In eighteen hundred and thirty-five the Baltimore and Port Deposit Railroad Company, now forming part of the Philadelphia, Wilmington and Baltimore railroad system — a railroad operated by steam — laid its tracks along Canton avenue in the city of Baltimore, in pursuance of authority obtained from the Mayor and City Council. In eighteen hundred and ninety-six the Mayor and City Council gave to the Central Passenger Railway Company — a street railway company — permission to construct its tracks along Wolfe street in the city. Wolfe street intersects Canton avenue at right angles. When the railway company undertook to cross the track of the railroad company at the intersection of Canton avenue and Wolfe street, the railroad company interposed an objection and in June, eighteen hundred and ninety-seven, filed in the Circuit Court of Baltimore City a bill of complaint for an injunction to restrain the street railway company from interfering with the steam railroad company's track, until the former company would enter into an agreement to pay, not only the cost of making the crossing, but the subsequent cost of keeping the crossing in repair; which repairs, it was insisted, should be done under the supervision and according to the direction of the engineer of the railroad company. The bill was answered. Later on the street railway company under an agreement with the steam railroad company, made the crossing at its own expense, and the question as to the relative rights and obligations of the two companies with respect to the maintenance of the crossing was reserved for the future determination of the Court. Finally, the case came on to be heard and the Circuit Court decreed on April the third, nineteen hundred and two, that an injunction should issue to restrain the street railway company from further using the crossing over the track of the steam railroad company at the intersection *Page 438 of Wolfe street and Canton avenue, until the railway company would execute "an agreement for the maintenance of said crossing in the terms set forth for that purpose in the agreement filed with the bill of complaint." From that decree the street railway company has appealed. The precise question, therefore, is, was the Circuit Court right in restraining the railway company from using the crossing until the company would execute an agreement binding itself to maintain at its own cost in the future and for all time the above-mentioned crossing?
The bill as originally filed was designed to restrain the construction of the crossing unless the street railway company would agreed to do two things; first, to construct the crossing at its own cost, and, secondly, to main that crossing when constructed, for all time, and to maintain it in accordance with the requirements which the steam railroad company's engineer might prescribe. With the first of these demands we are not now concerned further than as the legal principles which are applicable to that situation may throw light upon the second; and we are not concerned with the first demand because by the agreement alluded to the crossing was actually constructed at the expense of the street railway company.
The adjudged cases are quite in accord in holding that when a new road or way is constructed across an old road or way the owner of the new way must not only bear the expense of making and keeping in repair the new way, including the cost of such structural changes in the old way as are rendered necessary by the construction of the crossing; but he must, in addition, make compensation to the owner of the old way for the property or easement appropriated for the occupancy of the new way. Mayor,c., Balto. v. Cowen Muraay, 88 Md. 447; N.C. Ry. Co. v.Mayor, c., Balto. 46 Md. 445; Chi., Mil. St. P.R. Co. v.Milwaukee, 97 Wis. 418; Kansas C.R. Co. v. Comrs. JacksonCo., 45 Kan. 716; In re First St. 66 Mich. 55; Cen. R. Co. v. Bayonne, 51 N.J.L. 428. Whilst this is conceded by the street railway company to be he law when the new way crosses the private property of the *Page 439 owner of the old way, it is denied that the doctrine is applicable where one railway track crosses another railway track on the bed of a city street, to which street neither railway company has any other right than the permission given by the municipality to lay tracks thereon. And this distinction is alleged to exist because neither the first nor the second occupant of a pre-existing city highway has, it is claimed, any exclusive right to the use of the public thoroughfare; and because the first occupant's right, whatever it may be, is, in its inception and throughout its existence, subordinate to the same use of the highway by the second occupant, if the latter be granted a licence to use that highway. The lines of the pending controversy are thus sharply drawn and the case is narrowed down to the single inquiry as to whether the asserted distinction in reality exists. If it does exist to the full extent claimed then the decree is wrong; if it does not exist then the decree is right.
