Hooper v. President of the Baltimore & Yorktown Turnpike Road

Bartol, C. J., delivered the opinion of the Court. We think the motion to dismiss this appeal ought to be overruled. The proof offered in this Court shows that the delay in the transmission of the record was not caused by the fault or laehes of the appellant. By an amendment of the record, which has been filed by counsel, it appears that the bill of exceptions was signed and sealed by the Judge of the Superior Court on the 21st day of May, 1870, the same day on which the judgment was rendered. In our judgment, the questions of law raised by the appellant, and decided by the Court below, appear with sufficient distinctness by the bill of exceptions and the prayers of the appellant, bringing the case within the decisions of Tinges vs. Moale, 25 Md., 480, and Thomas vs. Hunter, 29 Md., 408, in which it was held, that where a case has been submitted to the decision of the Court upon law and fact, without the aid of a jury, this Court will review’ the decision upon questions of law, if the record plainly discloses the points or questions of law raised and decided by the Court below. ~We proceed, therefore, to examine the questions presented by the appellant’s prayers. As was said in Tinges vs. Moale, [530] “ we cannot examine the facts in evidence in the bill of exceptions, with a view to adjudge whether the finding by the Court was or was not correct.” There was testimony tending to prove the account of the appellee, which it would have been proper to submit to a jury, if one had been impannclled, and of the weight and conclusiveness of which it was the province of the Court, under the submission of the parties, to decide; the first and second prayers of the appellant were, therefore, properly rejected; they rested upon the theory of a total failure of evidence in support of the account sued on. The third and fourth prayers vested the defence upon the theory that because a horse railway had been constructed upon the bed of the turnpike road on one side thereof, which created an obstruction to the free and convenient use for horses and carriages of that part of the road occupied by the railway, being one-fifth of its width; and because the Act of Assembly of 1860, ch. 259, which authorized the construction of the railway, contained no provision for the condemnation of the rights of abutting land owners in the fee of the road, and no condemnation thereof was in fact made, therefore the appellant was not bound to pay toll for the use of the turnpike road. The third prayer claimed entire exemption from tolls for the reasons stated, and the fourth prayer claimed exemption to the extent of one-fifth of the tolls prescribed and authorized by the charter of the appellee. Clearly there wras no error in rejecting these prayers. There can be no doubt of the power of "the Legislature to authorize the construction of the railway on the bed of the turnpike road, with the consent of the turnpike company, without affecting the right of the company to collect tolls under its charter. The question of the rights of land owners abutting upon the turnpike road, growing out of the construction of the railway, is a question which in no manner affects the rights [531] and responsibilities of the appellant in this case, and cannot properly be raised by him, or urged in his defence to the suit. The point raised by tbe fifth prayer is sufficiently answered by a reference to the Act of 1804, ch. 51, section 29, and the other provisions of the original charter and its supplements, regulating the tolls of the company; and especially by the Act of 1824, ch. 105, authorizing cessions to the Mayor and City Council, of such portions of the road as lay within the limits of the city of Baltimore, and the 4th section of the last named Act, which provides for the continuance of the turnpike gates, in the same manner as if such cessions had not been made. The sixth, and last prayer, raises the question of the construction of the 33d section of the charter, Act of 1804, eh. 51, which exempts “persons- living ou, or adjacent to, the turnpike road, within three miles of any of the gates, from the payment of toll more than once in twenty-four hours.” The appellant claims that the facts disclosed in the evidence and stated in the prayer, entitle him to this exemption. We are not of that opinion. This provision of the charter was construed by the Court of Appeals, in the ease of Owings vs. The Baltimore and Reisterstown Turnpike Road Company, decided at June Term, 1820. The Court held that “theprivilege must he confined to persons who reside on premises which lie on, and touch the road within three miles of the gate.” Unquestionably this is the true construction of this section of the charter. The premises, upon which the appellant resides, do not abut upon the road; hut he rents from Mr. Ferine, a pasture lot for his cows, lying ou the west side of the turnpike road, and so claims to be within the exemption. It appears, however, that this pasture lot is not parcel of the premises upon which his dwelling is situated, but is separated from them by a public highway called the “Old Powder-Mill road,” which runs into the turnpike by an acute angle. The pasture lot lying between these roads, and the dwelling [532] and premises of the appellant lying on the other side of the Old Powder-Mill road. He is, therefore, not entitled to the privileges secured by the 33d section of the charter, and there was no error in refusing the sixth prayer. (Decided 21st June, 1871.) Judgment affirmed.