Garrett v. Lake Roland Elevated Railway Co.

McSherry, J., delivered the opinion of the Court. This case was argued during the last October term, and then, by direction of the Court, it was reargued at the present April term. Upon both occasions the discussions at the bar displayed great research and signal ability, and the briefs show unusual care, skill and thoroughness in their preparation. After several consultations a majority of us have reached the conclusions, which, having first briefly stated the material facts, we will proceed to announce. The appeal is from a decree dismissing the appellant’s bill of complaint, filed by him in the Circuit Court of Baltimore City, against the Lake Roland Elevated Railway Company. The record shows that Mr. Garrett is the owner of certain unimproved lots situated on and bounded by the west side of North street, and fronting four hundred and thirty-six feet thereon, and lying between the north side of Eager street and the south side of Chase street in Baltimore city. He also owns other lots likewise fronting on the west side of North street between Chase and Biddle streets; but with these we are not now concerned. North street is sixty feet wide between the building lines, and thirty-six feet between the curbs; and no part of it is included within the outlines of Mr. Garrett’s deed. By sec. 5 of Ordinance No. 23, approved April the eighth, 1891, the'North Avenue Railway Company, one of the several roads by the consolidation of which the Lake Roland Elevated- Railway Company was formed, was authorized to bridge the Northern Central Railway Company’s tracks on North street by means of an elevated structure extending, including the necessary approaches thereto, along North street from the corner of that and Eager streets to the corner of North and Saratoga streets. A stone, abutment, forming an inclined plane, to carry on its perpendicular or highest side the iron superstructure, and to serve, on its surface, as the — 279 — northern approach to the elevated road, has been erected nearly in the centre of North street, between Chase and Eager, directly in front of part of the first named lots of Mr. Garrett. It is eighty-three feet and two and a half inches in length, and fifteen and eight-tenths feet in width, and starts at the street grade, and gradually rises to a height of nine feet, and leaving a distance or driveway between its western face and the curb line contiguous to Mr. Garrett’s property, of nine feet and eight and a quarter inches. It is alleged that the construction of this abutment of solid masonry in the bed of North street and the elevated structure, will, by reducing the width of the street in front of the appellant’s lots to less than ten feet, destroy the access to his property from North street and prevent him from reaching the same with vehicles ordinarily used in Baltimore. It is charged that the destruction of his right of access to his property as aforesaid renders such property entirely unsalable, and deprives him of the market value thereof, and constitutes in fact and in law a taking of his property without making compensation therefor, as required by the Constitution of the State of Maryland. It is further claimed that this structure deprives the premises of light and air, and that this, too', is a taking of the property within the prohibition of the Constitution. It is averred that the Mayor and City Council of Baltimore, and the General Assembly of the State had no power to authorize the construction of the said abutment or to permit the operation of the road thereon, because these acts create a new and additional servitude upon the street and upon the appellant as an abutter thereon, and are a nuisance. It is likewise insisted that ordinance No. 23 and the Act of Assembly of 1892, ch. 112, confirming that ordinance, are in conflict with sec. 40 of Art. 3 of the Constitution, and void. The bill prays for an injunction to restrain the completion of the abutment, and a mandatory injunction requiring the appellee — 280 — to demolish and remove so much of it as had then been built. The appellee answered the bill, and considerable evidence was taken. The proposition distinctly presented by the record, and earnestly contended for by the appellant’s distinguished counsel is, that the erection by the appellee of this abutment on property not owned by the appellant, but in the bed of a public city thoroughfare upon which his lots abut-, destroys the access to his land, interferes with light and air, imposes a new and additional servitude upon his property, and deprives him of the benefit of the use of the same; and amounts in law to a taking of his property, that is in fact not trespassed upon or touched, and is illegal until compensation shall