Page images

porations owning the outlet drain to make the , poration to connect with its sewers for the connection now in controversy. These of- benefit of other property without the confers were refused by the court below upon sent of the companies owning the system to the theory that, under the terms of the agree- the south, but we find no corresponding proment by which the plaintiff acquired the right hibition against the granting of permission to use the sewerage system to the south of by the latter companies for the use of their its property, the city, as a stranger to that system by other persons or corporations for agreement, could not be permitted to make other property without the consent of the any connection with the system except by the Forest Park Company. The stipulation on plaintiff's consent, which had not in fact this subject is contained in the second parabeen procured. In accordance with this view graph of the agreement, and by its express it was held that the city had no available de- and unequivocal terms the Forest Park Comfense to the pending suit. Exceptions were pany is the only contracting party to whom reserved to the refusal of the proffered evi- the restriction is made to apply. That comdence, and the appeal is from a decree mak- pany is forbidden to allow “any other pering permanent the preliminary injunction. son or body corporate, except as aforesaid, to

[1] The decision of the question before us connect with, use or drain any other properdepends upon the construction of the provi- ty, through, over or under its property, or sions and recitals we have reproduced from in any other manner into its said storm and the agreement by which the plaintiff secured waste water drains as now or hereafter conits right to the use of the sewerage system structed," without the consent of the other belonging to the other parties to that instru- contracting parties and a resolution of its ment. If it was the intent of the agreement own board of directors. The phrase "except that the owners of the developments south as aforesaid” manifestly refers to the proof the highway should not permit the use of vision in the next preceding paragraph by their sewers by any other persons or corpora- which the Forest Park Company was authortions without the consent of the plaintiff, ized to use the sewers for the drainage of it is clear that the city could not support its the Webb property in addition to its own. claim to such use under a license to which The effect of the provision was clearly and the plaintiff was not a party. But if, on the simply to prohibit the Forest Park Company contrary, the agreement does not properly ad- from allowing any drainage, except from the mit of this interpretation, then the remain- two areas particularly defined, to enter its ing objection urged by the plaintiff as to the sewers as tributaries to the system of the probable effect of the discharge from the other companies without their express percity's drain upon the value and usefulness mission, and without formal action of its of the upper sewers would present a material own board of directors on the subject. issue upon which the defendants, as well as In support of its theory that the city could the plaintiff, should have been allowed to not be authorized to use the lower drain offer evidence. It was plainly the funda- without the consent of the company owning mental purpose of the agreement to provide the upper system the appellee relies mainly an outlet for the sewerage system construct- upon the recital we have quoted from the ed by the plaintiff for the benefit of its prop- preamble of the agreement as to the undererty and the associated development of George standing that “no other property except as R. Webb adjoining it on the north. With- aforesaid, should be permitted to drain out such a provision the plaintiff's system through, over or under the property of the was unfinished and useless, but the connec-said Forest Park Company or of George R. tion which the agreement permitted made it Webb as aforesaid, into its said storm and available and efficient. The drains of the waste water drains, nor permission granted other companies, however, were in no wise any other person or body corporate whatsodependent upon those of the plaintiff, and ever except as aforesaid, to connect with, use did not require the connection to make them or drain into said storm and waste water serviceable. It is apparent from the agree- drains without the written consent" of the ment that in dealing with the conditions Park Land Corporation and the West Forest just mentioned the object which the parties Park Company and a resolution of the Forhad in view was simply to secure to the est Park Company authorizing such user. It plaintiff the drainage outlet it needed, and is urged that the effect of this language is to prescribe the limitations of the right thus to require the consent of all the contracting conferred. There is no attempt to define the companies before any third parties should be extent to which the system may be used for allowed to make connections with either of the property now owned or hereafter acquir- the systems mentioned in the agreement. AC'ed by the Park Land Corporation or by the cording to our reading of the recital quoted West Forest Park Company, but its use by it contemplates, like the formal stipulation the Forest Park Company was restricted to we have already considered, that the restricthe drainage from its own and the adjacent tion to which it refers should apply excluWebb property which the contract particular- sively to the Forest Park Company and its ly described. There is an explicit provision property in the use of the connecting drain. to the effect that the Forest Park Company except in so far as the benefit of the agreeshall not permit any other person or cor- ment is extended by its terms to the adjacent

