744 ARTICLE 23.

An. Code, sec. 273. 1904, sec. 255. 1888, sec. 169. 1876, ch. 242, sec. 13.

208. If it shall be necessary, in the location of any part of any railroad,
to occupy any road, street, alley or public way, or ground of any kind, or
any part thereof, it shall be competent for the municipal or other corpora-
tion, or public officer, or public authorities, owning or having charge thereof,
and the railroad company to agree upon the manner and upon the terms
and conditions upon which the same may be used or occupied; and if said
parties shall be unable to agree thereon, and it shall be necessary, in the
judgment of. the directors of such railroad company, to use or occupy such
road, street, alley or other public way or ground, such company may appro-
priate so much of the same as may be necessary for the purposes of such
road, in the same manner and upon the same terms as provided for the
appropriation of the property of individuals by sections 203 and 204;
provided, that every railroad company laying down any such track or
tracks upon any such public street, road, alley or other public ground, shall
be responsible for injuries done to private property by such location, lying
upon or near to such public ground, which may be recovered by civil action
brought by the owner or owners at any time within two years from the
completion of such track or tracks, before the proper court; and provided
further, that no railroad company shall be allowed to pass through the
city of Baltimore without the consent of the municipal authorities.

This and the following section held to afford the city of Baltimore ample protec-
tion if a new street railway company (not provided for by the act of 1906, ch. 566,
dealing with the United Railways and Electric Company) should come into the
annexed portion of said city. Baltimore v. U. Rwys. & E. Co., 126 Md. 49.

In the light of this section, of sec. 213 and of art. 33A, sec. 6 (as it stood prior to
the act of 1914, ch. 463), a railroad company may construct, if necessary, a crossing
over a public highway. See notes to sec. 195, and to art. 33A, sec. 1. Hyattsville v.
Washington, etc., R. Co., 120 Md. 140.

Since this section affords an adequate remedy for the depreciation of the prop-
erty of an abutting owner in consequence of the construction of a railroad, equity
will not enjoin the construction of the railroad at the instance of such owner.
This section provides the remedy for injuries to property not amounting to a
" taking " thereof within the meaning of art. 3, sec. 40, of the state Constitution.
O'Brien v. Baltimore, etc., R. R. Co., 74 Md. 376. And see Poole v. Falls Road Ry:
Co... 88 Md. 533.

This section compared with sec. 203. Under this section, the corporation is re-
sponsible for injuries to private property lying upon or near the street occupied;
hence the right to redress depends upon whether damage was done, and not upon
the proximity or distance of the operative cause of the injury. Lake Roland Co. v.
Webster, 81 Md. 535.

This section held to provide the remedy for injuries to private property incident
to the construction and operation of a street railway. Poole v. Falls Road Ry. Co.,
88 Md. 541. Cf. Hodges v. Baltimore, etc., Ry. Co., 58 Md. 622.

Where a city ordinance assenting to the construction of a tunnel by a railroad
company, provided that if any final judgment recovered under this section was
not paid within sixty days, the holder thereof should have the right to enjoin the
operation of the railroad, such provision was held to have no application to a judg-
ment growing out of an injury to the plaintiff's private rights for which the rail-
road company was liable at common law and not under the ordinance, and hence
the injunction was refused. McColgan v. Baltimore Belt R. R. Co., 86 Md. 326.

City ordinances when duly passed and duly accepted by the railway company,
held to constitute the best evidence obtainable of the agreement provided for by
the first portion of this section, and of the terms and conditions upon which the city
streets were to be used by the railway. The city of Annapolis held to be authorized
by this and the following section, to pass ordinances granting the use of its streets
to an electric street railway company. Jeffers v. Annapolis, 107 Md. 271.