Canton Co. v. Baltimore & Ohio Railroad

Page, J., delivered the opinion of the Court.

This is an appeal from the judgment of the Circuit Court for Baltimore County rendered in an action of ejectment brought by the appellant to recover possession of a strip of land which had been condemned by the appellee for railroad uses in 1885. Two exceptions were taken, one to the admission of evidence, the other to th'e action of the Court upon the prayers.

The appellant to sustain its case offered in evidence, among other things, the proceedings whereby the land in question was condemned for the use of the appellee for the construction of its Philadelphia Branch Railroad, intended to be a connecting line of the Baltimore and Ohio Railroad Company, from its Station, on Camden street down and along Pratt street and Eastern avenue to the city limits, and thence to its yards at Bayview.' The appellee paid to the appellant the damages awárded amounting to $20,000, and entered into the possession of the property, but has made no further use of it than laying on it rails, which did not connect with' its other tracks and which were removed in 1898, without having been employed for any substantial use. In 1886 the Philadelphia Branch of the' appellee was opened for business, but instead of following the route over this property for its connection with the main stem, a temporary line over other land to the ferry to Locust Point, was made use of until the year 1895, when the ferry line was discontinued for general business, and the connection was then made via the tunnel under Howard street over the tracks of the Belt Line Company. In 1890, that ’ company entered into an agreement with the appellee whereby it was stated that the Belt Line Company being about to construct a railroad from Camden station at a point of connection with the tracks of the main stem of the appellee at Hamburg street, midway between Howard and Eutaw streets, to a point of connection with the tracks of the Philadelphia Branch of the *215 appellee, at the western end of the Bayview yard ; and it being desired by the parties that the appellee should enjoy the use of these tracks, &c., when completed — therefore it was agreed among other things that as soon as the said railroad was constructed, the appellee should have the right to use the same ; and in part consideration thereof the appellee stipulated to ship and cause to be transported and carried over the Belt Line during the continuance of the agreement all of its traffic of every kind passing through the city of Baltimore, &c., except such part thereof as was loaded at, or destined for, stations of the appellee on or adjacent to the water, or destined to or from Canton. Much of this, as well as other evidence, was offered for the purpose of showing that the appellee had abandoned the projected line across the land now in controversy, by reason whereof it was contended that the right of occupancy thereof had reverted to the appellant.

The appellee, with a view of showing that the appellee had not intended to abandon the route across the lands in question, offered evidence tending to prove the circumstances attending the agreement with the Belt Line Company and the reason for not having yet completed the Pratt Street Branch. One of its witnesses in the course of the examination was asked by the counsel for the appellee whether in his judgment it would be proper for the appellee to abandon definitely its projected line through the city, to which the witness replied that he would consider it “a very unwise thing to do,” and proceeded to give the grounds therefor; which substantially were that the capacity of the tunnel was now taxed to the utmost, and the business was still growing, and as soon as the capacity of the tunnel proved inadequate, the freight traffic would have to go over the Pratt street line “or some line substituted for it.” The counsel for the appellee thereupon remarked, “that is just what I wanted.” Objection was made to the question and answer, and this being overruled exception was taken to the ruling of the Court, as well as to the remark of counsel; and this constitutes the appellant’s first exception. With respect to the exception to the remark of coun *216 sel, there was no ruling of the Court below and therefore nothing for this Court to pass upon.

