Towers v. United Railways & Electric Co.

Burke, J., delivered the opinion of the Court. The United Railways and Electric Company of Baltimore was formed March 4, 1899, by the consolidation of a number of independent street railway companies theretofore existing in Baltimore City. The Baltimore & Loreley Railway Company was incorporated by Chapter 227 of the Acts of 1894, and its name was changed to the Baltimore, Garden-ville & Bel Air Electric Railway Company by Chapter 248 of the Acts of 1896. By its act of incorporation, it was “authorized and empowered to make, construct, lay dawn and maintain a railroad with double or single tracks, with the necessary and proper switches, turnouts, sidetracks, and any ⁴⁸⁰ and all mechanical devices and appliances suitable to operate an electric railway, and to run thereon cars and carriages drawn or propelled by electric or other motive power other than'steam in Baltimore City and Baltimore County, beginning for the same at a point at or near the terminus of the Baltimore City Passenger Railway, at the intersection of Gay • street'and North avenue, in Baltimore City; thence running along the Baltimore and Jerusalem turnpike or parallel thereto, to the corporate limits of Baltimore City; thence along said pike or parallel therewith in a northeasterly direction, through Baltimore County to a point at low water mark on the Gunpowder River, in the town of Loreley, in Baltimore County, and north of the bridge of the Baltimore and Ohio Railroad, crossing said river in said county at said town; and the said railway is hereby empowered to connect with like railway or railways in Baltimore City.” This railway was one,of the constituent companies which entered into the consolidation by which the appellee company was created.

The Baltimore and Jerusalem Turnpike Company was incorporated by Chapter 143 of the Acts of 1867, and was authorized “to grade and make a turnpike road, beginning for the samé at the limits of the City of Baltimore on the Bel Air road, and running upon and occupying the said Bel Air road from the said city to the old stage or Camp Chapel road, and from thence on said Bel Air road to the Little Gunpowder Falls, with power to diverge from the bed of said road when and where it may be desirable to said company, to use and occupy a width of thirty feet on each side from the center.” The turnpike was constructed from the city limits to a village called Jerusalem in Harford County. The railway was constructed upon the turnpike under the following circumstances: By deed dated April 1st, 1895, the Turnpike Company, in consideration of five thousand dollars, granted to Simon J, Martenet, his heirs, personal representatives and assigns, subject to existing mortgages on the pike, right of way and franchises, “the right to construct ⁴⁸¹ and maintain and operate an electric railway upon the turnpike road of the said Turnpike Company from North avenue in Baltimore City to the end of said turnpike road, upon the following conditions.” The conditions set out in the deed-— twenty in number—related for the most part to the location, character and construction of the railway. It was provided that Martenet, his personal representatives and assigns, should lay a double track along the center of said turnpike from North avenue to a point on said turnpike, two miles northeasterly of North avenue, at or near Gardenville, with a flat or girder rail, and that from Gardenville, a single or double track should be laid on the side of the turnpike. The seventh, seventeenth and twentieth conditions are as follows: “7th.

That the said Simon J. Martenet, his personal representatives or assigns, shall within twelve months from the first day of April, 1895, construct at the cost and expense of the said Simon J. Martenet, his personal representatives or assigns, four miles of said electric railway from North Avenue in Baltimore City northeasterly on said turnpike road, two miles thereof to be double track, and the remainder single or double track as hereinbefore specified.” “17th. That the said' Simon J. Martenet, his personal representatives or assigns, shall begin the construction of said railroad within six months from the date of these presents, and that four miles of said railroad shall be finished as aforesaid and in operation before the expiration of twelve months from the first day of April, 1895.” “20th. That said railway shall be finished to the end of said turnpike road within five years from the date of these presents. “Provided, That in the event of the said Simon J. Martenet, his personal representatives or assigns, violating any of the agreements, terms, conditions or provisions of this agreement—that is, any of the agreements, terms, conditions or provisions in these presents set forth and specified—then and in that event all money previously paid as part of the consideration ⁴⁸² hereof, and the franchise or right to lay tracks and to construct said railroad shall eo instanti become forfeited to said Turnpike Company, its successors or assigns. “And provided also, That upon violation of any of the agreements, terms, conditions or provisions of this agreement, the said Turnpike Company, its successors or assigns, shall eo instanti have the right to sell and grant to any other person or corporation the said right of way and privileges to construct, maintain and operate an electric railway on said turnpike road, notwithstanding anything herein contained.” Subsequently, in May, 1895, M.artenet “in consideration of his agreeing to build an electric railway on said turnpike,” secured agreements from the mortgage bond holders of the turnpike to release from the operation of the mortgages all the franchises, rights of way and privileges given by the Turnpike Company to him, and also to release all the oars, poles, wires, rails and all of the property of every kind to be acquired by him or his assigns in the construction and maintenance of the railway. . These agreements were reported to the Circuit Court for Baltimore County in the receivership proceedings pending against the Turnpike Company, and by an order of that.

