Appeal from Baltimore City Court; Henry the bridge upon Hamburg street, which was D. Harlan, Judge.

make all changes in the established street | chapter 621, as follows: "Section 1. Be it grades which may be necessary for the con- enacted by the general assembly of Maryland: struction of said bridges and approaches That the mayor and city council of Baltimore and bear all expense of widening or changing be and it is hereby authorized and empowany streets and acquiring any land, ease- ered to authorize and direct the commissionments and rights necessary for the construc- ers for opening streets under such system of tion of said approaches.” The cost of build- procedure, including reasonable notice to ing these approaches and paving them was to the property holders and the right of appeal be met by the Baltimore & Ohio Railroad, by either the property holders or the mayor and after construction the city was required and city council of Baltimore to the Baltiby the ordinance to maintain all the ap- more city court and the Court of Appeals of proaches to said bridges and the paving and Maryland, as it may prescribe, to ascertain sidewalks upon said approaches. By section and award to the owners of property in the 31⁄2 provision was made for what is said to be city of Baltimore injuriously affected by the a change and re-establishment of grade of changes in grade provided for by section parts of Hamburg street, the intent of which three and one-half of ordinance No. 387 of was to make provision for a gradient ap- the mayor and city council of Baltimore, approach to the bridge at the east building line proved August 16, 1909, and commonly known of Howard street. It did not, however, pro- as the 'Grade Crossing Ordinance,' such pose to extend this gradient for the entire damages, if any, as they may find to have width of the street, or the entire width of been actually sustained by and directly the space between the curbs, but provided for caused to said property by reason of such its construction from a point 37 feet north of changes in grade, and at the same time to the south building line of Hamburg street, assess against the same such benefits as they thus leaving the northern part of the street, may find to have accrued to said owner both sidewalk and roadway, at the same level by reason thereof: Provided, however, that as it had theretofore existed, but the south nothing in this act contained shall be conportion of said street was to rise by an in- strued as imposing any duty or obligation cline from the east curb line of Sharp street upon the mayor and city council of Baltito an elevation of 32.60 feet at the east more, except in the event that said property building line of Howard street. This ap holders are judicially declared to be disenproach was to have a roadway 25 feet in titled to recover such compensation or damwidth, and a sidewalk 10 feet in width, thus ages from the Baltimore & Ohio Railroad bringing it almost in contact with buildings Company; and provided further that in the erected upon the building line on the south event of the exercise at any time by the side of Hamburg street. The effect of such mayor and city council of Baltimore of the construction was, according to the amount of authority hereby conferred, then nothing in the elevation of the approach at any partic- this act contained shall be construed as ular point, to seriously interfere with, or depriving the mayor and city council of practically cut off, all access to buildings Baltimore of any right it may lawfully have having a front on the south side of Hamburg to demand, enforce and receive reimbursestreet between Sharp and Howard streets. ment from the Baltimore & Ohio Railroad It inevitably also inflicted serious damage Company to the full extent of any compenupon the light and air, certainly so far as the sation it may make, or damage it may pay, first floor was concerned, of all of such build- in the premises." ings, and accordingly there was inserted in the ordinance, as section 18, the following: "Section 18. And be it further ordained; that in order to provide absolutely and in all events for compensation for the damages that will be sustained by the owners of property injuriously affected by the changes in grade herein provided for under section 31⁄2, the mayor and city council of Baltimore hereby obligate itself to urge the Legislature of Maryland, at its next session in January, 1910, to pass an act authorizing the mayor and city council of Baltimore to compensate said property owners for the damage actually sustained by them by reason of such changes in grade, and, conditioned upon the passage of such act, the mayor and city council of Baltimore guarantee to each such owner compensation for the damages so sustained." In order to comply with the provisions of this section there was presented to and passed by the General Assembly of 1910,

These preliminary legal steps having been taken, the actual construction of the bridge and the necessary approaches was carried out in conformity therewith, with the following result, so far as these plaintiffs were concerned: Henry Walters and Annie D. Walters were the owners of a lot on the south side of Hamburg street, at the corner of Plum alley, about midway between Sharp and Howard streets. For the construction of the eastern approach in front of their premises, a bow window, which projected slightly beyond the building line of the street, was removed, thus leaving a large opening in the front wall of their building; in front of the doorway, and distant 12 inches from it, was placed a large concrete pillar, one of the numerous similar supports for the foot and roadway, and the footway passed the front door and first floor windows, with an intervening space of but 3 inches, between 4 and 5 feet above the level of the first floor of

the premises. The relation of the abutment raised by the granting of the prayers of the and the improvements of the plaintiff's lot two defendants. will be best understood from the accompanying diagram:

