Shipley v. Western Maryland Tidewater Railroad , 99 Md. 115 ( 1904 )

This is an appeal from an order of the Circuit Court of Baltimore City refusing to grant an injunction against the appellee on the bill and exhibits filed by the appellant. The defendant is constructing a line of steam railroad from a point near Walbrook to the Patapsco river, being incorporated under Art. 23 of the Code of Public General Laws. On the 3rd day of April, 1903, the railroad company condemned, under separate proceedings, two parcels of land of the appellant, referred to in the record as lot 1 and lot 2.

Lot 1 contains 73-100 of an acre of ground, and is a part of a parcel of land owned by the appellant in fee containing 2 and 83-100 acres, bounded on the north and east by Gwynn's Falls, on the south by Harlem avenue, and on the west by Tenth street. It was conveyed to him by a trustee authorized to sell the real estate of the Heald estate, and the deed describes the land as binding on Harlem avenue, Tenth street and Gwynn's Falls. The plat filed with the condemnation proceedings of lot 1 shows that it takes all of the front of the appellant's land on Tenth street, between Harlem avenue and Gwynn's Falls, and abuts on the falls on the north and the avenue on the south.

The bill alleges that the avenue and street are not public highways, that the appellant has a private right of way in them, and that by virtue of the Act of 1892, ch. 684, he has a reversionary fee-simple interest from the southern and western boundary lines to the centre line of Harlem avenue and 10th street. It also alleges that Gwynn's Falls is a private, non-navigable and non-fordable river of water, and that by his purchase the appellant also acquired a fee-simple estate to the centre line of that stream, together with all the beneficial uses of the water therein.

Lot 2 contains one and 87-100 acres and is a part of a larger tract leased to the appellant for ninety-nine years. The description of this lot calls for Gwynn's Falls, and runs with its eastern bank for a considerable distance. The interest of the owners of the fee and the leasehold of the appellant were condemned. The bill alleges that the appellee proposes to use the plaintiff's property interest in the bed of Gwynn's Falls for the construction of an embankment, and to divert the natural flow and course of Gwynn's Falls, and in so doing it will destroy the regularity of the current and make the flow fitful, etc., and thereby greatly injure and impair the value of the plaintiff's land adjacent to lot 2. The plat filed shows that the appellee does propose to cross the present course of Gwynn's Falls, and to divert the flow of it so that the water will run on the easterly side of lot 2, but within the lines of that lot. The contention of the appellant is that the appellee has only condemned and paid for the two lots contained within the courses and distances given in the condemnation proceedings, and particularly shown on the plats, and that it cannot occupy the part of Harlem avenue which he claims to own, or occupy or divert Gwynn's Falls under the condemnation proceedings spoken of. We will request the reporter to print with this opinion one of the plats used at the argument, which is conceded to be sufficient to show the two lots condemned and their relation to the streets and Gwynn's Falls the shaded line being the outlines of the two lots.

1. The appellee did not deny at the argument that the deed to the appellant by virtue of the Act of 1892, ch. 684, passed to him all the right, title and interest of the grantor, to the

[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.] centre of Harlem avenue, and by the common law, as construed in this State, likewise gave to him the fee in the bed of the falls to the centre line, with the beneficial use of the waters of the stream. Browne v. Kennedy, 5 H. J. 195, and Gump v. Sibley,79 Md. 165. But it contends that it was not necessary to specifically mention Harlem avenue or Gwynn's Falls, in the condemnation proceedings, and that the damages allowed by the jury covered all those the appellant was entitled to as owner of lot 1, including any that he may sustain by the appellee's occupancy of that avenue and the falls.

We will first consider his contention with reference to Harlem avenue. The bill alleges, and one of the plats filed shows, that this avenue rises from Gwynn's Falls to 10th street, with about a twelve per cent grade, and that the appellee proposes to make a cut across the avenue abutting on lot 1, of a depth of twelve feet on the west side and four feet on the east side of its road, as proposed to be made; that this cut will absolutely destroy the plaintiff's easement of a private right of way, which is appurtenant to and belongs to the remaining land between lot 1 and the falls, binding on the avenue, and the egress from and the ingress to said remaining land "will be destroyed and not only obstructed," and that his reversionary interest from the southern line of lot 1 to the centre of the avenue will be taken.

