Northern Central Railway Co. v. Mayor of Baltimore

Question in regard to the extension of Calvert and Worth streets across the trades of the Worthern Central' Railway Company in the City of Baltimore, — as to whether the same should he hy viaducts or raised ways, and whether the eost of constructing and maintaining the same should he home hy said Company or hy the City of Baltimore. The law is well settled that where a new way or road is opened or made across a way or road already existing and in use, the new way must be so constructed as to cause as little injury as possible to the old way or road. Under proceedings by the street commissioners of the City of Baltimore, for condemning and opening North and Calvert streets, from John street to North avenue, the proof showed that the tracks of the Northern Central Railway Company at those points were laid, and their road was in use some time before the said proceedings were commenced, and that the whole of its land was necessary for the tracks of its road, and that the situation of said tracks with reference to said street was such, that the only mode in which the proposed streets could cross the tracks without great injury, both to the company and the’ city, was by viaducts or raised ways of some description. Held : That said streets must cross the land and tracks of the railway company by viaducts or raised-ways so as to allow its trains to pass below. In view of a proposed change in the route of said railroad within the city, an ordinance, (No. 7Y,) was passed September 26th, 1868, requiring the grades of certain named streets crossing the line of the new route of said railroad, to be raised by the Mayor and City Council of Baltimore, so as to enable the railroad company to construct its railway tracks under said streets, and providing that all open cuts along one of said named streets, “and other streets shall be tunnelled by the said railway company.” Heid : 1st. That in construing this ordinance, the location of the railroad at the time, and its consequent inconvenience to the public, and disadvantage to the neighboring property holders, as well as the then condition of the streets of the city, and the topography of the ground, over or through which the new railway tracks were to be constructed, and the streets of the city had been located and opened, or located only on the city plat, must be kept in view. 2nd. That as North and Calvert streets, so far as the railway company’s property was concerned then existed only on the city plat, the said company had the right to use its property as if no such streets were contemplated by the city authorities, and to lay its railway tracks upon it. 3rd. That said ordinance should not be held to impose upon the railway company the burden of constructing and maintaining viaducts for North and Calvert streets, over its land and railway tracks, unless such be its plain language; and that the language used could not be held to refer to those streets. 4th. That the ordinance not having changed the rights and liabilities of the parties in respect to North and Calvert streets, they remained as they were at common law, as if the ordinance had never been enacted : and the viaducts for said streets over the land and railway tracks of the railway company, must be constructed and maintained by the city at its own cost and expense. 5th. That in the condemnation and opening of said streets, damages and benefits must be assessed to the railway company, with reference to the mode of crossing its land and tracks by viaducts or raised ways.

Appeals from the Baltimore City Court. The cases are stated in the opinion of the Court. First Exception. — The appellant the Northern Central Railway Company offered to prove hy competent witnesses what would he the cost of the construction of a suitable viaduct to carry Calvert and North streets over the tracks of the Northern Central Railway Company, claiming that if, hy the proper construction of the laws and ordinances applicable to the case, it was the duty of the appellant to construct the same, that then the cost of such construction was an element to he taken into consideration hy the Court in assessing the damages to which the appellant was entitled to he allowed in these proceedings ; but the Court (Brown, J.,) was of opinion, and ruled as matter of law, that by tbe true interpretation of the laws and ordinances applicable to the case, the appellant was bound to construct said viaduct at its own expense, and that therefore the cost of said viaduct could not properly form an element to be taken into consideration in estimating the said damages, and rejected said evidence so offered by the appellant. The appellant excepted. Second Exception.