Sapp v. Northern Central Railway Co.

Miller, J., delivered the opinion of the Court. This action was brought by the appellants against the appellee. The declaration contains two counts, the first in trespass quare clausum, and the second in case for obstructing an alleged right of way, claimed by the plaintiffs by prescription, from their premises over the land of the defendant to a public highway. The most important question in the case, and the one we shall first consider, involves the plaintiffs’ right to recover under the second count.

The proof shows in substance that more than twenty-five years before the commencement of this suit, a row of small houses, one of which is now owned by the plaintiffs,had been built just outside of the limits of the city of Bal ¹²³ timore, fronting on the defendant’s railway. They were built on the ground elevated several feet above the bed of the railroad, and this ground was sustained by a wall built along in front of all the houses. They were all built some ten or twelve feet back from the line of the railway, with small front yards, and each of them was enclosed with a small fence ; through which was a gate with steps leading down to the railway, and the mode of ingress and egress to the front of these houses was through these front gates. During all this period of twenty-five years, persons, including the plaintiffs and those under whom they claim, in walking to and from these houses, used the railway company’s ground alongside of the tracks, (there being a space of fifteen feet more or less between the westernmost track and said stone wall and also space to the east of the track), as their footway when going from their houses to North avenue after it was opened, and from this avenue to their houses, and when more convenient they used the tracks themselves when thus walking.

Before the avenue was opened there was a road, access for foot passengers to and from which to the front of these houses was by way of the company’s land and tracks as above described. This user had been continuous and uninterrupted during all this time, and had never been interfered with by any one connected with the railway, until the obstruction complained of. Those who had owned the plaintiffs’ property during all this period testified they had no other footway from the houses to the highways spoken of, and that they used the railway as such footway, considering they had a right so to use it, and not as a favor from the company. Two of these witnesses on cross-examination testified that they did not confine themselves to the use of the railroad as a footway between their houses and the highways, but also used the same for such purpose as far down frequently as Bolton Station in the city, a distance of one-fourth of a mile or more, and used this latter part in the same way ¹²⁴ •and-considering they had the same right to do so, as they had to that part leading from their houses to the highways.

Within a year before suit brought, the defendant took down the stone wall in front of these houses and erected a fence some nine feet high on the inner edge of .the wall, and thus blocked up this mode of exit from the houses to the Company’s land, so that it was impossible to get from the front yards of the houses to the railroad way, or from the railroad to the front of the houses, without climbing over this fence. The fence in question was part of a longer line of -fence erected around their railroad tracks, and its erection was deemed necessary by the Company to protect its property from intrusion, and to facilitate the management of its business, and the safety of trains moving on its road. The space between this fence and the main track, has been all occupied since its erection, with tracks which are necessary for the operation of the road, and all of this space is needed for the proper operation of the railroad. These are all the material facts on this subject, and they are undisputed.

By rejecting the plaintiffs’ fifth prayer the Court denied their right to recover for the obstruction of this alleged right of way. Is this ruling correct ? It appears from the facts stated that the easement set tip is that of a private footway for some considerable distance, over the lands of a railroad corporation, alongside of or between the tracks of the road from the house of the plaintiffs to a public highway. Without stopping now to consider other essentials of an easement by prescription, it is familiar and elementary law, that title by prescription is founded on the presumption of a grant, and it follows from this that in order to establish a prescriptive right it must be claimed under and through some one who had a right to grant or create the easement claimed.

Wash, on Easements, 120. That a railroad corporation has no power or right to grant an easement like this, of foot- ¹²⁵ ways for persons to walk along their tracks or by the side of them, seems an almost self-evident proposition. It is obvious that if such power existed and were exercised it would be subversive of the very purposes for which railroad charters are granted. But the principle, if it needed authority for its support, has been decided.

Thus where a company was authorized by Act of Parliament to construct and operate a canal for public use and the defendant erected a mill and