The question objected to was put to a witness who was an expert in 'railroad matters respecting a fact pertinent to the inquiry then being made. For reasons that will appear hereafter it was competent for the appellee to show all the facts and circumstances affecting the question of abandonment. The theory of the appellant in objecting to this question and answer is stated in its several prayers, all of which were refused by the Court. In its first and third prayers, it is substantially affirmed, that if the appellee made the agreement with the Belt Line Road in 1890, and since then has transported its freight and passenger traffic, from its main stem to the Philadelphia division, over the line of that company, and not over the land in dispute; and (by its third prayer), if the appellee has adopted another and different route and has never completed its railway over the land- in question; then there was an abandonment of the rights of the appellee acquired by the condemnation; and in such case, the property has reverted to the appellant, and it has the right to recover the possession thereof. So that the question raised by this exception and these prayers is whether the specific intention of the appellee with respect to an abandonment of the land under the circumstances of this case is a material matter; or whether it must be conclusively presumed in this case as matter of law that there was an abandonment of the property by the appellee; and this is made to depend upon two fácts, viz., first, the non-completion of the road over the land or a non-user of the property for the purposes of-the- Philadelphia Branch; and second, that since the condemnation proceedings, the traffic of the appellee has been sent over the Belt Line Road; if these facts were found by the Court sitting as a jury, then there was a reversion of the property to the plaintiff, and the plaintiff would be entitled to recover.

It seems to be well settled that when a corporation under condemnation proceedings “acquired for public purposes a mere easement in land, 'its right and title to the property so ac *217 quired are dependent upon the use of the property for public •purposes, and when such public use becomes impossible, or is abandoned its right to hold the land ceases, and the property reverts to its original owner.” Many of the authorities to .sustain this proposition are to be found cited in io A. & E. Enc. Law (2 ed.), 1198;

Lewin on Eminent Domain, sec. 596.

Here the condemnation was, “for the use and occupation in perpetuity by said company of said parcel of land for its Philaphia Branch Railroad,” and the damages of $20,000 assessed, and paid by the appellee were assessed for that purpose, and no other. To deprive it now of the possession of the land for that purpose, there must be shown- that it has lost its right, either by reason of the fact that such use having become impossible (which is not contended), or that by some act, or the omission of some act, it was bound to perform, the appellee must legally be regarded ás' having abandoned it. It would appear to be entirely unreasonable to hold that a mere nonuser could have that effect; because to so hold, would make it impossible for a corporation to make any provision for the future by securing more property-than was then required but would be needed thereafter. Nor ought the” mere fact that another route has been established be sufficient per se;

since .that would prevent a railroad from acquiring two routes, having the same terminals. It is certainly conceivable that a railroad company, might deem it advisable to take under condemnation proceedings more or other property than it could then use. Or haying taken it for present uses, it might become financially embarrassed, so that their plans would have to be postponed. In such cases it should not be held that while it is awaiting developments of its business, or the reestablishment of its financial ability, it must lose whatever expenditures it may have incurred in the acquirement of property, which for the present cannot be made use of, but are absolutely necessary for the carrying out of their plans. In Pittsburg, F. W. & C. Ry. Co.

v. Peet, 25 Atl. Rep. 612 , (19 L. R. A. 467), the Court said: “When a railroad company condemns land, it is of necessity the judge of how much is re *218 quired for its use; the company had a right, when it condemned the property to regard and. make provision for its future as well as its present needs.” It has accordingly been frequently held, that while non-user, is strong evidence tending to show abandonment, yet it will not per se operate as abandonment, unless there is some decided and unequivocal act of the owner inconsistent with the continued existence of the easement; or unless, the non-user has been for a considerable period, without a valid reason or excuse for its neglect.

Eddy v. Chase, 140 Mass. 471 ;

People v. Albany, &c., R. R. Co., 24 N. Y. 261 . This Court in Vogler v. Geiss, 51 Md. 410 , has said that while a party entitled to a right of way or other mere- ease-ment in the land of another may abandon and extinguish such •rights by acts in pais, and without deed or other writing; yet that such acts relied on to effect such result “must be of a decisive character;” and whether they amount to an abandonment or not, “depends upon the intention with which it was done and that, is a subject for the consideration of the jury. A cesser of the use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as an express release of the easement, without any reference •whatever to time.” And this seems to be in accordance with authority as well as reason. In 2 Wood on Railroads, sec. 242 (ed. 1894), the principle is thus stated: “The question as to whether there has been an abandonment or not, is usually one of fact, to be determined by the circumstances in each case; and a mere non-user for á long timé less than the period •prescribed in the Statute of Limitations, as in one case thirteen years, is not sufficient to establish an abandonment.”