- — -The appellant proved by competent evidence that the ground on which the tracks of the Northern Central Railway Company are constructed, where Calvert and North streets cross the said Northern Central Railway Company between John street and North avenue, is low, level, meadow land, and was so at the time said tracks were constructed, and at the time the Ordinance of the Mayor and City Council of Baltimore, No. 77, approved September 26th, 1868, was passed, and that said railway tracks where the same cross said Calvert and North streets, are laid on the surface of said level, low land, and that no cutting was made or .required in the constructing of said railroad tracks where the same cross North and Calvert streets, and on the ground lying between these streets, but that whatever alteration was made in the natural surface was made by filling; that said railway tracks on their way into the city, after crossing Calvert and North streets, cross, among other streets, Hoffman, John and Belvidere streets, and that the ground at each of said streets on the line of said tracks is high ground, and that it was necessary in constructing said railroad across said streets to do so by deep open cuts, which across John and Belvidere streets, have been tunnelled by said Northern Central Railway Company, said street being graded, and used streets at the time of the construction of said railway, and at the time of the passage of the ordinance of Sept. 26th, 1868, while said tracks where they cross Hoffman street, are still in a deep open cut, said street not having been then yet opened or graded. And further proved that at the time of the passage of the said ordinance of September 26th, 1868, Charles, Eager and John streets, were paved streets. The appellant further proved that the grade and topography of the ground on the line of North and Calvert streets as proposed to be opened, is such, that both of said streets can be constructed over the property of the Northern Central Railway Company by means of a viaduct crossing, and that considering the locatidn and situation of the adjacent property and established grades of John and other streets, such a mode of crossing for said streets, would be the proper one for the interest of the City of Baltimore, and that said streets could not be constructed over said property of appellant by means of an embankment or even at grade, without serious and unnecessary injury to the appellant and its railway tracks and appurtenances. And further proved that the ground on the line of North and Calvert streets, at John street, and between that street and the property of appellant going northwards, and again beyond the property of appellant and between it and North avenue, is high ground, and much higher than the ground of appellant on the line of said two streets, and that the said ground of appellants is a valley between hills on the one side and on the other. The appellant further offered evidence proving that all of the ground belonging to appellant on Calvert and North-streets,- as proposed to be opened, is used and required for railway purposes, and is not more than is required and proper for such purposes. And appellant offered evidence tending to prove that the opening of said streets would be of no benefit to appellant nor to its property, but would damage the same to some extent even if said streets were carried across by a viaduct, said damage being caused by the abutments or columns of the said structure. The evidence being closed, the appellant offered the two following prayers: 1. It having heen proven to be practicable to construct North and Calvert streets by means of viaduct crossings over the property of the appellant, mentioned in the proceedings, and that considering the location and situation of the adjacent property and established grades of adjacent streets, it is shown that such crossings are the proper ones for the interest of the City of Baltimore; and it also appearing that said streets cannot be constructed by means of an embankment, or even at grade, over said property, without very serious and unnecessary injury to the appellant, therefore the Mayor and City Council of Baltimore can only construct the streets, by viaduct crossings, and can only condemn the right to construct in such manner; and the estimate of damages should be made subject to such duty of the Mayor and City Council of Baltimore, to construct and maintain such viaduct at its own expense. 2. The evidence in this cause having shown that the property designated on the damage plats for opening North street as B and E, and for opening Calvert street- as D, was acquired by the Northern Central Railway Company for railroad purposes, and is now used for said purposes, and that the said property is required for the proper and convenient conduct of its business at said points, the Mayor and City Council of Baltimore, in constructing and carrying the said streets across and over the said property of the said company, is hound to, and shall, so construct and carry the same over the said property, as not to interfere with the reasonable uses and enjoyment by the said company of the said property for its present railway tracks and any additional tracks it may require in the conduct of its business to be laid on the said property, and so as also not to obstruct the passage of trains over the said tracks, the evidence in this cause having established that such a mode of construction of.the said streets is practicable and proper ; and that if the said streets shall he constructed and carried over and across the said property of the said company in any other way than on a level with the present grade of the railroad track, they shall he so constructed and carried hy bridges or viaducts designated and erected in such a manner that the reasonable uses of the said property for the location of the tracks of the said company and the passage of its trains thereon