The jury was "sworn and charged justly and impartially to value the damages which the said Charles Shipley will sustain by the use and occupation of all that lot or parcel of ground owned by him, which is described as follows: " — the description was then given of this lot as included within the shaded lines on the plat above mentioned. That oath is prescribed by sec. 167 of Art. 23 of the Code. The inquisition concludes that the jurors "do find and assess the said damages to the said Charles Shipley at the sum of six hundred dollars, for the use and occupation inperpetuity, by said company, of said parcel of land for its railroad." The theory of the appellee is that inasmuch as the jury was sworn to value the damages which the owner would sustain by reason of the occupation and use of this lot, and accordingly fixed "the saiddamages," they were called upon to allow and did allow all damages he sustained, including those now complained of. The general rule is that "The measure of damages is the difference between the value of the whole tract before the taking, and the value of the remainder after the taking." Lewis on Em. Domain, 471A, and that "damages must be assessed once for all, and that when once assessed according to law, they include all the injuries resulting from the particular appropriation and from the construction and operation of the works in a reasonable and proper manner for all time to come." Ibid, 565. But the damages referred to by that author are those resulting from the taking and use of the particular tract condemned, and that cannot refer to such damages as will result from the taking of some other property of the owner, within the lines of the proposed road. Suppose, for example, the appellant had owned the land on the south side of Harlem avenue, through which the road runs, it could not be successfully contended that inasmuch as the plats showed that the road would go through that land in order to reach that contained within the lines of lot 1, therefore the damages allowed for lot 1 included those that he would sustain by taking his property on the south side of Harlem avenue. Or, to take another illustration, which is still more analogous, suppose the description of the land in the condemnation proceedings had only included a lot of 181 instead of 281 feet in depth, north of Harlem avenue, but the plat showed that the centre line of the proposed railroad ran through the whole lot to Gwynn's Falls, could it be pretended that the jury had allowed damages for the whole lot to Gwynn's Falls, and therefore the appellee could take possession of it? Surely not. When the law authorizes the jury to consider the damage to the remainder of an owner's land, it refers to that portion which is not included in the inquisition, but not to some part of the tract which will be actually taken and is not included within the description given in the proceedings. As it is conceded that the Act of 1892 vested the fee in the appellant to the centre of Harlem avenue, there would seem to be no room to doubt that a railroad company cannot take the interest he thus had without compensation — especially in the manner that this is proposed to be used, making a cut from four to twelve feet deep. That Act certainly does notin terms include land acquired by condemnation. It provides that "all devises, gifts, grants or conveyances of land binding on any street or highway * * * shall be construed to pass to the devisee, donee or grantee therein, all the right, title and interest of the devisor, donor or grantor of the said land," etc. The appellee is neither a devisee, donee nor grantee of this land, but it is said on its behalf that the statute provides that after the inquisition is confirmed, the valuation when paid or tendered "shall entitle the said company to the estate and interest in the same thus valued, as if it had been legally conveyed by the owner or owners of the same," and that hence the condemning company has the same right to the street that the owner had under the Act of 1892. But that provision is immediately preceded by this. "and the inquisition shall, in all cases, describe the property taken or the bounds of the landcondemned, and the quality or duration of the interest in the same, valued for the company, and such valuation when paid or tendered * * * shall entitle," etc. "The same" refers to "theproperty taken or the bounds of the land condemned," described in the inquisition, and does not refer to any estate or interest in land not so described.

The description of the land in those proceedings would, however, seem to affirmatively exclude any idea of taking under the condemnation of lot 1 any interest of the appellant in Harlem avenue. It reads thus: "Beginning at a point where the centre line of the said Western Maryland Tidewater Railroad crosses thedividing line between the lands of the said Charles Shipley andthose of the C.M. Heald estate (Harlem avenue), and running thence with said dividing line south 87 degrees 19 minutes west 46.52 feet to a point, said point being the northeastern corner of Tenth street and Harlem avenue (C.M. Heald estate), thence with said dividing line" and then after describing the westerly, northerly and easterly lines of lot 1 calls to go "to a point in the line between the lands ofthe said Charles Shipley and those of the said Heald estate, thence with said line," etc., to the beginning. That description is in the application for the warrant and in the inquisition, andthe dividing line on which the description begins and ends is the southerly line of lot 1, which is on the northerly side of Harlem avenue. It refers to the lands on the other (southerly) side of the dividing line, as those of the Heald estate — thus in terms excluding all idea of ownership by Shipley on that side of the dividing line, and hence it would seem impossible to suppose that the jury in their valuation had allowed anything to Shipley for land which they expressly said belonged to the Healdestate. If the company desired to say to the jury, and the jury wanted it understood that nothing was to be included in their valuation for anything south of that line, it would have been difficult for them to have expressed it more plainly than they have thus done.

