
    BALTIMORE AND POTOMAC RAILROAD COMPANY v. WILLIAM DENNISON AND OTHERS, COMMISSIONERS OF THE DISTRICT OF COLUMBIA, AND GALLAHER, LOANE & CO.
    Equity. —
    No. 4218.
    The complainant was authorized by act of Congress to cross or intersect with their tracks any established road or street in this District. Tlie District authorities gave a contract to the defendants Gallaher & Co. to construct a sewer which would necessarily pass in its course under the tracks of said railroad where they crossed one of the publie streets in Washington. The contractors were near complainant’s tracks with their excavation, which it was alleged would endanger the tracks, and prevent their use, unless great care and expense were employed in their protection. There are no averments in the bill that tiie contractors were doing anything which they were not authorized by law to do, or that they were doing the work in such a careless manner as to interfere with the rights of said railroad company : Held—
    
    I. That while the company, under such acts of Congress, liad a right to lay down the tracks of its road at the intersection of the street in question, it was subject to tlie right of the District to construct a sewer under said street if deemed necessary to the comfort and health of the public.
    II. That the obligation of the contractors, as respects complainant, was to do the work in such manner as not to interfere with tlie rights of the company.
    III. That tlie company had a right to run their cars over the tracks of tlie road at the crossing of the street, and tlie District had a right to construct a sewer under said tracks ; and in tlie exercise of these respective rights, neither of the parties must do the other any unnecessary damage.
    