Barlow v. Chicago, &c., R. R. Co., 29 Iowa, 276 .

So a change of route is strong evidence of an abandonment of the old way, and in some cases has been held, under the then existing circumstances, to amount to an abandonment.

Comm.

v. Cambridge, 7 Mass. 163 ;

Comm.

v. Westborough, 3 Mass. 406 ;

Stacey v. Vermont Central Railroad, 27 Vt. 39 .

If the new route be attended by circumstances showing that the change is. but temporary, or that it is not in fact in *219 tended for an abandonment of the old route, but to secure additional accommodation for its business, or there are other acts showing a want of intention to abandon, there is no good reason why as matter of law it should be so regarded.

Chicago R. R. Co.

v. Bean, 69 Iowa, 257 .

In the case of The Roanoke Inv. Co.

v. The Kansas City Ry. Co., 108 Mo. 66 , where there was a change of route, the Court laid stress upon the “intention” to be gathered from all the facts of the case. It held that the “intention” to abandon was clear, not only from the declarations of the officers, but because it had adopted a different route, a fact of most “positive, unequivocal evidence of an intention.”

Commonwealth v. Boston &c., R. R. Co., 150 Mass. 174 .

It seems therefore clear, that in this case, as indeed all others, abandonment is a relinquishment or surrender of rights by one person to another and includes both the intention to abandon and the external act by which the intention is carried into effect. 1 Am. & Eng. E. of Law, p. 2;

The City of Columbus v. The Columbus & Shelby R. R. Co., 37 Ind. 299 ;

Durfee v. The Peoria, &c., Ry. Co., 140 Illinois, 439;

Barlow v. Chicago Rock Island & P. R. R. Co., 29 Iowa, 276 ;

Roby v. N. Y. C. & H. R. R. Co., 142 N. Y. 180 -181.

It follows from what has been said the appellant’s third prayer was properly rejected.

The appellant’s first and fourth prayers found the plaintiffs right of recovery solely upon the finding by the Court sitting as a jury, of the agreement with the Belt Line Railroad Company, and that in accordance therewith the appellee carries and has carried since the year 1895, all its traffic over that line from its main stem to the junction with the Philadelphia Branch, and that none of its traffic has passed over the land in dispute. These prayers do not permit the jury to make inquiry as to the actual intention of the appellee to abandon the route over the disputed land; but in substance affirm that the contract and the mode of transporting the traffic as stated in the prayers, are of such a character that an intention to abandon must be legally presumed.

*220 It must be noticed that these facts do not prove a change of route, of a character similar to that shown in the cases cited by the appellant, where the'alteration of the route consisted in a change of the line in such a manner as to import as matter of fact a strong, if not necessary, implication that the old way was to be abandoned. In fact in this respect there was no such change of route at all. It is shown by the proof that after condemning and buying the property along Pratt street and elsewhere along the proposed route, financial difficulties compelled the appellee to postpone completing the Pratt street line. An opportunity arose by which it was enabled to secure ’ a means of transporting its traffic over the property of another corporation. It was by means of a traffic arrangement that the appellee became financially able to secure this. At that time the appellee owned none of the stock of the Belt Line company, and it was not until a later period ‘that it became the owner of its stock or a majority of it. The implication to be deduced from an arrangement like this cannot be similar to that to be derived from a change of line, which per se creates a reasonable belief that the company has no further use for and does not intend to use the old line. Here, the character of the transaction is this; the appellee finding itself financially embarrassed, and therefore unable at that time to complete its projected plan of connection with the Philadelphia Branch, enters into a contract by which it acquires traffic accommodation over another road. Surely it cannot be contended with success that this act alone carries with it a legal implication, not rebuttable by other facts, that there was an intention to abandon its own line as being thereafter wholly valueless. But it is further contended that the character of the contract shows that it was the intention of the appellee to abandon the Pratt street line; from the fact that the appellee stipulated to ship over the Belt Line, “all its traffic of every kind passing through-the city of Baltimore” and has since done so. A careful examination of the entire contract shows that the purpose of that provision was to secure to the Belt Line the necessary funds with which to take care of the bonds *221 issued and to be issued by the Belt Line in the performance of its obligations under the contract.

