Smith v. Baltimore & Ohio Railroad

Parke, J., delivered the opinion of thé Court. The record at bar is intended to have reviewed the ruling that the amended declaration of the plaintiff fails to state a cause' of action. Each of the' defendants raised this question by separate demurrers, which were sever ⁹¹ ally sustained, with leave to the plaintiff to amend within ten days. The privilege was not exercised, and no judgment was entered on the demurrer, but the plaintiff appealed.

A ruling on a demurrer to a declaration is not a final judgment from which an appeal lies; and the appeal must be dismissed. Miller v. West, 165 Md, 245, 249, 167 A. 696 ; Emersonian Apartments v. Taylor, 132 Md. 209, 210 , 103 A. 423 ; Waddell v. Arnett, 146 Md. 477 , 478, 126 A. 714 ; 2 Poe, Pl. & Pr., sec. 826, p. 801. The question of law was fully presented by the pleadings and will, if the court does not entertain it now, ultimately come again for a delayed consideration. Furthermore, the challenge made by the pleadings involves not merely an alleged invasion of the proprietary rights of the owner of the land, but the existence of important conditions and limitations with reference to the exercise by the State, through its corporate instrumentalities, of its sovereign power of eminent domain.

It is these considerations which impel the court to express an opinion on the plaintiff’s right of recovery. Shartzer v. Mountain Lake Park Association, 86 Md. 335, 338 , 37 A. 786 . The declaration counts on the following facts: The plaintiff is the owner of a lot of land upon which he operates a garage and filling station. The property fronts on a public highway that crosses the railway of the Baltimore & Ohio Railroad Company in the town of Gaithersburg.

Formerly, the surface of the lot and of the ground line of the buildings were on a level'with the surface of the adjoining highway, but, in the autumn of the year 1930, the State Roads Commission of Maryland changed the grade of the highway by carrying the highway over the railway line by a bridge and its approaches, so that the level of the surface of the plaintiff’s land and of the ground line of the improvements is now twelve inches lower than the surface of the highway in front of the plaintiff’s lot. There was no physical taking nor encroachment upon the land of the plaintiff; and the elevation of the grade of the highway was neither improperly nor negligently made. ⁹² The construction was a public improvement. The State Roads Commission was authorized by the General Assembly of Maryland to abate dangerous grade crossings of public highways by railways. One of the methods mentioned was to substitute another crossing by raising or lowering the highway so that it would be carried either over or under the highway.

Code (Supp. 1929), art. 91, secs. 38A to 38K; Acts 1931, ch. 516; Krebs v. State Roads Commission, 160 Md. 584 , 154 A. 131 . So, in the absence of any allegations of fact in the declaration to the contrary, it must be accepted that the State Roads Commission had proceeded within its delegated power in the construction of the crossing. 1 Poe, PI. & Pr., p. 731. Furthermore, the access of the lot to and from the highway remained, but was rendered inconvenient to the extent of the difference in level which was obviously susceptible of correction by the owner of the land. The effect of this alteration in grade of the highway is alleged to have been a great decrease and loss in business, and a decline in rental value of the lot and a depreciation in its market value.

On these averments, the action is brought against the State Roads Commission, which made the change, and the Baltimore & Ohio Railroad Company, which is charged with participation in the construction. The action, therefore, is not for any direct injury, but is for consequential damages to property rights from a lawful act of the State that was done, by one of her agents, in a proper manner, with due skill, and without negligence. A long and consistent line of decisions by this court has denied a right of recovery where the facts are similar to those alleged in the declaration under consideration. The theory adopted by the court is that, when a highway is acquired by gift, purchase, or the exercise of the power of eminent domain, it was an implication of the acquisition, in whatever form, .by the public agency, that the land acquired for the highway would and could be used not only for passage by the public, but also for its repair and alteration of surface, from time to time, as ⁹³ the public needs might require.

The owners of land along streets and highways are charged with a knowledge of this right of the public to repair and change the surface of the highway, and, so, this principle applies to such proprietors, who must be held to have contemplated, at the time when title was acquired, and so to have assumed the lawful contingencies implicit in the location of their properties. Moreover, since consequential damages resulting to land from a mere change of grade,