Webb v. Baltimore & Ohio Railroad

Pearce, J., delivered the opinion of the Court. The appellants, being tenants in common of two adjoining unimproved lots of land in the City of Baltimore, brought this suit at law against the appellee, the Baltimore and Ohio B. B. Co., for alleged injury to their fee simple estate in said lots of land, resulting from the laying by the appellee of an additional track on Ostend street upon the north side of which street said lots abut. The declaration alleges that Ostend street is a public highway ppon which for many years the appellee has maintained its railroad tracks in front of the plaintiffs’ said property, and on which it operated a steam railroad, but that the northern part of said street, for a width of about twenty feet, has been until recently, unobstructed by tracks, or in any other manner; that recently in virtue of an ordinance of the Mayor and City Council of Baltimore, the defendant has laid an additional track on the north side of said street immediately in front of the appellants’ said property, and has raised the roadbed of the street under said track which is to be used in operating the trains of the appellee; that in consequence thereof the general public has been entirely obstructed from the roadbed of said street in front of the appellants’ property for the whole distance between Bussell and Bidgely streets, and it is not possible to use any portion of said street bed in front of their property for the passage of vehicles; that thereby their property has been entirely deprived of the use of Ostend street for the passage of vehicles, and its value ²²⁴ greatly injured and depreciated, not only by such obstruction of tbe street, but also because tbe trains of tbe appellee will be much nearer to tbeir property, with greatly increased .noise, dirt and danger, affecting its rental as well as its salable value; and that though the said ordinance authorized said obstruction, yet by the express terms of the Code, Art. 23, sec. 255, the appellee is liable in damages for the injury occasioned by such location of said track. The appellee pleaded that it did not commit the wrong alleged, and the case was tried before the Court without a jury, resulting in a verdict for the defendant under the instruction of the Court, and from the judgment on the verdict the plaintiffs have appealed.

It was admitted that the plaintiffs had title to the property in question, and that Ostend street was a street owned by the Mayor and City Council, with a right of control over it by them, and a copy of the ordinance inferred to was admitted in evidence authorizing the laying of the track in question. It was also admitted that the track on Ostend street between Bussell and Bidgely streets was laid between May 1st and December 1st, 1908. Mr. Sutton, a surveyor who made a plat of the locus- in quo used in his examination, testified that there were three tracks in use at that point before the laying of the track in question, making now four in all, of T rail construction, and so laid that wagons cannot use the part where the tracks are laid; that the plaintiffs’ lots at that' point are not graded, being elevated above the street, and that there is an open ditch some fifteen feet south of the north side of Ostend street, and no sidewalk or actual roadway, but a slope from the ends of the cross-ties of the new track to the bottom of the ditch, and from thence a slope up to the north building line of Ostend street; that it is 66 feet from the-north rail of the new track to the north building line of Ostend street, and that the rule has always been to allow one-fifth of the ²²⁵ total-width of the street for a sidewalk on each side, leaving three-fifths for the roadbed between the curbs, and that he had known Ostend street for twenty-five years, and has never at anytime seen it used as a street between Russell and Ridgely streets; there are no houses on Ostend street between Russell and Ridgely, but west of Ridgely there is a row of houses on the north side of Ostend street set back a few feet from the building line, with a narrow brick walk in front. East of Russell street, Ostend has not been opened for passage of vehicles north of these tracks, but south of the tracks there is a travelled way, part of which he thinks is on private property.

The plaintiffs then called Messrs. David M. Aewbold, Jr., and John J. Hurst. Mr. Mewbold is an attorney, associated with his father in real estate development in Baltimore City, and has known the property in question since 1905, and has frequently examined' the property, and kept in touch with sales in that neighborhood, as the representative of the plaintiffs. Their property fronts 310 feet on Ostend street.

One-half of this frontage runs back 264 feet on Ridgely street to Stockholm street, and the other half runs back on Russell street 100 feet towards Stockholm street. The property in the rear of this latter half on Stockholm street is the-only improved property in that block and does not belong to-the plaintiffs. Mr. Aewbold said he knew the value of this property May 1, 1908; that 264 feet on Ridgely and 100 feet ,on Russell, 364 feet at $3.00 a foot capitalized, is $50, about $18,200. That was a fair value at that time.

