Leopard v. Chesapeake & Ohio Canal Co. , 1 Gill 222 ( 1843 )

Dorsey, J.,

delivered the opinion of this court.

The bill of exceptions, on which the present appeal is founded, presented for decision in the court below no question upon the pleadings in the cause. Whether the declaration states facts sufficient, if proved, to enable the appellant to maintain his action, or whether the facts proved sustain the allegations in the declaration? are questions which, in the case before us, under the act of 1825, ch. 117, we are not called on to decide. We are not permitted to affirm or reverse the judgment of the county court, upon any point which is not shown,By the record, to have been there raised and decided. The matter brought up for review in this court is the granting, by the court below, of the appellee’s prayer for an instruction to the jury, that upon the evidence given in the cause, “the plaintiff (the appellant,) is not, in the face of his said deed, entitled to recover for any damage done his mills, by reason of the construction of the canal across said public road, and the destruction of said public road.” The prayer as made to the court, for the purpose of obtaining its determination thereof, since the act of 1825, concedes by implication the sufficiency of the pleadings in the cause: and so far from inviting the court to the examination thereof, or raising any question thereon for its decision, it in effect withdraws them from its consideration, and invokes it to decide the isolated question whether such were not the legal effect and operation of the deed referred to, that, thereby the testimony given in the cause showed no cause of action in the appellant. The question raised by the prayer made to the court below bears no resemblance to the inquiries which the court are called on to make where an objection is raised to the admissibility of evidence offered, generally, in a trial before the jury. There the attention of the court is necessarily called to the pleadings in the cause; the admissibility of the evidence being entirely dependent on them. The court cannot judge of its pertinence or materiality but by their inspection. Nor is it like the case of a demurrer, which is a direct attack upon the pleadings themselves, wherein the court must of necessity inspect all the pleadings in the case, as well to enable it to ascertain the sufficiency of the particular pleading demurred to, as in giving its judgment thereon to mount up to the first material error in pleading. Nor does it resemble a motion in arrest of judgment, where the court have no means of judging of the validity of a verdict, but by referring to the pleadings and issues in the cause, upon which it wholly depends, and without which it has no operation, and is incapable of forming the basis of a final judgment in the cause.

The leading motive of the legislature in passing the act of 1825, was to’remedy an evil which had been severely felt and was loudly complained of, that in this court the judgments of the county court were reversed upon points never raised or decided below, and which, had they been there raised, would at once, by amendment or otherwise, have been obviated and never been presented for the consideration of the appellate court. Such is the nature of the objection now taken in this court, and such would have been its fate if raised in the county court. It is that the plaintiff below could not recover, because his cause of action has been defectively stated in his- declaration, though fully established by proof. Whether this defect exist or not, we have deemed it unnecessary to inquire; because the defect, if true, is excluded from the consideration of this court by the express words and legislative intent of the act of 1825. A different decision would, in a great degree, virtually operate as a repeal of the act of 1825.

Before the county court could grant the instruction prayed for, it must assume the truth of all the testimony given to the jury, tending to sustain the plaintiff’s right to recover, and of all inferences of fact fairly deducible therefrom. And must also determine, that so far as the rights of the appellant are concerned, the appellee had authority, for ever, to destroy that part of the public highway crossed by the canal. Assuming the non-existence of this right, whatever may be the imperfections of the declaration in the cause, we are clearly of opinion, that the testimony before the jury, if believed by them, was abundantly sufficient to entitle the appellant to a verdict. See the cases of Chichester vs. Lethbridge, Willes’ Rep. 71. Rose and others vs. Miles, 4 M. & S. 101. Hughes vs. Heiser, 1 Binney, 463. Greasly vs. Codling and another, 2 Bingham, 263. Wilkes vs. Hungerford Market Company, 2 Bingham’s New Ca. 281; and Stetson vs. Faxon, 19 Pick. Rep. 147.

The authority of the Chesapeake and Ohio Canal Company to destroy this public highway, and to perpetuate its destruction, has in the argument been claimed to exist under two distinct grants; the one emanating from the sovereign power of the State, through which the canal passes; the other from the appellant himself. Under the first, the charter of the Chesapeake and Ohio Canal Company, it is, in effect, asserted in the argument, that it has the power conferred on it, of occupying as its site, and of destroying by crossing, and perpetuating the destruction of every public highway between the City of Washington and the Ohio River. Such a proposition we think is not warranted by any act of legislation before us, and nothing but a grant of such a power in terms the most full and unequivocal, would induce this court to believe that the legislatures referred to, designed to confer it. Such terms are not to be found in the charter of the canal company, and we do not deem it necessary to use arguments or illustrations to show the nonexistence of such a power.

Assuming then that the Chesapeake and Ohio Canal Company has no right, in cutting its canal across public highways, utterly to destroy them, and that it is bound to unite, for the public accommodation, the highway thereby divided, by a reasonably convenient thoroughfare over or under its canal; has the appellant by the deed of conveyance he has executed to the company, precluded or estopped himself from claiming a right to use the highway thus illegally destroyed by the canal company? That a public prosecution for a nuisance might be sustained for this destruction of the highway, is we think quite clear, and that all persons, other than the appellant, who, by reason of this obstruction or destruction of the highway, have sustained any special or particular injury or damage, may maintain an action on the case against the canal company, appears to us, a proposition equally manifest. Is there, in the deed referred to, any stipulation or covenant, or any thing from which it can be implied, that the appellant contracted to surrender or disrobe himself of this privilege of using the public highway? a privilege possessed by every other citizen of the State. If there be, we have not discovered it. In construing this deed we must presume, in the absence of all proof to the contrary, (if indeed we could look to such proof, were it before us,) that the parties to it understood their relative rights, powers and duties, in respect to the subject matter of their contract. The parties then knowing that the canal company were bound to re-construct and keep open the highway for the benefit of the public, could the appellant suppose, that in executing the deed before us, he surrendered for ever a highly valuable privilege, of which every other member of the community Was left in the free and uninterrupted enjoyment. What motive could he have had in making, or the canal company in exacting, such a surrender? The record discloses nothing from which we can be induced to believe that it was the intention of the parties to the deed, that such a sacrifice should have been made. And if in construing the deed we could look to the proof in the record, we could not be induced to believe that the appellant knowingly assented to it. That an annual income of one thousand dollars, pertaining to realty, and which might endure forever, would, for the gross sum of $> 1,075, be surrendered and forever abandoned, cannot in our opinion be predicated of the appellant, under the circumstances of this case. The doctrine of estoppel, so much relied on in the argument, we regard as wholly inapplicable to the case before us. The appellant claims no privilege; asserts no right inconsistent with his grant.