The appellants, being tenants in common of two adjoining unimproved lots of land in the City of Baltimore, brought this suit at law against the appellee, the Baltimore and Ohio R.R. Co., for alleged injury to their fee simple estate in said lots of land, resulting from the laying by the appellee of an additional track on Ostend street upon the north side of which street said lots abut.
The declaration alleges that Ostend street is a public highway upon which for many years the appellee has maintained its railroad tracks in front of the plaintiffs' said property, and on which it operated a steam railroad, but that the northern part of said street, for a width of about twenty feet, has been until recently, unobstructed by tracks, or in any other manner; that recently in virtue of an ordinance of the Mayor and City Council of Baltimore, the defendant has laid an additional track on the north side of said street immediately in front of the appellants' said property, and has raised the roadbed of the street under said track which is to be used in operating the trains of the appellee; that in consequence thereof the general public has been entirely obstructed from the roadbed of said street in front of the appellants' property for the whole distance between Russell and Ridgely streets, and it is not possible to use any portion of said street bed in front of their property for the passage of vehicles; that thereby their property has been entirely deprived of the use of Ostend street for the passage of vehicles, and its value *Page 224 greatly injured and depreciated, not only by such obstruction of the street, but also because the trains of the appellee will be much nearer to their property, with greatly increased noise, dirt and danger, affecting its rental as well as its salable value; and that though the said ordinance authorized said obstruction, yet by the express terms of the Code, Art. 23, § 255, the appellee is liable in damages for the injury occasioned by such location of said track.
The appellee pleaded that it did not commit the wrong alleged, and the case was tried before the Court without a jury, resulting in a verdict for the defendant under the instruction of the Court, and from the judgment on the verdict the plaintiffs have appealed.
It was admitted that the plaintiffs had title to the property in question, and that Ostend street was a street owned by the Mayor and City Council, with a right of control over it by them, and a copy of the ordinance referred to was admitted in evidence authorizing the laying of the track in question. It was also admitted that the track on Ostend street between Russell and Ridgely streets was laid between May 1st and December 1st, 1908.
Mr. Sutton, a surveyor who made a plat of the locus in quo used in his examination, testified that there were three tracks in use at that point before the laying of the track in question, making now four in all, of T rail construction, and so laid that wagons cannot use the part where the tracks are laid; that the plaintiffs' lots at that point are not graded, being elevated above the street, and that there is an open ditch some fifteen feet south of the north side of Ostend street, and no sidewalk or actual roadway, but a slope from the ends of the cross-ties of the new track to the bottom of the ditch, and from thence a slope up to the north building line of Ostend street; that it is 66 feet from the north rail of the new track to the north building line of Ostend street, and that the rule has always been to allow one-fifth of the *Page 225 total width of the street for a sidewalk on each side, leaving three-fifths for the roadbed between the curbs, and that he had known Ostend street for twenty-five years, and has never at anytime seen it used as a street between Russell and Ridgely streets; there are no houses on Ostend street between Russell and Ridgely, but west of Ridgely there is a row of houses on the north side of Ostend street set back a few feet from the building line, with a narrow brick walk in front. East of Russell street, Ostend has not been opened for passage of vehicles north of these tracks, but south of the tracks there is a travelled way, part of which he thinks is on private property.
The plaintiffs then called Messrs. David M. Newbold, Jr., and John J. Hurst. Mr. Newbold is an attorney, associated with his father in real estate development in Baltimore City, and has known the property in question since 1905, and has frequently examined the property, and kept in touch with sales in that neighborhood, as the representative of the plaintiffs. Their property fronts 310 feet on Ostend street. One-half of this frontage runs back 264 feet on Ridgely street to Stockholm street, and the other half runs back on Russell street 100 feet towards Stockholm street. The property in the rear of this latter half on Stockholm street is the only improved property in that block and does not belong to the plaintiffs. Mr. Newbold said he knew the value of this property May 1, 1908; that 264 feet on Ridgely and 100 feet on Russell, 364 feet at $3.00 a foot capitalized, is $50, about $18,200. That was a fair value at that time. Property in that neighborhood has sold from $2.00 to $4.25 a front foot. This property is adapted for factory or commercial purposes, or for dwellings. It would cost about $3,000, or fifty-five cents a foot, to grade it, and he took that in account in his estimate of $3.00 a foot. After the new track was laid the property was worth about $15,800. Before that, there was about 24 feet between the former north track and where the *Page 226 curb would be, affording adequate space for a wagon to drive between the track and curb, and to load and unload. Now the space is reduced in one place to ten feet. He estimated that after the blocking of the street by the new track, in order to restore the twenty-four foot space between the old north track and the place for the curb, it would be necessary to take off fourteen feet of the property on Russell and the same on Ridgely streets, thus moving back the whole Ostend street front. This reduces the combined frontage on Ridgely and Russell streets from 364 to 336 feet, or twenty-eight feet, which at the former valuation of $50 a foot, makes a loss in value of $1,400, to put the property in the same relation to Ostend street which it bore before the new track was laid.
