President of Baltimore v. United Railways & Electric Co.

Pearce, J., delivered the opinion of the Court. The Baltimore and Fredericktown Turnpike Company was incorporated in 1805 for the purpose of constructing and operating a turnpike from the city of Baltimore to Boonsborough in Washington County, Maryland. The road was duly constructed and has ever since been in continuous operation between the termini named, and passes through Catonsville and Ellicott City. The United Railways and Electric Company is a corporation operating numerous consolidated passenger railways, one of which runs over a portion of the right of way of said Turnpike Company between Baltimore and Catonsville, and also over another portion of the same, beginning at Ellicott City on the west side of the Patapsco river and running thence westwardly about two miles.

This is done under certain contracts which will be mentioned hereafter. A bill in equity was filed by the Turnpike Company against the Electric Railways. Company and James H. Gaither to obtain an injunction re ¹⁴⁰ straining the defendants from running over the right of way of the plaintiff, freight cars, or cars adapted and used for the purpose of carrying freight only, as separate and distinct from the carriage of passengers, and from carrying any freight, except such light packages and such articles as are usually carried on passenger cars of other suburban electric railway lines running into Baltimore; and also to obtain a decree for payment by the defendants to the plaintiff of such sum of money as should be found necessary to indemnify the plaintiff for the loss of revenue by reason of the running such freight cars, in the conduct of an express business, over said turnpike by the said Gaither under authority of the United Railways and Electric Company. Gaither failed to appear after being summoned, and a decree pro confesso was taken against him.

The railway company answered, alleging a right to operate said express over said right of way under the contracts referred to, but denied that it carried heavy freight or any articles not allowed by said contracts and after hearing, upon testimony taken, a decree was passed dismissing the bill, from which decree this appeal was taken. The right to operate said express business, and to carry the freights mentioned in the bill, over that part of the right of way between Baltimore and Ellicott City depends upon the construction to be given to two contracts; one between the Turnpike Company and the Baltimore, Catonsville and Ellicott’s Mills Passenger Railway Company, made March nth, 1861 ; and one between the Turnpike Company and the Baltimore, Catonsville and Ellicott’s Mills Passenger Railroad Company, made June 18th, 1895. The last named company acquired all the rights of the one just before named, and the United Railways and Electric Company subsequently acquired all the rights of both the other companies, and Gaither operated said express business and ran said freight cars, under an arrangement with the United Railways and Electric Company. Under the contract of March nth, 1861, the Baltimore, ■Catonsville and Ellicott’s Mills Passenger Railway Company, ¹⁴¹ which was incorporated to operate a horse railway, acquired from the Turnpike Company for a valuable consideration, the right to construct and operate its railway upon the bed of the turnpike between Baltimore and Ellicott’s Mills, now Ellicott City, upon the terms and conditions stated in the contract.

The conditions which are material to this case are contained in the seventh clause, which is in these words. “ The Passenger Railway Company may carry passengers at their discretion, and may also carry light packages, and such articles as are usually carried on passenger railway cars, but shall not put on freight cars, or carry heavy freight, it being intended to limit the right of way to passenger railway cars. ” By the eighth clause of this contract it was also provided that no steam should be used in propelling cars except with the consent of the Turnpike Company. The horse railway contemplated by the agreement of March Iith, 1861, was constructed from Baltimore to Catonsville by the Baltimore, Catonsville and Ellicott’s Mills Passenger Railway Company, and was operated under said agreement for many years, btit it subsequently became insolvent, being unable to compete successfully with a rival steam road, known as the Catonsville Short Line, and it was purchased by a S)mdicate in the interest of the City and Suburban Railway Company, and was reorganized under the name of the Baltimore, Catonsville and Ellicott’s Mills Passenger Railroad Company and was operated as a part of the City and Suburban Railway system. With the development of electricity as a motive power, it became clear that horse railways could not be successfully operated, and the agreement of June 18th, 1895, heretofore mentioned, was made between the Turnpike Company and the Baltimore, Catonsville and Ellicott’s Mills Passenger Railroad Company. Under that agreement the last mentioned company acquired from the Turnpike Company the right of way over its turnpike for a single track electric railway with sidings, and for a double track over portion of said turnpike, between Baltimore and the terminus of the horse railway at Catonsville.