have been first made therefor. Though there has been no physical invasion of the appellant’s property, still if the act complained of constitutes, by reason of its consequences, a taking\ot the appellant’s private property for a public use, within the meaning of sec. 40 of Art. 3 of the Constitution of Maryland, which prohibits the taking of private property for public use except upon just compensation being first paid or tendered, then the injunction should have been granted. But if, on the contrary, this was not such a taking as the Constitution has reference to, and injury has been done the appellant, then, his remedy is in another and a different forum; and the ninth section of the ordinance heretofore alluded to makes ample provision for the prompt and effective enforcement of such judgment as a Court of law, in an appropriate proceeding, may pronounce. That there was no actual appropriation of, or entry upon, a single foot of the land contained within the outlines of the appellant’s deed is admitted, and could not be denied; and, therefore, to support the theory of the bill, the consequences which it is asserted will result to the appellant from the occupancy by the railway of contiguous land, forming part of the bed of a highway and owned — 281 — by some one else, but subject to an easement in the public, and which consequences are not physical invasions of the plaintiff’s soil nor an ouster of him therefrom, are treated by the appellant as a taking of that which is confessedly neither encroached upon nor used at all. The consequential damages resulting from the act complained of — - the incidental injuries to the owner — are thus charged to be a taking of private property for a public use, though the property itself remains unappropriated and unapplied to1 that use in any way whatever. Whilst the Constitution of the State has prohibited the taking of private property for a public use without compensation being first paid or tendered, it has not undertaken to define or declare what shall be a taking within its terms. True, there is some conflict among adjudged cases as to what amounts to such a fairing, but the overwhelming weight of authority accords with the conclusions which this Court announced in two cases that will be fully referred to later on. Apart from the decisions of the Supreme Court of Ohio (see Crawford vs. Village of Delaware, 7 Oh. St., 460), which rest upon a doctrine peculiar to that State, and the recent New York decisions in the Elevated Railway cases (Story vs. New York Elevated R. R. Co., 90 N. Y., 122; Lahr vs. Metropolitan Elevated R. Co., 104 N. Y., 268), which are hopelessly in conflict with the principles announced in other cases in the same State (Radcliff vs. Mayor, &c., of Brooklyn, 4 Com., 195; Fobes vs.R.W. & O. R. R. Co., 121 N. Y, 505), and the decisions in Minnesota (Adams vs. Chicago, Burlington & Northern R. R. Co., 39 Minn., 286 ; Lamm vs. Chicago, St. P. M. & O.R.R.Co., 10 L. R.A., 268), and a few cases in Mississippi (Theobold vs. L., N. O. & T. Ry. Co., 66 Miss., 279), and possibly one or two other States, all substantially following the New York Elevated Railway cases; there is practically an unbroken current of adjudged cases broadly and clearly marking and defining the — 282 — difference between an incidental injury to, and an actual taking of, private property. An injury to, and a taking of, such property are distinct things. Every taking involves an injury of some kind, though every injury does not include a taking. “ Property is taken by an entry upon and appropriation of it, as in the ordinary case of location. It isinjuredhj obstructing access, as in Duncan’s case, (111 Penn. St., 352), or drainage, as in Ziemer’s case (124 Penn. St,, 560).” Jones vs. Erie & W. V. R.Co. (Pa.),25 Atl. Rep., 137. In Transportation Co. vs. Chicago, 99 U. S., 635, the Court said: “Persons appointed or authorized by law to make or improve a highway are not responsible for consequential damages, if they act within their jurisdiction, and with care and skill, is a doctrine almost universally accepted alike in England and in this country.” Governor and Company of British Cast-Plate Mfs. vs. Meredith, 4 T. R., 794 ; Sutton vs. Clarke, 6 Taunt., 29 ; Boulton vs. Crowther, 2 Barn. & C.,703 ; Green vs. The Borough of Reading, 9 Watts, 382; O’Connor vs. Pittsburgh, 18 Pa.St., 187; Callender vs. Marsh,1 Pick., 418; Smith vs. Corporation of Washington, 20 How., 135. * * * “ The decisions to which we have referred were made in view of Magna Chacta and the restriction to be found in the Constitution of every State, that private property shall not be taken for public use without just compensation being made. But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision.” And this was affirmed in Chicago vs. Taylor, 125 U, S., 161. The constitutional right to compensation for private property taken for public use does not extend to instances where the land is not actually taken, but only indirectly or consequentially injured. Ottawa,, O.C.