Mr. Hurst is also an attorney devoting most of his time to real estate development and admitted by the defendant to be an expert in that line. He knows this property and owns three houses on the south side of Ostend street west of Warner street which is the next street east of Russell. He testified that if he owned the plaintiffs' property he would set aside from Ostend street enough to make up what was taken from the bed of the street by the railroad's last track, and would arrive at the value of that by valuing the amount of land left. His method of valuation was not precisely the same as Mr. Newbold's, but the result was the same, viz, a loss of $1,400.
Upon this testimony the plaintiffs rested, whereupon the defendant offered, and the Court granted, the following prayer:
"The defendant prays the Court to rule as a matter of law, that under the pleadings in this case there has been offered no evidence of damages to the property of the plaintiffs of such acharacter as to be legally sufficient to entitle the plaintiffs to recover, and therefore its verdict must be for the defendant." *Page 227
The exception to this ruling presents the only question raised by the record.
The position of the defendant in its argument has, as we think, been correctly epitomised in the appellant's brief in these words: "The street at this point was not actually in use as a street, but was devoted exclusively to railroad purposes as fully as though it were a private railroad right of way. The plaintiffs' property never had used it, could not use it, unless some filling up of the ditch was done, and might never have occasion to use it. The plaintiffs' property was unimproved before the new track was laid and is unimproved now. It has not changed hands or been sold or leased, since, and there is no sufficient proof either that the new track has depreciated its value, or if so, to what extent the depreciation has gone."
We think that view of the situation leaves out of consideration the primary purpose for which streets are opened and laid out, and the obligation of the municipal authorities to preserve the beneficial enjoyment of the streets by the abutting landowners as a constituent part of the general public. In Lake Roland El.R.R. Co. v. Baltimore City, 77 Md. 377, JUDGE BRYAN said: "The control of the city over the streets is attended with the duty of preserving them for their legitimate purposes. They are intended for the passage of people over them, on foot, on horseback and in vehicles, on their various occasions of business, convenience, or pleasure. It is not competent for the city to defeat the primary purpose for which they were dedicated to the public use"; and JUDGE ALVEY, in an opinion in the same case overruling a motion of the appellant for a reargument, said: "The primary use of the streets is not, by any means, that of furnishing tracks for street railways. The Mayor and City Council cannot divest themselves of this trust, nor can they so restrict their power over the streets as to defeat, or seriously impair, the beneficial enjoyment of the streets by the public in the ordinary and usual modes of passage thereon." That case was *Page 228 approved in Poole v. Falls Road R.W. Co., 88 Md. 538, and inC. and P. Tel. Co. v. Baltimore, 89 Md. 710, and the principle thus declared we do not understand to be questioned by the appellees, though its application to the case at bar is apparently denied. As will be seen hereafter, however, we are of opinion that it has direct application to this case, and that it may be regarded as conclusive of this plaintiff's right to recover.
We have given very careful consideration to the cases relating to the recovery of damages for cutting off access to one's property, and especially in reference to the character of proof which will warrant recovery in such cases, though the appellees have not cited either in their brief or in the oral argument any authorities for their position, but have contented themselves with the statement of general principles deemed by them to be applicable and controlling. It is of course understood that for any injury to real property the plaintiff must, as in other cases, produce evidence to show the extent of loss, as a basis for the assessment of damages, beyond nominal damages, and we think that has been done in this case. We have found one case which apparently sustains the view of the defendants' counsel in this case, and we will briefly refer to it here. In Rumsey v.New York and New England R.R., 133 N.Y. 79, the plaintiff was the owner of a parcel of land with a front of about 1,000 feet on the Hudson river, upon which was a brick yard, and the bricks made on the premises had been for many years hauled to the river shore and there loaded upon vessels for shipment to market. This use was discontinued about 1875, and thereafter there were on the premises no buildings or machinery for brick making. In 1881 the defendant constructed a new roadbed along the plaintiffs' whole front, the effect of which was to cut off the plaintiffs from access to the river from their lands. The Court held "that the proper measure of damages in such a case is the diminishedrental or usable value of the property as it was, in consequence of the loss by *Page 229 the defendant's acts of access to the river, in the manner enjoyed by the owner prior to the construction of the embankment across the water front by the defendant. The plaintiffs cannot be permitted to prove, or allowed to recover damages that they might have sustained, if they had put the property to some other use, or placed other structures upon it. The damages could not be based upon the rental or usable value of the property for a brick yard, any more than they could be based upon their use for some other specific or particular purpose to which they were not in fact put by the owners. The question is, what damages did the plaintiff in fact suffer by having the access to the river cut off? Not what they might have suffered had the land been devoted to some particular purpose to which it was not put. The proof of damages on the part of the plaintiff consisted entirely of the opinions of witnesses as to the rental value of the land in the absence of the structure built by defendant. This proof was competent as far as it went, but it did not establish the legal measure of damages. It should also have been shown what was therental or usable value of the premises as they were with the obstruction which interfered with the access to the river, as the difference in these two sums represented the actual loss caused by the defendant. * * * The method adopted of establishing the plaintiff's damages demands a reversal of the judgment."
