Peigh v. Baltimore & O. R. Co

CLARK, Circuit Judge

(concurring).

I very reluctantly concur in the result reached by the majority. I cannot agree that the railroad was not guilty of negligence per se, and I think therefore that this case should have been reversed outright.

During the trial, the attorney for the railroad, without introducing any evidence, very blandly announced that the B. & O. had an easement. The judge, later, in instructing a verdict for defendant, with equal blandness reiterated that of course the railroad had an easement. I fail to see, how, ■ upon the evidence in this case, the trial judge was able to reach that conclusion. As I read the record, it is totally devoid of any showing that an easement to use the public street for prolonged parking was ever created, nor was any proof forthcoming to indicate in what manner and pursuant to what legal theory the easement might have been established by appellee or granted to it, or what rights, powers, or benefits appellee might have acquired under this so-called easement.

In my experience in private practice I represented a number of railroads, including the B. & O., and I had occasion to examine a number of easements. I never heard of a case where the easement did not have to be alleged and proved in its terms and limitations; moreover, in my opinion, it is extremely unusual, to say the least, to find an easement which permits a railroad company to park freight cars on the public street over a week end.

Whenever an easement is alleged to have arisen by prescription, its exact terms must be defined. Certainly, mere use of a way over a period of time — particularly if such use is in common with the general public— does-not permit the drawing of an inference that an easement exists. On the contrary, the party relying upon it must prove all of the necessary elements. See Douglass v. Lehman, 1933, 62 App.D.C. 264 , 66 F.2d 790 .

On the other hand, if the easement is claimed to have been created by a written instrument, such instrument must be introduced into evidence. Appellee may have relied upon the Act of September 26, 1888, but I find no language in that statute which could be construed to permit the railroad to park its boxcars on the public street for extended periods of time so as to block traffic to the detriment of the public at large. That such a right cannot be read into the statute as a necessary adjunct to *397 powers or rights specifically enumerated therein, is indicated by the almost coincident case of Baltimore & P. R. Co. v. Fitzgerald, and by Neitzey v. Baltimore & P. R. Co., both cited in the majority opinion. I absolutely agree with the principle so well stated in these cases that the authority given by the government to railroads to occupy certain streets by their tracks does not give them an unlimited right to the use of such streets for storage purposes.

Since there was a total failure to prove the existence of an easement, appellee at best may he regarded as having had a license to use the street for actual rail movements; it certainly had no authority to convert the highway into an auxiliary frcightyard, or to erect a huge, semi-permanent obstacle directly in the line of traffic. In my opinion, the status of the railroad company at the time of the accident was simply that of a trespasser. The case should be reversed outright on the ground that negligence per se was proved by the conduct of the railroad, which unlawfully and without a measure of right, trespassed upon the public street, created an unusual and entirely unforeseeable danger zone there, and thereby caused the accident.