrete abutments, the order to be suspended pending condemnation proceedings if defendant shall within thirty days institute such proceedings to acquire the right to maintain a line or lines for transmission of electricity on or across the real estate, together with the right to continue on the real estate the poles and the fill and abutments. Defendant appeals ⁴⁵³ from the granting of the injunction, plaintiff from failure to require removal of the poles and the fill and abutments. In 1896 Herman L. Routzahn and wife by deed granted and conveyed to Frederick and Middletown Railway Company, incorporated in 1894, “a right of way for all the purposes of constructing, maintaining and operating a Railroad, (and none other), over and to” a strip of land, 30 feet wide and 2,472 feet long, along the north side of “the National Turnpike Road” (now a State road), between Frederick and Middletown, just east of Middle-town, “with the reservation that in the event said Railroad intended to be constructed upon the land hereby conveyed, should cease to be maintained and operated, as such, the said Right of way hereby intended to be conveyed shall revert to then owner or owners of the land over and through which said right of way passes.” The railway company covenanted “to maintain a free and unobstructed crossing on and over said Railroad at the present grade with approaches on either side,” at a point 365 feet from the west end of the right of way, and “an undergrade crossing under said Railroad, with approaches on either side,” at a point 115 feet east from the middle of a certain stream over which the railroad was to cross, “said undergrade crossing to be not less than 14 feet high unobstructed (at the present grade which is to be maintained), and not less than 16 feet wide, clear of all obstruction.” Routzahn was an incorporator, and until 1901 treasurer and a director, of the railway company.

He died intestate on October 5, 1935. Plaintiffs, his son and the son’s wife, are successors in title to land, on both the north and south sides of the road, through which he had granted the right of way. Defendant, through successive consolidations, is the successor to the railway company and other electric street and interurban railway, and light and power, companies in Frederick or Washington County or both, including all the companies we shall mention. The railway company constructed on the right of way a stone and dirt fill, a trestle (now dis ⁴⁵⁴ mantled) and stone and concrete abutments, (which, formerly carried the ends of the trestle, where a stream enters through the right of way) and cross-ties, tracks, poles, wires and other equipment for the operation of an electric railroad.

The railroad was maintained and operated by the railway company, defendant and its intermediate predecessors until October 1947, when with the permission of the Public Service Commission defendant abandoned maintenance and operation of it. Defendant has since removed the rails and some wires and other equipment, but has left the poles and other wires and equipment and the fill and abutments formerly used as a base for the tracks. Plaintiffs allege that the poles, wires, fill and abutments and other equipment deprive them of their right of access from their lands to the highway and their right to develop their lands as building lots. They pray that defendant may be required to remove the poles, wires, reinforced fill and other equipment and pay damages for trespasses committed by it and may be enjoined from committing further trespasses.

Defendant admits that it intends to continue to maintain its poles, wires and appliances on the right of way, but denies that it intends to maintain the reinforced fill and abutments. In 1909 the railway company and several other companies were consolidated to form Frederick Railroad Company. Frederick Railroad Company owned the stock of the Frederick electric company. It obtained the power for its railways from a direct current generating plant of the electric company between Frederick and Middle-town.

The only wires then carried on the double line of poles on the railway right of way were span wires, from pole to pole, that supported the trolley wire. Electricity for street lighting and domestic and commercial use in Frederick was furnished by the Frederick electric company from its generating plant in Frederick and over its distribution system. In 1911 it extended its distribution system to Braddock Heights. In 1912 it extended its service for public and private lighting to Middletown.

To do this it built a 2,200-volt line on the trolley poles ⁴⁵⁵ to carry electricity from the Frederick generating plant. At the east end of Middletown the electricity was, through transformers, reduced to low voltage and was distributed in Middletown. In 1912 Frederick Railroad Company and the Hagerstown railway company formed the Frederick and Hagerstown power company, to construct a large power plant at Security, near Hagerstown, to furnish power to both the Frederick and Hagerstown railways and to sell power to industries and local distributing companies or municipalities along its lines. The power from Security was transmitted, over high tension transmission lines, from Security to Hagerstown and from Security through Smithsburg and Thurmont to Frederick and on the railway right of way from Frederick through Middletown to Hagerstown, a “loop” of some 75 miles.

The Security plant and the high tension lines began service in January, 1913. The generating plants at or near Frederick were abandoned, and the power from Security was used to operate both the trolley lines and the electric lines. To construct the high tension power lines on the railway right of way, every alternate pole already on the right of way was taken down and replaced by a taller pole. In April, 1913 Hagerstown and Frederick Railway Company was formed by consolidation of Frederick Railroad Company, the Hagerstown railway company, the Frederick and Hagerstown power company and other companies; in 1922 its name was changed to Potomac Public Service Company, and in 1923 it was consolidated with another corporation to form defendant.

