Offutt v. County Commissioners

*120 Page, J., delivered the opinion of the Court. This suit was instituted by the appellant to recover damages from the appellees, which it is alleged, resulted from a change of the grade of the public road in front of the former’s property. The appellees demurred to the declaration, and the demurrer having been sustained and judgment thereon rendered, the appellant has appealed. There are two counts in the declaration. The only objection made by the appellee to the first, is that it does not sufficiently disclose the nature of the injury complained of, or the means by which it was occasioned. The averment of the count, is that the appellant had the right to “ the necessary ingress and egress to and from the said lot and premises and for the beneficial occupancy and enjoyment of the same." And that “the defendant, unlawfully, wrongfully and injuriously deprived the plaintiff of convenient access to the said lot and of the beneficial occupation of the same, &c.” These averments are in substantial conformity with the form which by the 23 rd section of Article 75 of the Code, it is declared shall be sufficient. By the 33rd sub-section of the same section and article, the form given is that the plaintiff was possessed of land called, &c., and “ was entitled to a way from said land over the land óf the defendant to a public highway, &c.,” and that “ the defendant deprived him of the use of said way.” This count therefore presented a sufficient cause of action and the demurrer thereto should have been overruled. The second count is substantially as follows: That the plaintiff on the 15th day of October, 1898, was seized and in possession of a lot of ground situated in Montgomery County, and fronting and abutting on the public county road formerly known as the Georgetown and Rockville road; that he had at that time and still has the right to have convenient access to and from the said premises, to and over the said road, which was and is the only public highway upon which the said lot abuts; that before the date mentioned, the appellee established a grade for the said road at the place where the *121 said lot abuts of six feet in each one hundred feet of longitudinal distance on said road; that thereafter the appellant granted to the Washington and Rockville Railway Company the right to lay its tracks on said road and “ also permitted the said company solely for its own purposes and convenience, and not for the purpose of a public highway or as necessary and proper for the benefit of the citizens of said county using the same, to reduce the grade of said road at the place aforesaid, from a rise and fall of six feet in each one hundred feet to a rise and fall of three feet in each one hundred feet of longitudinal distance; that “ by the act and permission aforesaid,” the said company has dug down along the entire front of the appellant’s lot to the depth of not less than seven feet perpendicularly beneath the level of said lot; and that by reason thereof, the appellant was and is wrongfully deprived of full and free access to said lot, arid of the beneficial occupation and enjoyment of it, and that the lot is now rendered subject to inevitable caving and falling away. It was conceded by both parties at the argument, that the appellees, who are the County Commissioners of Montgomery County, were authorized to acquire and did acquire title to the road under the Act of 1898, ch. 257. By the first section of that Act they were authorized and directed, after having acquired title to the turnpike road therein mentioned, to construct a public county road, “the acclivity and declivity” of which should “in no gase exceed six feet in the hundred.” This provision as to grade, cannot be construed, as was contended at the argument by the counsel for the appellant, so as to impose upon the appellees the duty of making a grade that should be neither more nor less than a six per cent grade. It restricts them from allowing a steeper grade than that, but leaves them free to establish a lower grade, whenever and wherever in their judgment and discretion the public necessities should so require. They had, at all times therefore, full power to fix the grade at three feet in the hundred of longitudinal distance. By the seventh section the power of the appellees to permit *122 the construction of a passenger railway is clearly recognized. It is therein provided that no such railway shall be constructed in the bed of the road, without the prior consent of the appellees, and they are forbidden to grant such privileges without receiving the compensation therefor as is particularly mentioned in the section. Among other provisions relating to the construction of railways on the road it is provided in the last clause of the section that the grade of the railway constructed over or along the bed of the said road, “ shall conform to the grades of said road as established by the County Commissioners.” It is clear, therefore, that the railway company has the right to construct its tracks upon the road, upon such grades as the appellees should establish as the grade of the road, provided that the grade so established did not exceed a declivity or acclivity of six feet in the hundred of longitudinal distance. The appellant avers in the second count, that the alteration in the grade was made for the purposes of the railway and not for the purpose of a highway. But there is also an averment that the change of grade was made by the permission, of the appellees. Such change was, as we have seen, within the power conferred upon the appellees, and if in the exercise of their public functions, they deemed it proper for the protection of the public interests, it was their duty to make it. Those interests might indeed demand that a passenger railway should be constructed on the bed of the road. It is not alleged that the railway is operated by steam as the motive power, or that the employment of such an agency is contemplated. A public road may be used for all the purposes of ordinary travel and transportation, and such agencies adapted to those purposes, may be employed as will reasonably promote the objects of its creation. In Koch v. North Avenue Railway Company, 75 Md. 229, this Court held that a street is a way set apart for public travel, and that new and improved motive power, not inconsistent with the uses and purposes for which it was opened could be employed. And in Peddicord's case, 34 Md. 481, in reference to the construction of a passen *123 ger railway upon the right of way of a turnpike company, it was said that though such use was not actually contemplated by any of the parties to the acquisition and grant, “ yet it may be said to have been within the legal contemplation of all that it was to be used for all purposes by which the object of its creation as a public highway could be promoted.” It thus appears that the change of grade was made by the appellees in the discharge of their duties as County Commissioners, and in such cases it is well settled that if such repairs or improvements be made with reasonable skill and care in the performance of the work, they will not be responsible for consequential damages to an adjoining owner whose lands are not actually taken. M.& C. C. of Cumberland v. Willison, 50 Md. 148. (Decided November 22nd, 1901.) It is not charged that the work was improperly or carelessly done, and inasmuch as it appears that the appellees had power to authorize the railway company to construct its tracks upon the bed of the street and. to change the grade, and. that the land of the appellant was not actually invaded, it follows that under the allegations of this count of the narr. the appellant is not entitled to compensation for the injuries alleged to have resulted from the change of grade. Green v. City & Sub. R. Co., 78 Md. 304. It follows from what has been said that the demurrer to the second count of the declaration was properly sustained. Although the first count of the declaration has been sustained, we will not at this time, order a new trial, because it may reasonably be presumed that the appellant has stated his whole case in the second count which we have declared to be insufficient in law. If, however, the appellant desires a new trial, he will have leave to file his motion in this Court, within the next thirty days. Judgment affirmed, with leave to the appellant to file a motion for a new trial in this Court within thirty days, with costs to appellee.