shall not he interfered with ; and that the cost of the erection and maintenance of the ■said bridges or viaducts in perpetuity, shall be borne hy the Mayor and City Council of Baltimore; and that the damages to he allowed to the appellant in these proceedings shall be estimated upon the basis that the said streets shall he carried and constructed through the property of the appellant in such mode and manner as not to interfere with or destroy the reasonable uses of its property for railroad purposes ; and the appellant is also entitled to compensation for whatever damage, if any, may result from the taking of the said property for the construction of the said streets. The Court (Brown, J,,) refused to grant the said two prayers and filed the following opinion: “ These cases come to this Court on appeal hy the Northern Central Railway Company from the awards of the street commissioners of the City of Baltimore assessing benefits and allowing damages for the opening of Calvert and North streets, northwardly to North avenue, the northern boundary of the city, and they have been submitted to the Court for its decision without the intervention of a jury. "These streets will cross the property of the appellant in places now occupied by railroad tracks appertaining to its road; some of these tracks connect with the Baltimore and Potomac Railroad, some with the Union Railroad and some with the Western Maryland Railroad, while some extend to the station of the appellant on Calvert street in the city, and others run northward forming the main line of the appellant’s road. Sixty-one trains daily pass over those which are in the neighborhood of the Union Depot on Charles street, and they are in constant use for making up trains as well as for transportation of freight and passengers ; the connection of the tracks with the road of the Baltimore and Potomac Railroad is authorized by the ordinance of the city, of May, 1869, sec. 10; the connection with the Union Railroad is authorized by section 9, of its charter, contained in the Act of 1870, ch. 119 ; and the connection with the Western Maryland Railroad is authorized by the ordinance of the city, of 1875, No. 97, approved May 24th, 1875. The city commissioners have condemned a portion of this property of the appellant for the crossings of said streets as indicated by the plats filed in the case, and the questions presented are: 1st. What property or what right should he condemned? 2nd. What damages, if any, should he allowed appellant; and 3rd. Is the appellant or the appellee to pay the expense of the street crossings? “The same questions of law arise in each case, and the facts in each are substantially the same It is in proof that all the tracks and all the space condemned are necessary for the proper working of the appellant’s road. It is manifest that if the streets should cross the tracks at the existing grade of the latter, they would very seriously interfere with the business of the appellant, and would thereby inflict on it great loss and injury. The tracks as now laid are much below what must he. the established grade of the streets when they shall he opened, and if the tracks should be raised to the proper grades of the streets, the sudden and considerable increase of grade of the tracks would he such as nearly, or perhaps entirely, to destroy the traffic of the appellant; the amount of injury which would thus be inflicted on the appellant could not well be estimated ; moreover, if these streets should cross the tracks either at their present grade or at any grade suitable for the purpose of the railroad, the streets would become almost worthless for the purpose of passage or transportation by reason óf the constant use of -the tracks for railroad purposes. ■ “ The only mode then in which the streets can cross the tracks without great injury both to the appellant and the public, is by a viaduct or raised way of some description, and this is the mode clearly prescribed 'by the Oity -Ordinance of Sept. -2.6th, 1868, No. 77. By this ordinance the appellant was authorized and required to remove its tracks from the position -they formerly occupied, to the place where they now are, and the removal has since been made by the appellant in pursuance' of and in obedience to this requirement.- The permission of the -city was necessary for the removal of the tracks to their present position, because the streets are under the control .of the city authorities, and 'cannot be used by a railway company for its ■tracks without their sanction. All the provisions of the ordinance became binding on the appellant when it availed itself of the permission given. The appellant-accepted the ordinance by acting -under it. The preamble recites that ‘ it is desirable that railway tracks in the city should be so constructed as that they should cross or pass along the streets below the grade thereof, whenever practicable,’’ and adds -‘that the Northern ¡Central Railway Company desires to remove the tracks of its railway leading to Calvert Station from its ’ present location to the northeastern side of Jones’ Falls, and desires so to construct its new tracks as that whenever they cross or pass along streets the said tracks shall be constructed below the grade of said streets wherever such method of construction is practicable.’ The preamble thus plainly declares the object and extent of the ordinance, and would furnish a safe guide to its meaning if there were any ambiguity in the subsequent provisions. It is the declared purpose both of the city and the appellant that .the new tracks shall be constructed by the appellant below the grade of the streets wherever such method of construction is practicable. In the ease of these streets it is clearly practicable. “ The 1st section carries out by express enactment the general intent declared in the preamble ; it provides that the grade of Charles street, between Hoffman and Lanvale streets, and the grade of Eager street, between North and Burén streets, be raised and changed under the direction of the Mayor and City Council, so as to enable the Northern Central Railway Company to construct its railway under said streets, and all open cuts along Hoffman and other streets shall be tunnelled by the said Railway Company. The tracks of the appellant are now laid on the soil in a manner which the Court considers an open cut within the meaning of the ordinance, in the places where they are to he crossed by Calvert and North streets; and they are, therefore, by the express words of the ordinance, required to be there tunnelled by the appellant. “ The word tunnelled is manifestly used in contradistinction to open cutting. The open cuts along or across the streets are to be ‘tunnelled,’ that is to say, covered over in the manner of a tunnel by the appellant; a tunnel is defined to be a subterranean passage for a canal or road. ‘ Worcester Die., in loca.’ ‘In general, tunnels are formed through hills in order to avoid the expense of an open cutting.’ “In this case, as these open cuts pass through a hollow, not a hill, and as the streets are to be carried over them, the word ‘ tunnelled ’ can only mean covered over in the manner of a tunnel by an arched or raised structure shaped like a tunnel, and more usually called a viaduct. “Thus understood the clause in question is perfectly intelligible, and the whole ordinance is consistent and . carries out the declared intention of the appellant and the appellee, while any other construction would render the clause absurd and unmeaning, and would make the section inconsistent with the preamble. “If there were any doubt about the meaning of the clause, which I think there is not, it is made plain by the language of the preamble qu,oted above. Two prayers have been offered by the appellant, both of which assume that the tracks are to be crossed by viaducts, but they maintain that the viaducts are to be built by the city at its expense, and that the appellant is entitled to such’ damages as it may sustain by reason of such viaduct. I think it clear, from the preamble and the first section, as I have already said, that the viaducts or tunnels are to be constructed by the appellant and not by the city. But it is contended that it is shown by the 2nd section of the ordinance that the expense of the viaducts is to be borne by the city. The language of the section is as follows : ‘Section 2nd. And be it enacted and ordained, that all expenses incurred in making said changes of grades, including the tunnelling and repaving of all paved streets, shall be paid by the said Northern Central Railway Company.’ “The changes of grade mentioned in the 2nd section, refer to the changes of grade of Charles street and Eager street, ordered to be made in the 1st section, both being paved streets, and being the only streets in which a change of grade was made necessary by the ordinance ; as this change of grade was to be made under the direction of the Mayor and City Council, there was good reason why there should be an express provision that the expense should be paid by the appellant, otherwise it would have been contended that the city should provide for the cost, and the tunnelling and repaving mentioned ,in the 2nd section refer expressly to paved streets only. They therefore include Charles and Eager streets. “The ‘tunnelling’ includes also John street (although it was not mentioned by name) because it was then paved. It was the only other street to he crossed which was then paved, but its grade was not changed, and it therefore did not require to be repaved. The entire section refers exclusively to paved streets, and therefore does not relate to the work to he done by appellant iu tunnelling the open cuts as directed in the first section, including said open cuts at the crossing of North and Calvert streets, nor does it refer to the work to be done in removing the old tracks, as required by the third section, as to all this work the principle applies that as it is to be done by the appellant in carrying out a plan designed by it for its own benefits, it should be paid for by the appellant. The only right condemned is that of crossing the property of the appellant by proper tunnels or viaducts to be erected by the appellant at its expense, and as this is required to be done by the ordinance, and as the appellant must be considered to have received an adequate consideration therefor in the privileges conferred by the ordinance, the appellant is not entitled to damages. I therefore reject the prayers of the appellant. “ The commissioners have allowed the nominal damages of one dollar to the appellant for each of the two crossings of North