United Railways & Electric Co. v. State Roads Commission

⁵⁶³ Thomas, J., delivered the opinion of the Court. In 1908 the Legislature passed an Act, Chapter 111. “providing for the establishment of a system of public, roads and highways in Maryland, and providing for the appointment of a Commission to be known as the 'State Roads Commission,’ with full powers to construct, improve and maintain public roads and highways in the several counties of this State; and providing also the ways and means, and making the necessary appropriations of money and for a bond issue for the construction, improvement and maintenance thereof, and for the expenses of such Commission in the execution of its powers and duties.” By Section 32B of the Act, the State Roads Commission, hereinafter referred to as the Commission, was given full power and charged with the duty to select, construct, improve and maintain such a general system of improved State roads and highways as could “reasonably be expected to be completed” with the funds therein provided “in and through all the counties of this State,” and was required to make the selection of the roads to be improved before the first of May, 1909. The Commission was authorized to make such preliminary investigation, to do such preliminary work and to adopt such means or system of road construction, etc., as in it its judgment was best calculated to promote the objects of the Act; “condemn, lay out, open, establish, construct, extend, widen, straighten, grade and improve, in any manner, any main road, of the system, in any county of this State and establish or fix the width thereof; cause to be prepared such surveys, plans, drawings or maps as it may deem proper in the course of its work; acquire for the State of Maryland, by agreement, gift, grant, purchase or condemnation proceedings * * * any private road or roads whatsoever, or private property or rights of drainage for public use, whether belonging to private individuals or to turnpike companies or other corporations, and including any avenues, roads, lanes or thoroughfares, rights or interests, franchises, privileges or easements, that may he, in its judg ⁵⁶⁴ ment, desirable or necessary to complete said system of roads or to carry out the purposes of this Act; contract with any person or persons, company or corporation, either private or quasi-public, or municipal, in furtherance of the duties and objects of this Act or any of the same,” etc. • This section authorized and directed the Commission to include in its work of improving the system of main roads of the State the improvement of such portions of the main roads selected by said Commission as a part of such system “as lie inside the limits of the City of Baltimore, up to the old city limits, provided that on completion of such improvements, the portions of the roads so improved within the city limits shall be city streets under the provisions of the city charter,” and provided that “where rights, easements and franchises of the United Railways and Electric Company of Baltimore, its successors and assigns, exist upon any turnpike or private right of way in the Annex which may be improved hereunder, then said rights, easements and franchises may (if the Mayor and City Council of Baltimore and said railways company, its successors and assigns fail to agree upon terms of purhase or surrender) be condemned by the Mayor and City Council of Baltimore under the provisions of Chapter 214 of the Acts of 1904, and Chapter 566 of the Acts of 1906, or in the exercise of its general powers of condemnation, the cost thereof to be defrayed out of the loan provided for in said first mentioned Act, or out of the ordinary, proceeds of municipal taxation; provided, however, that the provisions of said Act of 1906 shall be obligatory upon, and not'discretionary with, the Mayor and City Council of Bal timore and the Board of Estimates, and the price to be charged for new rights, franchises and easements similar to those condemned, shall be the same as the amount of the condemnation award.” Section 320 is as follows: “If the State Roads Commission shall determine that the public necessity or convenience, or that the purposes of this Act require that any turnpike, or part thereof, whether maintained as such by any turnpike ⁵⁶⁵ company or otherwise, or whether formerly maintained as such and now abandoned by any turnpike company, or that any public road in whole or in part in any county or counties, and forming a section of a through route or continuous thoroughfare between two or more important points in the State, should he taken charge of by said Commission for tbe State for the purposes of this Act, then, as to such public road or abandoned or acquired turnpike, whether acquired by purchase or condemnation, the said Commission shall file a certified copy of the plan thereof in the office of the County Commissioners for the county or the several counties in which said section or sections of road or turnpike may he situated, and sotting forth its purpose to acquire and to take over the same, and said Commission thereupon, without any further procedure, shall acquire and take over any such and all county roads, turnpikes or sections thereof or interests or rights therein, as in its judgment may be necessary or proper for the purpose of this Act, and with full power to widen, relocate, change or alter the grade or location thereof; and said Commission shall have ft ill power so to take over and take possession of any county road or abandoned turnpike, and to accept by gift or surrender, and to acquire by purchase or condemnation, any and all existing turnpikes or any sections thereof, or any rights or interests therein, subject to any outstanding occupation, use or franchise of any 'electrie railway company or other public service corporations; and thereafter all highways, however acquired liereinunder, shall be State highways and shall he constructed, improved and maintained by said Commission for the State and at its expense, except as provided in Section 32B.” Section 32E provided, “that said Commission shall keep-all State highways reasonably clear of brush and maintain same in good condition; shall cause suitable shade trees to he planted thereon, if practicable, and may establish and maintain watering troughs upon said highways. Eo opening shall ho made in any such highway, nor shall any structure he ⁵⁶⁶ placed thereon, nor shall any structure which has been placed thereon be changed or renewed, except in accordance with a permit from the Commission, which shall exercise complete control over such highways, except as herein otherwise provided.

