Shipley v. Western Maryland Tidewater Railroad

Boyd, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court of Baltimore City refusing to grant an injunction against the appellee on the bill and exhibits filed by the appellant. The defendant is constructing a line of steam railroad from a point near Walbrook to the Patapsco river, being incorporated under Art. 23 of the Code of Public General Laws. On-the 3rd day of April, 1903, the railroad company condemned, under separate proceedings, two parcels of land of the appellant, referred to in the record as lot 1 and lot 2.

Lot 1 contains 73-100 of an acre of ground, and is a part of a parcel of land owned by the appellant in fee containing 2 and 83-100 acres, bounded on the north and east by Gwynn’s Falls, on the south by Harlem avenue, and on the west by Tenth street. It was conveyed to him by a trustee authorized to sell the real estate of the Heald estate, and the deed describes the land as binding on Harlem avenue, Tenth street and Gwynn’s Falls. The plat filed with the condemnation proceedings of lot 1 shows that it takes all of the front of the appellant’s land on Tenth street, between Harlem avenue and Gwynn’s Falls, and abuts on the falls on the north and the avenue on the south. The bill alleges that the avenue and street are not public highways, that the appellant has a private right of way in ¹³¹ them, and that by virtue of the Act of 1892, ch. 684, he has a reversionary fee-simple interest from the southern and western boundary lines to the centre line of Harlem avenue and 10th street.

It also alleges that Gwynn’s Falls is a private, non-navigable and non--fordable river of water, and that by his purchase the 'appellant also acquired a fee-simple estate to the centre line of that stream, together with all the beneficial uses of the water therein. Lot 2 contains one and 87-100 acres and is a part of a larger tract leased to the appellant for ninety-nine years. The description of this lot calls for Gwynn’s Falls, and runs with its eastern bank for a considerable distance. The interest of the owners of the fee and the leasehold of the appellant were condemned.

The bill alleges that the appellee proposes to use the plaintiff’s property interest in the bed of Gwynn’s Falls for the construction of an embankment, and to divert the natural flow and course of Gwynn’s Falls, and in so doing it will destroy the regularity of the current and make the flow fitful, etc., and thereby greatly injure and impair the value of the plaintiff’s land adjacent to lot 2. The plat filed shows that the appellee does propose to cross the present course of Gwynn’s Falls, and to divert the flow of it so that the water will run on the easterly side of lot 2, but within the lines of that lot. The contention of the appellant is that the appellee has only condemned and paid for the two lots contained within the courses and distances given in the condemnation proceedings, and particularly shown on the plats, and that it cannot occupy the part of Harlem avenue which he claims to own, or occupy or divert Gwynn’s Falls under the condemnation proceedings spoken of. We will request the reporter to print with this opinion one of the plats used at the argument, which is conceded to be sufficient to show the two lots condemned and their relation to the streets and Gwynn’sFalls the shaded line being the outlines of the two lots. 1.

The appellee did not deny at the argument that the deed to the appellant by virtue of the Act of 1892, ch. 684, passed to him all the right, title and interest of the grantor, to the ^{132 133} centre of Harlem avenue, and by the common law, as construed in this State, likewise gave to him the fee in the bed of the falls to the centre line, with the beneficial use of the waters of the stream. Browne v. Kennedy, 5 H. & J. 195 , and Gump v. Sibley, 79 Md. 165 . But it contends that it was not necessary to specifically mention Harlem avenue of Gwynn’s Falls, in the condemnation proceedings, and that the damages allowed by the jury covered all those the appellant was entitled to as owner of lot 1, including any that he may sustain by the appellee’s occupancy of that avenue and the falls. .! We will first consider his contention with reference to Harlem avenue.

The bill alleges, and one of the plats filed shows, that this avenue rises from Gwynn’s Falls to 10th street, with about a twelve per cent grade, and that the appellee proposes to make a cut across the avenue abutting on lot 1, of a depth of twelve feet on the west side and four feet on the east side of its road, as proposed to be made; that this cut will absolutely destroy the plaintiff’s easement of a private right of' way, which is appurtenant to and belongs to the remaining land between lot 1 and the falls, binding on the avenue, and the egress from and the ingress to- said remaining land “will be' destroyed and not only obstructed,” and that his reversionary interest from the southern line of lot 1 to the centre of the avenue will be taken. The jury was “sworn and charged justly and impartially to value the damages which the said Charles -Shipley will sustain by the use and occupation of all that lot or parcel of ground owned by him, which is described as follows: “— the description was then given of this-lot as included within the shaded lines on the plat above mentioned. That oath is prescribed by sec. 167 of Art. 23 of the Code. The inquisition concludes that the jurors “do find and assess the said damages to the said Charles Shipley at the sum of six hundred dollars, for the use and occupation in perpetuity, by said company, of said parcel of land for its railroad.” The theory of the appellee is that inasmuch as the jury was sworn to value ¹³⁴ the damages which the owner would sustain by reason of the occupation and use of this lot, and accordingly fixed “the said damages,” they were called upon to allow and did allow all damages he sustained, including those now complained of.