But independent of that, we have seen that the statute expressly requires that "the inquisition shall in all casesdescribe the property taken, or the bounds of the land condemned,and the quality or duration of interest in the same, valued forthe company." There is nothing whatever in this inquisition, or in any of the proceedings before the jury, to indicate or intimate that the appellee proposed to take any land outside of the bounds of this lot. It is true that there is in the record a stipulation signed by the attorney for the railroad company in reference to the obstruction of the easement of the private right of way of Shipley in Harlem avenue, but giving that all the possible effect that can be claimed for it, it was apparentlyfiled in Court and was not before the jury — it is certainly not made a part of the inquisition and nothing is said in that about it, or any rights Shipley had in Harlem avenue. Under our statute the property of infants, those who are non composmentis and non-residents can be condemned, and in the case of the latter notice can be given by publication in a newspaper of the meeting of the jury of inquisition. There is therefore good reason for requiring that the inquisition shall in all cases describe the property taken, or the bounds of the land condemned, for it might be that an owner would sustain much more serious injury by the taking or destruction of some rights not mentioned, than by the taking of the property described. Take this case for illustration. If the appellant's estimate of the value of his property that remains, which he claims will be destroyed, proves to be anywhere in the neighborhood of what it is really worth, it is vastly more valuable than what the jury allowed, and yet if the appellee's theory is correct the railroad company might acquire that interest for a small sum by not disclosing in any of the proceedings that it was being taken. Or in case of a non-resident the jury might act in his absence without his having any actual knowledge that the proceedings had been instituted and the jury might not be informed as to what they were passing on. It is perfectly feasible to make it appear in the proceedings, with reasonable accuracy, what property and rights are proposed to be taken, and when they are thus taken against the will of the owner, under the power of eminent domain, there ought to be as definite a description of them as can well be given. Of course unjust demands by property owners should not be encouraged, or permitted to improperly stand in the way of public improvements, and Judges oftentimes see in the discharge of their duties how rapidly values of properties seem to rise when it is known that a railroad company wants to acquire those along the line of its proposed road, but it is only reasonable to require a company vested with the power of eminent domain to so describe "the property taken or the bounds of the land condemned," that there will be no mistake as to what is to be taken.

Much of what we have just said also applies to Gwynn's Falls north of lot 1. The description of the property as to that is as follows: "Thence with said dividing line N. 2 degrees 24 minutes west 281.00 feet to the southern edge of Gwynn's Falls, said point being the common water-mark of said Gwynn's Falls," and the northernly line of lot 1 runs, according to the plat, along the southern edge of the Falls. Any land owned by Shipley beyond that is not included within "the bounds of the land condemned," nor does the inquisition describe or refer to any property rights in that stream belonging to him, which the company proposes to take. The jury was sworn and charged to value the damages which the appellant will sustain by the use and occupation of the lot described — not some other lot or parcel of ground owned by him, but that described in the inquisition.

The learned counsel for the appellee laid considerable stress on the case of Phipps v. Western Maryland Railroad Company etal., 66 Md. 319. There this Court affirmed a decree dismissing a bill for an injunction which was filed to restrain the railroad company from maintaining and using the railway tracks laid partly on the sidewalks and partly on the carriage way in the bed of a street in front of the complainant's property. A part of their land had been condemned by the Western Maryland Railroad Terminal Company, which by its charter was authorized to provide terminal facilities for the business of the Western Maryland Railroad Company, and the tracks on the land condemned were connected with those of that Company. This Court, after referring to the well known doctrine that the Legislature had no power to authorize the Terminal Company to take the property of the complainants without compensation, said a new burden was imposed on the estate of the owners of the fee by laying the tracks in the street, but the injunction was refused on the express ground that the complainants had been compensated by the jury, in the condemnation proceedings, for damages sustained by the use of the street, as well as those for the lot actually taken. BRYAN, J., in delivering the opinion of the Court, said, "The Sheriff's return shows that the jury was sworn to value the said triangular lot and the improvements on it, and the other damages which the owners would sustain by the taking of the land * * * and theinquisition itself shows that the jury made an estimate both of the property, and the other damages which would result to the owners from the taking of it." Again he said, "It is also clear to us that they paid these owners all damages which were caused by the laying of the tracks." While we think it would be better practice under such facts as we have in this case to describe with accuracy the portion of a street, or bed of a stream, proposed to be taken, if the proceedings showed by some appropriate reference to it that such was in fact taken and valued, this case would be within the meaning of Phipp's case, but as we have already intimated, we think the proceedings relied on not only do not show that damages were allowed to the appellant for injury done to him by the use of the avenue or the falls, but they show the contrary, so far as they at all reflect on the question.