WINDOW

THIRD FLOUR

WINDOW

SECOND FLOOR

FRONT DOOR

FIRST FLOOR

[1] The first exception was to the admission by the trial court in evidence of the ordinance No. 387, approved August 16, 1909, and which was offered in evidence by the railroad company. This ordinance had been set up by the pleas as a special defense, demurrers to which had been filed and sustained. The exact ground upon which they were so sustained does not appear from the record. It may have been because of the fact that the matters thus specially pleading amounted to the general issue. The suit was in the nature of an action of trespass for the damage caused by such trespass. If the act which was complained of was one done by lawful authority, then the party doing it had not committed a trespass, and the plea of non cul was amply sufficient, and the evidence so objected to was therefore admissible as tending to sustain the general issue plea which had been filed, and the ruling of the lower court in admitting the ordinance in evidence was entirely correct.

The declaration, as orginally filed, alleged that the abutment or approach had been "erected and constructed upon and against the improvements and the lot of ground owned by the plaintiffs"; that is, that there had been an actual physical invasion of their property. Upon the conclusion of the eviThe effect of this structure was to effec- dence the declaration was amended by the tually bar all ingress to and egress from the striking out of this language. By the second premises, unless by means of a ladder from count of the amended declaration, however, the second floor window to the newly con- it was alleged "that the plaintiffs have been structed footway. The light and air was deprived of the use, enjoyment, and possesshut off from the first floor of the premises, sion of the said lot of ground and the imthereby rendering that portion of the dwell-provements thereon, and deprived of the use ing damp and uninhabitable. To recover for and enjoyment of said Hamburg street and the damages thus inflicted the present suit the south sidewalk thereof." That there has been brought by the owners against the has been any physical invasion of the land mayor and city council of Baltimore and the of the plaintiff in this case is not claimed. Baltimore & Ohio Railroad Company. Both [2] The real question is whether the strucof the defendants admit, the damage, but ture erected, and which is the occasion of each insists that the other is liable. At the this suit, is such an invasion of the rights of trial of the case in the Baltimore city court, the plaintiff as to amount to a taking of the court granted instructions directing a their property within the meaning of the verdict for both of the defendants, upon Constitution, or whether the injury amounts the theory apparently that what had been merely to a consequential damage, for which done amounted, so far as the city was con- there may or may not be a right of action. cerned, merely to a change of grade, and If it was the former, then the act was one that a change of grade by a municipal cor- which even the municipal corporation had poration of one of its highways is damnum no right to do without making due compenabsque injuria, for which it cannot be com-sation, and amounted to a tort for the compelled to make compensation to an abutting owner, and that as to the defendant the Baltimore & Ohio Railroad the act done was not only with the consent, but by the authority, of the municipal corporation, approved by the Legislature, and therefore there had been no invasion of the plaintiffs' rights by the railroad company for which it was required to make compensation.

There are one or two minor questions of pleading raised by the record, upon which it is not necessary to pass at this point, since

mission of which the city was liable to the plaintiffs for the damage inflicted on them, whether the actual work was done by the city or by its authority. That is to say, if the invasion of the rights of the plaintiffs amounted to a taking, as regards these plaintiffs, both the city and the railroad company were tort-feasors, and both liable for the injury done.

[3] If the city was liable, it could not evade its liability by delegating to another the doing of the tortious act. The ordinance

gress to and egress from their property through the alley to the public street, it was held that the right was a valuable one, and could not be taken for public use without compensation, and a fortiori not for private use. And in Townsend, Grace & Co. v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441, the same rule was followed where the interference was with regard to light and air.

pany the right to build apparently recognized | other abutting owners their means of inthis when in section 18 it assumed an obligation, on the part of the mayor and city council, to urge the passage of an act by the Legislature authorizing the mayor and city council to compensate abutting property owners for the damage sustained by them, and conditionally guaranteeing them such compensation. There is some apparent conflict in the authorities with regard to whether acts such as are here complained of amount to an invasion or taking, or are merely in the nature of consequential damages.

