filed the following dissenting opinion :
Upon this appeal the Court is confined to the case-made by the bill, the averments of which must he taken as true.
That the complainants had the right to establish a depot at the Cumberland terminus of their road, to erect there a station house for passengers, to lay a side track for local freight delivery, to construct other terminal improvements, and to acquire and devote to such purposes-, the lot referred to, provided in so doing they acted in good faith, as the bill avers, and under the circumstances, stated in their bill, are propositions which appear to me-too plain to admit of argument. And in my judgment, it is equally clear the defendants had no power to construct their road across this lot and through these improvements.They were originally incorporated under the free railroad law of 1876, ch. 242. In my opinion, that Act gives no power to corporations created under it to.cross even the tracks, much less to run through the station houses, depots and terminal improvements of .other railroads. They applied for and accepted the Act of 1878, ch. 192, as an amendment to their charter. That Act, among other jirovisions, gave them power in constructing their main road, and a branch from it to the Oanal, “ to cross the tracks ” of the complainants’ main road west of the narrows, “to-cross the Potomac Wharf Branch,” and “ to cross the track or tracks of the Baltimore & Ohio Railroad at one point,” but it nowhere gives them power to run through the station houses and depots of either road, or to cross lots lawfully acquired, and held and devoted by either-company to such legitimate corporate purposes.
*281But conceding they had no power to make the condemnation in dispute, it is argued that the determination of this question of power, as well as all other objections to the inquisition, is confided exclusively to the confirming Court, and a Court of equity has no jurisdiction to interfere. Plainly stated, the proposition amounts to this, that an inquisition altogether ultra vires and therefore void, is made valid, and a Court of equity cannot prevent the condemned property from being taken under it, if it has once been confirmed by the Court to which it is required to be returned. It is easy to perceive the evil and ruinous consequences that may result to the rights of property owners, whether individual or corporate, from the establishment of this doctrine. But it is argued that such is the effect of the decisions of this Court. I do not so understand them.
In Hamilton vs. Annapolis do Elkridge Railroad Company, 1 Md., 553, two inquisitions were taken to condemn property' of the same owner, and both were confirmed. The latter was for the purpose of condemning land and a house, for the establishment at the junction of the company’s road with that of the Baltimore and Washington road, of a depot, station house and warehouse for the storage of goods intended for transportation. The Court decided two questions: first, that the company under its charter, had power to take out the second inquisition before the road was finished ; and second, that the property condemned under the last inquisition was necessary for the company. The Court then say that having decided the first question, they might have refrained from expressing any opinion as to the second, for the reason that the proceedings were returned to and ratified by the County Court, a tribunal having exclusive and final jurisdiction over that matter, and from whose decision there is no appeal. I do not find in that case any intimation that if the question of power to take the second inquisition *282had been decided against the company, the injunction would not have been granted. In fact, the carefully guarded language of the opinion carries with it a strong implication to the contrary.
In the case of Turnpike Co. vs. Railroad Co., 15 Md., 193, the railroad company was proceeding to condemn a crossing over the turnpike in perpetuity. Before the warrant was fully executed, the Turnpike Company obtained a certiorari and brought the proceedings before tbe Superior Court. That Court, quashed the writ, and from the quashing order an appeal was taken. The first question considered by the learned Judge, who delivered the opinion of the Appellate Court, was whether an appeal to that Court would lie in cases of certiorari; and as to this, he said the case of Swann vs. Mayor, &c. of Cumberland, 8 Gill, 150, “would be an authority for our considering the questions presented by the record, were it not for the well settled doctrine that where the Circuit Court is clothed with a special jurisdiction, and no appeal to this Court is provided, the judgment is final, whether pronounced in the exercise of original jurisdiction, or in the nature of an appeal from some inferior authority.” Applying this doctrine to the case before him, he said the charter of the appellee provides for the confirmation of inquisitions by the County Courts, “if no sufficient cause be shown to the contrary,” and he held that these words embraced the question as to “ the right of the appellee to condemn the franchise of the appellant, for no better cause could be assigned against the confirmation than want of. power to condemn the particular property proposed to be taken; ” and he then adds, “ we cannot revise a judgment confirming 'the inquisition without interfering with the exclusive jurisdiction of that Court.” If by this, the Court meant to say, they had no appellate jurisdiction over such a judgment, it would be consistent with all the authorities, but if they intended to assert the broad *283proposition that a Court of equity has no jurisdiction or control over such judgments, and no power to interfere with a ratified inquisition, then I do not see how such a doctrine can he reconciled with the decision in Kane vs. Mayor, &c., of Balt., 15 Md., 240, made at the same term and by the same Judges. In that case, the Mayor and City Council of Baltimore, under an Act for supplying the inhabitants of the city with pure water, were authorized to condemn land and water courses. Under this ¡power, the city condemned in fee simple, the bed of Jones’ Falls. The inquisition was not only confirmed, hut on a bill of interpleader to determine who was entitled to the money awarded as damages, a decree was passed declaring that the city was “ entitled to a fee simple estate in the property in the condemnation mentioned,” and then directing how the money should be distributed. .After this, the city authorities, in the exercise of the rights of a fee simple owner, which the confirmed inquisition upon its face plainly gave, proceeded to lower and take down a dam, which conducted the water of the stream to an adjacent mill. The mill owner then filed a hill in equity, for an injunction to restrain this proceeding. The Court below dissolved the injunction, hut on appeal, this Court ordered the injunction to he continued, holding that the city had no ¡rower to use the water for any other than the public purpose specified in the Act, and that all such use of the water as did not interfere with the use of it by the city for that purpose, remained in the original proprietor of the land, notwithstanding the absolute form of the condemnation. In this case, the Court considered the .source of the power of eminent domain, confined the effect of the condemnation within the limits of lawful authority, and protected the rights of the property owner against an excess oí power sanctioned by the judgment of confirmation.
