"Copy of minutes of board of estimates, December 20, 1910:

bed of Garrison avenue as widened; the space | timates and let you know whether the plan is which was formerly occupied by the track of also acceptable to the board. Truly yours, Edthe defendant, which was located under grants gar Allan Poe, City Solicitor.' acquired from the abutting property owners be""Baltimore, December 14, 1910. fore said tracks were relocated, having been included in the widened Garrison avenue_as_im"Edgar Allan Poe, Esq., City Solicitor-Dear proved by the state roads commission. By deed Sir: Your letter of the 13th instant, confirming dated May 21, 1910, the Baltimore & Liberty the understanding as outlined in my letter to Turnpike Company conveyed, assigned, released, you of the 10th instant, in regard to the GarriI will be glad and quitclaimed under the state roads commis- son avenue situation, to hand. sion all its rights, title, interest, and estate in, to receive advice from you that the plan is acto, and over that portion of its turnpike road ceptable to the board of estimates, after the within the present limits of the city of Balti-matter has been laid before that body. Very more. The agreement for the work on Garrison truly yours, J. Pembroke Thom, Assistant Genavenue was entered into by the Railways Com-eral Counsel.' pany and the roads commission on October 17, 1910, and the work, including the relocation of the tracks of the company, was commenced on "City Solicitor Poe presented letter of Mr. J. the 19th day of October, 1910, and was finished Pembroke Thom, assistant general counsel of on the 14th day of December, 1911. Gar- the United Railways & Electric Company, relrison avenue, as at present widened, was widen-ative to the institution of condemnation proed by the commissioners for opening streets, ceedings upon Garrison avenue. Upon motion acting as the annex improvement commission, of Mr. Hooper, seconded by Mr. Mahool, it was under the act of 1904 (chapter 274), and Ordi- moved that the plan for the condemnation pronance No. 216, of March 6, 1905. With respect ceedings on Liberty Road or Garrison avenue be to the franchise and structure of the Railways approved by the city, the city to take care of Company upon said Garrison avenue, the agree- any claim or claims of Mr. Marburg, or others, ment or arrangement embraced in the following growing out of or in connection with the yearly correspondence and resolution of the board of rental or charges of $250 for a single track on estimates was made by the company and the the Liberty Road, by making Mr. Marburg or city of Baltimore, to wit: the proper person or persons parties to the condemnation proceedings.'

66

"December 10, 1910.

"February 3, 1911.

"J. Pembroke Thom, Esq., Assistant General Counsel, United Railways & Electric Co., Baltimore-Dear Sir: I write to state that your letter in which you outlined the understanding that had been reached between you and myself, in reference to the plan of procedure in connection with the laying of the railway tracks, etc., on Garrison avenue, was submitted by me some time ago to the board of estimates, and the board gave the plan its approval. Truly yours, Edgar Allan Poe, City Solicitor.'

"Baltimore, February 4, 1911. "Edgar Allan Poe, Esq., City Solicitor-Dear Sir: I beg to acknowledge receipt of your letter of the 3d instant, in which you state that the understanding outlined in my letter to you of December 10, 1910, reached between you and myself, in reference to the plan or procedure in connection with the laying of railway tracks, etc., on Garrison avenue, was submitted to the board of estimates and that the board gave the plan its approval. Very truly yours, J. Pembroke Thom, Assistant General Counsel.'