&C.G.R.R.Co. vs. Larsen, 2 L. R. A., 59; Omaha Horse Ry. Co. vs. — 283 — Cable Tram-way Co., 32 Fed. Rep., 727; Heiss vs. Milivaukee & L. W. R. Co., 69 Wis., 555; Grand Rapids & I. R. R. Co. vs. Heisel, 38 Mich., 62; Cosby vs. Owensboro & Russellville R. R. Co., 10 Bush., 289; Dorman vs. City of Jacksonville, 13 Fla., 545 ; Bradley vs. N. Y. & N. H. R. R. Co., 21 Conn., 308; Spencer vs. P. P. & O. R. R. Co., 23 W. Va., 407; Richardson vs. Vermont and Central R. R. Co., 25 Vt., 465 ; Balto. & Potomac R. R. Co. vs. Fifth Bap. Ch., 108 U. S., 317. This distinction between consequential damages and an actual taking, thus firmly settled, was frequently severe in its results, particularly when the power of eminent domain had been exercised by municipal corporations, and with a view of relaxing its rigors to some extent, many of the States of the Union changed their organic law so as to require compensation to be made for incidental injuries, precisely as though there had been a physical taking of the property. Thus the ;Constitution of Pennsylvania of 1873, and of Alabama of 1875, provide that when private property is taken for public use, just compensation shall be made .for the property taken,injured or destroyed; that of Arkansas of 1874, that private property shall not be taken, appropriated or damaged ; that of Illinois of 1870, West Virginia of 1872, Missouri of 1875, Colorado and Texas of 1876, Georgia of 1877, and California of 1879, that it shall not be taken or damaged. Selden vs. City of Jacksonville, 14 L. R. A., 375. Such changes would have been wholly unnecessary if the view of the appellant as to what constitutes a taking of private property had prevailed. But the immunity which protects from liability governmental agencies in the proper and skilful performance of their public functions does not extend to private persons or mere quasi public corporations; and, therefore, whilst in both instances the same distinction between an actual — 284 — taking of private property and consequential injuries to it when not taken is applicable, a private person or a quasi public corporation is liable in damages to the individual incidentally injured, though the act complained of and occasioning the injury was in itself lawful. Hence for such injuries as are complained of here, though they do not amount to a taking of property, if found to exist, there is a remedy in a Court of law. Balto. & Potomac R. R. Co. vs. Beaney, 42 Md., 117. The ninth section of the ordinance authorizing the construction of the abutment and the elevated road, expressly provides that if any judgment recovered against the company for such injuries as are here complained of, shall remain unpaid for sixty days, “ all the rights ” of the company under the ordinance “ shall cease and be in abeyance until the judgment shall be paid,” and the right to operate the road “ shall only be revived after the payment thereof.” In the case of Mayor & C. C. of Cumberland vs. Willison, 50 Md., 148, the distinction between consequential injuries and an actual taking of property was considered, and it was distinctly held that damages done to a water-power of a mill by means of an increased flow of water carrying debris into the race caused by the grading and paving by the city of one of its public streets, was not a taking of property. “ Property thus injured is not in the constitutional sense taken for public use,” p. 148. And again, in O’Brien vs. The Balto.Belt Railroad Co., 74 Md., 363, the question now before us was directly presented. There the plaintiff was an abutting owner on the east side of Howard street in Baltimore city, with no freehold or leasehold estate in the bed of the street, and he claimed that by reason of his abutting proprietorship he had such an interest in the street as to entitle him to compensation according to the provisions of Art. 3, sec. 40 of the Constitution for the injury occasioned him by the act of the railroad company in constructing its road in an open cut — 285 — on the west side of Howard street and opposite Ms property. Because he had not been paid or tendered compensation he filed a bill in equity, praying for an injunction to restrain the construction of the open cut. The precise question for determination was “whether the use of the street by the railroad company, in the manner proposed, and under the conditions stated, would be such taking of private property of the plaintiff as is forbidden by the Constitution of this State, except upon payment of