* * *

This is the result in part of special statutes in different states. No fairer statement can be made than that in the case of Story V. N. Y. El. Co., 90 N. Y. 146, 43 Am. Rep. 146, where it is said that "while the Legislature may regulate the uses of the street as a street, it has no power to authorize a structure thereon which is subversive of and repugnant to the uses of the street as an open street. Whether a particular structure authorized by the Legislature is consistent or inconsistent with the uses of the street as a street must be largely a question of fact, depending upon the nature and character of the structure authorized."

[4] This suggests as the first pertinent inquiry the question, What are the rights of an abutting owner in a street? Primarily, of course, comes the right to its use as a thoroughfare in common with all others, and for any infringement upon this which he suffers in common with all other members of the community he has no right of action. Lake Roland Co. v. Webster, 81 Md. 535, 32 Atl. 186.

[5] And, even when he suffers some additional inconvenience, as where there is a change of grade of the streets made by the municipal corporation, as a result of which he is more or less inconvenienced, he is still without any remedy as against the municipal corporation; damage of this character being regarded as damnum absque injuria. Peddicord's Case, 34 Md. 463; Green v. City & Suburban Ry., 78 Md. 304, 28 Atl. 626, 44 Am. St. Rep. 288. It is upon this familiar principle that the city claims exemption from liability in the present case; and, if there is nothing more than a change in the grade of Hamburg street, the position is sound.

'In the case of De Lauder v. Baltimore County, 94 Md. 1, 50 Atl. 427, the county commissioners had reconstructed a county road, and in so doing elevated it some five feet, at a point where a private right of way of the plaintiff connected with the highway, and for the protection of passing traffic placed a guard rail along the side of the reconstructed road. After reviewing many of the prior decisions, including most of those already referred to, Judge Pearce, speaking for this court, said: "The injury inflicted upon Mrs. De Lauder is not the rendering the use of her right of way inconvenient or expensive, but it is the destruction of its use, and its destruction is a taking in as just a sense as the appropriation of a gravel bank for the repair of a public road would be a taking."

And the same doctrine has been distinctly recognized in numerous other cases, both in Maryland and elsewhere. Thus in Webb v. B. & O. R. R., 114 Md. 216, 79 Atl. 193, it was said: "The primary purpose" of a street, "and the obligation of the municipal authorities, is to preserve the beneficial enjoyment of the streets by the abutting landowners as a constitutent part of the general public." Again in Lake Roland Ry. v. Baltimore City, 77 Md. 377, 26 Atl. 515, 20 L. R. A. 126: "The control of the city over the streets is attended with the duty of preserving them for their legitimate purposes.” The mayor and city council cannot divest themselves of this trust. In the case of Reining v. N. Y., L. & W. R. Co., 128 N. Y. 157, 28 N. E. 640, 14 L. R. A. 133, it was declared that owners of lots abutting on city streets were entitled to the benefit of the street for access, and cannot be deprived thereof without compensation. In this case a solid embankment had been built along a street in Buffalo and in consonance with the doctrine stated it was said: "The public cannot justly demand such an appropriation of a street by a municipality in aid of a railroad enterprise." In Vanderlip v. Grand Rapids, 73 Mich. 522, 41 N. W. 677, 3 L. R. A. 247, 16 Am. St. Rep. 597, a street was being regraded and raised about 30 feet, practically burying the dwelling of the plaintiff, and the city sought to evade liability for the damage caused by reason of its right to regrade. The work was being done by So in Van Witsen v. Gutman, 79 Md. 405, the city itself, but its act was held to be 29 Alt. 608, 24 L. R. A. 403, where an alley a taking of the property, one which would

[6] But the owners of lots abutting upon public streets have easements or rights in the street which are valuable, and are in addition to those which they have with the general public. This is recognized in our statute law, which confers upon the city of Baltimore the power for laying out and closing up streets by providing for compensation to such owners upon the closing of an adjacent street.

sation had been made.
emphasized in Egerer v.
Co., 130 N. Y. 108, 29 N. E. 95, 14 L. R. A.
381, where it was held that an abutting own-
er cannot be deprived of the street affording
him access to his premises, unless there is
left for his use and enjoyment other suita-
ble means of access, or just compensation
is paid him for the deprivation of the same.
In Haynes v. Thomas, 7 Ind. 43, and Lack-
land v. N. Mo. R. Co., 31 Mo. 187, the prin-
ciple is very concisely given that "the right"
of an "abutting" owner to the use of a street
"is as much property as the lot itself, and
the Legislature has as little power to take
away one as the other."