By section 859-B of Chapter 796 of the Acts of 1914 the municipality of Middletown was empowered to contract, and grant franchises, for lighting the streets or supplying the town or the residents thereof with electricity. On February 23, 1915 the municipality contracted with, and granted a franchise to, Hagerstown and Frederick Railway Company for lighting the streets for ten years and furnishing current for light and power purposes to the citizens for twenty years. On April 9,1915 the exercise of the fran ⁴⁵⁶ chise was “permitted and approved” by the Public Service Commission. In 1911 or 1912 six residents of Middle-town (apparently including the burgess and one or more commissioners) had signed a request to the Frederick electric company that it extend its lines into Middletown and erect poles and all construction work necessary to operate street lights and supply electricity to residences, in consideration of which extension and construction work and the supplying of electricity to the municipality “as per offer” made by the electric company to the municipality and accepted by it, the six “jointly and severally obligated themselves” to pay the agreed monthly price for street lighting so long as the electricity would be furnished by the electric company to the municipality “and until this contract will be superseded by a further contract” to be made by the muncipality with the electric company, “to be authorized by an Act of the General Assembly”, which the six would seek to obtain at the 1912 session.

Apparently the 1915 contract and franchise, three years after service to Middletown had been begun, reflects lack of power in the municipality to make such a contract and grant such a franchise in 1912. A railway between Frederick and Thurmont, which was begun by the Frederick and Thurmont railway company, incorporated in 1898, is still operated by defendant with power received from Security over the “loop” which includes the railway right of way from Frederick to Middletown. Defendant demurred to the bill “for the reason that questions of title to interests in real property are not determined in injunction proceedings.” “It has long been recognized that, though ‘a fugitive and temporary’ trespass will not be enjoined, a continuing trespass will be enjoined if it ‘will be ruinous or irreparable or would impair the just enjoyment of the property.’ Story, Equity Jurisprudence, 1835; 13th Ed., 1886, § 928; White v. Flannigan, 1852, 1 Md. 525 , 54 Am. Dec. 668 ; * * * Baltimore Butchers Abattor & Live Stock Co. v. Union Rendering Co., 179 Md. 117, 120 , 17 A. 2d 130 , * * *.” ⁴⁵⁷ Needle v. Scheinberg, 187 Md. 169, 173, 174 , 49 A. 2d 334 .

This court has sustained the right to an injunction against invasion of property by construction of a railroad switch or siding on an abandoned right of way, Hagerstown and Frederick Railway Company v. Grove, 141 Md. 143 , 118 A. 167 , or laying of water pipes, Baltimore County Water Company v. Dubreuil, 105 Md. 424 , 66 A. 439 , 6 L. R. A., N. S., 684, or erection of poles and wires, American Telephone and Telegraph Company v. Pearce, 71 Md. 535 , 18 A. 910 , 7 L. R. A. 200; Potomac Electric Power Company v. Wall, 153 Md. 229 , 137 A. 899 ; Chesapeake & Potomac Telephone Company v. Tyson, 160 Md. 298 , 153 A. 271 , without authority. In some of these cases the specific question of jurisdiction in equity was not raised. This court has also had occasion to reaffirm the general rule that when title to real estate is in dispute, and no irreparable damage from the delay in a suit at law is to be feared, the proper jurisdiction is at law, Schultz v. Kaplan, 189 Md. 402, 408 , 56 A. 2d 17, 20 , and to apply this rule to a dispute over a claim of an easement by deed and an opposing claim of adverse possession free of the easement. Finglass v. George Franke Sons Co., 172 Md. 135 , 190 A. 752 .

In Metaxas v. Easton Publishing Co., 154 Md. 393, 399, 400 , 140 A. 603 ; Metaxas v. Jarrell Co., 164 Md. 180 , 164 A. 232 this rule was applied to a disputed claim of a prescriptive easement, but jurisdiction in equity was sustained to avoid multiplicity of suits, viz., and action on the case for invasion of the easement and an action of trepass or ejectment for land claimed in fee—which under present rules of procedure could be joined in one suit. Bachman v. Lembach, 192 Md. 35, 42 , 63 A. 2d 641, 644 . In any event the rule is not inflexible; questions of title, when free from reasonable doubt, are frequently decided by courts of equity. Smith v. Shiebeck, 180 Md. 412, 418 , 24 A. 2d 795 .

In the instant case there are few, if any, questions of fact which would be decided by a jury. Moreover, the question whether defendant is obligated to remove the fill and abutments after abandonment of the railroad and can ⁴⁵⁸ be compelled to do so by mandatory injunction is an equitable question, distinct from the question whether defendant has a prescriptive easement to maintain light and power lines. Defendant also, in the event of an adverse decision, would need (and under the order below virtually received) injunctive relief pending condemnation proceedings. Potomac Electric Power Company v. Wall, supra, 153 Md. at page 235 , 137 A. 899 ; Chesapeake and Potomac Telephone Company v. Tyson, supra, 160 Md. at page 302 , 153 A. 271 .

In sustaining jurisdiction in equity on these grounds, we do not hold that it is not directly sustained by cases above cited. Defendant contends that in its present operation of the railway between Frederick and Thurmont, by power carried over the “loop” which includes the right of way in question, it is using, and has not abandoned, the right of way, and therefore the right of way has not reverted to plaintiffs. We may assume, without deciding, that a franchise to use the streets of a city for a street railway is a unit and includes the right to use one street for wires to operate a railway on another street. Brandt v. Spokane etc. R. Co., 78 Wash. 214 , 138 P. 871 , 52 L. R. A., N. S., 760; Eureka Real Estate Co. v. Southern R. E. Co., 355 Mo. 1199 , 200 S. W. 2d 328 .

This assumption does not help defendant’s contention by furnishing a construction of the deed of the right of way. The deed grants a right of way for all the