The general rule is that “The measure of damages is the difference between the value of the whole tract before the taking, and the value of the remainder after the taking.” Lewis on Em. Domain, 47 i A, and that “damages must be assessed once for all, and that when once assessed-according to law, they include all the injuries resulting from the particular appropriation and from the construction and operation of the works in a reasonable and proper manner for all time to come.” Ibid, 565. But the damages referred to by that author are those-resulting from the- taking and use of the particular tract condemned, and that cannot refer to such damages as will result from the taking of some other property of the owner, within .the lines of the proposed road. Suppose, for example, the appellant had owned the land on the south side of Harlem avenue, through which the road runs, it could not be successfuliy contended that inasmuch as the plats showed that the road would go through that land in order to reach that contained within the lines of lot x, therefore the damages allowed for lot 1 included those .that he wpuld sustain by taking his property on the south side of Harlem avenue.

Or, to take another illustration, which is still more analogous, suppose the description of the land- in the condemnation proceedings had only included a lot of 181 instead of 281 feet in depth, north of Harlem avenue, but the plat showed that the centre line of the proposed railroad ran through the whole lot to Gwynn’s Falls, could it be pretended that the jury had allowed damages for the whole lot to Gwynn’s Falls, and therefore the appellee could- take possession of it ? Surely not. When the layv authorizes the jury to consider the damage to the remainder of an owner’s land-, it refers to that portion which is not included in the' inquisition, but' not to some part of the tract which will be. actually taken and is not included within the description given in the proceedings. As it is conceded that the Act of 1892 ¹³⁵ vested the fee in the appellant to the centre of Harlem avenue, there would seem to be no room to doubt that a railroad company cannot take the interest he thus had without compensation — especially in the manner that this is proposed to be used, making a cut from four to twelve feet deep.

That Act certainly does not in terms include land acquired by condemnation. It provides that “all devises, gifts, grants or conveyances of land binding on any street or highway * * * shall be construed to pass to the devisee, donee or grantee therein, all the right, title and interest of the devisor, donor or grantor of the said land,” etc. The appellee is neither a devisee, donee nor grantee of this land, but it is said on its behalf that the statute provides that after the inquisition is confirmed, the valuation when paid or tendered “shall entitle the said company to the estate and interest zVz the same thus valued, as if it had been legally conveyed by the owner or owners of the same,” and that hence the condemning company has the same right to the street that the owner had under the Act of 1892. But that provision is immediately preceded by this, “and the inquisition shall, in all cases, describe the property taken or the bounds of the land condemned, and the quality or duration of the interest in the same, valued for the company, and such valuation when paid or tendered * * * shall entitle,” etc. "The same” refers to "the property taken or the bounds of the land condemned',' described in the inquisition, and does not refer to any estate or interest in land not so described. The description of the land in those proceedings would, however, seem to affirmatively exclude any idea of taking under the condemnation of lot 1 any interest of the appellant in Harlem avenue.

It reads thus: “Beginning at a point where the centre line of the said Western Maryland Tidewater Railroad crosses the dividing line between the lands of the said Charles Shipley and those of the C. M. Heald estate (Harlem avenue), and running thence with said dividing line south 87 degrees 19 minutes west 46.52 feet to a point, said point being the northeastern corner of Tenth street and Harlem avenue ¹³⁶ (C. M. Heald estate), thence with said dividing line” and then after describing the westerly, northerly and easterly lines of lot i- calls to go “to a point in the line betweendhe lands of the said Charles, Shipley and those of the-said Heald estate, 'thence with said line,” etc., to the beginning. That description is in the application for the warrant and in the .inquisition, and the dividing line on which the description begins and ends is the southerly line of lot i, which is on the .northerly side of Harlem avenue. It refers to the lands on the other (southerly) side ©f the- dividing line, as those -of the Heald estate — thus in terms excluding all idea of ownership by Shipley on that side of the dividing line, and .'hence it would .seem impossible to suppose that the jury in their valuation had allowed anything to Shipley for land which they , expressly said -belonged to the Heald estate. If the company desired to say to the jury, and the jury wanted it