2. The bill alleges in reference to lot 2 that the defendant threatens "at once to take and use the plaintiff's property interest in the bed of Gwynn's Falls for the construction of an embankment * * * and also to divert the natural flow and course of Gwynn's Falls * * * and thereby greatly injure and impair the value of the plaintiff's land adjacent to lot 2, and extending to the east along Gwynn's Falls for a long distance." Although the appellant only owned the leasehold interest in this property, the case of Gump v. Sibley, supra, would seem to give him the same right to the center of the stream under this lease for ninety-nine years, that he would have had if it had been conveyed to him in fee. From what we have said, it will be apparent that we are of the opinion that his rights in this stream cannot be thus taken without compensation. Sec. 167 of Art. 23 of the Code expressly provides for condemnation proceedings for the diversion of streams, but no reference is made to that in this inquisition and it is evident that no damages have been allowed for it.

3. In view of what we have stated, we are of the opinion that the injunction should not have been refused. Whether or not the appellee can successfully answer any of the material allegations in the bill we cannot tell, and, of course, we have for the purposes of this case as now presented to us assumed them to be correct, and if they are, under our construction of the rights of the appellant as alleged, he is entitled to an injunction. The case of American Telephone and TelegraphCompany v. Pearce, 71 Md. 535, is sufficient authority for that, without citing other cases. It was there said "We have no doubt as to the sufficiency of these averments, or of the jurisdiction of a Court of equity to grant an injunction in such cases," and after stating that a telephone or telegraph company is subject to the provisions of Art. 3, § 40 of the Constitution, as is a railroad or other corporation clothed with the power of taking private property for public use, it was added "This clause of the Constitution is too plain to admit of any doubt, and the averment that the defendant is proceeding, or threatens to proceed, to construct its lines of poles and wires on and over the complainants' lands without their leave or license, and without paying or tendering to them compensation for the use of their lands for this purpose, is of itself enough. The Court could not properly refuse an injunction in the face of such an averment."

It was suggested for the appellee that the bill did not pray for a preliminary injunction, and therefore the defendant could not be precluded from having an opportunity to answer the allegations of the bill. But the bill does specifically pray for an injunction and that is the only relief asked for, excepting the prayer for general relief. We are not aware of any decision in this State that requires the plaintiff to pray for a preliminary injunction under these circumstances. One issued on such a bill as this before hearing is a preliminary injunction. The Judge to whom application is made, instead of granting it at once, may take time for consideration and give the party to be affected an opportunity to be heard. As a rule that is a practice to be commended, as it sometimes happens that great injury is inflicted upon a defendant by the granting of an injunction without notice to him. In this case we do not see that the appellant will suffer by such delay as will be caused by giving the appellee an opportunity to answer, while on the other hand, if it should eventually be shown that the appellant is not entitled to the relief sought, the delay resulting from an injunction might seriously interfere with the construction of a public improvement. If, in the meantime, the appellee should undertake to obstruct or injure Harlem avenue in the manner alleged in the bill, or do any other act complained of, which will necessarily cause serious injury to the appellant, on application to the Court below a restraining order can be passed to prevent that until the hearing of the cause. Following the precedent adopted in C. P. TelephoneCompany v. Baltimore City, 89 Md. 689, we will remand the cause, without affirming or reversing the degree, for further proceedings in conformity with this opinion, but will direct the costs in this Court to be paid by the appellee.

Cause remanded, without affirming or reversing the decree, forfurther proceedings in conformity with this opinion, the costs inthis court to be paid by the appellee and those below to abidethe final result of the cause.

(Decided January 22d 1904.)