Court, passed June 4, 1895, trustees were appointed with authority and direction to execute formal releases from the liens of the mortgages. By the deed referred to, Martenet secured for himself, his heirs, personal representatives and assigns, the right to build the proposed railway on the- turnpike, and the obligations of himself, his personal representatives and assigns, were fixed, and by the releases mentioned his franchises and railway property, etc., were freed from the operation of the mortgages. In this way he obtained the right and clear title to build the railway from the city limits to Jerusalem, the northeasterly terminus of the turnpike, and he obligated himself and his personal representatives and assigns, to build ⁴⁸³ the road in the manner and within the time provided, and set forth in the deed. By deed dated July 13, 1896, Martenet granted and conveyed to the Baltimore, Gardenville and Bel Air Electric Railway Company all the rights and franchises and privileges conveyed and granted to him by the Turnpike Conn pany by the deed of April 1, 1895.

On September I, 1896, the Baltimore & Jerusalem Turnpike Company passed the following resolution: “Resolved, That the company does hereby confirm to Simon J. Martenet the right to construct, maintain and operate an electric railway upon the turnpike from North Avenue to the end thereof, and in consideration of the payments heretofore made by him, the said Simon J. Martenet be released from the payment of any further sum or sums of money other than the sums heretofore paid by him. And that the said Simon J. Martenet shall have the option of constructing said railway for the entire length of the same on either side of said turnpike or in the middle thereof by either a single or double track.” When this resolution was passed, Martenet had failed to perform his obligations under the deed of April 1, 1895—he had not paid the consideration expressed in the deed, and he had not completed four miles of the road within the limit of time specified therein; but shortly after the passage of the resolution, the Baltimore, Gardenville and Bel Air Electric Railway Company constructed the road to Overlea, a distance of about three and one-half miles. By deed dated March J, 1899—the date of the consolidation—the Baltimore, Gardenville and Bel Air Electric Railway Company granted and conveyed to the United Railways & Electric Company of Baltimore all its railways, wherever located, and owned, acquired or operated, and which it was authorized to build, and all its property, real, personal and mixed, and all its entire equipment, and all its rights in existing contracts or agreements with individuals or cor ⁴⁸⁴ porations, and all the appurtenances, rights, franchises, privileges and especially the franchise to be a corporation, and all the franchises held by it, by any act, grant, or thing, or by virtue of any ordinance of the Mayor and City Council of Baltimore, or any pfermit of the County Commissioners and any other franchises held by it in any manner whatsoever. The United Railways Company, by virtue of said consolidation and the above-mentioned deed, now owns the property and franchises, contracts and privileges mentioned and referred to in the deed from the Baltimore, Gardenville & Bel Air Electric Railway Company to it, and owns and operates its cars to a village called Overlea, in Baltimore County, about three and one-half miles beyond the northern limits of the city—its tracks and equipment being located on the Baltimore and Jerusalem Turnpike, commonly known as the Bel Air Road.

