Kirby v. Citizens' Railway Co.

Robinson, J., delivered the opinion of the Court. The appellee is the owner of a horse railway on Carey street, and the appellants being about to construct a sewer under the bed of the street in pursuance of a contract with the Mayor and City Council of Baltimore, the question is whether the appellee is entitled to an injunction to restrain them from removing the railway tracks, or from otherwise interfering with the appellee’s use of said street for railway purposes. The power to construct sewers, is expressly conferred on the City authorities, by sec. 835, of Art. 4, of the Code of Public Local Laws. In the exercise of this power, they have the right not only to obstruct, but to discontinue entirely the use of Carey street as a highway, so long as it may be necessary for the purpose of constructing a sewer under the bed of the street. The easement acquired by the appellee under its charter and the ordinances of the Mayor and City Council, is subject to this paramount right, and in constructing its railway, the appellee knew or was bound to know, that its use of the bed of the street for railway purposes, was liable at any time to be interfered with, whenever the City authorities might deem it necessary for the public walfare. They had no right of course to interfere capriciously or unnecessarily with the appellee’s use of the street; but they were under no obligation to incur the expense either of shoring up the railway trade, or removing it to the one side of the street. The power then being lawful in itself, it could only become unlawful in consequence of the mode in v/hich it was carried into execution. It is apparent from the bill that the sewer could not be constructed without interfering with the railway track of the appellee, and whatever injury may result therefrom, must be regarded in law as 41 damnum absque injuria.” [171] (Decided 8th March, 1878.) The fact that the sewer was being constructed by the appellants under a contract with the City authorities, does not affect the question. The order therefore granting the injunction must be reversed and the hill dismissed. Order reversed and bill dismissed.