just compensation first being made.” And in the course of -the opimon it was said: “But, notwithstanding the railroad company may be liable on common law principles, the question still remains to be answered, will the cutting and use of the street, as proposed by the railroad company, be the taking of private property, in respect of the rights of the plaintiff as abutting lot owner, within the meaning of the Constitution? As already stated, it is not charged that there will be any invasion of, or physical interference with, any part of the plaintiff’s lot, in the construction of the road. The most that he claims for is that he will be deprived of the full use of the street, as it now exists, and that his property will be depreciated in value by the construction of the road. This, however, is but an injury, to whatever extent it may be suffered, of an incidental or consequential nature. * * * In such case as this, therefore, it would seem to be clear, both upon principle and authority, that there is no such taking of private property « for public use as is contemplated by the Constitution of the State; and hence there is no ground for any preliminary proceeding by way of condemnation.” We must either adhere to these two decisions in 50 and 74 Md., strictly in accord, as we have shown them to be, with the decided weight of judicial opinion on tMs subject, or else, receding from them, adopt the OMo or the New York doctrine. We see no reason for departing from or for modifying our former deliberate judgments. The — 286 — Ohio doctrine is peculiar to that State alone. O’Connor vs. Pittsburgh, supra; Transportation Co. vs. Chicago, supra,and is so admitted to be mCrawfordvs.Delaware, supra. The New York doctrine involves this inextricable dilemma, viz., If the grading of a street by a municipal corporation cuts off all access to a person’s house, albeit his property is thereby' destroyed and rendered valueless, it is not taken in the constitutional sense; but if a railroad company in lawfully constructing its road does precisely the same thing that the city did in grading the street, then the abutter’s property is taken, though not-physically entered upon at all. “ The house and lot are the same; the street is the same; the acts done are the same; the use for which they are taken is a public use in each case, and yet the Court must hold that there is a taking of property in one case and not a taking of property in the other.” Mr. Coteen’s brief in O’Brien’s case, supra. The abutment and elevated structure having been built under legislative authority, are not a nuisance. O’Brien vs.Balto.Belt R. R.,supra. “That cannot be a nuisance such as to give a common law right of action, which the law authorizes.” Transportation Co. vs. Chicago, supra. “ It may be stated as a general rule that whatever is authorized by statute within the scope of legislative powers, is lawful, and therefore cannot be a nuisance.” 2 Wood, Railway Law, 970. The structure is therefore a lawful one. It does not destroy the street as a street, . though it may cause the plaintiff greater inconvenience in gaining access to his lots than he encountered before it was built. But this and the other injuries complained of are purely incidental and consequential; though the appellant is not without a remedy therefor. Whilst it is stated as a general rule that no action will lie by an abutting lot-owner, who does not own the fee in the street, for injuries which mex*ely result from the legal and rea — 287 — sonable use of a public street by a railway company, and which leaves his right of egress and ingress reasonably sufficient, Iron Mt. R. Co. vs. Bingham, 4 L. R. A., 622; still, the statute law of Maryland and the ordinance to which we have alluded, (and the terms of which the appellee has accepted,) provide an ample remedy for all such damages as the appellant may be able to show he has sustained. The North Avenue Railway Company, one of the corporations forming the Lake Roland Elevated Railway, was incorporated under Article 23 of the Code ; and sec. 169 of that Article holds every railroad company laying its tracks upon any public street responsible for “ injuries done to private property,” lying upon or near to such street, “ by such location ”; and the damages thus occasioned may be recovered by civil action. Section nine of the ordinance No. 23, already referred to, makes the payment of such damages, when judicially ascertained, absolutely certain, or suspends the operation of the road. (Decided 19th June, 1894.) Upon a full and most careful consideration of the whole case Ave are of opinion that the decree dismissing the bill of complaint was properly passed, and it will therefore be affirmed. Decree affirmed, with costs above and below.