street, and they have allowed the sum of $5142 for the crossing of Calvert street. The reason of these allowances is not explained by the commissioners in their proceedings, but I am informed that only nominal damages were allowed in the case of North street, because the street had been previously dedicated to the public, and that the damages were allowed in the case of Calvert street, which had not been so dedicated, as a compensation for the value of the property crossed. But as all these crossings are to be tunnelled by the appellant in accordance with the ordinance, and as the uninterrupted use of the crossings beneath the raised ways is, according to the ordinance, to be retained by the appellant for railroad purposes, I think that only nominal damages should be allowed in each of the cases. In the matter of the benefits assessed against the Northern Central Railway Company, I am of opinion that these should be struck out, and only tlie nominal sum of $1.00 in each case should he assessed for benefits. Having determined that the bridge structures, by which each of these streets will be carried over the property of the said company, must be erected at the sole cost and expense of said Northern Central Railway Company, and being satisfied by the evidence that the adjacent lots are required for railroad purposes, I do not think that the company can with justice, he assessed for benefits, and having reduced the damages of $5142.84, awarded by the commissioners in favor of the company in the case of Calvert street, to the nominal sum of $1.00 and retained the damages allowed by them in the case of North street at the nominal sum of $1.00, I shall also reduce the award of benefits to the same amount, that is to say the sum of $1 00 in each case. “In conformity with this opinion, 1 do hereby confirm the damages allowed in the case of North street, and set aside the damages allowed in the case of Calvert street, and instead thereof allow the nominal damages of $1.00 in said case; and I do hereby set aside the benefits assessed in each case, and award the nominal sum of $1.00 for benefits in each case, the costs to be paid by the Mayor and City Council of Baltimore.” The appellant excepted, and took these appeals, and the parties, entered into and filed the following “Agreement:” “It is hereby agreed, that the opinion of the Court filed in this cause by the Chief Justice, shall form part of the record in the case, and that said opinion as to such' parts thereof as bears on the construction and intrepretation of the laws and ordinances of the State and city, and as to all other matters of law therein decided, shall be considered as rulings made by the Court on matters of law at the trial of the cause, and the same shall on appeal by either party, be subject in all respects to review in the Court of Appeals, to all intents and purposes as if embodied in formal instructions.” It is the duty of the tribunal having proper jurisdiction of the matter in cases of this kind, to declare that the highway shall be constructed on that plan as shall interfere as little as possible with prior existing rights and easements, is fully established. See Manser vs. N. & E. R. R., 2 Eng. Rail. Cases, 380; Tuckahoe Canal Case, 11 Leigh, 79, 80, 81; Kyle vs. Aub. & Roch. R., 2 Barbour’s Chancery, 490. The proceedings for the condemnation and opening of these streets were not had until the beginning of the year 1875; the appeal being taken March 20th, 1875. The railway of the appellant where these streets when opened would cross, had been constructed and been in active use for .a considerable period before the institution of said proceedings, (in point of fact prior to the year 1870, though the date is not given in the record.) We have to consider the case then of an existing road, (or highway so to speak,) and all the easements properly appertaining thereto, belonging to the appellant, and in active use, proposed to be crossed by another road, way or street, (by whichever of these names we may choose to designate it,) which latter or neto road or way, it is now to be taken as conceded, can only be constructed across the former or older road or way, with a due regard to the preservation and proper enjoyment of the last mentioned road, by “ a viaduct or raised way.” (Court’s opinion, beginning of of 1st paragraph.) In such cases, those proposing to carry a new road or way across the old or existing road or way, must do so by such structure as will interfere as little as possible with the older right, and that said structure must be built and maintained at the sole cost and expense of those desiring to construct the second or new road or way. In support of this proposition, we refer to the following authorities. Morris Canal Co. vs. The State, 4 Zabriskie, (N. J.,) 62 ; Manser vs. N. & E. R. R., 2 Eng. R. Cases, 380; Tuckahoe Canal Case, 11 Leigh, 79, 80, 81; The King vs. Kerrison, 3 Maule & Sel., 526 ; The King vs. Inhabitants of Kent, 13 East, 220 ; The King vs. Inhabitants of Lindsey, 14 East, 317 ; Richardson vs. Biglow, (Shaw, Ch. J.,) 15 Gray, 156, 157; Purley vs. Chandler, 6 Mass., 454 ; Washburne on Easements, 197, (star page;) City of Lowell vs. Proprietors of Locks, &c., 104 Mass., 22 ; City of Hannibal vs. Han. & St. Joe R. R., 49 Missouri, 481. The principle running through