Ragan v. Susquehanna Power Co.

Boro, C. J., delivered the opinion of the Court. This appeal is from a judgment for defendants on demurrer to a declaration, in a suit at law by a landowner for damages for failure of the power company and the officers constituting the County Commissioners of1 Cecil County to open a new road in substitution for a road flooded by the water behind the dam at Conowingo. The legal provisions made for transferring traffic from flooded roads and bridges have been fully stated in the opinion in Huffman v. State Roads Commission, 152 Md. 566 , and little repetition is necessary. That case was concerned with the old Conowingo Bridge and roads leading to it, and the road involved in this case was one which ran along the river in Cecil County, but the present suit is founded on a supposed violation of the same agreement and statutes as are set out in the former one.

The appellant owns land on a road which ran to the river and connected at the river bank with what was known as a Tow Path Boad, and by it had a means of passage near the river to places further down, to the east. He also had a means of passage to the same places by roads on the upland, away from the river, but that way was longer. The Tow Path Boad having been flooded, he is now relegated to the upland, longer roads, and he complains that the power company and the county commissioners were obliged to relocate the Tow Path Boad or to continue it, and that by their failure to do either, and his consequent relegation to the upland roads, his property has lost value and his rentals have been reduced. The Tow Path Boad is alleged to have been a public road.

And the wrong on the part of the appellees is found in closing the Tow Path Boad without substituting a new road as provided in their agreement or else following ⁵²⁴ the statutory formalities for closing roads under ordinary conditions. The members of the board of county commissioners are sued, however, in their personal capacity, and are charged with personal liability arising from wrongful personal motive in the action taken by them. The agreement referred to is that of November 2nd, 1925, between the power company and the several state bodies, for the relocation of the Conowingo Bridge and state and county roads leading to it. An Act of 1927, chapter 316, approved and ratified that agreement and authorized the execution of the deeds and releases required in carrying out the plans agreed upon.

That agreement recited the charter rights of the power company to build its dam and hydro-electric station, and the necessity of flooding the old Conowingo Bridge and roads leading to it, the power of the State Roads Commission to select, construct, improve and maintain a general system of improved roads, and the control .by the county commissioners of county roads not committed to the care of the State Roads Commission, with the right of opening and closing roads, and it then agreed upon provisions for the new bridge and its approaches. To this there was added a provision for release by the State Roads Commission and the county commissioners of all damages resulting from the overflow of state or county roads “in the contiguous or nearby election districts * * * which end at the water’s edge, but continuous county roads so overflowed shall be relocated and new bridges provided at the expense of the company and satisfactory to the counties.” The appellant contends that this provision for relocation applied to roads which ran along the river as well as to those which led to the river and continued across it by bridges, and imposed an imperative obligation on the appellees to construct a substitute road for the flooded Tow Path Road. And this obligation, he alleges, has been disregarded to his injury by a conspiracy between the appellees in a supplemental agreement, in which they designated the Tow Path Road as a private road, and relieved the power company of any duty to relocate and reconstruct it. ■ ⁵²⁵ As a mere conspiracy is not a tort, and has no effect on rights of action except in so far as it may in particular cases render persons participants in - wrongful acts or omissions (Robertson v. Parks, 76 Md. 118 ), there must be found in the allegations of the declaration some such act or omission causing the injury complained of, or no right of action is shown. This court has already decided that it was within the powers granted and confirmed by the Legislature to the county commissioners and the power company to make the agreement concerning the roads to be flooded.

The charter powers of the company included tiie right to acquire the public property, and the flooded roads were. as a result “destroyed by conditions which they (the county commissioners) were powerless to prevent.” Huffman v. State Roads Commission, 152 Md. 566, 586 . And that decision disposes also of any contention that the old