development which it specially designates. , for the purpose of meeting the allegation The drainage prohibited from other sources made and the evidence adduced by the plainwas such as the Forest Park Company might tiff as to the anticipated injury to its interpossibly have allowed to pass “through, over est from the additional volume of drainage or under” its own property "into its said storm thus required to be accommodated, the city and waste water drains." In effect the re- proffered the testimony of a number of excital stated that drainage from property pert witnesses to show that the sewer leadother than that described was understood ing to the outlet was of such ample capacity and agreed not to be allowed to enter the as to preclude any reasonable apprehension Forest Park Company's sewers, and that per- of injury to any of the interests involved mission should not be granted by that com- from the action proposed to be restrained. pany to any person or corporation, with the The plaintiff's right to the remedy by injuncexception mentioned, “to connect with, use tion prayed in its bill depended upon its abilor drain into said storm and waste water ity to prove the. injury it had alleged, and drains," without the consent of the other as it had offered evidence in support of that parties. The only drains to which the term averment, the defendants should have been "said” can be held to refer as thus used are allowed an equal opportunity to present proof those of the Forest Park Company which to the contrary. It results from the view we had just been distinctly specified. The evi- have stated that the decree making the indent purpose of the recital was to emphasize junction permanent must be reversed and the prohibition it was undertaking to ex- the cause remanded for further proceedings. press by applying it both to property and to

Decree reversed, with costs, and cause repersons or corporations for whose benefit the manded. drains might be desired in excess of the service contemplated by the agreement. It

(123 Md. 73) was stated that no other property should be GOLDSBOROUGH et al., State Roads Compermitted to drain into the sewer of the

mission, V. POSTAL TELEGRAPH Forest Park Company, and that no permis

CABLE CO. (No. 18.) sion should be granted any other person or (Court of Appeals of Maryland. May 1, 1914.) corporation, with the exception mentioned, to

1. BRIDGES (§ 29*)-STATE HIGHWAYS-Conconnect with its drains, without the approval

TROL-ACTION-ROAD COMMISSION. of the two companies through whose sewers While the state roads commission is not the additional drainage would have to be a corporate body, yet it is a quasi corporation discharged. There is nothing in the pream- highways, and hence the commissioners may

vested with the powers to control the public ble or in the main body of the agreement sue to recover compensation to which the state which, in our opinion, forbids the Park Land is entitled for the exclusive use of part of a Corporation and the West Forest Park Com- bridge acquired by the commission. pany to allow others to use their sewers [Ed. Note.-For other cases, see Bridges, Cent. without the consent of the Forest Park Com Dig. 8 71; Dec. Dig. 8 29.* ] pany, or to entitle that company to object 2. BRIDGES (8 29*)-STATE HIGIWAYS-Con

TROL-RIGHT TO RECOVER. to any use of the former companies' drains,

Laws 1910, c. 116, § 32P, authorized the which would not impair the efficiency of its state roads commission to acquire a certain own system.

bridge across the Susquehanna river, together [2] In the disposition of the case below with all land, approaches, franchises, and easethe question as to the effect which would ments belonging to any person or corporation.

had probably be produced upon the appellee's use permitted defendant telegraph company to carry of the outlet by the admission of the drain- its wires in return for a stipulated compensaage from the city's sewer was treated as im- tion, was acquired by purchase, and the con

veyance expressly gave to the commission the material, but this was only upon the theory right to collect all rental. Held that, despite that the appelee's consent was prerequisite Declaration of Rights, art. 14, declaring that to the proposed connection. It is apparent no aid, charge, tax, burden, or fees shall be

rated without consent of the Legislature, the that in the view we have adopted as to the telegraph company, which enjoyed a right disproper construction of the agreement before tinct from other members of the public, was, us the issue just stated is material and despite the acquisition of the bridge by the vital to the case presented by the pleadings. state, liable for payment of the agreed rental. The city is sought to be enjoined from con: Dig. $ 71; Dec. Dig. § 29.*]

