Washington, Baltimore & Annapolis Electric Railroad v. Linthicum

Thomas, J., delivered the opinion of the Court. The bill of complaint in this case was filed in the Circuit Court of Baltimore City by Seth Hance Linthicum, Wade Hampton Linthicum- and M. Delmah Linthicum, his wife, against the Washington, Baltimore and Annapolis Electric Railroad Company for the specific -performance of a covenant contained in a deed from the plaintiffs to the Washington, Baltimore and Annapolis Electric Railway Company, or for compensation to the plaintiffs for the loss and damage sustained or that they will sustain by reason of the failure of the defendant to perform said covenant. The bill was answered by the defendant, and about three hundred and fifty printed pages of evidence was offered in support of the respective contentions of the parties. The Court below refused to- grant the relief sought’ and dismissed the plaintiffs’ bill.

On appeal that decree was reversed, and the case was remanded in order that the Chancellor might ascertain, from the evidence already taken, and such additional proof as the parties desired to offer, the compensation proper to be awarded to the plaintiffs fo-r the loss they have suffered and ²⁵⁹ will continue to suffer because of the non-performance of the covenant. The appeal referred to is reported in 12é Md. 263, and the facts of the case are stated in the opinion delivered by Judge Stockbridge as follows: “The Baltimore and Annapolis Short Line Railroad, which will hereinafter be referred to for sake of convenience as ‘The Short Line,’ was prior to the 15th of March, 1907, operating an electric railroad between Baltimore and Annapolis, and its route in part was along and over a right of way which had been acquired from the plaintiffs, or their predecessors in title. In the year 1906 and early part of 1907, the construction of an electric railway between the cities of Baltimore and Washington and Annapolis was begun by a corporation which had been formed for that purpose, bearing the name of the Washington, Baltimore and Annapolis Electric Railway Company. The route to be followed by this road, as laid out by the engineers, involved a double crossing of the tracks of the Short Line, as they existed at that time.

Negotiations were entered into between the W., B. & A. Ry. Co. and certain members of the Linthieum family which culminated in certain conveyances bearing date March 15th, 1907. The effect of these was to shift the location of the Short Line tracks a little to the south and east of the projected route of the W., B. & A. Ry. Co. over land which was acquired from the Linthieum family, thus enabling the W., B. & A. Ry.

Co,, to construct a route partly over the former fight of way of the Short Line and certain additional land acquired from the Linthicums, so as to avoid a crossing of railway tracks by one road over the other. This arrangement was consummated by two deeds, one a conveyance from Laura E. Linthieum, W. Hampton, M. Delmah and Seth Hance Linthieum to the Terminal Real Estate Company, of the land for the right of way to be used and occupied by the Short Line under its relocation ; and the other from the same grantors to the W., B. & A. Ry. Co, of the additional land needed by the cor ²⁶⁰ poration for the construction of its railway; this deed was executed for an expressed consideration of $1,450, and the performance of the covenants and conditions contained in the deed, the two most important of which related to' crossings and the establishment of a platform station. The covenant with regard to the crossings was that the railroad company was ‘to immediately construct and maintain three crossings of not less than 20 feet on the surface over its right of way and over the Baltimore and Annapolis Short Line Bailway at the places indicated on the plat hereto attached and crossing said right of way on the property hereby conveyed and on the property conveyed by the parties of the first part to the Terminal Beal Estate Company of Baltimore City by deed of even date herewith, with easy approaches thereto of not more than 4% grade and with a roadbed of not less than 20 feet wide in good condition.’ In the deed of the same date from the same grantors to the Terminal Beal Estate Company, the grantors reserved ‘to themselves, their heirs and assigns over the described lot a private crossing 20 feet wide at the point shown upon said plat,’ referring to the plat attached to the deed to the W., B. & A. By.

Co. The rights, and of course restrictions upon those rights, so granted to the Terminal Beal Estate Company passed by conveyance from it to the Short Lina “The W., B. & A. Electric By. Co-, became insolvent, and was directed to be sold under a decree of the Circuit Court of the U. S. for the District of Maryland. At this sale the property was purchased on behalf of a corporation bearing the name of the W., B. & A. Bailroad Oo'., a corporation having practically the same executive officers as the insolvent railway Company, but with some changes of stockholders and bondholders from those of the railway company.” “By an agreement made between Wade Hampton and Seth Hance Linthicum and either the railway or railroad company, of the three crossings covenanted for in the deed of March 15th, 1907, two were consolidated to> make one cross ²⁶¹ ing 40 feet in width, in place of two 20 feet each, and the third crossing has never been constructed by either the railway or railroad company. It. is for the specific performance of the covenant in its relation to this third crossing that the present bill was filed, with the alternate prayer for an award of compensation should the Court refuse a decree for specific performance.” We said in the former appeal that the “purpose to be served by the installation of the crossing is the development, for suburban residences, of a tract of 58 acres belonging to the plaintiffs,” and that the damages claimed in the case “were two-fold in their nature; namely, the damage alleged to have resulted to the plaintiffs between the time of the execution of the deed of March 15th, 1907, and the time of the institution of this proceeding; and, second, the permanent injury to the plaintiffs’ property by reason of being deprived of the crossing.” There was no evidence in the record from which the Court could ascertain the damages sustained by the plaintiffs prior to the institution of the suit, but in reference to the permanent injury the Court said: “With regard to the second element of damages, the estimates varied considerably, from $650 to $9,000 — the plaintiffs themselves placing the damages at $6,000, while their expert witnesses gave higher figures.