these cases is, that where there is an existing easement, whether in the shape of a highway, or road, or way, or water-course, either natural or artificial, and another or neioer easement is created or to be exercised, those who are interested in the latter, whether it be the public who wish to make a highway across an existing railroad, or a railroad company which wishes to make its railroad across an existing highway, must, in the first place, cross the existing way in such mode and by such structure as will interfere as little as possible with the prior right, and must, in the second place, be at the cost of this structure. If the prior road or way cannot be crossed without damage to it, then the damage must be assessed and paid, if there is a right to cross given expressly or by necessary implication. But even the right to cross or interfere at all with the prior easement, will not be presumed to have been intended to be granted • by the Legislature, unless the presumption is a necessary one. New Central Coal Co. vs. George’s Creek Coal & Iron Co., 37 Md., 564 ; Union R. R. vs. Balt. & Havre de Grace Co., 35 Md., 224. The principle above referred to is thus stated by Chief Justice Parsons, in 6 Mass., 454, stated, and adopted by Washburn on Easements, p. 197, (star page.) "If the public locate a way across an existing watercourse, either natural or artificial, the public must make and maintain a bridge across the same. But if the owner of the soil constructs a water-course under a highway already existing, he must make and keep in repair the bridge.” Again, in 15 Gray, 156, 157, (above cited,) in a case where the defendant had an easement in the shape of a race-way, and plaintiff had also an easement in the shape of a right of way on a line which would cross this raceway, Mr. Chief Justice Shaw thus states the law with his usual precision: “ The plaintiff’s was not an actual way built or in use, but was a right of way, and as such carried with it the right of fitting it for actual use ; but defendant was in the actual use of his race-way. Could both of these rights be enjoyed together without interference? We think they could. Defendant had a right to a race-way sufficiently wide and deep to carry off the water from the mill. If plaintiff could not use his right of way otherwise, he had a right to build a bridge over the race-way. The land travel could be carried over the stream, but stream could not be carried over the way ; it must retain its level. .Necessity, therefore, would determine how both these rights could coexist, and both be beneficially used. “ Then comes another rule, that he who enjoys the benefit of an easement in another’s soil, must be at the expense of fitting, maintaining and repairing it. If, therefore, the plaintiff would enjoy the benefit of a ivay, either a foot-way or carriage-way, over the defendant’s race-way, he must erect a suitable bridge over it.” Again, in the City of Lowell vs. Proprietors of Locks, &c., 104 Mass., 22, the Court say: “It may be true where a highway is located over land across which the owner, intending to make a beneficial use thereof, has commenced the construction of a watercourse, that the public easement must be subject to sucb prior appropriation, so that the original cost of the bridge, and the burden of its support will be on the public. In such a case, the bridge should he ordered as apart of the original location and construction of the way.” Again, in the case of Morris Canal Co. vs. The State, 4 Zabriskie, 62, it was held that where a canal having been in existence, a highway was subsequently desired by the public and laid out, the public must build and pay for the bridge required to carry the highway across the canal. In this case, Justice Elmer says that, “at common laio, counties were chargeable with making and repairing public bridges within their limits, unless some other person or bodies corporate were shown to be liable.” Again, in 14 East, 317, (King vs. Inhabitants of Lindsey, ) in a case where authority was given to improve a canal and river by making “navigable cuts” alongside, and these new cuts crossed an old highway in such a way as to make a bridge necessary,— Le Blane, J., says: “ The authority given to the company to make the ‘ cut ’ which rendered the highway impassable without a bridge, must create in them an obligation to erect the bridge ; although the word authorize in the Act would not of itself create the obligation.” And Bayley, J., says: “The bridge is rendered necessary for the purposes' of the company, but not for the purposes of the inhabitants of the parish. The latter might have continued to use the ford (the old highway) as they did before the works, executed by the company for their own benefit, deprived them of the use of it.” It is to be noted in reference to the case just cited, that in that case, it happened that the older easement was that of the public, viz , the highway, which was interfered with by the newer one belonging to the private company, and so of course in that case the private company had to build a bridge. But of course, as is abundantly shown in all the cases, it makes no difference whether the public or the private company happen to own the older easement, it is this older one which has to he protected. And referring again to the language of