Lake Roland Elevated Railway Co. v. Webster

Bryan, J.,

delivered the opinion of the Court.

The plaintiff below (now appellee) obtained a judgment against the Lake Roland Elevated Railway Company, and the defendant has appealed to this Court. The evidence is set out in the transcript with great detail; much more than is required for any reasonable purpose. The portions .of it necessary to present the questions of law which we are to decide might have been fully stated within a much smaller compass. In February eighteen hundred and ninety-two *534 the plaintiff rented from William H. Birch the lot known as No. 206 North street, for the term of five years, at the annual rent of twelve hundred dollars. The defendant’s railroad runs on North street, and its elevated structure is in the middle of the street; it is not directly in front of the rented premises but it begins about twelve feet north of the northern boundary. The railway was completed and the cars began to run in May, eighteen hundred and ninety-three. The lot rented by the plaintiff is improved by a building which has been used as a livery stable for a number of years, and is not adapted to any other purpose. The plaintiff’s business is to keep a livery stable, and he rented the property for that purpose. After the road was in operation, the landlord made á reduction in the rent, bringing it down to nine hundred dollars a year. Evidence was offered in behalf of the plaintiff tending to show that the construction of the elevated portion of the road had been very injurious to his leasehold interest, and had greatly diminished its rental value; and evidence was offered in behalf of the defendant tending to show the contrary. The testimony was extremely conflicting; some of it was to the effect that the rental value was entirely destroyed; and on the opposite side it was testified that it had not been affected at- all. The testimony was addressed to the jury; it is altogether unnecessary for us to state any of the details. On the prayer of the plaintiff the Court gave to the jury the following instruction: “The plaintiff, by his counsel, prays the Court to instruct the jury that if they shall- find from the evidence that the rental value of the premises known as Nos. 206 and 208 North street, and occupied by the plaintiff as tenant of William H. Birch under the written lease offered in evidence, has been diminished by the construction and use of the elevated railway of the defendant corporation on North street, then the plaintiff is entitled to recover, and the measure of damages is the ampunt which the jury shall find said rental value has been so diminished.”

The elevated structure of the defendant on North street *535 is lawfully authorized,, and therefore its obstruction to travel on the street cannot be regarded as a nuisance. It is clear that no one can sustain an action for damage caused by this obstruction which he suffers in common with the public at large. But the’ right to build this elevated road does not imply exemption from responsibility for injuries inflicted on private property by its operation and construction. It is hardly necessary to add anything to the discussions which have heretofore taken place on this subject. In Baltimore and Potomac R. R. Co., v. Reaney, 42 Maryland, 117 , the question was fully considered, and the principles then declared have ever since been considered as settled in this State. The railroad company was authorized to construct a tunnel under the bed of Wilson street, in the city of Baltimore, and by the excavation of the street for the purpose of constructing the tunnel, a house on Madison avenue was injured, the foundation being weakened and the walls caused to crack. The question was, whether the owner of the house was entitled to l'ecover? This Court, in a very able and luminous opinion by Judge Alvey, held that although the excavation of the street was lawful and the work was done in a lawful manner, the railroad company was liable for the damages which actually resulted from the work. And in O'Brien v. Baltimore Belt R. R. Co., 74 Maryland, 374 , the right of adjoining lot owners was fully recognized to redress for any substantial injury to their property rights, “produced by the construction or operation of the railroad in the street."

It has been objected in the present case, that the elevated structure was not immediately in front of the plaintiff’s stable, but about twelve feet north of it. But the right to redress depends on the question whether damage was done, and not on the proximity or distance of the operative cause of the injury. In Reaney's case, the injured house was not on the same street with the tunnel, and was distant more than twenty-four feet from the corner. The ground of recovery was the damage caused by the tunnel; the measurement of distance was not an element in the case. Article *536 23, section 169 of the Code was referred to in the argument. If we compare this section with the one hundred and sixty-seventh of the same Article, to which it refers, we will be enabled to see its meaning clearly. It is intended to enable a railroad company to acquire a right to occupy a street or other public way for the location of its tracks, and it authorizes condemnation in the same manner as the property ot private persons may be condemned under section one hundred and sixty-seven; but there is one addition to its responsibilities. By the one hundred and sixty-seventh section, the road is compelled to pay only the damages which the owner of the condemned land will sustain by the use and occupation of his property by the corporation; whereas, when the tracks are laid upon a public street, the one hundred and sixty-ninth section expressly enacts, that the corporation shall be responsible for injuries done by the location of its tracks to private property lying upon or near to the street so occupied. This is an exceptional and remarkable feature of corporate responsibility attached by the statute to the use of streets by railroads. There is a further provision (not now in question), that no railroad company shall be allowed to pass through the city of Baltimore without the consent of the municipal authorities. The section which we have been considering was intended to give statutory sanction to this responsibility, but it cannot be supposed that it could be construed so as to relieve railroad companies from liability for any other damages which they might cause to private property. It may serve, however, to set in a clear light the mistake of supposing that they are responsible only to abutting owners.

The plaintiff’s prayer claims damages for the diminution of the rental value of his leasehold property. His testimony was that before the building of the road the annual value' of the property was twelve hundred dollars, and the construction and use of the road reduced this value so much, that it was worth nothing. His landlord remitted three hundred dollars of the rent, leaving him still bound to pay nine hun *537 dred dollars a year. If the jury found that the usable value of the property was destroyed or diminished by the cause alleged, they were justified in finding a verdict for the damage done. Great exception is taken to the language of the prayer. But it seems to us that its fair meaning is that the jury are to find the damages which the plaintiff sustained as tenant of the premises by the diminution of its rental value. It could not easily be construed as meaning that they were to find the damages which the landlord had suffered. It is not questioned that the draughtsman of the prayer might have presented the question of damages in a different manner as was done in Rice's case, 73 Maryland, 307 . He has chosen, however, to ask compensation for the diminution of the usable value of his premises; this was certainly an injury to him, and he certainly ought to recover for it. The rejected prayers of the defendant are all inconsistent with the views which we have expressed, and ought not therefore to have been granted.

(Decided June 20th, 1895.)

Jtidgment Affirmed.