Ho State highway shall be dug up for laying or placing pipes, sewers, poles., wires or railways, or for other purposes, and no trees shall be planted or removed or obstruction placed thereon without the written permit of the Státe Roads Commission, or its duly authorized agent, and then only in accordance with the regulations of said Commission; and the work shall be done under the supervision and to the satisfaction of said Commission; and the entire expense of replacing the highway in as good condition as before shall be paid by the persons to whom the permit was given or by whom the work was done; provided, however, that no electric railway company in operation upon any public or private road or existing or abandoned turnpike when acquired hereunder shall be disturbed in its operation or in the maintenance of its roadbed and overhead construction and all necessary re.pairs, together with the maintenance of the space between its tracks and two feet on each side thereof shall be performed by such railroad company under the supervision and to the satisfaction of said Commission. Said Commission may give suitable names to the State highways and may change the name of any highway which becomes a part of a State highway. They shall erect suitable guide posts at convenient points along State highways.” In 1910 the Legislature passed an Act, Chapter 116, page 301, “enlarging the powers of the State Roads Commission as created by Chapter Ml of the Acts of 1908”; and “providing, also, for the enlargement of the work of said commission and making the necessary appropriations of money; and for an additional bond issue for the purpose of carrying out the provisions of this Act.” This Act authorized the Commission to acquire, construct and maintain bridges for the purpose of making connection between any highways or ⁵⁶⁷ parts of any highway constructed and improved hy it; to acquire by purchase, condemnation or otherwise the Conowin go Bridge across the Susquehanna Biver, to build a bridge across the Nanticoke Eiver, and to construct a highway* to be known as the x\nnapolis and Baltimore Boulevard, and provided that “Nothing in any of the foregoing sections or in the provisions of any xlct adding to or supplementing Chapter-141 of the Acts of 1908 (creating the State Eoads Commission) shall he construed as modifying or changing the provisions of said last named Act, in so far as the same define and regulate the rights of any electric railways company in operation upon any public or private road or existing or abandoned turnpike,” and further providing that “Whenever any State road crosses the grade of the line of any railroad worked by steam or other power, the State Eoads Commission shall have the power to contract with such railroad for the construction of any bridge, archway, or culvert that may be needed for the purpose of any over-grade or under-grade crossing; and to provide by contract or otherwise for the maintenance thereof. Provided, that one-half of the construction cost of such bridge, archway, culvert or roadbed shall be paid for by the railroad and one-half by the State Eoads Commission.” On the 29th of April, 1909, the Commission and the United Eailways and Electric Company of Baltimore City entered into an agreement by which the Eailways Company, “to the extent of its ownership and interest in the Harford, the Baltimore and Jerusalem, and the York Turnpike roads,” agreed that the same should be transferred to the commission without charge other than the cost, if any, of perfecting the title, “subject, however, to any and all railway easements and rights of way now existing,” and subject to the further provisions of the contract, among which were the following: “Where any tracts owned or operated over by the company now exist on any road which the commission may acquire and improve all changes made necessary hy the ⁵⁶⁸ work of the Commission shall be done by the company to the satisfaction of the commission and the expense incurred shall be paid by the Commission.” “The company shall duly keep in repair the space between the rails of its tracks and the two-foot adjacent space, as provided by the State Roads Law; but, except by mutual agreement, it shall not be disturbed in the use of or required to change, the existing character of its rails, ties, ballast, roadbed or overhead construction; but the company will, at the request of the commission, lower or raise its tracks so as to conform with the adj a-cent roadway, — the expense incurred by any such change to be borne by the Commission.” “The word tracks shall be takfen to include switches, turnouts and electrical construction, unless such inclusion- would be unreasonable.