[Ed. Note.-For other cases, see Bridges, Cent. necting its drain with that of the Park Land Corporation and the West Forest Park Com Appeal from Superior Court of Baltimore pany, on the ground, as stated in the bill of City. complaint, and as already indicated, that "To be officially reported." the plaintiff's sewerage system would be Action by Phillips Lee Goldsborough and thereby irreparably injured. In order to others, constituting the State Roads Comshow that it was not acting as a mere tres mission, against the Postal Telegraph Cable passer the city offered to prove that the own- Company. From a judgment sustaining a ers of the drain it was about to use had giv- demurrer to the declaration, plaintiffs apen it that right by formal agreement, and, peal. Reversed and remanded.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Argued before BOYD, C. J., and BRIS It is not contended that the Legislature COE, BURKE, THOMAS, URNER, STOCK- could not impose a charge for the use of a BRIDGE, and CONSTABLE, JJ.

public bridge by telegraph companies; in

deed that is conceded, but it is denied, in the Leon E. Greenbaum, of Baltimore, for ap- absence of legislative authority, that the pellants. Watson E. Sherwood, of Baltimore roads commission has the power to so charge. (Lemmon & Clotworthy, of Baltimore, on the That is a question about which much can be brief), for appellee.

said on both sides, under the act creating the

state roads commission; but the declaration CONSTABLE, J. This is an appeal by in the present case does not render the settlethe state roads commission from a judgment ment of that question necessary for a deterrendered upon the sustaining of a demurrermination of this particular case. We do not, filed by the appellee to the declaration in a therefore, deem it expedient, under this recsuit instituted by the appellant, for and on ord, to go into the broad question as to what behalf of the state of Maryland.

rights in general the state roads commission The declaration is in the following lan can exercise over corporations using the pubguage:

lie highways of the state in carrying out Phillips Lee Goldsborough, Ovington E. Well their corporate purposes. We will thereer, Ira Remsen, William Bullock Clark, Ed-fore confine ourselves to the inquiry whether ward E. Goslin, Walter B. Miller, and Andrew the allegations of this declaration warrant a Ramsay, constituting the state roads commission of Maryland, for and on behalf of the recovery. state of Maryland, by Leon E. Greenbaum, their The suit was instituted in the names of the attorney, sue the Postal Telegraph Cable Com- members constituting the board of the state pany, a corporation.

