Lake Roland Elevated Railway Co. v. Hibernian Society , 83 Md. 420 ( 1896 )

Bryan, J.,

delivei'ed the opinion of the Court.

The Hibernian Society of Baltimox'e, a body coipox-ate and politic, brought suit against the Lake Roland Elevated Railway Company for damages alleged to have been caused to its lot of ground and improvements by the elevated structux-e of the defendant. The suit was tried on the plea of non cut.

The plaintiff offered evidence tending to show that this structure had caused damage to its property, which was variously estimated from five thousand to ten thousand dollars. The defendant offered testimony tending to prove that the building and maintenance of the structure had increased the market value of the property. This question was fairly submitted to the jury and decided by them. The defendant, however, contends that the plaintiff was barred by an estoppel from maintaining this suit. It offered evidence that a gentleman, who was president of the Hibernian Society, and several of its members, had signed a paper heartily approving of the elevated road, and expressing the hope that the Legislature would ratify the ordinance of the Mayor and City Council, which authorized its construction. It also offered in evidence the minutes of the society and certain of its by-laws. There is no evidence whatever that the signers of this petition had any authority to represent the society, or that they assumed to have any such authority, or that the society in any way recognized, approved or adopted their action. The gentleman who was president at the time when the memorial was signed died in August, 1892. The names of twenty-two persons are appended to the printed copy of the memorial which was offered in evidence. Sixteen of them were examined in behalf of the defendant. Some of them deny having signed and some do not remember whether they signed or not. But not one of them, according to his testimony, represented, or professed to represent, the Hibernian Society. The by-laws offered in evidence show that neither the president nor any of them had any such authority. The minutes of the society show no action authorizing or ratifying the memorial, and it is shown that the subject of the railway had never been brought to its attention at any meeting until December 1st, 1892, when the masonry of the elevated structure was two feet high, and that a committee appointed at that meeting called, on the following day, on the counsellor of the society and instructed him to institute legal proceedings to stop the work. The evidence offered by the defendant was admitted, subject to exception. It utterly fails to impose on the Hibernian Society any responsibility whatever for the memorial. On the motion of the plaintiff’s counsel, the Court excluded it from the consideration of the jury. There was then no question founded on it for the jury, and those prayers of the defendant were properly rejected which maintained that it might be made the basis of a verdict. The right of the plaintiff to recover depended on the question whether its property had been injured, and not on the questions stated in the second, third and sixth prayers of the defendant. They had no connection with this question, and' were also properly rejected.

Before the trial of the issue before the jury the defendant .filed a plea setting forth certain averments, which were relied on as creating an estoppel. The plaintiff demurred, and the Court sustained the demurrer. We infer from the briefs of the counsel that the Court made this ruling on the ground that the plea was equivalent to the general issue, and that therein it violated a well-known rule of pleading. The defence set up in this plea was made in the evidence before the jury. If the Court had overruled the demurrer, the plaintiff would have had a right to traverse the plea and the question would have gone to the jury on the evidence in the same way as it was presented at the trial. So no possible injury was done to the defendant, even on the supposition that the plea was receivable under technical rules.

It was said in -the argument that the Hibernian Society stood by and permitted the defendant to expend large sums of money in the erection of the elevated structure, without making any complaint; and a legal proposition was argued on the basis of this statement. It is not perceived how the society could have made any successful resistance to the building of the structure. It was authorized by law, and it was not in the power of any Court in the land to arrest it. The supreme legislative power of the State gave the defendant permission to build it, imposing on ib, nevertheless, the duty of paying for any damage which might be inflicted by it. The society at its first meeting after the commencement of the work, directed legal proceedings to be instituted to prevent its prosecution. But as this was not possible, it adopted the only legal remedy which it was competent to take. There was also a great deal of earnest argument for the purpose of showing that the persons who signed the memorial in favor of the legislative ratification of the ordinance were estopped from afterwards maintaining a claim for damages. As the Hibernian Society is not responsible for their action, it is not, perhaps, strictly necessary for us to consider this question. We may, however, say that those who were in favor of ratifying the ordinance which gave the right to build the elevated road must be presumed to have known that the railway company, by the terms of the ordinance, was required to pay for any damage which might be done by its construction. It cannot be assumed that they expected or desired that the company should be exempted from the responsibilities which were imposed by the very ordinance which it was so anxious to procure.

(Decided June 17th, 1896).

Judgment affirmed.