Property in that neighborhood has sold from $2.00 to $4.25 a front foot. This property is adapted for factory or commerical purposes, or for dwellings. It would cost about $3,000, or fifty-five cents a foot, to grade it, and he took that in account in his estimate of $3.00 a foot. After the new track was laid the property was worth about $15,800.

Before that, there was about 24 feet between the former north track and where the ²²⁶ curb would be, affording adequate space for a wagon to drive between the track and curb, and to load and unload.' How the space is reduced in one place to ten feet. He estimated that after the blocking of the street by the new track, in order to restore the twenty-four foot space between the old north track and the place for the curb, it would be necessary to take off fourteen feet of the property on Russell and the same on Ridgely streets, thus moving back the whole Ostend street front. This reduces the combined frontage on Ridgely and Russell streets from 364 to 336 feet, or twenty-eight feet, which at the former valuation of $50 a foot, makes a loss in value of $1,400, to put the property in the same relation to Ostend street which it bore before the new track was laid. Mr. Hurst is also an attorney devoting most of his time to real estate development and admitted by the defendant to be an expert in that line.

He knows this property and owns three houses on the south side of Ostend street west of Warner street which is the next street east of Russell. He testified that if he owned the plaintiffs’ property he would set aside from Ostend street enough to make up what was taken from the bed of the street by the railroad’s last track, and would arrive at the value of that by valuing the amount of land left. His method of valuation was not precisely the same as Mr. Hewbold’s, but the result was the same, viz, a loss of $1,400. Hpon this testimony the plaintiffs rested, whereupon the defendant offered, and the Oourt granted, the following prayer: “The defendant prays the Court to rule as a matter of law, that under the pleadings in this case there has been offered no evidence of damages to the property of the plaintiffs of such a character as to be legally sufficient to entitle the plaintiffs to recover, and therefore its verdict must be for the defendant.” ²²⁷ The exception to this ruling presents the only question raised by the record. .The position of the defendant in its argument has, as we think, been correctly epitomised in the appellant’s brief in these words: “The street at this point was not actually in use as a street, but was devoted exclusively to railroad purposes as fully as though it were a private railroad right of way.

The plaintiffs’ property never had used it, could not use it, unless some filling up of the ditch was done, and might never have occasion to use it. The plaintiffs’ property was unimproved before the new track was laid and is unimproved now. It has not changed hands or been sold or leased, since, and there is no sufficient proof either that the new track has depreciated its value, or if so, to what extent the depreciation has gone.” We think that view of the situation leaves out of consideration the primary purpose for which streets are opened and laid out, and the obligation of the municipal authorities to preserve the beneficial enjoyment of the streets by the abutting landowners as a constituent part of the general public. In Lake Roland El.

R. R. Co. v. Baltimore City, 77 Md. 377, Judge Beyaüy said: “The control of the city over the streets is attended with the duty of preserving them for their legitimate purposes. They are intended for the passage of people over them, on foot, on horseback and in vehicles, on their various occasions of business, convenience, or pleasure. It is not competent for the city to defeat the primary purpose for which they were dedicated to the public use”; and Judge Alvey, in an opinion in the same case overruling a motion of the appellant for a reargument; said: “The primary use of the streets is not, by any means, that of furnishing tracks for street railways. The Mayor and City Council cannot divest themselves of this trust, nor can they so restrict their power over the streets as to defeat, or seriously impair, the beneficial enjoyment of the streets by the public in the ordinary and usual modes of passage thereon.” That case was ²²⁸ approved, in Poole v. Falls Road R. W. Co., 88 Md. 538 , and in C. and P. Tel.

Co. v. Baltimore, 89 Md. 710 , and the principle thus declared we do not understand to he questioned by the appellees, though its application to the case at bar is apparently denied. As will be seen hereafter, however, we are of opinion that it has direct application to this case, and that it may be regarded as conclusive of this plaintiff’s right to recover. We have given very careful consideration to the cases relating to the recovery of damages for cutting off access to one’s property, and especially in reference to the character of proof which will warrant recovery in such cases, though the appellees have not cited either in their brief or in the oral argument any authorities for their position, but have contented themselves