By deed dated July 13, 1906, the Turnpike Company, in consideration of sixteen hundred dollars, granted and confirmed to the United Railways Company upon the conditions expressed in the deed: “the right to maintain and operate its double-track electric railway upon the turnpike road of the said Turnpike Company as at present operated. And further grants unto the United Company the right to construct, operate and maintain in perpetuity a single or double track electric railway from the northern terminus of its railway as now operated upon and along the turnpike road of the said Turnpike Company, through Baltimore County to the intersection of the said turnpike road with the Big Gunpowder River, at the tract known as ‘Loreley’ in said county.” This deeed referred to the deed of April 1, 1895, between the Turnpike Company and Martenet, and contained this recital: “Whereas, subsequently the Turnpike Company waived, the requirement that the said double-track electric railway should be constructed for the entire ⁴⁸⁵ length of the said turnpike road, and made it optional with the said Simon J. Martenet, his successors and assigns, whether or not the said railway should be constructed for the entire length of the said turnpike road.” By deed and agreement dated March 24, 1911, between Stuart Cassard, receiver of the Turnpike Company, party of the first part; the State of Maryland, acting for the State Roads Commission, of the second part; and the United Railways Company, of the third part, the bed of the turnpike from the city line to the Little Gunpowder River, a distance of about 13.8 miles, was conveyed to the State Roads Commission : “subject, however, to any outstanding rights, easements, franchises, occupation or use of said third party, and more especially any such rights, easements, franchises, occupation or use of said The United Railways and Electric Company of Baltimore, under and by virtue of the following deeds and agreements: “A deed and agreement dated April 1, 1895, between the Baltimore and Jerusalem Turnpike Company and Simon J. Martenet, recorded among the Land Records of Baltimore County in Liber L. M. B. No. 209, Eolio 286, etc. “A deed and agreement dated July 13th, 1896, between Simon J. Martenet and the Baltimore, Garden-ville and Belair Electric Railway Company (of which the United Railways and Electric Company of Baltimore is the successor), recorded among the Land Records aforesaid in Liber L. M. B. No. 218, Eolio 455, etc. “A deed and agreement dated December 10th, 1896, between Simon J. Martenet and the Baltimore, Gardenville and Belair Electric Railway Company (of which the United Railways and Electric Company of Baltimore is the successors), recorded among the Land Records aforesaid in Liber L. M. B. No. 223, Eolio 591, etc. ⁴⁸⁶ “A deed and agreement dated July 13th, 1906, between the Baltimore and Jerusalem Turnpike Company and the United Railways and Electric Company of Baltimore recorded among the Land Records aforesaid, in Liber W. P. 0. No. 297, Folio 587, and including the right to the said The United Railways and Electric Company of Baltimore to extend its lines of railway by a single or double track to the northeasternmost end of said turnpike road, under and by virtue of said last mentioned deed and agreement upon the terms and conditions therein mentioned so far as the same do not conflict with any existing' contract or agreement between it and the State of Maryland, acting by the State Roads Commission, provided the same is exercised by said The United Railways and Electric Company of Baltimore, its successors or assigns, prior to January 1, 1934, the building and construction of an extension upon a portion or portions of said turnpike prior to January 1, 1934, to be considered as a full compliance with said agreement, as to such portion or portions of said turnpike.” The deed provided that: “in case of extensions after the Commission shall have improved the road, the location and grades of tract shall be subject to the approval of the Commission, any disturbance of the improvements in any way shall be promptly restored by the third party at its expense, and in accordance with the specifications and to the satisfaction of the Commission.” From the aforegoing statement of facts, it appears: First, that the United Railways and Electric Company is the successors of the Baltimore, Grardenville and Bel Air Electric Railway Company, and is operating its Belair Road line (a part of its general system under a permissive and not a m<m datory or compulsory charter. Second, that while the deed of April 1, 1895, between the Turnpike Company and Mar-tenet, imposed upon him, his personal representatives and ⁴⁸⁷ assigns, the obligation to construct the proposed road, the entire distance or length of the turnpike, it was the intention of the Turnpike Company to relieve him from this obligation.

This clearly appears by the resolution of September 7, 1896, above transcribed. This resolution expresses the intention of the Turnpike Company to change Martenet’s obligation in an important particular—to relieve him from his contractual obligation to construct the proposed road the entire length of the turnpike and to convert that obligation into a mere option to do so. This is obvious from the language of the resolution: “That the said Simon J. Martenet shall have the option of constructing said railway for the entire length of the same on either side of said turnpike or in the middle thereof by either a single or double track.” That the Turnpike Company intended to waive the obligation of Mar-tenet in this respect is made more manifest by its declaration to that effect contained in its deed to the United Railways Company of July 13, 1906. It would, therefore, seem to be clear that the appellee, as the successor of the Baltimore, Gardenville and Bel Air Electric Railway Company, is under no contractual obligation to extend its road from Overlea to the Little Gunpowder River.

It has the right to make the extension, but is under no contract obligation to do so. Nor is there any absolute and imperative duty upon the Railway Company, either under its-charter or arising from profession of service, to build the extension. Nor is there any unrestricted and uncontrollable power in the Public Service Commission to compel the extension. Mr. Justice Gray in N. P. R. R. Co. v. Dustin, 142 U. S. 492 , said: “If the charter of a railroad corporation simply authorizes the corporation, without- requiring it, to construct and maintain a railroad to a certain point, it has been held that it can not be compelled to complete and maintain its road to that point