The case presents practically the same elements as are involved in a condemnation case, namely, the determining upon conflicting evidence of what is fair and just compensation, and the important question is, how shall this determination be made?” After the case was remanded, the lower Court, upon the evidence previously taken and the additional proof offered by the plaintiffs and the defendant, and after the Chancellor had viewed the property at the suggestion of counsel for the Railroad Company, awarded the plaintiffs the sum of $6,000, and from its decree requiring the defendant to pay that sum to the plaintiffs, the defendant and the plaintiffs have brought these appeals. ²⁶² The property wbicb contains, as we have said, about sixty acres, is situated on tbe west side of tbe Railroad Company’s right of way, in Anne Arundel County, between five and six miles from Baltimore City. The land rises to quite an elevation above tbe railroad, wbicb runs north and south, and extends west to a road called Hammond’s Ferry road. Wade H. and Seth H. Linthicums’ bouses or dwellings, with about three acres surrounding each of them, are located on that part of tbe land adjoining tbe company’s right of way. South of tbe residence of Seth H. Linthicum, and about four hundred feet from tbe southern limits of the plaintiffs’ property, the^e is a depression in tbe bill, and at that point tbe plaintiffs bave opened a road called Maple road, from tbe railroad extending west to tbe Hammond’s Ferry road.

At tbe intersection of Maple road and tbe company’s right of way, tbe company constructed tbe crossing forty feet in width, referred to by this Court in tbe former appeal, and erected a station, and tbe road crosses tbe tracks of the W., B. & A. Railroad and tbe Short Line Railroad to the State road running to Baltimore City, spoken of in the evidence as tbe Boulevard. Tbe crossing in question in-this case is six hundred feet north of tbe Maple road crossing and tbe station. At that point there is another depression in the land of tbe plaintiffs, and they intended to open another road through their land from that crossing extending west to tbe Hammond’s Ferry road, with the view of dividing tbe land fronting on that road into building lots. Tbe crossing would afford a direct outlet from those lots and tbe Wade H. Linthicum residence, across tbe tracks of the W., B. & A. and Short Line Railroads, and over tbe intervening land of tbe plaintiffs, to tbe Boulevard, on tbe opposite side of wbicb is another suburban settlement known as Linthicum Heights.

Tbe evidence adduced by tbe plaintiffs tending to show tbe damages they will sustain by reason of tbe defendant’s failure to construct and maintain tbe crossing in question, is based upon the theory that tbe land is available for development for suburban residences. ²⁶³ Bruner R. Anderson, a member of tbe bar, wbo owns land in the neighborhood of the plaintiffs’ property and has had some experience in developing property in Anne Arundel County, testified that if a road was extended from the crossing over the land of the plaintiffs to the west, twenty-five lots could be laid out fronting on the road, and that these lots would be worth with the road and crossing about four hundred dollars apiece, and that without the crossing they would be worth not more than two hundred dollars apiece, and that the house occupied by Wade Hampton Linthicum, and the three acres of land surrounding it, would be worth about one thousand dollars more with the crossing. In other words, that the damages the plaintiffs will sustain by reason of the failure of the defendant to construct the crossing will amount to $6,000. Thomas R. Bond, who has been in the real estate business and engaged in the development of suburban property for a number of years, testified that about fifty lots could be laid out on a road opened from the crossing over the land of the plaintiffs; that these lots would be worth one hundred dollars apiece less without the crossing, and that the house and three acres of land surrounding it occupied by Wade Hampton Linthicum would be worth eight thousand dollars with the crossing and about five thousand dollars without the crossing. A. Robinson White, a real estate broker of Baltimore City, when asked to state what additional value would be given to the property of the plaintiffs if it had a convenient outlet over the railroads at" the crossing ■ in question, said: “I divide the lots not into building lots, but into acreage, taking say thirty acres which will front on this new proposed road.

I think that today in the open market it would sell by the acre at $150 per acre. I think with the new road to go through there and the right to go through it, it would sell for $300 an acre. I think that the house on the comer of the proposed new road and the electric line which was worth $5,200, would sell for that in the open market with ²⁶⁴ the road open and the right to go through it, and without the road it would be worth about $2,600 or $2,500 — In