delivered the opinion of the Court.
These two cases came before Baltimore City Court upon appeals from the Street Commissioners of the City in the matter of assessments of damages and benefits to the appellant in the condemnation and opening of North and Calvert streets from John street to North avenue. They were tried together before the Court, without a jury, and two exceptions were taken by the appellant, the first to the exclusion of the evidence set out in the exception, and the second to the rejection of its two prayers. By an agreement of counsel the opinion of the Judge of the City Court is made part of the record, and all such parts of it as hear on the construction and interpretation of the laws and ordinance of the State and City, and all other matters of law therein decided, shall be considered as rulings by the City Court, and upon this appeal shall he subject to review to all intents and purposes as if embodied in formal instructions. The judgments were in favor of the Mayor and City Council, and from them the Railway Company has taken these appeals, the facts and principles of law being exactly the same in the two cases, and both argued together.
After a very careful examination of the cases and the authorities cited hv the counsel of the respective parties, •we are of opinion that the City Court erred in rejecting the appellant’s prayers, which, we think, correctly present the law as applicable to these cases.
The law is well settled that when a new way or road is opened or made across a way or road, already existing and in use, the new way must he so constructed as to cause as little injury as possible to the old way or road. Manser vs. Northern and Eastern R. R. Co., 2 Eng. Railway and Canal Cases, 391, marg.
The proof in these cases shows that the appellant’s tracks were laid and their road was in use some time before the proceedings to condemn and open North and *445Calvert streets were commenced, and that the whole of its land is necessary for the tracks of its road, and that the opening of the said streets across it at its present grade would very seriously injure its usefulness as a railroad, while the streets themselves, looking to the formation of the ground and the existing grade of other streets of the city, would be very inconvenient to the public, and the crossings at the railroad extremely dangerous. If, on the other hand, these streets were carried over the low land of the appellant by embankments or fillings, so as to raise them to a level with the grades of other streets, those parts of the tracks of the appellant’s road would be destroyed, and barriers interposed to the running of its trains from the places where the embankments would be made, to its Calvert street station. We agree, therefore, with the learned Judge of the City Court, that the only mode in which the proposed streets can cross the tracks, without great injury both to the appellant and appellee, is by viaducts, or raised ways of some description. Such crossings seem to have been contemplated by Ordinance No. 77, approved September 26th, 1868, the preamble of which recites that “itis 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.” North and Calvert streets must therefore cross the land and tracks of the appellant by viaducts or raised ways so as to allow its trains to pass below.
The next material and important question in these cases is, at whose cost and expense such viaducts or raised ways shall be constructed and maintained? At common law it is undoubtedly the rule that where a new way or road is made across another which is already in existence and use, the crossing must not only be made with as little injury as «possible to the old road or way, but whatever' structures are necessary for such crossings must be erected and maintained at the expense of the party under whose *446authority and direction they are made. And if the old road or way cannot he crossed without damage to it, and the right to cross is given, such damage must he assessed and paid. This principle is recognized as settled law in many well considered cases, among which we refer to Morris Canal vs. The State, 4 Zabriskie, 62 ; Richardson vs. Bigelow, 15 Gray, 156,157 ; Perley vs. Chandler, 6 Mass., 454; Lowell vs. Proprietors of Locks and Canals, 104 Mass., 22 ; Manser vs. Northern and Eastern R. R. Co., 2 Eng. Railway and Canal Cases, 387; The King vs. Kerrison, 3 Maule & Selwyn, 532 : King vs. Inhabitants of Lindsey, 14 East, 320, 321.
The counsel of the appellee admitted this to he the established common law principle, hut contended that the rule was changed in the cases now under consideration, and the burden of constructing the viaducts was imposed upon the appellant by the City Ordinance No. 77, of 1868, before referred to, and it was upon this ordinance alone that the decision of the City Court was based. It is entitled “An Ordinance to alter the grade of certain streets in the City of Baltimore and the preamble recites “ that' it is desirable that railway tracks in the city should he so constructed as that they should cross or pass along the streets below the grade thereof whenever practicable ; and that whereas the Northern Central Railway Company desires to remove the tracks of railway leading to Calvert station from their present location to the north-eastern 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 whenever such method of construction is practicable ; and whereas the owners of a majority of the feet of ground fronting and binding on the streets in the first section of •this ordinance, have presented to the Mayor, and City Council of Baltimore their petition asking the grades of said streets may be changed between the points named in *447said first section of this ordinance." It plainly appears from this preamble that the change of the grades of the streets mentioned in the petition and ordinance, was authorized to be made for the common benefit of those owning land on said streets, and of the public generally.