The appellee by the contract was to furnish such amount of transportation of its own traffic as with the sums received from other companies, at the rates named, would amount to certain sums named; and if there was a deficiency the appellee was to make it good to the extent of the annual interest on the bonds issued by the Belt Line Company.

The stipulation that the appellee should send all its traffic over the Belt Line cannot under all the circumstances be regarded as tantamount to an expression of an intention to abandon its Pratt street route, or as a stipulation that it should not avail itself of other means of transportation, it then had or might thereafter have, of all such traffic as for any reason could not pass through the tunnel, along Howard street, or was in excess of the capacity of the tunnel to carry. The appellee at the time this agreement was made, though then in financial difficulties, was an important line of transportation, with great possibilities in respect to freight and passenger transportation. Its officials must have expected that its business would increase until it should be beyond the capacity of the Belt Line. It cannot be imagined therefore that by these stipulations it intended to preclude itself from availing itself of other avenues for transporting such traffic as for any reason the Belt Line could not take care of, or to abandon a route on which much money must have already been expended. The evidence shows that the capacity of the Belt Line route has almost reached its limit, and when that has been exceeded the appellee must look to the Pratt street or some other route to accommodate the excess.

For these reasons the appellant’s first and fourth prayers were properly rejected.

The appellant’s second prayer also rejected below announced as a correct legal proposition, that the Court sitting as a jury should find the right of way was abandoned by the defendant, if it finds that the property has remained unused for ten or more years after such condemnation.” This prayer *222 involves the construction of the Act of 1890, ch. 220, which is as follows : “Whenever upon an unfinished railroad a right of way or location on any part thereof remains for ten years unused for railroad purposes, the same shall be held to be abandoned, and shall be liable to be used and appropriated by another railroad company upon purchase or condemnation in the manner provided in this article.’’

We do not think its provisions apply to the case now under consideration. Here it is claimed that by non-user of the property, the right of possession has reverted to the owner of the fee. The purpose and effect of the Act does not work this result. Its purpose was to give power to a railroad company to secure by condemnation, a right of way upon an unfinished railway, which has been disused for railroad purposes for ten or more years; and for that purpose it should be held •to be abandoned. This appears not only from the terms of the Act, but also from its title where it is stated to be an Act “providing for the use of any other railroad company of the abandoned or unused rights of way or location of railroad companies.” The word “abandoned” in the connection in which itis used cannot import such abandonmentas would cause a reversion to the first owner; for the reason that such a construction would be to take from the railroad company property obtained by condemnation and paid for, without compensation, and therefore raise a constitutional question not necessary for us now to decide. Its more reasonable construction would be, that it is to be applied to cases only where there has been no use of the property for railroad uses; and in such a case there has been such an abandonment, that authority is granted to another railroad company, to take .condemnation proceedings to secure it for its use', without further special legislative permission so to do. This would be within the legislative power. “It rests with the Legislature to determine when the necessity arises for making one public purpose subordinate to another.” It cannot however bestow the property of any person natural or corporate upon another,” but the Legislature may determine when it may be taken for public purposes.

Turnpike Co.

v. Railroad Co., 81 Md. 257 .

*223 (Decided March 23rd, 1904.)

This Act therefore merely authorizes a railroad to take by condemnation property which has been unused for railroad purposes for ten or more years upon an unfinished railway. It does not however attempt to deprive the owner of any of its interests in. the property, without proceedings in condemnation and the payment of such damages as the jury may award. This prayer was therefore properly rejected.

It follows also from what has been said that the second prayer of the appellee was properly granted.

Finding no error the judgment will be affirmed.

Judgment affirmed.