By the fourth clause of that agreement it was pro ¹⁴² vided that “in constructing and maintaining said electric railway on the bed of said turnpike, the terms of the agreement dated March nth, 1861, entered into between the Turnpike Company and the Baltimore, Catonsville and Ellicott’s Mills Passenger Railway Company are to apply, except as the terms of said agreement are herein modified and explained.” A comparison of these two agreements makes it plain that the clause just above quoted was introduced to ensure that there should be no impairment of the surface of the turnpike, and no diminution of the width of the turnpike in consequence of the construction of the electric railway, and that thus the same facilities should be afforded to all persons desiring to use the turnpike with their teams after, as were afforded before, the construction of any railway upon the bed of the turnpike. By the seventh clause of this second agreement it was also provided that, “The terms of the seventh clause of the agreement of March nth, 1861, shall apply to the use and operation of said electric railway, except that the cars of said electric railway shall always be permitted to carry such articles as are carried on other suburban electric railway lines running into Baltimore and by the eighth clause of the same agreement it was provided that, “The eighth, ninth, tenth and eleventh clauses of the agreement of March nth, 1861, shall apply to the use and operation of said electric railway upon said turnpike.” The eighth clause of the former agreement, as we have already seen, forbids the use of steam as a propelling power. Subsequent to the making of this second agreement, the Baltimore, Catonsville and Ellicott’s Mills Passenger Railroad Company was consolidated with certain other coiporations operating street railways in Baltimore City and Baltimore County, which now constitute the United Railways and Electric Company, one of the defendants in this case. Upon a careful considertion of these two contracts and of the testimony applicable there to, we have no difficulty as to the construction they should receive.

The situation of the parties at the date of the contract of 1861 was this: The Turnpike ¹⁴³ Company had constructed and was maintaining a metalled, or macadam, roadway for all classes of vehicles, whether used for pleasure or business, which it was enabled to maintain only by the tolls charged and received. When the horse railroad was chartered as a passenger railroad, it was at once apparent that it must in large measure supersede public conveyances such as stage coaches and omnibuses for passenger travel and also reduce the number of private vehicles using the turnpike for business as distinguished from pleasure ; and this would be true whether the horse railroad paralleled the turnpike, or used its road-bed under some contract for that purpose. Hence it was but common sense on the part of the Turnpike Company to sell to the Railroad Company the right of way over their road-bed for passenger travel, upon any terms that might be deemed adequate. But the horse railroad, while offering superior inducements for passenger travel, could not materially affect the carriage of merchandise or freight of any description, and the Turnpike- Company could still rely upon that source of revenue without sensible impairment, and the horse railroad company had no reason to desire the right of way over the turnpike for any purpose other than the carriage of passengers, and of such articles as passengers were in the habit of carrying with them in other vehicles, usually without additional charge and as incidental to passenger travel.

Keeping in view the situation of the respective parties, it is apparent from the terms of the contract that the subject of sale on the one hand, and of purchase on the other hand, was simply the right of way for passenger travel. Its exact language was, “The Passenger Railway may carry passengers at its discretion, and may also carry light packages and- such articles as are usually carried on passenger railway cars, but shall not put on freight cars, or carry heavy freight, it being intended to limit the right of way to passenger railway cars And further, “No steam shall be used in propelling cars except with the consent of the Turnpike Company.” In the days of stage coaches and omnibuses, passengers carried light packages and articles of personal use and conven ¹⁴⁴ ience, and this practice prevailed also on passenger railway-cars. Hence the Railway Company stipulated for this privilege. No doubt it was more largely availed of upon passenger railway cars by reason of the greater space, and the lighter draft over iron rails, but the privilege was still for such light packages and articles only as were incident to passenger travel, and as the travelling public would tolerate upon passenger cars.

Not only' were freight cars forbidden on the right of way, and the carriage of heavy freight in any manner, but the right of way expressly limited to passenger railway cars. No contention appears to have arisen tinder this contract, though the parties operated under it until 1895, when electricity had become established as a motive power, but freight cars had not been introduced upon passenger railway lines. In the meantime there had been no change in the situation of the parties. The Turnpike Company was still receiving patronage for hauling and for driving for pleasure as well as for such business purposes as were not better served by the Railroad Company; and the latter was still soliciting patronage for rapid transit of passengers.

The same considerations which operated with the Turnpike Company in 1861 to sell the right of way for passenger travel to the horse railroad company; operated with it in 1895 to sell the same right to the Electric Railway, and the same reasons which led to the reservations and restrictions of the contract of 1861 led