Bayley, J., quoted above, and applying it to our case, we may say— “The bridges over Calvert and North streets are. rendered necessary for the purposes of the public to enable them to have a highway to the northern boundary of the city, hut not for the railway company, which would he very glad' to have no bridge or highway over their tracks. The latter (the R. R. Co.) might have continued to use their railway (the existing easement) as it did before the opening of streets about to he opened, made a bridge necessary. ’ ’ To the same effect are the cases of King vs. Inhab. of Kent, 13 East, 220 ; and King vs. Kerrison, 3 M. & Sel., 526. It is perfectly apparent that the whole scope and object of the Ordinance of 1868, No. 77, was.to indicate hotu the railroad should pass streets, that is, below the grade thereof, and not at all to deal with the general question of who was to defray the cost of the construction of the streets over the railroad tracks, the only streets in reference to which anything was designed to he provided on the subject of their costs were the streets then already paved, in reference to which it was provided that they should he restored to their former condition at the cost of the railway company. That, in this view, the cost of the construction of the bridges or tunnels, though to he constructed by us, form an element of the damages to he awarded to us, we regard as conclusively established by the following authorities. Grove vs. Ghes. & O. C. Co., 11 Gill & J., 398; Tyson vs. County Commissioners, 28 Md., 525; Kyle vs. Auburn & R. R., 2 Barb. Ch., 490 ; Dealon vs. Boston and Concord R., 24 N. H., (4 Foster,) 186 ; Ibid., 114 ; March vs. Ports. & Con. R., 19 N. H., 372; 40 Penn., 56. To compel the company to build the bridges, and yet exclude their cost from the estimate of damages to be allowed when the rights over the property are condemned, in these proceedings, for the opening of these streets, is unconstitutional. It is practically taking the property without compensation. Balto. & H. de Grace Co. vs. Union Railway Co., 35 Md., 230 ; City of Lex. vs. McQ., 9 Dana, 518, 519, 520; Cooley on Const. Lim., 508, (star page;) Pumpelly vs. Green Bay Co., 13 Wall., 166 ; Woodruff vs. Neal, 28 Conn., 165. The obligation of the appellant is to be construed 'just as if the streets barred its way at the time the tracks were laid. If the city should construct these streets according to the established grade, they would present an insurmountable barrier at right angles with the company’s tracks, and until, by a tunnel or otherwise, the bander was pierced, it would be impossible to operate that portion of the road. Full power is given by its charter, to the Mayor and City Council of Baltimore “for laying out, opening, extending, &c., any street, square, &c., &c., within the bounds of said city, which in their opinion, the public welfare or convenience may require.” Gode, vol. 2-, Art. 4, sec. 831. The right of way in the railway company must be held subject to the exercise of this power. There can be no question made as to the right of the city to conduct its streets over the tracks of the appellant. In the absence of the ordinance, it might have been doubtful whether' the city or the appellant was bound to pay the expense. But the right to cross could in no event be disputed. There is no time fixed by the ordinance when the obligations of the appellants to pay the expense of tunnelling .cross streets ceases. The obligation is imperative to tunnel all open cuts, and to pay the expenses of the work. These streets then, in our view of the liability created by the ordinance, are to be treated as existing at the time, and as crossing the road-bed, designed for the company’s tracks, when the same were laid. As to the meaning of the word tunnel, we refer to the opinion of the Court below. It would be a very limited definition indeed, which would confine the application of the term to a bore through a hill. But it would be unreasonable to give it such narrow application in the case in hand, looking to the plain intent and object of the ordinance. Terms of art will not be permitted to defeat the intent. Ambiguous terms will be presumed to have been used in agreement with the subject-matter. Smith’s Com. on Stat. and Const. Law, secs. 484, 631. It may be suggested, too, perhaps, that the phrase “open cuts ” is not to be confined to a cut of that description, made by the appellant while engaged in the work of preparing its road-bed. If such a cut existed, from natural or other causes, it would be equally the duty of the appellant to tunnel. If the obligation to conduct' the said streets across the company’s tracks is not complete by the express requirements of the ordinance, then the company must compensate the city for the condemnation of the right of way over said streets. And any fair measure of compensation would be the cost of constructing a way for the streets over the tracks of the company. Baltimore & Havre de Grace Turnpike Company vs. Union R. W. Co. of Baltimore, 35 Md., 224. It also follows, that the obligation, to tunnel is not limited to paved streets, but extends to all streets crossed by the tracks of the appellant, and that appellant’s first and second prayers ought to have been rejected; and that the judgment of the Court below must affirmed.