For that on the 22d day of August, in the roads commission, "for and on behalf of the year nineteen hundred and eleven, the Conowin- state of Maryland." If, then, the state is go Bridge Company granted and conveyed to entitled to money due for use of public roads, the state roads commission of Maryland, for and on behalf of the state of Maryland, in con- it was proper that the agency having charge sideration of the sum of $88,000, a certain and control of that department should bring bridge in the state of Maryland over the Sus- suit in its behalf. The commission, by the quehanna river, and in said grant the right terms of the act creating it, was not in the was expressly given to the state roads commission, for and on behalf of the state of Mary- full sense a corporate body, yet was a quasi land, to collect any and all rentals and income corporation, vested with powers of control accruing from the use of said bridge by the and regulation over the public highways, and defendant, and that at said time, and for a long charged with the duty of administering and number of years prior thereto, the defendant had been using said bridge for the conveyance supervising that department of the state. of wires thereover with the consent of the For all matters 'coming within the scope of Conowingo Bridge Company, and had been pay; their duties and obligations they could thereing the Conowingo Bridge Company rentals and income for the use thereof, which said rentals fore sue, and were liable to be sued. See and tolls had amounted from the year 1906 to O'Neal v. School Commissioners, 27 Md. 227; 1911 to the sum of $95.75 semi-annually, in school Commissioners v. School Commissioneach year, for which amount bills were regularly sent by the Conowingo Bridge Company to ers, 35 Md. 201; Clark v. Harford Agriculthe defendant and paid by the defendant, up to tural Ass'n, 118 Md. 608, 85 Atl. 503; Franand including the installment due on the 1st of ces' Principles of Corporation Law (2d Ed.) July, 1911; and for that since the 22d day of 19 and 20; 28 Cyc.'128. August, 1911, said wires have remained on said bridge to the same number and in the same By Act of Assembly 1910, c. 116, § 32P, manner as theretofore, and without any change now section 48, art. 91, of Bagby's Code, the in the arrangement between the parties as to the price to be paid or the use to be made by commission was authorized and directed to the defendant of said bridge, and that said use acquire by purchase, condemnation, or othercontinued with the intention on the part of the wise the Conowingo bridge across the Susqueplaintiffs that payments would be made of the hanna river, together with all land, roads, same amount as had been paid to the Conowingo Bridge Company, but although bills have approaches, rights, franchises, and easements been sent and demand made by the plaintiffs belonging to any person or corporation, for for the installments of $95.75 due on the 1st the purpose of connecting the improved day of January, 1912, and on the 1st day of roads of Cecil and Harford counties. The July, 1912, payment thereof has been refused and is still refused by the defendant, and the narr. alleges that the bridge was acquired by plaintiffs allege that the sum of $191.50 is due purchase, and that in the deed of grant the and owing at the present time by the defendant right was expressly given to the commission to the plaintiffs for the use of said bridge for its wires from the 1st day of July, 1911, to to collect all rentals, for and on behalf of the 1st day of July, 1912.

the state, accruing from the use of the bridge

by the appellee. It was further averred that And the plaintiffs claim $400.

[1, 2] The ground of the appellee's demur- the appellee, by virtue of a contract with the rer is based upon the provisions of article 14 Conowingo Bridge Company, had been paying of the Declaration of Rights, wherein it is a certain annual rental for the occupancy by

its wires of said bridge, that this payment declared:

continued until the acquisition by the comThat no ought to be rated, or 'levied, under any pre- mission of the bridge, and that, although the tense, without the consent of the Legislature." appellee continued to use the bridge as for

merly, it had nevertheless refused to pay the censee, as to whom defendant owed no duty, explaintiff for said use since the day of accept not to willfully expose him to risk of

injury. quisition. Even if we assume that under the

[Ed. Note. For other cases, see Electricity, act creating the commission there is no power cent. Dig. & 8; Dec. Dig. $ 15.*] given the commission to impose rental charges upon new users of the public highways, Appeal from Baltimore City Court; Carroll what reason can there be for not permitting T. Bond, Judge. the charge to be made as the assignee of a Action by the State to the use of Amanda private owner? There is no attempt under Stansfield, individually and as next friend of this narr, to enforce a new liability, but the certain minor children, against the Chesaenforcement of an old existing liability, found-peake & Potomac Telephone Company. From ed upon contract, and which was acquired by a judgment sustaining a demurrer to the decthe commission as a part of the consideration laration, plaintiffs appeal. Affirmed. of the purchase. Although it can be argued

Argued before BOYD, C. J., and BURKE, that the state never intended to authorize THOMAS, PATTISON, URNER, STOOKthe charging for future privileges upon the BRIDGE, and CONSTABLE, JJ. public highways, can it be seriously contend

Arthur W. Machen, Jr., of Baltimore (Eded that the Legislature, in contemplating ward M. Hammond, of Baltimore, on the large expenditures of money in the purchas- brief), for appellants. R. Lee Slingluff and ing of private bridges and turnpikes, intended Shirley Carter, both of Baltimore (Bernard that those who were enjoying an exclusive Carter & Sons and Marbury, Gosnell & Wiloccupancy of a portion of them, for a consid- liams, all of Baltimore, on the brief), for aperation, were to be relieved of that charge at pellee. the expense of the state? The wording of the act shows that the Legislature knew that