The formal Deed or Acts or Instruments of Surrender by and on behalf of the several turnpike companies to the Commission shall in terms recite and reserve the rights of the company hereunder.” The agreement of counsel filed in the case states that after the execution of the above agreement “certain members of the State Roads Commission took the position that its terms were broader then they -had intended them to be; that they had not intended to bind the Commission in regard to roads other than the three roads specified‘by name in said contract, namely, the York, Baltimore and Harford and the Baltimore and Jerusalem turnpike roads; that they thought that the Railways Company ought to enter into a supplemental agreement so that — as to the roads other than the three roads which the Railways Company had agreed to procure to be turned over to the Commission — the rights or obligations of the Commission in regard to the Railways Company’s structures thereon should be passed upon and determined by the Courts. The Railways Company’s position was that the agreement of April 29, 1909, was understood by the parties thereto and was intended to-be exactly as it was. The company agreed, however, to make a supple ⁵⁶⁹ mental agreement as requested by tlie Commission.” The Railways Company and the Commission accordingly entered into a. supplemental agreement on the 7th of July, 1910, by which they agreed that tlie agreement of April 29, 1909, should be applicable to the roads referred to, “and that, as to all other roads on -which the United Railways and Electric Company has or operates any tracks, the State Roads Commission shall proceed with such improvements or works as it may determine to make, subject to the provisions of Chapter 14-1 of the Acts of 1908 and any Acts of the General Assembly supplementary thereto, it being particularly agreed that as to all such other roads last aforesaid the said Commission shall in the first instance, pay the costs and expenses of all changes in the¡ tracks, roadbed and overhead construction of tlie said Railways Company, caused by the works or improvements made by the said Commission, and that .the ultimate liability for the costs and expenses of said changes shall be determined by ihc Courts according to law.” The agreement further provided that as to all other roads than those mentioned in the agreement of April 29th, 1909, the work of changing said tracks, roadbed and overhead construction of the company should be done by the company under the supervision and to the satisfaction of the Commission ; that the payments to be so advanced by the Commission should be made on the 15th day of each month, and for the amount of the costs and expenses shown by vouchers, approved by a responsible official of the company and furnished by the company to the Commission not later than the 8th day of each month and approved by the Commission “To have been actually incurred for the changes in tlie tracks, roadbed and overhead construction of said railways company during the calendar month last preceding the 15th day of each month aforesaid caused by the works and improvements made by the Commission upon said roads,, and the further and additional sum of ten per cent upon the amount of said ⁵⁷⁰ actual costs and expenses for each said calendar month for tools and supervision provided by said Railways Company.” Under the supplemental agreement referred to the Commission undertook the improvement of the Ealls Road, in Baltimore County and Baltimore City, the Baltimore and Liberty Turnpike Road, within the present limits of Baltimore City, known as Garrison Avenue; First Street, in Brooklyn, Anne Arundel County, and Maryland Avenue, in Westport, Baltimore C'ounty. In reference to each of these-roads the Commission and the Railway Company entered into a further agreement specifying the changes to be made-by the Railways Company in the location, grade, rails and construction of its railway so as to conform to- the specifications and requirements of the Commission, and further agreeing that the cost of said changes should be paid by the Commission and that the ultimate liability therefor should be-judicially determined.

This suit was brought by the Commission in the Superior-Court of Baltimore City to recover from the Railways Company the amounts paid by the Commission to the company-in accordance with the agreements referred to. In the agreement of counsel it is stated that the Commission expended for the relocation of the tracks and structures, of the Railways Company on the roads mentioned the following amounts: On Falls Road, in Baltimore County, $25,-209.75; on Falls Road, within the present city limits, $4,-306.32; on the Baltimore and Liberty Turnpike Road, now Garrison Avenue, $40,972.54; on First Street, Brooklyn,, $10,63 6.66; on Maryland Avenue, Westport, $6,811.44,. which amount in the aggregate to $87,916.68, and it was agreed that if the Court should find for the plaintiff, “in whole or in part,” the above figures should be used by the-Court “as a basis upon which the amount” of its judgment, should be ascertained. It was further agreed that by reason of the changes and relocations of the company’s tracks, roadbed and structures required by the Commission, the com ⁵⁷¹ pany incurred the cost of additional changes in its tracks, etc., for which it makes no claim against the Commission, to the following amounts: On Falls Road, $16,383.39; on the Baltimore and Liberty Turnpike Road (Garrison Avenue), $12,972.31; on First Street, Brooklyn, $3,839.66; on Maryland Avenue, Westport, $5,112.82; miscellaneous, labor and material, $589.89, amounting in the aggregate to $38,897.03; that the changes and relocations referred to above as having cost $87,916.68, the amount which the Oommisson now seeks to recover, were necessitated by the plans and specifications adopted by tbe Commission for the improvement of the several roads mentioned, and that the work was done in compliance with said specifications and the orders of the Commission. Prior to the passage of the Act of 1908.

