Baltimore & Potomac Railroad v. Magruder

Miller, J.,

delivered the opinion of the Court.

Since the passage of the decree from which this appeal is taken, the ease of Beaver vs. The Western Maryland Railroad Company has been decided by this Court. That was a case where Beaver brought an action of trespass quare clausum fregit, against the Railroad Company for entering upon his land, and by. the construction of their road, diverting a stream of water called the ^Patapsco Falls” from its ancient course into a new channel, dug for that purpose, whereby the stream was cut off from a large part of his farm through which it used to flow, so that he could no longer water his stock and cattle therefrom, and us’e it for the purposes of his farm as he had been accustomed to do. The company relied upon the inquisition (which had been duly confirmed and the assessed damages paid) and the fact that the attention of the jury of inquest was directed to the intended diversion of the stream, and that the same was within the lines of the land condemned, as a bar to any recovery for damages resulting from such diversion: The inquisition there does not materially differ from that in the present case. Instead of describing *87 the land condemned precisely in the same mode as the one before us, it did so chiefly by reference to lines on a plat filed with, and made part of the inquisition, “ which lines,” as it states, “ fully describe the piece or parcel of land required by the said Western Maryland Railroad Company” for the construction thereon of the bed of their road, but in both it is the described land that is condemned, and there is nothing on the face of either amounting to an express grant of the right to divert the stream. In that case, conflicting oral testimony of many witnesses on both sides was offered upon the question whether the attention of the jury of inquest, was called to the intended diversion, as well as whether they actually took it into consideration in estimating the damages they awarded. At the instance of the defendant the Court below instructed the jury that if they should find from the evidence, that the attention of the jurors who found the inquisition was called to the intended diversion of the stream in the construction of the railroad, and should also find that the road was constructed, and the new channel for the diversion of the stream was dug, in and upon the land within the lines of the land condemned by the inquisition, then their verdict must be for the defendant, and in reference to this instruction this Court said: “ Wc can discover no objection to this prayer, and the only objection that is made to it in the appellant’s brief, is that it should have required the jury to find that the jury of inquest estimated, in the damages allowed by it, the injury to the appellant by reason of the intended diversion of the water in the Patapsco Falls. The prayer did require the jury to find that the attention of the jury of inquest was directed to that diversion, and the legad presumption is that they estimated in their inquisition the damages to result from such diversion. Chesapeake and Ohio Canal Co. vs. Grove, 11 G. & J., 404 .”

That case decides first, that under a charter, similar in this respect to that of the appellant, conferring the power to acquire by condemnation land for the construction of its road, the company has the right to divert, if they see fit to do so, a *88 stream of water flowing across the line of their road: secondly, that this right does not depend upon an express grant to be made and specified in the inquisition itself, but may be acquired by condemnation of the land duly confirmed, and payment or tender of the damages awarded, and proof de hors the inquisition that the attention of the jury of inquest was directed to the intended diversion at the time of taking, and before they signed the same: and thirdly, that if the attention of the jury was thus directed to such diversion, and the same was made within the lines of the land condemned for the construction of the road, the owner of the land through which the road passes has no remedy, either at law or in equity, for any injury that may result therefrom.

(Decided 15th February, 1871.)

The inquisition in the present case was regularly confirmed, and the damages thereby awarded have been paid to the appellee. The proof in the record, which -we have examined with care, establishes to our satisfaction the fact that the attention of the jury was directed to the proposed diversion of the stream called “Beaver Dam Branch,” (the making of which the injunction restrains,) from its old channel through the lands of the complainant, at the time of taking and before they signed their inquisition, and also that such diversion is confined within the limits of the land condemned.

The decree appealed from must be reversed, the injunction dissolved and the bill of complaint dismissed.

Decree reversed and bill dismissed.