      IV. That the railroad company, not being a party to the contract for the construction of the sewer, could not invoke the aid of this court to enforce its provisions, especially when the contractors were performing the contract with due care.
    V. That the special term had no jurisdiction to pass an order requiring the contractors to construct the sewer, where it passes under the ’ tracks of the railroad, under the supervision and direction of the engineer of tiie company.
    VI. That order having been complied with, however, by the contractors, and the final decree making no provision to reimburse them for the extra expense thereby incurred, such final decree is set, aside, and an order made appointing a competent engineer to report upon the necessary costs of constructing said sewer in a suitable manner, such cost to be charged to the contractors, and any amount expended above that sum to be paid by the railroad company.
    STATEMENT OE THE CASE.
    The material facts may be briefly stated:
    The Baltimore and Potomac Railroad Company, a corporation created by an act of the Legislature of Maryland, was empowered by an act of Congress to lay down a branch track of its road into this District, and for that purpose passing over such lands and occupying such streets as Congress in its discretion might allow. A route was selected, and sanctioned by Congress. This route, thus approved, occupied a portion of South Capitol street. The corporation completed the road and put it in operation as early as 1872. In 1873 the Board of Public Works entered into a contract with Gallaher & Co. to construct a sewer which, of necessity, would pass under complainant’s road. Before the bringing of this suit the Board of Public Works was abolished, and three commissioners, invested with all the powers of that board, were appointed, namely, Dennison, Xetchum, and Phelps; hence they, with Gallaher, Loane & Co., are made parties defendants in this bill. In the progress of the construction of this sewer, the contractors were approaching the complainant’s road track, when a bill in equity was filed by the complainant against the contractors Gallaher & Co. and the Commissioners of this District, prohibiting the defendants from carrying off or in any way interfering with the roadway, or soil of the road-bed where it crosses South Capitol street, and from the further prosecution of the work of constructing said sewer under the roadway of the complainant, without said defendants providing or causing to be constructed at their own expense a proper and safe temporary support for the tracks and roadway of plaintiff’s said road while the sewer was being constructed, and maintaining the same until the sewer was finished. In the contract entered into in writing between the Board of Public Works and Gallaher, Loane & Co., is found the following provision:
    “ Sixth. It is further agreed that all loss or damage arising out of the nature of the work to be done under this agreement, or from any unforeseen obstruction or difficulties which may be encountered in the prosecution of the same, or from the action of the elements, or from incumbrances or injuries to individual property, or otherwise, on the line of the work, shall be sustained by the said contractors; and the said contractors hereby agree, in the execution of the said work as aforesaid, to keep at all times the said work properly guarded or protected, so as to prevent all injuries to persons, travellers, animals, or property; and in the event of any such injury or injuries accruing in consequence of the insufficient grading or protection of said work as aforesaid, the said party of the first part shall retain, out of any money or moneys due or to become due said contractors, a sum sufficient to cover all damages arising out of said injuries until the same may be settled at law or otherwise.”
    In the tenth paragraph of the bill of complaint are found the following allegations, the only ones necessary to be considered :
    “ Tenth. Your orator further says that the said Hugh L. Gallaher and Joseph G. Loane and H. E. Loane have constructed the said sewer on South Capitol street to within a few feet of the embankment and tracks of its railroad on both sides of its road-bed where it mosses South Capitol street, and that in order to carry the said sewer under the track of complainant’s railroad It will be necessary to make an exearation of the soil about fifty-five feet in width, about fifteen feet in depth, and to extend the said excavation for about the distance of eighty feet, until it crosses the road-bed of the complainant; and prior to and during the excavation it will be further necessary to make certain expenditures in constructing a temporary support for the tracks of the railroad to enable it to use its said road for the transportation of trains along and over the said excavation, and to properly support and protect said tracks until the said sewer is completed ; and in order to secure the said road-bed and tracks after the completion of the said sewer from the dangers arising from the existence of the said sewer underneath the same, it is necessary that the said sewer should be constructed at the point where it passes under the roadway of complainant with a heavier arch and with other and additional means of securing the same than the means used elsewhere in constructing the said sewer; and as illustrating the character of the temporary support for the tracks duriug construction, and the changes which should be made in the mode of construction of the said sewer where it passes under the complainant’s roadway, plans of the same are herewith filed, marked ‘ Complainant’s Exhibits B, C, and D,’ which are prayed to be taken and considered as part of this bill.”
    The contractors and Commissioners having appeared and answered the bill, the latter make the following averments :
    “And these defendants submit to this honorable court that all and every the matters in the said complainant’s bill mentioned and complained of, are matters which may be tried and determined at law, and with respect to which the complainant is not entitled to relief in any court of equity; and these defendants hope they shall have the same benefit of this defense as if they had demurred to the said complainant’s bill.”
    The next proceeding in the case is the following order made by the court:
    “This cause having been argued on the restraining order granted in the cause, it is ordered, this eleventh day of March, in the year eighteen hundred and seventy-five, by the Supreme Court of the District of Columbia, that the defendants, II. Gallaher, Joseph G. Loane, and Henry E. Loane, the contractors for the construction of the sewer mentioned in these proceedings, be, and are hereby, authorized and required to construct the said sewer under the tracks of the Baltimore and Potomac Railroad where it crosses South Capitol street, under the supervision and direction of the engineer of the Baltimore and Potomac Railroad, and to furnish the temporary support for the tracks of the said railroad company during the construction of the said sewer, under the supervision of the said engineer, in such manner as not to interfere with or obstruct the transit of trains during the construction of said sewer, and in such a manner as to provide a safe transit for the trains of the said railroad company upon the completion of the construction of said sewer. And it is further ordered, that the said contractor’s keep an accurate account of the cost of the constructing and maintaining a temporary support for the said tracks of the said railroad company while the said sewer is being constructed, and of additional cost of said sewer so as to render the same safe and proper for the transit of the trains of said railroad company after its completion. And it is further ordered, that the question as to the liability for the said cost and expense of the temporary support for the said tracks, and the additional cost of the said sewer so as to render the same safe and proper for the transit of the trains of the said railroad company after its completion, be reserved for determination upon the final hearing and decree, to be hereafter passed in the cause.”
    Under this order of the court the defendants Gallaher, Loane & Co. went on to construct an arch under the railway of the plaintiff, under the direction of the plaintiff’s engineer, in doing which they were compelled-to expend in labor and materials some six thousand dollars. The cause coming on for a final hearing, the following decree was entered by the court at special term:
    
      
      “ This cause coming on for final hearing at the present term, and haviug been argued by counsel, upon consideration thereof, it is, this 5th day of April, 1877, ordered, adjudged, and decreed that no part of the cost of constructing the temporary or the permanent support of the tracks of the complainant, made necessary by the building of the sewer in these proceedings mentioned, under the road of the complainant where it crosses South Capitol street in Washington city, is properly chargeable to the complainant, and that neither of the defendants in the case has any claim against the complainant, for the cost of such work or any part thereof.”
    From this final decree an appeal was taken to the court in banc by Gallaher & Co., and also by the Commissioners of the District.
    