'Edgar Allan Poe, Esq., City SolicitorDear Sir: In order to remove any possible doubt as to our understanding relative to the Garrison avenue situation, I am giving below a memorandum outline of plan, and will be obliged if you will look it over and let me know whether or not it conforms to your ideas. The city is endeavoring to secure quitclaim deeds or deeds to the reversion from the owners of the 10-foot strip to the side of the turnpike over which this company has an easement. When the city has obtained as many deeds as practicable, it will acquire the remaining portion of this strip through condemnation proceedings. The city will institute condemnation proceedings against the rights and easements of this company upon the Liberty Road or Garrison avenue as widened or intended to be widened, excepting from the effect of such condemnation all of this company's structures and removable property of every kind, and, before the final confirmation of the condemnation proceedings, the city will have introduced and passed an ordinance bringing the tracks under the graduated park tax, such ordinance to be on the general outline of the Seventh street or Bloomingdale Road ordinance, as far "The proceedings were begun by a notice inas the latter is applicable. Of course, the pro- serted in the papers by said annex commission vision as to the subgrading and ballast will not on November 10, 1911, and have been completapply, as the work is to be done by the state ed; that is, all appeals have been disposed of roads commission. The city to take care of any at the date of this agreement. In the proclaim or claims of Mr. Marburg or others grow-ceedings for condemning and opening Garrison ing out of, or in connection with, the yearly rental or charge of $250 for a single track on the Liberty Road, * by making Mr. Marburg or the proper person or persons parties to the condemnation proceedings. This company is not to oppose a nominal award in the condemnation proceedings after the passage of the above mentioned ordinance, and is to receive no compensation other than this nominal award for its rights along the Liberty Road or the 10-foot strip adjacent thereto. Very truly yours, J. Pembroke Thom, Assistant General Counsel.'

* *

"December 13, 1910. "J. Pembroke Thom, Esq., Assistant General Counsel, United Railways & Electric Co., Baltimore-Dear Sir: I have your favor of the 10th, relating to the Garrison avenue situation, in which you outline the plan proposed to be followed. The plan as outlined in your letter meets with my approval, and is in accordance with the understanding reached between us. I will take the matter up before the board of es

avenue, a nominal award was made to the United Railways & Electric Company for their preexisting rights and franchises; no award being made to William A. Marburg, who held an outstanding obligation for the payment of $250 a year, redeemable at $5,000, connected with said rights and franchises as to one track. Appeals were taken by both Marburg and the United Railways Company. In the Marburg appeal there has been an award of $3,250, to be paid him by the city, and the nominal award to the Railways Company has been confirmed, in pursuance of an agreement entered into in the Marburg case between the city solicitor, the counsel for the Railways Company, and counsel for Marburg, by virtue of which the United Railways & Electric Company is to be given a new franchise under the act of 1906 (chapter 566), the three years' exemption from the park tax to date from January 1, 1912, and the question whether or not the United Railways shall be charged the $3,250 to be adjusted between the Railways Company and the board of estimates,

or, in default, to be submitted to arbitration. I for the acquisition of any of the defendant's It is expected that the ordinance will be intro- rights in or properties on said roads; that, duced and passed in a short while."

"The Railways Company's tracks and struc- at the time the bill, which became the act of tures on First street, Brooklyn, Anne Arundel 1908 (chapter 141) was introduced in the county, were located and maintained in accord- Legislature, the defendant and other comance with the charter provisions of the Balti-panies operated railway lines upon the roads more & Curtis Bay Railway Company and under and in accordance with a deed from the South Baltimore Harbor & Improvement Company of Anne Arundel county to the Baltimore & Curtis Bay Railway Company, which deed purported to grant the right to the Railways Company to construct and maintain a railway over and upon First street.. The Baltimore, South Baltimore & Curtis Bay Railway Company was chartered by chapter 505 of the act of 1890, and its name was changed to the Baltimore & Curtis Bay Railway Company by the amendatory Act of 1892 (chapter 574)."

and turnpikes of the state; that the bill, as originally introduced, did not provide for the improvement of public highways within the limits of the city of Baltimore; and that section 32b was amended in the Senate so as to authorize the improvement of such portions of the main roads of the state as lie within the limits of Baltimore city, and was further amended by adding that part of section 32b which authorizes the mayor and "The Railways Company's structures located city council of Baltimore to condemn, etc., on Maryland avenue, Westport, were laid in accordance with the provisions of chapter 203 the right of way of the Railways Company of the Acts of 1894; under and in accordance upon any turnpike improved by the commiswith a deed from the South Baltimore Company sion. The company also offered in evidence to the Shore Line Electric Railway Company the agreement between the South Baltimore and the Baltimore Traction Company, executed May, 1896, and under and in accordance with Company, the Shore Line Electric Railway orders of the county commissioners of Balti- Company, and the Baltimore Traction Commore county, dated September 25, 1895, and pany, dated the 18th of May, 1896, and the January 21, 1896." orders of the county commissioners of Baltimore county, under which its railway was originally constructed upon Maryland avenue, Westport, and the deed from the South Baltimore Harbor Company to the Baltimore & Curtis Bay Railway Company, dated March 13, 1893, for its right of way on First street, Brooklyn.