The first section provides that the grades of Charles street, between Hoffman and Lanvale streets, and of Eager street, between North and Burén streets, shall be raised by the Mayor and City Commissioner, so as to enable the Railroad Company to construct its railway tracks under said streets ; and the section then closes in the following words: “and all open cuts along Hoffman and other streets shall be tunelled by the said Railway Company." It is contended that the closing clause of the section just quoted imposes upon the Company the burden of constructing the viaducts for North and Calvert streets over its land and railway tracks. It is clear that the main object to be accomplished by the enactment of the ordinance was to raise the grades of Charles and Eager streets, between the points named, to enable the appellant’s road to be constructed below said grades, and this, as we have before stated, was to be done for the common benefit of the land owners whose property fronted on the streets, and of the public generally. It was contended by the counsel of the appellee that the ordinance also conferred benefits on the appellant by giving it a new and better route for its road from the city limits to its Calvert street station ; but we cannot perceive how any benefit to it was intended or was conferred by the ordinance in question, further than by-raising the grade of Charles and Eager streets. The appellant, at the time of the passage of the ordinance, already had its railway constructed and in use from the city limits to its Calvert street depot, and if it desired to change its location to the northeast side of Jones’ Falls it' had full power and authority to make such change by the’ Act of 1849, ch. 532, sec. 2, and irrespective of the ordi*448nance No. 77 of 1868.. It cannot, therefore, be held that the appellant is hound, under the ordinance, to construct the necessary crossings over its tracks as a consideration for the benefits and privileges granted to it by the ordinance, as was contended by the counsel for the appellees. At the time the ordinance was passed Charles street was an important channel of communication and travel between the city and country, and the track of the appellant crossing it at grade was, no doubt, found to be a great inconvenience to the public, as well as an obstacle to the advance and extension of improvements north of the railway, and it was to remedy these evils that the ordinance was passed to raise the grades of Charles and Eager streets so as to enable the appellant’s road to pass below them instead of at grade. The same proceedings were had to raise the grades of said streets as are necessary to effect the change of grade of any street in the city. . A petition of the owners of a majority of feet fronting and binding on the two streets, whose grade was sought to be changed, was filed, asking for a change of the grades, and the ordinance directed the change to he made by the Mayor and City Commissioner. In. construing this ordinance, the rights of the appellant, the objects to he accomplished by the 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 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 he kept in view. At that time North and Calvert streets had not been condemned or opened north of John street, though they were laid down on the city plat. The land of the appellant lies on the northeast side of Jones’ Falls, and is low, level land, while that both north and south of it is high land. The tracks of the railway have been laid *449on this bottom, level land, which required no cutting whatever until Hoffman street, not then opened, hut located on the city plat; was reached. Cuts had to he made through the land where Hoffman street was located, as also through John and Belvidere streets, where the ground was high. Charles, Eager, and John streets were the only streets crossed by the railway which had then been paved. Keeping all these facts in view, what does ordinance Ho. 77 provide with respect to the appellant or its railway tracks ? It provides : First, For raising the grades of Charles and Eager streets, between the points named in the ordinance, “ so as to enable the Horthern Central Railway Company to construct its railway tracks under said streets ;” and, next, “ That all open cuts along Hoffman and other streets shall he tunnelled by said railway company.” It has been seen, however, that the whole of the ground between Charles and the location of Hoffman street is low and level and required no cutting, and none was made, the railway tracks having been laid on the surface of the ground. It cannot he supposed that the framers of the ordinance ever contemplated that open cuts would he made, in constructing the railroad upon-such ground, which was on a level •with the main line of the appellant’s railroad, or that they ever thought that tunnelling would be required where no open cuts could be made. The closing part of the first section of the ordinance must he, therefore, applied to such streets only through which open cuts were necessary for the construction of the railway. Horth and Calvert streets, so far as the appellant’s property was concerned, then