It is indisputably true that a railway or a railroad company which, under authority obtained from the city, lays its track along or across an opened and subsisting city street, acquires thereby no exclusive right to the use of the street; but it does not thence follow that it secures no rights of any kind which another company subsequently seeking to use the same track or a part of the same track is bound to recognize. In the assertion of the opposite conclusion lies the fallacy of the appellant's contention. There may well be no exclusive right in the company to the use of the street as against the public generally or as against a parallel or competing road, and yet there may be, and certainly there is, a right in the company to use its owntracks upon the street, and to use them to the exclusion of any other company, unless the other company procures the right to use those tracks upon making due compensation. This has been distinctly decided in North Balto. Pass. Ry. Co. v. North Av.Ry. Co., 75 Md. 233; and in North Balto. Pass. Ry. Co. v.Mayor, c., Balto., 75 Md. 247. In the first of these cases it appeared that the North Baltimore Passenger Railway Company was, by an ordinance of the City Council *Page 440 given the right to lay its tracks on certain named streets, and in the ordinance the city reserved the power to grant to any other road the privilege to use the same tracks, but under such regulations and upon the payment of such sum or sums of money to the first mentioned company as should be agreed upon by the Mayor, the City Commissioner and the president of the company. The North Avenue Railway Company was afterwards incorporated and was granted by an ordinance of the city the right to use the tracks of the North Baltimore Passenger Railway Company on North avenue; and it was further given authority to use electricity as a motive power. The use of electricity necessitated changes in the road bed and tracks of the North Baltimore Passenger Railway on North avenue. These changes it was alleged would occasion loss and injury to the North Baltimore Passenger Railway Company which owned the tracks, and it accordingly filed its bill of complaint for an injunction to restrain the North Avenue Company from interfering with the tracks. Whilst this Court held that the North Avenue Railway Company had authority under the ordinance to change the North Baltimore Passenger Railway's tracks, it also determined that compensation must be made to the latter company, and accordingly the injunction asked for was directed to be issued. And the ground upon which the relief was granted was distinctly this, that the North Baltimore Passenger Railway Company had a property right in its tracks though they had been laid on a city street, and that the property right thus owned could not be invaded without just compensation being paid even had there been no provision in the ordinance directing such compensation to be paid. This is made apparent by the following extract from the judgment of the Court as delivered by CHIEF JUDGE ALVEY: "But such change and disturbance are not to be allowed without just compensation to the plaintiff company." The provisions of the ordinances are then cited and the judgment proceeds: "This, therefore, is the contract of the parties; and it must be conformed to as a condition precedent to the exercise of the right of the defendant to enter upon or use in anymanner the *Page 441 tracks and property of the plaintiff. This provision of the ordinance is simply in accordance with the settled general rule of law upon the subject; 2 Dillon Mun. Corp., sec. 727; JerseyCity B.R. Co. v. Jersey City Hob. H. Ry. Co., 20 N.J. Eq. 61; and justice as well as the principle of analogy to cases resting upon the power of eminent domain, require that the compensation should be paid, if required, before the property of the plaintiff is appropriated to the use of the defendant company." In the second case the controversy arose out of a claim made by the North Baltimore Passenger Railway Company to anexclusive right of trackway over a city bridge across Jones' Falls. The claim was resisted and this Court, again speaking through CHIEF JUDGE ALVEY, said: "Under a grant or license of the municipality to a street railroad company, to use the street for its tracks, it is only so much of the street as may beactually occupied that can be claimed to be exclusive of othertracks; and other parts of the street may be granted to a competing line or lines. Elliott, R. Sts., page 566."
There is, then, some right which the first occupant has inits tracks that can not be appropriated by the second occupant under a claim of a right to use the street.
It is objected, however, that these cases have reference to alongitudinal use of the tracks and not to the bisecting of a track at right angles and its use in that way; and, therefore, that whilst compensation must be made for the one use it need not be made for the other. But how can this difference in the method of using the tracks of the first occupant make a difference in the application of the unvarying legal principle which requires the owner of the new way to make and maintain the crossing over the old way; especially if a crossing of the track will to some extent appropriate a part of the track of the old way as it isactually occupied? The exclusive use spoken of in the case last cited; or the right to occupy the space covered by the tracks in the street, and to occupy that space to the exclusion of other tracks, has relation to the whole length of the track, and therefore, to every *Page 442 part of its length, and hence to those portions of it which must be cut and removed so that crossing frogs may be inserted. It is obvious, then, that the cutting and removal of so much of the track as must be taken up to permit the crossing structures to be laid, is an interference with and an invasion of the exclusive right of the steam railroad company to use its own tracks on the street; and it can make no possible difference that the interference or invasion has been occasioned by a right-angle intersection rather than by a longitudinal use except as to thequantum of damage inflicted. Precisely the same right is invaded in each instance, and it is the right to actually occupy the space covered by the track, and to occupy that space to theexclusion of other tracks. If the longitudinal use of the tracks is an invasion of that right (and it is definitely settled in this State that it is) then the transverse or rectangular use of the same tracks is also an invasion of the same right, differing not in kind, but merely in degree.
There are, as already stated, two elements of damage in the ordinary crossing of an established way by a new way, and these are, first, the cost of the construction and of the maintenance of the new way including structural changes in the old way made necessary by the building of the new way; and secondly, the value of the easement or property belonging to the owner of the old way and which may be impaired or appropriated by the new way.