Chapter 141, “and until the time the structures of the railways were removed at the instance of the State Roads Commission, the Railways Company maintained its tracks and structures upon” the roads hereinafter mentioned, as to which the “agreement as to facts” contains, the following statements: “The defendant’s structures in Baltimore County were located under and in accordance with grants executed in 1897 from the president, managers and company of the Falls Turnpike Road, the said grants setting forth a consideration of five thousand dollars and purporting to convey the right to the Falls Road Electric Railway Company to construct, maintain and operate its railway, and also under and in accordance with the charter of said company. The charter of the Maryland Traction Company, which was incorporated under the General Law, was amended by the Act of 1896. Chapter 360, which changed its name to the Falls Road Electric Railway Company and gave certain additional powers to that company. The rights of this company, as well as the rights of the other railway companies referred to in this agreement, are now vested in the defendant, The Fnited Railways and Electric Company of Baltimore.

The ⁵⁷² Falls Eoad Turnpike Company was chartered hy the Act of 1801, Chapter 91, for the purposes set forth in its charter. Some years thereafter the Falls Eoad Turnpike Company abandoned the Turnpike Eoad moving its gates therefrom and the State Eoads Commission took over and acquired it as an abandoned road. * * * The Mayor and City Council of Baltimore acquired the portion of Falls Eoad within the present city limits hy deeds from the president, managers and company of the Falls Turnpike Eoad to the Mayor and City Council of Baltimore. The railway structures upon the Falls Eoad, within the present city limits, were constructed and maintained under an ordinance of the Mayor and City Council of Baltimore, Ordinance No. 105,” approved June 11, 1896 (p. 52). “One of the tracks of the Eailways Company on the Baltimore and Liberty Turnpike Eoad in Baltimore City, now known as Garrison Avenue, was constructed under and in accordance with grants from the Baltimore and Liberty Turnpike'Eoad in 1891 to the Baltimore Traction Company, said grants purporting to convey to the said company the right to construct, maintain and operate its railway, and under and in accordance with the charter of said company. The Baltimore and Liberty Turnpike Company was chartered by the Act of I860, Chapter 274.

This charter was amended by the Act of 1902, Chapter 203. The other track of the Eailways Company, upon what is now Garrison Avenue as widened, Avas located and maintained along and to the side of the turnpike under and in accordance with grants acquired .from property owners of the property abutting upon the Turnpike Eoad. Where the Eailways Company’s structures have been relocated along the Liberty Eoad, that is upon Garrison Avenue as widened, the structures have been moved so' that both tracks are now located in the center of the bed of Garrison Avenue as widened, the space Avhich Avas formerly occupied by the track of the defendant, which was located under grants acquired from the abutting property ⁵⁷³ owners before said tracks were relocated, having been included in the widened Garrison Avenue as improved by the State Roads Commission. By deed dated May 21, 1910, the Baltimore and Liberty Turnpike Company conveyed, assigned, released and quit-claimed unto tbe State Roads Commission all its right®., title, interest and estate in, to and over that portion of its turnpike road within the present limits of the City of Baltimore.

The agreement for the work on Garrison Avenue was entered into by the Railways Company and the Roads Commission on October 17, 1910, and the work, including the relocation of the tracks of the company, was commenced on the 19th day of October, 1910. and was finished on the 14th day of December, 1911. Garrison Avenue as at present widened, was widened by the Commissioners for Opening Streets, acting as the Annex Improvement Commission, under the Act of 1904, Chapter 274, and Ordinance Xo. 216 of March 6th, 1905. With respect to the franchise and structures of the Railways Company upon said Garrison Avenue, the agreement or arrangement embraced in the following correspondence and resolution of the Board of Estimates was made by the company and tbe City of Baltimore, to- wit: “‘December 10, 1910. “ ‘Edgar Allan Poe, Esq., City Solicitor. “ ‘Dear Sir: In order to remove any possible doubt as to our understanding relative to the Garrison Avenue situation, I am giving below a memorandum outline of plan, and will be obliged if you will look it over and let me know whether or not it conforms to your ideas. “ ‘The City is endeavoring to secure quit-claim deeds or deeds to the reversion from the owners of the 10-foot strip to the side of the turnpike over which this company has an easement. When the City has obtained as many deeds as practicable, it will acquire the remaining portion of this strip through condemnation proceedings. ⁵⁷⁴ “ 'The City will institute condemnation proceedings against the rights and easements of this company upon the Liberty Road or Garrison Avenue as widened or intended to be widened, excepting from the effect of such condemnation all of this company’s structures and removable property of every kind; and, before the final confirmation of the condemnation proceedings, the City will have introduced and passed an ordinance bringing the tracks under the graduated park tax, such ordinance to be on the general outline of the Seventh Street or Bloomingdale Eoad ordinance, as far as the latter is applicable.