      Enoch Totten and J. C. Heald, for complainant.
    The road having been fully completed, after an expenditure of large sums of money, on the faith of the statutes of incorporation, those statutes constitute a contract, and cannot be altered or impaired except as provided for by the statutes themselves. (Dartmouth College v. Woodward, 4 Wheat., 518; Piqua Branch Bank v. Knoop, 16 How., 369; Dodge v. Woolsey, 18 How., 331; Jefferson Branch Bank v. Skelly, 1 Black, 436; Milhan v. Sharp, 27 N. Y., 611. See the authorities collected on this point in Abbott’s Dig. L. of Corp., 156.)
    The title to the streets of Washington-is vested in the United States; and the privilege of using the streets for the purpose of railroad traffic having been granted to the complainant by the United States, its right to the free and uninterrupted use of them, as authorized by the acts of Congress, cannot be interfered with, modified, or diminished by the municipality. The act establishing the “ District of Columbia ” constitutes it “ a body corporate for municipal purposes,” and authorizes it to “ sue and be sued, plead and be impleaded with, have a seal, and to exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and the provisions of this act.” The eighteenth and nineteenth sections of the organic act expressly prohibit the legislative power from passing any law “ impairing the obligation of contracts.” The municipal corporation is strictly limited by these provisions from making encroachments upon the rights of property of private individuals or corporations. Indeed, the legislative power seems to have been unusually careful to protect the railroad company against invasions of its rights on the part of the municipality. It is especially provided that it shall not have the right, or power to change the grade of the streets over which the road passes without the aid of a congressional enactment. The proviso to the third section of the act says that the “ level of the said road * * shall conform to the present gradation of the streets, unless Congress shall authorize a different level.” And, in addition to this, the provisions of the act of incorporation granted by the Legislature of Maryland prohibiting, under a penalty, any destruction or obstruction of, or injury to, any part of the railroad, was extended by the act of Congress to the company for the protection of that part of its road located in the District. The act provides that the company shall have the same benefits and immunities in the use of its road in the District as are provided .by the said original charter. These provisions were plainly intended to protect the road in the District from injury, destruction, or obstruction, in the same manner as it is protected in Maryland ; and unless some positive statute of the United States to the contrary can be produced, the municipal authorities are forbidden, not only to injure, obstruct, or destroy any part of the road, but they are also forbidden to change the grades of the streets over which it passes.
    It will not be seriously denied that an excavation fifty-five feet long, eight feet wide, and fifteen feet deep under a railroad track must very materially injure as well as interfere with the operation of the road, and greatly diminish the value of the franchise. If the municipality can dig an excavation of these dimensions under the road-bed at South Capitol street ¡it the expense of the company, it can excavate in the same way under the entire length of the road within the limits of the corporation, and thus not only impair and injure the road, but entirely destroy the franchise of the company and the. contract under which it exists.
    The act of Congress of February 5, 1867, provides:
    “ That whenever the said company, in the construction of a railroad into or within the said District, as authorized by this act, shall find it necessary to cross or intersect any established road, street, or other way, it shall be the dirty of the said company so to construct the said railroad across such established, road, street, or other way as not to impede the passage or transportation of persons or property along the same.”
    These provisions are copied, substantially, from the original act of incorporation by the State of Maryland. This is the only provision bearing directly upon the question here. It will be observed that nothing is said about sewers; but even if sewers were especially mentioned, there could be no constructive obligation imposed upon the company to bridge this sewer. If a new street should at any time be opened across the line of the road by the municipal corporation, the company could not be required to construct the necessary bridges. It was so held, after much argument, in the case of Morris Canal Co. v. The State, 14 N. J. L., 62. (See, also, In re Trenton Water Power Co., 20 N. J. L., 659; The King v. Kerrison, 3 M. & S., 526; The King v. Inhabitants of Lindsey, 14 East, 317.)
    