The Court in that case, however, proceeded to say that there was no distinction to be made between the rights which pertain to an owner of land upon a public river, and one upon a public street, and declared its approval of a long line of decisions in that State, holding that an owner of land abutting upon a public street, has "a property right in such street for the purposes of access, etc., * * * and that when a railroad laid in said street, without condemnation proceedings, injuriously affects such property right, it is responsible for any damage resulting therefrom." *Page 230
If the above case is to be understood as meaning that rental and usable value in that case were equivalent terms, and as excluding saleable or market value in such cases, we cannot adopt such limitation of proof of damage. If, on the other hand the case is not to be so understood, and usable value was to be understood as saleable or market value, then the proof made in the case before us conforms to that understanding, and that case cannot be regarded as an authority against the plaintiffs' right to recover in this case.
But if it were conceded to be adverse to the right of recovery in this case, we could not adopt it as authority without departing from the principles established in decisions in this State which we regard as sound and as applicable to the case before us.
In Lake Roland El. R.W. Co. v. Webster, 81 Md. 529, the appellee rented from Wm. H. Birch a lot on North street, in Baltimore City for a term of five years at the annual rent of twelve hundred dollars. The elevated railroad was in the middle of the street, not directly in front of the rented premises, but beginning twelve feet from the Northern boundary. The lot was occupied by a livery stable kept by the plaintiff, and he rented the property for that purpose. After the completion of the elevated structure the landlord reduced the rent to nine hundred dollars. But the plaintiff, contending that this reduction did not measure his loss, sued the railway company and obtained a judgment for $1,000 which was affirmed on appeal. The trial Court granted the following prayer to the plaintiff: "If the jury shall find from the evidence that the rental value of the premises occupied by the plaintiff as tenant of Wm. 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 amount which the jury shall find said rental value has been so diminished." *Page 231
In passing upon this prayer the Court said: "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 this 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." We have referred to this prayer, and to the language of the Court in considering it, because it emphasises the distinction between that case and present case, and because the Court in italicising the word usable, in its consideration of the prayer, indicates clearly that if the landlord, the owner of the property, had been suing in that case, he could not have been limited in his proof to the usable value of the property in the condition in which it then was, as apparently held in the N.Y. case, supra, and as contended by the appellees in this case; but could have recovered the damages which he suffered, namely, the diminished saleable value.
In Lake Roland Co. v. Frick, 86 Md. 259, Robert Garrett was the owner in fee of a vacant lot on North street, and the elevated railway was in front of a portion only of this lot, and impaired the access thereto, thus diminishing its value. The plaintiffs' first prayer which was granted, after setting out the necessary preliminary facts, instructed the jury "and if they shall further find that the said structure in front of said lot impaired the access to said lot originally afforded by said street, and rendered the said lot or some part of it less advantageous for building purposes than it was previously, and made the market value of said lot in the lifetime of said Robert Garrett less than it would have been if said structure had not been so erected in front thereof, then the plaintiffs are entitled to recover in this action *Page 232 the amount of such depreciation thereby given to said lot." The testimony upon which that prayer was based was the testimony of A.L. Gorter, who said he knew the market value of the lot before the railroad was built, and its market value after it was built, and that after it was built, its value was diminished to the extent of $15,000. Other witnesses also testified to the diminution of value by the construction of the railroad. There was a verdict for the plaintiff, and judgment thereon, which was affirmed on appeal.
We can discover no material distinction in principle between that case and the present. We may assume, that North street was a more improved street than Ostend street, at the point where the present plaintiffs' property is situated; that there were houses and sidewalks on North street at that point, and that the bed of the street was paved with some material. There may have been better and more convenient use of the street, and access thereto from the abutting property on North street, but that would go only to the quantum of injury, and would not distinguish the cases in principle. The right of access is the test of theright of action in such cases.
The character of the testimony given in the present case by Messrs. Newbold and Hurst was the same as that given by Mr. Gorter in the Lake Roland case. Both went to the diminished market value of the property. The method of arriving at the amount of damage done, pursued by Messrs. Newbold and Hurst, we do not think was open to objection, and it was admitted without objection. We think it a natural and legitimate mode of estimating the damage. There was evidence tending to show that the construction of the additional track destroyed the right of access to plaintiffs' property on that street, and certainly,one legitimate method of ascertaining the resulting damage was to ascertain what it would cost the plaintiffs to restore the means of access by devoting a part of their property to that purpose. In 8 *Page 233 Amer. and English Enc., 2nd Ed., 547, note 8, it is said that where the case admits of it, the injured party may resort to different means of arriving at the result, to be judged of by the jury under proper instructions. Thus in Seely v. Alden, 61 Pa. St. 302, where damages were claimed as the result of the deposit of tan bark in a mill pond, the damages were held measurable either by proof of the difference in value of the property with, and without the deposit, or by the cost of its removal and the restoration of the property to its former situation.
And in Gas Light Co. v. Colliday, 25 Md. 1, where the action was for damages by severing the pipe which conveyed gas to the property of the plaintiff, it was held the jury might consider the diminution of value of the property for sale or lease and the cost of restoring the premises.
For the reasons stated, we think there was error in granting the prayer withdrawing the case from the jury.
Judgment reversed and new trial awarded with costs to theappellants above and below. *Page 234