URNER, J. The appeal in this case is persons or corporations had certain rights, from a judgment entered on demurrer to a franchises, and easements in this bridge to declaration which alleges, in substance, that which the rights of the traveling public the defendant company maintained in one of might be subject, for it authorized the com- the highways of Howard county, passing mission to acquire them. Can it be conceived through Ellicott City, a series of poles supthat it intended to permit them to be still porting wires carrying electric current used exercised, without being subject to whatever for telephone and lighting purposes, and previous liability there might have been that one of the poles was located in front of It cannot be doubted but that, in fixing a the dwelling occupied by Harry Stansfield price for its property, the bridge company and his family; that projecting from this took into consideration the value of this pole were iron spikes adapted and intended lease it had with the appellee and increased by the defendant for use in ascending the its price accordingly.

poles, and that the spikes, being convenientWe are of the opinion that under the alle- ly arranged for such use, operated as an ingations of the narr. there is a liability, and vitation to the public, and more particularly that there was error in sustaining the de- to the owners and occupiers of the abutting murrer.

properties, to ascend the pole by means of Judgment reversed, and new trial awarded, the spikes, whenever they might have occawith costs to the appellant.

sion to do so for any proper purpose, and

especially for the preservation of the life of (123 Md. 120)

animals or human beings, or for the recovery STATE to Use of STANSFIELD et al. v. of personal property, and that, as arranged CHESAPEAKE & POTOMAC TELE for such use, the spikes constituted also a PHONE CO. (No. 30.)

representation that the ascent of the pole (Court of Appeals of Maryland. March 19, might be accomplished with safety; that the 1914.)

maintenance of such a series of spikes on ELECTRICITY (8 15*) - DANGEROUS APPLI- a pole used for the support of wires carryANCES - POLES-PROJECTING SPIKES IN

ing a high-tension current of electricity in a VITEE OR LICENSEE.

Defendant maintained a pole in front of street or highway of an incorporated city. decedent's dwelling on which electric light wires was negligent, unusual, antiquated, unneceswere carried. Projecting from the pole were sary, and improper; that on March 25, 1913, iron spikes, adapted and intended by defendant a kitten belonging to the said Harry Stansfor use in ascending the pole. A kitten belonging to decedent's children climbed the pole and field, and a favorite pet of his infant chilremained thereon; whereupon decedent, to res- dren, climbed said pole and remained thereon, cue the kitten, also climbed the pole by means and, his children being greatly distressed at of the spikes, and, while there, came in con- the loss of the kitten, the said Harry Stanstact with defectively insulated 'wires, and received a shock from the effects of which he died. field, relying upon said invitation and repreHeld, that the presence of the spikes was not sentation of the defendant, ascended the pole an implied invitation to any person to climb the by means of the spikes for the purpose of repole for a purpose in no way connected with defendant's business, and that decedent was there covering the kitten and satisfying his chilfore not an invitee, but, at most, a mere li- | dren; that on previous occasions, as the deFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