In the case of Western Md. R. R. Co. vs. Patterson, 37 Md., 125, a hill was filed to restrain proceedings under an *284inquisition, because the company was about to condemn the land in fee simple. The Court below ordered the injunction, but this Court reversed that order and dismissed the bill solely upon the ground that a Court of equity had no jurisdiction in that case to enjoin the proceedings while in fieri, for they expressly say, they “ do not mean to affirm that there is no case in which a Court of chancery can interfere, to prevent the abuse of a power of condemnation, under and by color of an Act of incorporation, whilst the proceedings are in fieri, and subject to be confirmed or rejected, but to insist that whilst the powers of the special tribunals.to afford relief, are ample and unexhausted, the Court of chancery should not intervene upon a mere allegation that the corporation is exceeding its charter or violating the Constitution.” I take this to be a clear expression of opinion, that a property owner after he has exhausted his remedy before the special tribunal, and the inquisition has been confirmed, may resort to a Court of equity for relief, if the condemnation be ultra vires the corporation, or in violation of the Constitution.
In the case of the Baltimore & Havre de Grace Turnpike Co. vs. Union Railway Co., 35 Md., 224, the railroad company was proceeding to condemn a crossing over the turnpike, in the construction of a branch road to form a lateral connection with the Philadelphia, Wilmington and Baltimore Railroad. The Turnpike Company filed a bill, while the proceedings were in fieri to restrain the attempt to make this crossing because it was ultra vires, and this Court so determined and ordered the injunction to be issued. That decision was placed upon the ground that the railroad Company, under its charter, had no power to build the lateral road. The company however claimed the power by virtue of their charter, and if by its true construction the charter did not give them any such power, “ no better cause could be assigned against the confirmation of the inquisition.” But this Court did *285not hesitate to determine the question of power for itself, and to grant the injunction before the confirming Court had acted; and I cannot suppose the decision would have been otherwise even if the Circuit Court had confirmed. Nor can I perceive any distinction in reason or principle between a case where a railroad corporation has no power of condemnation generally, because it has no power to build the particular road for the use of which it seeks the condemnation, and a case where it has no power to condemn particular property because such property is protected from condemnation for the purpose of the road authorized to he constructed. In both cases the condemnations are equally ultra vires, in both the objection of want of power is equally open to the property owner before the special tribunal clothed with the power to confirm or reject, and in both the property owner is equally injured, his rights equally invaded, and his property taken from him without lawful authority.
To him the result is the same, and there is no justice in the distinction that would give him relief in equity in the one case, and deny it to him in the other. In both cases want of power in the condemning company is the basis of jurisdiction in equity, and I can see no objection to that jurisdiction that would apply in the one case and not in the other.
If I am right then in this review and interpretation of the cases, no decision of this Court stands in the way of now establishing the law in respect to these condemnations upon just and consistent principles. The doctrine which seems to me to be the true and just, one, is that where a condemnation is void, either by reason of want of corporate power generally, or of power to condemn the particular'property sought to he condemned, and the property owner has exhausted his remedy before the special confirming tribunal, the conservative powers of a Court of equity ought to be open to afford him relief. Why should *286not this he established as the law of the State? All the authorities agree, and it is an elementary principle, that “ the grant of a right to take private property for a public use, or to subject property already appropriated to a public easement, to other and distinct easements and uses, is- the highest exercise of legislative power ; and such a grant ought to be conferred in language clear and unequivocal.” 35 Md., 231. If such be the nature of the power, and'it be not plainly granted in any given case, is it not the duty of this Court to be watchful in extending rather than restricting the remedies of property owners, against the wrongful seizure and appropriation of their property under color of such power ? It is said, however; if this jurisdiction be sustained, the construction of railroads will be hindered and delayed. But I do not consider this a sufficient reason for denying the remedy. If such corporations are careful, as they ought to be,'to keep within the limits of their charters, in the construction of their roads, I do not apprehend that any unnecessary delays will occur. But if a company has not obtained the requisite power from the Legislature, either to construct a particular road, or on a route which the company, deems the most convenient, or to cross, or to condemn the property of other roads, why should they not be delayed until such power is granted? They have certainly no right to complain that they are enjoined by the Courts from committing lawless depredations upon private property, or upon the property or rights lawfully acquired, and held by other previously existing corporations. The decision in the case in 35 Md,, is too deeply rooted in reason and justice to be overthrown, yet delays may occur from frivolous bills filed under the doctrine which that case announces and establishes. It-is just as possible for a vexatious bill to be filed, averring want of corporate power to build the particular road, as want of power to take particular property. Real instances of doubt in either case, *287very rarely occur, but when they do, all must admit they present questions of the gravest importance. Indeed scarcely any of more importance can he presented for the consideration of a judicial tribunal. When such a case arises, the mere inconvenience to the particular corporation, of delay in the building of its road, must give way to the danger that would follow from sanctioning in any case, the exercise by any corporation, of ungranted powers of eminent domain, to the prejudice of the property rights of the citizen.
Entertaining these views, I am of opinion the hill makes a case for the interposition of a Court of equity, and that the preliminary injunction should he granted.