      A. G. Kiddle, for District Commissioners.
    1. The court erred in this ruling.
    It is submitted that the claim of the plaintiff, though recognized by the Equity Court, rests in an entire misconception of the case-.
    In the first place, although the fee in the streets was in the United States, yet it, and the whole territory of which they were a part, had, long before the claim of plaintiff, existed, been dedicated to the purposes of a city, and charged with all the servitudes necessary to accomplish all municipal purposes, among which sewers and sewerage are repeatedly mentioned in the city charters. With this pre-existent dedication to specific and permanent purposes, Congress granted the right of way over the named streets to the plaintiff for the purpose of its track, thus adding another burden to the soil.
    What was the effect of this grant? Merely to legalize the presence of plaintiff’s track, cars, and noise. That which, without license, would have been an intrusion, an intolerable nuisance, becomes lawful and escapes abatement.
    The plaintiff’s claim is, that by this grant it acquired a right paramount to all the older rights of the municipality; that they are subordinated to it, and can in no way approach, or in any way interfere with, its exclusive property, except at the cost of full protection to it. We claim that the premises were already dedicated to the public, and this grant to a private corporation must be so construed as to least impair the rights of the public.
    Such are the reason and equity of the case, and current of all the cases. (Charles River Bridge v. Warren Bridge, 12 Curt., 496; 11 Peters, 445; Perrine v. C. and Del. Canal Co., 18 Curt., 82; 9 How., 182; Curtis v. Butler, 24 How., 435; Moran v. Miami Co., 2 Black, 72; Binghamton Bridge, 3 Wall., 51.)
    The position of the plaintiff is that of bare right, reasonably restricted so as to least interfere with the rights of others. It. can lay its rails along the streets, but not so as to destroy the prior and paramount right, of the public to use them as streets. It must not render them useless for that purpose, and must transact its business with the least annoyance and disturbance to the people along its route. When the grade of the streets is changed, it must unquestionably conform to the new grade. (Water Commissioners v. Hudson, 2 Beasley, 420; an instructive case, and it lights up many points of ours.)
    When the plaintiff entered upon the lines of these streets, it knew pei’fectly well that it was liable, at the discretion of the municipality, to have the earth excavated from under and across its track for a sewer, and was bound to govern itself accordingly. In the prosecution of their coutraet, making their excavation and arch, what are Gallaher, Loaue & Co. bouud to do ? In what way different from the ordinary case, where a party, in prosecution of a lawful purpose, approaches the property of another, are they bound to comport themselves ?
    The rule which governs the excavation made by a man for the improvement of his own property, near to or adjoining the property of another, it is submitted will govern in this case. He shall conduct his work with the care and skill of a prudent man, and so as to do as little injury to another as may be.
    What other or better right can the plaintiff have in the premises than an owner of the fee, a private person, who is obliged to care for his own property ? (2 Wash, on Real Prop., 331, 332, and cases cited in notes.)
    It is not claimed that Gallaher, Loane & Co. were not conducting their work with ordinary skill and care, but that they refused the extraordinary care and expense of the protection of the plaintiff’s property, which by law devolved upon itself.
    2. The ease of the plaintiff' seems to be shaped and the action of the court below governed by the sixth paragraph of the contract of the Board of Public Works with Gallaher, Loaue & Co. That seems to have been regarded as a contract to which the plaintiff was a party, and who was, in effect, permitted to compel a specific performance of it against Gallaher, Loane & Co.
    It is submitted that, as between the parties to this suit, the provisions of paragraph 6 of that contract can have no influence. It is as if they were not. The whole scope and purpose of that stipulation was to protect and save the District from all legal damages which the execution of the contract might expose it to by any carelessness or misconduct on the part of Gallaher, Loaue & Co. It creates no new liability, confers no new right on any party whose property may be claimed to be affected by the construction of said sewer. If such claim should be made, the District may retain from Gallaher, Loane & Co. money enough to pay the same, when judicially ascertained. It was strictly between the Commissioners and Gallaher, Loane & Co., in which no other parties have any rights or interest.
    3. In this view of the case it was not a proper subject for a court of equity. The plaintiff should have cared for its own property when it received notice, and brought its action at law for any alleged damage.
    This ease is a matter of grave importance to the District; and if this suit can be maintained, it is not seen how it can escape an injunction at the suit of any party who may think his property insecure, or who may fear he will be subjected to inconvenience, by the construction of the most needed and important improvements.
    