Both of these must be paid by the person who constructs the new way. In cases such as the one at bar, where a railway crosses a railroad in the bed of a city street, the second of these two elements of damage does not exist, because when a steam railroad is located on a street the company takes its rights subject to the rights of the public to use the street in a reasonable and lawful manner, and since the street railway is not an additional burden to the street, but simply such a use as the public are entitled to have made of the street, the steam railroad takes its right in the street subject to the right of the street railway company to lay its tracks across the former's tracks, "and the steam railway is not entitled to recover *Page 443 any compensation for such crossing as for an additionalburden." 3 Elliott on Railroads, sec. 1135. The cases cited by the appellant's counsel relate to this second element of damage and to nothing more. In Chicago, c., R. Co. v. Whiting St.Ry. Co., 139 Ind. 297 (26 L.R.A. 337), the railway company — the second comer — proposed to furnish the cross-rails and tracks for the crossing, but the railroad company — the first comer — insisted that the crossing would be a burden and a hinderance to the free use of its railroad and that this would be a taking of private property without just compensation. This element of damage was disallowed and whilst the Court stated that the duty was on the steam road to keep the street crossing as nearly as possible as it had been before the first rails were laid, it distinctly held that that duty "does not impose the burden of providing cross-rails and tracks for the street railway to make the crossing." To the same effect is Chicago, B. Q.R.R. Co. v. West Chicago Street R. Co., 156 Ill. 255, (29 L.R.A. 485.) The street railway company — the second comer — offered to construct the crossing at its own expense without disturbing the steam railroad's tracks, and to keep the same in repair, but the railroad company refused to accept the offer and demanded compensation for the occupancy of what it termed its private property rights in the street, and it also exacted payment for damage to its business, and finally, because the crossing would occasion a greater expense in the operation of its road it asked to be compensated for that additional outlay. These claims for compensation forming what has been above designated the second element of damage in crossing cases, were the ones with which the Court dealt; but the obligation of the second comer to make and keep up the crossing at its own expense was neither denied nor questioned. In Morris Essex R. Co. v. Newcrk Pass. R. Co.,51 N.J. Eq. 379, the question of compensation does not seem to have been considered. The case relates to the right of the street railway to cross the tracks of the steam railroad — a thing not in dispute here — but it does not touch upon the obligation of the intersecting road to *Page 444 make and maintain the necessary crossing — the precise thing thatis in dispute here. The same observation is applicable to the case of Lynn Bos. R. Co. v. Boston Lowell R. Co.,114 Mass. 88. In Brooklyn Cent. Jamaica R.R. v. Brooklyn City R.Co., 33 Barb. 420, and N.Y. Har. R. v. 42 St. R.R., 50 Barb. 309, nothing more was decided than that the mere crossing of the tracks of one railroad by the tracks of another on a city street furnished no ground for the first comer to claim damages from the second, and consequently they do not concern this controversy which is limited to the other element of damage — the cost of constructing and maintaining appropriate crossing appliances.
The common law doctrine that whatever structures are necessary for the crossing of an old way by a new way must be erected and maintained at the expense of the party under whose authority and direction the crossing is made is applicable to railways and railroads which intersect each other upon the public streets of a city, unless that doctrine be modified by statute. Outside of statutory provisions — and there are none such in this State — there is neither precedent nor authority for requiring the owner of the subsisting way to contribute any part of the expense rendered necessary to enable the owner of the new way to cross the old way. The crossing of the old way is made for the benefit of the second comer, and not for the benefit of the owner of the old way; and even though both occupants claim under licenses from the same municipality, common justice dictates that the one for whose exclusive benefit the crossing is made should defray the expense of constructing it. And as the continuance of the crossing is as much for his benefit as was the construction of it in the first instance, it is equally obvious that he should maintain it wholly at his own cost. That is all the decree appealed against determined, and that is all the steam railroad insists on.
There is included in the proposition just stated the following corollary, viz., that the engineer of the railroad company shall have the right to say when, and in what manner and to *Page 445 what extent repairs or renewals shall be made, and that if they are not made by the street railway company that they may be constructed at its expense by the steam railroad company. As it is the duty of the street railway company to keep the crossing in repair so that it may be used not only by itself but by the steam road whose tracks the crossing in some measure interrupts, and as the steam road requires more durable and substantial construction than a street railway needs, it is altogether reasonable and proper that the decision of the questions as to when, in what manner and to what extent the repairs ought to be made should be left to the engineer of the steam railroad company.
Nothing said in this judgment is to be understood as justifying the demand made by the steam railroad company that the street railway company must pay one-half of the cost of safety gates or other similar appliances required under an exercise of the police power for the protection of the public at the crossing. Such appliances it is the duty of the steam railroad company to supply. Mayor, c., Balto. v. Cowen Murray, 88 Md. 454.
This case does not present the question decided in Kirby v.Citizens R. Co., 48 Md. 168. That was a contest between the city of Baltimore in fact, though in the name of its contractors, and the street railway company, with reference to the right of the city to interfere temporarily with the tracks of the company so that a sewer might be laid in the bed of the street; and none of the principles applicable to the crossing of one way by a new way were involved.
Interpreting the decree in the way we have, there is no error to be found in it, and it will accordingly be affirmed.
Decree affirmed with costs above and below.
(Decided June 19th, 1902.)
SCHMUCKER, J., dissents as to the proposition that the Street Railway Company must keep the crossing in repair at its own expense. *Page 446