fendant well knew, various persons, includ- , 99 N. E. 899, 43 L. R. A. (N. S.) 193, Ann. ing the said Harry Stansfield, had been ac-Cas. 1913E, 335. The most favorable view customed to use the spikes to climb the pole of the case from the standpoint of the decin order to recover personal property, and laration is that the defendant passively perfor other purposes; that the defendant neg. mitted the use of the pole by the deceased ligently permitted the insulation on certain and others for the purposes mentioned. This of the wires attached to the pole and carry- might relieve them of the character of tresing a high-tension current of electricity to be passers, but would leave them in the position insufficient, although it appeared sufficient to of mere licensees, to whom the defendant persons who, like the said Harry Stansfield, would owe only the duty to avoid exposing were not familiar with electricity; and that them willfully to the risk of injury. Heskell v. the defendant neglected to warn him of the Auburn Light, Heat & Power Co., supra; Fitzconcealed danger, or to warn the public by patrick v. Glass Mfg. Co., 61 N. J. Law, 378, 39 sign or notice against climbing the pole by Atl. 675; Rooney v. Woolworth, 74 Conn. 720, means of the spikes; that the said Harry 52 Atl. 411; 15 Cyc. 475. By the decision of Stansfield, in ascending the pole in reliance this court in Benson v. Baltimore Traction upon said invitation and representation of Co., supra, the principle of implied invitation the defendants, and acting (as he reasonably was held not to be intended for the protection supposed) in accordance with the intention of of “those who go where they are not invited, the defendant in placing the spikes on the but merely with express or tacit permission, pole, and being ignorant of the hidden dan- from curiosity or motives of private convenger caused by the insufficiency of the insula- ience, in no way connected with business or tion and by the high-tension current, and other relations with the occupant." In Heswithout any fault or negligence on his part, kell v. Auburn Light, Heat & Power Co., suaccidentally came in contact with the insuffi- pra, a telephone company, without previous ciently insulated wires, and in consequence of permission, attached its wires to the pole of such contact was instantly killed. Upon the an electric light, heat, and power company case thus stated the widow and children of in a public street, but the latter company the deceased seek to recover damages for the afterwards tacitly permitted such use to conloss they have sustained by this unfortunate tinue. An employé of the telephone comaccident.

pany, in mounting the pole to ascertain the The injury for which the suit was brought condition of the telephone lines, was fatally having occurred to one who had reached the injured by coming in contact with a wire beplace of danger by climbing the pole main- longing to the other company which was dantained by the defendant for the very purpose gerously placed or defectively insulated. The of suspending the wires at a suitable and suit was against the light, heat, and power safe elevation above the highway, the ques-company. It was held that there was no tion to be determined is whether the declara- mutuality between the two companies, and tion shows any violation of duty on the part that the injured employé of the telephone of the defendant with reference to a person company was not on the pole in pursuance of thus situated. While the pole and wires an implied invitation from the defendant, but were located on and over a public thorough- as a volunteer or mere licensee, "who used fare, they were the defendant's property, and the pole subject to all the concomitant conwere necessarily subject to its control in or- ditions and perils, and to whom the sole duty der that its obligations to the public might be of the defendant was abstention from inflictperformed, and that its own interests mighting intentional or wanton or willful injury." be protected. The theory of the suit is that The demurrer in the case before us admits in providing a permanent and convenient the allegation of fact that the spikes projectmeans of ascent the defendant impliedly in- ing from the pole afforded a convenient vited the public to use the pole for such pur- method of ascent, but it does not have the poses as the one which led to the accident. effect of conceding, as a conclusion of law, In our opinion, the principle of implied invi- that the plaintiff was thereby impliedly intation is not applicable to the case presented. vited to visit the defendant's overhead fixThere was no community of interest between tures. There could be no possible doubt in the defendant and the injured party which the mind of any observer that the spikes induced his visit to the place where he came were intended for the exclusive use of those in contact with the wires. The principle in- engaged in the work of keeping the equipvoked does not apply to those who receive ment in order. The very nature of the apinjuries on premises they have entered from pliances and of the service in which they motives which have no relation to the busi- were employed made it apparent that their ness or interest of the proprietor. Benson use or occupation by strangers would not v. Baltimore Traction Co., 77 Md. 535, 26 Atl. be in accord with the interests of those oper973, 20 L. R. A. 714, 39 Am. St. Rep. 436; ating the franchise. It is perfectly obvious, Kalus v. Bass, 122 Md. 467, 89 Atl. 731; Hes- therefore, that there was no mutuality of inkell v. Auburn Light, Heat & Power Co., 209 terest between the defendant and the deceasN. Y. 86, 102 N. E. 540°; Plummer v. Dill, 156ed which would enable us to hold that his Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463 ; ascent of the pole was induced by an implied Purtell v. Philadelphia Coal Co., 256 Ill. 110, I invitation,

« ՆախորդըՇարունակել »