At the conclusion of the testimony the court below granted the plaintiff's seventh, eighth, ninth, and eleventh prayers, and rejected the prayers of the defendant, and from the judgment in favor of the plaintiff for $87,916.68, the total amount paid by the commission to the defendant for the work, etc., done by the company upon the several roads in question, the defendant has appealed. The granted prayers of the plaintiff are as follows:

In addition to the facts stated in the above agreement of counsel, the plaintiff introduced evidence to show what changes the Railways Company was required to make in its railway and appliances on the several roads referred to in order to comply with the plans, specifications, and orders of the commission; that these changes consisted in raising and lowering the company's roadbed and tracks, moving its tracks from the side to the center or from the center to the side of said roads, repaving the space between its tracks and two feet on either side of its tracks, and in some instances repaving the space referred to with vitrified brick, and in the substitution of new and different rails, poles, and appliances for the ones then used by the company. The commission also offered evidence tending to show that the plans adopted by it, in accordance with which the work referred to was done by the company, were necessary for the proper improvement and construction of the roads; that at the time the company's railway was constructed on First street, Brooklyn, said street was a public road of Anne Arundel county, and that Maryland avenue, Westport, at the time the company's railway was located thereon, was one of the public roads of Balti-tures so as to conform to the said road as immore county.

The Railways Company offered evidence tending to show that some of the changes the company was required to make in the location, construction, etc., of its railway, in order to comply with the requirements of the commission, were not necessary for the proper construction or improvement of the roads in question, were very expensive, and were not justified by the conditions and circumstances under which they were made; that no condemnation proceedings have been instituted by the commission for the acquisition of any of the roads referred to in this case, or

Seventh. "The plaintiff prays the court to rule, as a matter of law, that by a true construction of the act of 1908 (chapter 141), and amendments thereof, the duty rests upon the United Railways & Electric Company of Baltimore, in the event of the improvement by the state roads commission, under said act or amendments thereof, of any public road upon which there had been constructed, prior to such improvement, tracks and other railway structures of said company, at its own expense, to shift, adjust and take care of its said tracks and struc

proved by said commission. And if the court find that Maryland avenue, Westport, and First street, Brooklyn, were public roads under the eighth prayer of the plaintiff, then under plaintiff's ninth prayer, and by a true construction the trial of this case, the verdict of the court of the agreement of facts offered in evidence at sitting as a jury should be for the plaintiff for the amount mentioned in said agreement, to wit, $87,916.68."

as a matter of law, that if the court find that Eighth. "The plaintiff prays the court to rule, Maryland avenue, Westport, and First street, Brooklyn, had been uninterruptedly used by the public as public highways for more than 20 years prior to the construction thereon of the railway tracks of the defendant, and prior to said time has been repaired by the county com

Eleventh. "The plaintiff prays the court to rule, as a matter of law, that by the agreement between the city and the United Railways & Electric Company, relating to Garrison avenue, as shown by the correspondence included in the agreed statement of facts, offered in evidence, the United Railways & Electric Company was obliged, at its own expense, to remove and relocate its tracks and readjust them to the new In section 32b the commission was empowGarrison avenue, as then contemplated and sub-ered to select, construct, improve, and mainsequently constructed."

That cannot be held to refer to an electric railway in operation upon the highway after it is completed, when the section expressly says an electric railway in operation upon a "private road," etc., "when acquired.” If the contention of the appellee that under the act the Railways Company may be required, at its own expense, to change the location of

when the commission shall determine that public necessity or convenience or the purposes of the act require that any turnpike, or part thereof, whether maintained as such or abandoned, or any public road should be taken charge of by the commission for the state, it "shall acquire and take over" such "county roads, turnpikes, or sections thereof or interests therein," and that section further its roadbed whenever in the judgment of the provides:

commission public convenience, etc., requires "And said commission shall have full power it is sound, then the provision referred to so to take over and take possession of any coun- would be meaningless, for it could not change ty road or abandoned turnpike, and to accept the location of its roadbed without being by gift or surrender, and to acquire by purchase or condemnation, any and all existing turnpikes "disturbed in its operation or in the mainor any sections thereof, or any rights or inter- tenance of its roadbed." As suggested by ests therein, subject to any outstanding occupa- counsel for the appellant, the contention of tion, use or franchise of any electric railway the appellee is further answered by the procompany or other public service corporation." vision of the supplemental act of 1910 (chapWhile this section authorizes the commis- ter 116), which declares that nothing in that sion to take over any county roads or act or any act adding to or supplementing abandoned turnpikes, it requires it to acquire the act of 1908 "shall be construed as modifyby purchase, etc., all existing turnpikes and ing or changing the provisions of said lastany rights or interest therein, and distinctly named act, in so far as the same define and recognizes the right of an electric railway regulate the rights of any electric railways to continue its occupation and use of such company in operation upon any public or priroads and turnpikes. vate road or existing [or] abandoned turnThe legislative intent that railway com pike." In the act of 1910 there is no such panies occupying the roads and turnpikes context as that relied on by the appellee, and acquired and taken over by the commission the railways there referred to, as in the secshould not be disturbed in the maintenance tion we are now considering, are the railof their roadbeds and use of their rights and easements is even more clearly expressed ways in operation "upon any public or priin section 32e of the act. That section, after vate road," etc. The provision of section 32e. declaring that the commission shall have requiring the railway companies to keep in complete control of the state highways, "ex- repair the space between their tracks and cept as herein otherwise provided," that no borrowed from an old act (section 383 of two feet on each side thereof, was doubtless state highway shall be dug up for any purpose, or any obstruction placed thereon with- article 23 of the Code of 1912), and inserted out the "written permit" of the commission, to save, to that extent, the expense imposed and that, when a permit is given, the work upon the state by other provisions of the shall be done under the supervision of the act of 1908 of maintaining the improved highcommission at the expense of the person to ways. That the act of 1908 does not give to whom the permit is given, then says: the commission the powers claimed by it is, we think, also shown by the further provision of the act of 1910 (chapter 116), which authorizes the commission, where a state road crosses a railroad, to contract with the railroad company for the construction of a bridge or archway for an "overgrade" or "undergrade" crossing, and provides that the commission shall pay one half of the cost of such bridge or archway, and that the other half shall be paid by the railroad company. If it was the purpose of the Legislature to Impose upon railway companies the expense changing the grade of their roadbeds and location of their tracks on the public roads and turnpikes improved by the commission, there is no good reason why railroads should have been relieved of one-half of the cost of constructing an "undergrade" or "overgrade" crossing.

"Provided, however, that no electric railway company in operation upon any public or private road or existing or abandoned turnpike when acquired hereunder shall be disturbed in its operation or in the maintenance of its roadbed and overhead construction and all necessary repairs, together with the maintenance of the space between its tracks and two feet on each side thereof shall be performed by such railroad company under the supervision and to the satisfaction of said commission."

It is urged by the appellee that the language of the section we have just quoted should, by reason of its context, be construed as only applying to the highways after the improvements thereof by the commission have been completed; but, apart from the fact that the section referred to, as we have construed it, is in entire harmony with the other provisions of the act, it is clear that the language used is not open to the construction claimed by the appellee. The provision

is:

"No electric railway company in operation upon any public or private road or existing or abandoned turnpike when acquired hereunder shall be disturbed," etc.

Even if there was any doubt about the meaning of the act of 1908, certainly there could be no presumption in favor of a grant of such powers as the appellee claims in this case. In the case of State v. Mott, 61 Md. 297, 48 Am. Rep. 105, Chief Judge Alvey said:

"Whatever power can be properly exercised by Company made the changes referred to was the municipal authorities of the city of Balti-made with the commission, and the work was more over the rights and property of the citizen, done in compliance with its requirements, under the denomination of police regulations, must be derived from the Legislature of the the liability of the parties to that contract It must be by express grant, or by fair for the costs of that work must be determinand reasonable intendment, for otherwise the ed by the provisions of the act of 1908, and trades and business of the people would be at the mercy, and be made dependent upon the the commission cannot escape liability for caprice, of those who might exercise municipal such expense on the ground that the city can power, instead of being governed and regulated require the Railways Company to make its by the general law of the land. Within the pow- tracks conform to any change the city may er granted, the degree of necessity or propriety of its exercise rests exclusively with the prop- make in the grade of said street. er corporate authorities; but in all cases the power exercised, or attempted to be exercised, must depend upon the nature and extent of the power granted, and whenever the question of ex-shows that the commission acquired all of istence or limit of the power is raised, it becomes the plain duty of the courts to see that the corporate authorities do not transcend the authority delegated to them." Heiskell v. Baltimore, 65 Md. 148-149, 4 Atl. 116, 57 Am. Rep. 308; Hagerstown v. Balto. & O. R. Co., 107 Md. 188, 68 Atl. 490, 126 Am. St. Rep. 382.

. As the commission was not authorized by the act of 1908 to require the Railways Company, at its own expense, to make the changes referred to in the grade and location of its railway, it can make no difference in this case whether its roadbeds were constructed on its private rights of way or upon the public roads and highways of the state.

The agreement of counsel as to the Baltimore and Liberty Turnpike (Garrison avenue)

the rights of the turnpike company by a deed dated May 21, 1910; that the contract between the commission and the Railways Company, under which the changes in the railway was made and the work was done, was executed on the 17th of October, 1910; and that the work was commenced on the 19th of October, 1910, and completed in December, 1911. At the time the expense which the appellee now seeks to recover was incurred, the turnpike belonged to the state, and was under the control of the commission as the agency created by the state for the improvement of the highway, and the change in the company's railway was made and the work The agreement of counsel shows that the was done in accordance with the contract mayor and city council of Baltimore ac- with the commission. The contract contained quired that part of the Falls Road which is in the correspondence between the represenlocated within the city limits by deeds from tatives of the city and Railways Company the Falls Road Turnpike Company, and that makes no reference to the contract between the railway of the appellant on that part of the Railways Company and the commission, the turnpike was constructed under the pro- or to the work to be done or the liability of visions of ordinance 105 of 1896. The appel- the parties under it, but relates only to the lee, relying upon the case of M. & C. C. of acquisition of the right of way and easement Balto. v. Turnpike Co., supra, insists that of the Railways Company in Garrison avethat part of the Falls Road Turnpike, after nue, and to bringing the Railways Company it was ceded to the city, became a public under the provisions of the acts and ordistreet of the city, and that, under the pro-nances relating to the park tax. The agreevisions of said ordinance, the Railways Company was bound to make its tracks conform to any change in the street at its own expense. The act of 1908 provides that the roads and highways to be improved by the commission shall be first taken over and acquired by it for the state, and after requiring the commission to improve such parts of turnpikes as are within the city limits, between the present and old city limits, declares that the same, when the improvements have been completed, shall become "city streets" and subject to the provisions of the city charter. It would seem, therefore, that under the act of 1908, if we assume that a city street may be improved by the commis. sion, turnpikes within the present city lim-Road ordinance," he says: its, while in the course of construction or improvement by the commission, must be regarded as belonging to and under the control of the state, and that all contracts made There is nothing in section 32b to justify by the commission for such construction or a different construction of the agreement conimprovement must be construed with refer- tained in the correspondence, or to support ence to the powers, duties, and liability of the contention of the appellee. That section, the commission under the act creating it. as we have said, provides that, when the imAs the contract under which the Railways provement of a turnpike within the city lim

ment on the part of the Railways Company not to oppose a nominal award for its easement in the proposed condemnation proceedings cannot be construed as a waiver of any rights it had under its contract with the commission, and to give it such a construction would be to import into the agreement terms it does not contain, and which would be entirely foreign to the subject-matter of the contract. That the parties to this correspondence were not dealing with the liability of the company for the work to be done by it under its contract with the commission is further indicated by the following statement in the letter of Mr. Thom of December 10, 1910, where, referring to the "Bloomingdale

"Of course, the provision as to the subgrading and ballast will not apply as the work is to be done by the state roads commission."