existed only on the city plat, and the appellant had, therefore, 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. This principle was held by our predecessors long before the passage of the ordinance in question, and the Mayor and City Council having been parties to the case, must he held to a knowledge of it at the time *450this ordinance was passed. In the case of Moale vs. The Mayor and City Council of Baltimore, 5 Md., 322, the City sought to open a street through Moale’s property and to allow him only nominal damages, because, when he purchased the property, a street through it had been located on the- city plat. But this Court, through Lesrand, Chief Justice, said : “ It is not incumbent on the city authorities to adhere to the line of the streets as laid down in the city plat. The power to widen, open, or close up any street in the city rests entirely in the discretion of the corporation. A person, under these acts (1817 and 1838,) may, for an indefinite space of time, be deprived of the use of his property, because it lies in the bed of a street designated on the plat of the city, and eventually find, whilst he has paid taxes and been denied the advantages to which he was entitled from the proper use of his land, the street laid down on the plat has been abandoned. Such a state of things is repugnant to every notion of justice and cannot obtain our consent.” In view of all the facts, we think that the ordinance, No. 77, should not be held to impose upon the appellant the burden of constructing and maintaining viaducts for North and Calvert streets over its land and railway tracks, unless we are compelled to do so by its plain language. We think that the language used in the first section cannot be held to refer to the streets named, because at that time they existed only on paper, and the ground over which they would pass, if extended, required no open cutting for the construction of the railroad, and, conseqirently, no tunnelling ; and, further, because the language can he fully gratified by applying it to Hoffman street, which is expressly required to be tunnelled, and John and Belvidere streets, which are near the location of Hoffman street, and which it was necessary to tunnel, and which have been tunnelled by the appellant. The words “other streets,” used in the first section, are fully gratified by their application to John and Belvidere streets. *451But even if the first section, taken alone, was of doubtful construction, when taken in connection with the second section, all doubt is removed. The second section deals exclusively with the cost and expense of the changes provided for by the first, and specifies in express terms what part of it is to be borne by the appellant. It enacts that “ all expenses incurred in making said changes of grade, including tunnelling and repaving of all paved streets, shall be paid by said Northern Central Railway Company.”
The only expense imposed by this section upon the appellant is expressly limited to that of making the said changes of grade, that is, the changes of grade of Gharles and Eager streets, including the cost of tunnelling and repaving the streets which ivere then paved, to wit: Gharles, Eager, and John streets. These streets being then streets graded, paved, and in use as streets, it was, no doubt, thought to be only right and equitable that the appellant should bear the cost and expense of repairing the damages which would be done to said streets by taking up the pavements and cutting through them in the construction of the railroad. The appellant was, therefore, required to bear the expense of repaving these streets, including the cost of tunnelling, in addition to that of changing the grades of Charles and Eager streets, they being the only streets whose grades it was necessary to change in order to enable the railway to pass below them. The remainder of the expenses were not provided for by the ordinance, but were left to be provided for, under the general system of the city government for condemning, grading, and paving streets, at such times as the city should, in its discretion determine to proceed with such work. The second section having, in express terms, provided what part of the expense shall be borne by the appellant, it cannot, by implication, be subjected to any other or greater expense.
The ordinance not having changed the rights and liabilities of the parties to these cases in respect to North and *452Calvert streets, they remain as they were at common law, as if the ordinance had never been enacted, and it follows, therefore, that the viaducts for said streets over the land and railway tracks of the appellant must he constructed and maintained by the appellee at its own cost and expense.
(Decided 8th March, 1877.)Erom this it also follows that, in the condemnation and opening of said streets, damages and benefits must he assessed to the appellant with reference to ■■ the mode of crossing its land and tracks hereinbefore decided to he the only proper one; that is, by viaducts or raised ways.
In the view we have taken of these cases it becomes unnecessary to pass upon the first exception.
Judgment reversed, and cause remanded.