      Montgomery Blair and Woodbury Blair, for Gallaher, Loane & Co.
    I. The complainant predicates the demand alleged in the eleventh paragraph of the bill, and which the decree enforces, entirely upon the sixth article of the contract between the Commissioners and their co-defendants, as set out in the eighth paragraph of the bill. The decree therefore proceeds altogether upon the assumption that by that article the contractors had bound themselves to do the work which the court ordered them to do at the instance of the complainant. This construction of the article, the defendants insist, is erroneous, and that the article does not apply to the work in question at all. The article only declares that in case certain losses therein enumerated shall accrue in the prosecution of the loork therein described, “such losses shall be sustained by the contractors.”
    The losses contemplated are -all such as may arise from natural causes in the progress of the work, or be occasioned by the negligence of the contractors. They are enumerated as follows :
    1st. “Losses arising out of the nature of the work.” 2d. 
      “ From unforeseen obstacles or difficulties.” 8d. “From the elements.” 4th. “ From incumbrances or injuries to individual property.” 5th. Losses ai’ising from “insufficient guarding or protection of said work.” All these, it will be seen, are losses, and losses which may accrue in the prosecution of the work specially described in the contract. But the expenditure in question here was not made on account of any of the losses enumerated, or, indeed, of any loss whatever, or even on account of the work described in the contract at all, but for work additional to and entirely distinct from that stipulated for in the contract, and which was not contemplated or required by the Commissioners, but ordered by the court for the complainants for their own use and security.
    . II. If this work had been necessary to fulfill the contract, the complainants not being parties to it, the court erred in enforcing it at their instance.
   Mr. Justice Olin

delivered the opinion of the court:

We have no doubt that a court of equity, according to the facts stated in the bill of complaint, had no jurisdiction in this case. It is nowhere averred in the bill that the defendants were doing or threatening to do anything which by law they were not authorized to do, or that they were doing the work in such a careless manner as to unnecessarily interfere with the rights of the complainant.

Undoubtedly the complainant had the right to lay down the track of its road where at present located under and in pursuance of the acts of Congress passed for that purpose; and it is equally clear that the Board of Public Works or the Commissioners of the District had a right to construct a sewer, if deemed necessary for the comfort or health of the people of the District, under the track of the complainant. The only obligation imposed upon the Commissioners or Gallaher, Loane & Co., was to do the work of constructing the sewer in such manner as not unnecessarily to interfere with the rights of the complainant. In other words, the, complainant has the right to run their cars over the track of their road-; the District has the right to build a sewer under the track of complainant’s road; in the exercise of these rights neither party must do the other any unnecessay damage.

The complainant was no party to the contract made between the Board of Public Works and Gallaher, Loane & Co., for the construction of this sewer, and had no more right to interfere with its execution than had every traveller who had occasion to pass over the public street upon which the track of the complainant’s road was laid. The complainant had no exclusive right to the use of the street. It had, at most, an easement to be enjoyed in common with the public.

We have before stated that we were of the opinion that a court of equity had no jurisdiction in this case. Conceding all of the facts stated in the bill to be time, whether the defendants ought to have appealed to the court in banc from the first order made in this case at special term, it is now unnecessary to inquire. .

Probably that order was not an appealable one, as it did not necessarily involve the merits of the action. Such interlocutory orders, when they affect the merits of the case, may be considered on the hearing of a final decree, or reviewed on appeal to the court in banc. The first order made in this case by which the contractors, Gallaher & Co., were turned over to the tender mercies of the engiueer of the complainant, and compelled to build such an archway under the railway track as he should direct, is an exemplification of the old fable, in which it is said a lamb was handed over to a wolf to be nursed. Under this order the contractors, under the-direction of the engineer of the complainant, expended am amount of money seemingly sufficient to have built a railroad half-way through the District.

We think the decree in this case should be reversed, and an order made appointing some competent engineer to take proofs of the reasonable and necessary costs of constructing a sewer under the tracks of the complainant’s road, and the amount found necessary for that purpose to be paid by the contractors, and the amount expended above that sum should be paid by the complainant.  