Owings v. Worthington , 10 G. & J. 283 ( 1838 )

Dorsey, Judge,

delivered the opinion of the court.

The application in this case.is for a private road or way to the Patapsco Falls, to pass over the same in order to reach the Baltimore and Ohio rail road, which is the nearest convenient public road to the farm of the petitioner. The applicants also state, that after they cross the said falls, they have obtained the permission of all those who own the lands in Anne Arundel county, through which it is proposed to carry said private road, that the same may be made to the said rail road free of any compensation for such permission; The powers vested in the levy court or commissioners by the act of 1834, is a delegation of a special authority, and the proceedings under it must display the authority by which they are had, and be in conformity thereto, or they are coram, non judice and void. The application must set forth such a private road or way as the commissioners or levy court are authorised to grant, or they have no jurisdiction over the subject matter, and all their proceedings are a nullity. The appellants applied for a private road or way to the Patapsco Falls, which is not, and could not have been, alleged tobe a public highway, or any other of the places enumerated in the act of assembly. To warrant the action of the commissioners to enable them to exercise any jurisdiction over the subject, a case must be presented to them in which they are competent to grant all the relief designed for the applicants; by the act of assembly they must have the power of granting the way to the Baltimore and Ohio rail road, or they have no power at all. A case like the present was not contemplated or provided for by the act of assembly. No action could, in such a case, have been had by the levy court or commissioners of Anne Arundel county, and the allegation, that the intervening land holders in Anne Arundel had granted permission for the extension of the private road to the Baltic more and Ohio rail road, could not confer on the commissioners of Baltimore county, a jurisdiction they did not otherwise possess. Had a continuous way in both counties been looked to by the legislature, the appropriate means of locating it would have been provided. If it be-held sufficient to entitle a party to a pri-vate road or way to any point or place not specified in the privilege granted by the act of assembly, simply by the allegation that from that point or place he has permission of the intermediate land holders to extend the way to some of the places enumerated in the law, all the limitations and restrictions as to place, in the granting of private ways, become a dead letter, and an applicant may obtain a private way any where, without reference to the place or object for which it is granted, in direct violation of both the letter and spirit of the act of assembly. An insuperable objection also to the granting of the way, as prayed for, is, that it crosses a public highway before it rettch» es the Patapsco Falls, which the act of assembly does not warrant. It authorises the grant of a private way to a public highway, not the crossing and going beyond it. The only remaining ground of appeal from the proceedings of the Chancellor is, the dismissal of the appellant’s petition, praying for the appointment of an earlier day for the hearing of the motion to dissolve the injunction, and for an order on the appellee to file an injunction bond. ■ The appellants having appeared in the Chancery court, filed their answer and entered on the docket notice of motion to dissolve the injunction, to be heard at the succeeding July term, it is difficult to conceive what benefit could result from an appeal from the decision of the Chancellor, on such an application as that now before us. The application too, from its nature, was an appeal exclusively to the discretion of the Chancellor, over which this court have no control. From the views hereinbefore expressed upon the merits of this controversy, and the rights of the parties, we could not do otherwise than approve of the Chancellor’s dismissing the appellant’s petition, so far as it applied to the granting an order to the appellee to file an injunction bond.

The orders of the Chancellor appealed from are affirmed with costs, and cause remanded to the Chancery court.

order, affirmed.

Buchanan, C. J., dissented.