The rule was again necessary to reverse the entire judgment and N. Y. C. & H. R. R. | remand the case. Lumber Co. v. Israel Cong., 100 Md. 689, 62 Atl. 575; Richardson v. County Comrs. Kent Co., 87 Atl. 747, decided April 8, 1913. As already pointed out, as to these plaintiffs both of the defendants were tort-feasors, and therefore these plaintiffs are entitled to recover against either or both. The plaintiffs were no parties to the ordinance, if it is to be regarded in the light of a contract, and cannot therefore be limited in their right of recovery to only one of the two joint tort-feasors. What may be the respective liabilities of the city and the railroad company inter sese, resulting from any undertakings or agreements between them, is a matter in which these plaintiffs have no concern, and which it is not necessary now to decide.

In section 1325 of 3 McQuillan on Municipal Corporations, that author deals with the subject of the right of access to a street by an abutting owner, and says: "This right also includes a certain convenience in the use of his property with respect to the rest of the world, such as the opportunity for a man's customers to come to his place of business without reasonable hindrance or interruption. This is held to be a proprietary right, an easement in the street attached to the ownership or estate of property abutting on a street or alley, and property which cannot be appropriated to the use of the public without compensation."

In view of the authorities, to which reference has been made in part, and the injury to the property of the plaintiffs being such as already indicated, it follows that, the construction of the abutment or approach complained of in this case amounting to a taking of property of the plaintiffs which neither the mayor and city council could do or authorize to be done without making just compensation therefor to the owner, so far as the present plaintiffs were concerned, both defendants were joint tort-feasors, and therefore both liable to the plaintiffs, and the rulings of the court below on the prayers withdrawing the case from the jury erroneous.

[7, 8] In the oral arguments, and the briefs of the defendants in this case, it was virtually conceded that the plaintiffs had been damaged, but the contention was that what had been done did not amount to a taking, as there had been no physical invasion of the plaintiffs' lot, and the damage which had been suffered was consequential in character. As already indicated, this court cannot agree with that view. But it was further urged that by reason of the ordinance, the liability was not a joint one, and that by its decision this court should place the entire liability upon one or the other of the defendants, and absolve the other. This it is impossible to do in the present case, for a number of reasons. The defendants were sued jointly, and the verdict as rendered was a joint verdict as to both defendants. If now it was erroneous as to either, it is

This is not a case such as arose in Gardiner v. Boston & Worcester R. Co., 63 Mass. (9 Cush.) 1, where the railroad alone was sued, there having been an agreement made between the company and the city of Boston for the raising of Tremont street to avoid a grade crossing, and the railroad was held to be primarily liable for damages occasioned thereby. In the present case both the city and the company are parties defendant; both are liable to the plaintiffs, whatever may be their respective liability as to each other, as the result of the passage of the ordinance and the subsequent act of the Legislature.

Judgment reversed, and case remanded for a new trial; costs to be paid by the appellees.

(121 Md. 71) CARRINGTON v. THOMAS C. BASSHOR CO.

(Court of Appeals of Maryland. June 24, 1913.) 1. APPEAL AND Error (§ 185*)-Reservation

OF OBJECTIONS IN TRIAL COURT-STATUTES.

One not a necessary party was permitted to become a defendant, and appealed from orders entered before he became a party on the ground that the bill was insufficient to enable the court to make them. No objections had been raised in the trial court to the sufficiency of the bill as required by Code Pub. Civ. Laws, art. 5, § 36. or to the jurisdiction as required by section 37, to enable the objections to be made on appeal. Held, that the appeal would be dismissed, as the appellant should have first applied to the trial court to set aside the or

ders.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1176, 1375; Dec. Dig. § 185.*]

2. CORPORATIONS (§ 552*) — RECEIVERS — JURISDICTION OF COURT OF EQUITY TO APPOINT.

A court of equity has jurisdiction, upon a proper showing, to appoint receivers for a corporation.

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 2201; Dec. Dig. § 552.*1 3. CORPORATIONS (§ 556*) - RECEIVERS-PROCEEDINGS FOR APPOINTMENT-PARTIES.

A judgment creditor of a corporation is not a necessary party to a suit for the appointment of a receiver for the company, though the rea