Of course, the provision as to the sub-grading and ballast will not apply, as the work is to be done by the State Roads Commission. “ 'The City is to take care of any claim or claims of Mr. Marburg or others growing out of or in connection with the yearly rental or charge of $250 for a single track on the Liberty Road, — by making Mr. Marburg or the proper person or persons parties to the condemnation proceedings. '"This company is not to oppose a nominal award in the condemnation proceedings after the passage of „ the above-mentioned ordinance, and is to receive no. compensation other than this nominal award for its rights along the Liberty Road or the 10-foot strip adjacent thereto. '' 'Very truly yours, '"J. Pembroke Thom, " 'Assistant General Counsel.’ '' 'December 13, 1910. “J. Pembroke Thom, Esq., '' 'Assistant General Counsel, " 'United Railways & Electric Co., Baltimore. “ 'Dear Sir: I have your favor of the 10th, relating to the Garrison Avenue situation, in which you , outline the plan proposed to be followed. The plan as outlined in your letter meets with my approval, ⁵⁷⁵ and is in accordance with the understanding reached between us. I will take the matter up before the Board of Estimates and let you know whether the plan is also acceptable to the Board. “ ‘Truly yours, “ ‘Edgar Allan Poe, “ ‘City Solicitor.’ “ ‘Baltimore, December 14, 1910. “ ‘Edgar Allan Poe, Esq., “ ‘City Solicitor. “ ‘Dear Sir: Your letter of the 13th instant, confirming the understanding as outlined in my letter to you of the 10th instant, in regard to the Garrison Avenue situation, to hand. I will be glad to receive advice from you that the plan is acceptable to the Board of Estimates, after the matter has been laid before that body. “ ‘Very truly yours, “ ‘J. Pembroke Thom, “ ‘Assistant General Counsel.’ “ ‘Copy of Minutes of Board of Estimates, December 20, 1910: City Solicitor Poe presented letter of Mr. J. Pembroke Thom, Assistant General Counsel of the United Railways and Electric Company, relative to the institution of condemnation proceedings upon Garrison Avenue.

Upon motion of Mr. Hooper, seconded by Mr. Mahool, it was moved that the plan for the condemnation proceedings on Liberty Eoad or Garrison Avenue be approved by the City, the City to take care of any claim or claims of Mr. Marburg, or others, growing out of or in connection with the yearly rental or charges of $250.00 for a single track on the Liberty Eoad, by making Mr. Marburg or the proper person or persons parties to the condemnation proceedings.’ ⁵⁷⁶ , “ ‘February 3, 1911. “ ‘J. Pembroke Thom, Esq., “ ‘Assistant General Counsel, “ ‘United Railways & Electric Co., Baltimore. . ■ “ ‘Dear Sir: I write to state that your letter, in which you outlined the understanding that had been reached between you and myself, in reference to the plan of procedure in connection with the laying of the railway tracks, etc., on Garrison Avenue, was submitted by me some time ago to the Board of Estimates, and the Board gave the plan its approval. “ ‘Truly yours, “ ‘Edgar Allan Poe, “ ‘City Solicitor.’ “ ‘Baltimore, February 4, 1911. “ ‘Edgar Allan Poe, Esq., “ ‘City Solicitor. “ T)ear Sir: I beg to acknowledge receipt of your letter of the 3rd instant, in which you state that the understanding outlined in my letter to you of December 10, 1910, reached between you and myself in reference to the plan or procedure in connection with the laying of railway tracks, etc., on Garrison Avenue, was submitted to the Board of Estimates and that the Board gave the plan its approval. “ ‘Yery truly yours, “‘J. Pembroke Thom, “ ‘Assistant General Counsel.’ ‘‘The proceedings were begun by a notice inserted in. the papers by said Annex Commission on November 10, 1911, and have been completed, that is, all appeals have been disposed of at the date of this agreement. In the proceedings for condemning and opening Garrison Avenue, a nominal award was