Blondell v. Consolidated Gas Co.

43 A. 817, 89 Md. 732

• Court: Court of Appeals of Maryland
• Decided: June 5, 1899
• Status: Published

Opinion

Fowler, J.,

delivered the opinion of the Court.

The Consolidated Gas Company of Baltimore City filed the bill in this case for an injunction to restrain the defendants, who are co-partnei's trading under the name of “The Mutual Gas Saving Company of Baltimore City,” from interfering with or in any manner disturbing the meters, pipes and connections used by the plaintiff in distributing and supplying gas to the consumers thereof in Baltimore City and its suburbs. As a paid of the relief asked for in this bill the plaintiff also prayed for a mandatory injunction to compel the defendants to remove all their devices of every kind from said meters, pipes and connections.

The bill alleges that the plaintiff is engaged in manufacturing illuminating gas and furnishing it to residents of the city of Baltimore and its suburbs; that in order to carry on its business it is necessary to place a meter, together with certain pipes and connections, in every house or building in which its gas is- used ; that it now has about forty-five thousand meters, with their pipes and connections, in use, which it is alleged are the absolute property of the plaintiff; that the defendants, without the consent of the plaintiff, have broken, disconnected, tampered with and otherwise disturbed and disarranged the plaintiff’s meters, pipes and connections for the purpose of affixing a certain device called “a governor,” which is used for the pui-pose of inducing the consumption of gas by consumers ; that the defendants have ali'eady affixed a large number of such governors to the meters of the plaintiff and are from time to time increasing the number ; that illuminating„gas being an agent dangei'ous to life, health and property, it is necessary to exercise the greatest care in its use; that in order to prevent injury and damage the plaintiff is required to use constant watchfulness and the utmost care to keep its meters, &c., in good repair, and that therefore it ought to have exclusive care of them, because it alone is responsible for the safety and protection of the consumers of its gas ; that the unlawful interference of the defendants with the plaintiff’s meters, &c., has occasioned them loss and risk, and will continue to do so ; that the action of the defendants in the respect mentioned has injured and destroyed the plaintiff’s pipes and connections, and has caused leaks through which gas escaped to the great risk of life, health and property ; that the actions of the defendants are liable to cause fires and explosions; that the injury to said meters and pipes has been occasioned by the incompetent and careless agents of the defendants, who disturb them, frequently at times unknown to the plaintiff; and that it is apprehensive it may be subjected to suits for damages on account of injuries to health and property, and of death caused by the unwarranted and careless acts of these defendants and their agents; and that it has no adequate remedy at law.

The defendants demurred to the bill upon the following grounds:

1. That there is nothing charged in the bill that the defendants did not have a legal and equitable light to do.

2. That the law afifords-the 'plaintiff an adequate remedy.

3. That the bill makes out only a simple case of trespass and negligence for which the law gives ample remedies.

4. That the jurisdiction of a-Court of Equity cannot be successfully invoked by the allegation of apprehended loss to be caused by persons who 'are not in its employment or under its control.

5. That no facts are stated in the bill to show the defendants' are financially irresponsible. •

6. Want of proper parties.

7. Because the scope of the bill is to destroy the right of citizens to contract for mutual advantage and to allow a monopoly to force gas upon consumers with a pressure beyond its needs.

This demurrer was overruled, and the defendants there upon answered. In their answer they admit that the plaintiff is required by law to furnish consumers of gas with meters to measure the gas consumed, but deny that the pipes and connections of said meters are the plaintiff’s property, and they allege that they have placed a large number of their “ governors ” upon plaintiff’s meters with the consent of the consumers; but they deny that they have ever injured or broken any of the pipes or meters of the plaintiff; they deny the right of plaintiff to have sole charge of the meters, pipes and connections or that they have injured the plaintiff’s property, and they aver an adequate remedy at law, and rely upon a want of proper parties. Without further rehearsing the allegations of the answer it is sufficient to say that it denies all the substantial allegations of the bill except the one relating to the ownership by the plaintiff of the meters, which appears not to have been specifically denied in the answer, although the defendant contends that the plaintiff’s claim of ownership of the meters is not sustained by the evidence.

Testimony was taken by both sides, the case was argued, and the learned Judge below passed the decree of the 30th December, 1898, granting an injunction to restrain and prohibit the defendants from further interfering with plaintiff’s meters and connections, but refusing a-mandatory injunction to compel the removal of the “governors” now in use.

From this decree both parties have appealed; the plaintiff from so much of the decree as refused the mandatory injunction for the removal of the “ governors,” and the defendant from that part thereof which enjoined them from the alleged interference with plaintiff’s metérs and other property.

Having thus fully stated the case before us, we will proceed jto consider the questions of law and fact presented by the two appeals in this record :

(1) In the first place, it maybe observed that there is no claim attempted to be set up that the consumer has not a right to use such a device as is shown to have been used in this case and called a governor, or any other device which in his opinion will answer the purpose better; but the contention of the plaintiff is that in fact the meter and its connections are its property, and that whether this be so or not, the law gives to it the sole control and management of such meter and connections, and that neither the consumer nor any one with or without the consumer’s consent, has the right to disturb or interfere with the meter or its connections, for the purpose of connecting therewith a governor, or, for any other purpose without the consent of the plaintiff This contention, we think, is fully sustained by the evidence and by the Act of 1876, chapter 356, entitled “An Act to regulate gas meters in the city of Baltimore.” By this Act the plaintiff is required to place on the premises of every consumer of gas “ a correct apparatus or meter for registering the consumption of the same,” and it is made the duty of the plaintiff to see that the meter is kept in proper working order. To place the meter where the law requires it to be placed, the plaintiff must either manufacture or purchase them, and the evidence is that they are purchased at an average price of $22 or $23 apiece. When thus placed as required, the meter remains in the house of the consumer so long as he continues to use gas, subject to the control and inspection of the plaintiff and when the consumer ceases to be a consumer of gas, the meter and its connections, consisting of two lead pipes, are removed and taken again into the possession of the owner. These pipes are, we think, a necessary part of the meter. Without them it could not be connected with the street or supply-pipe on the one hand, or the consumer’s pipe on the other, and it is shown by the evidence that they are furnished or supplied by the plaintiff in order to make the necessary connections. Some effort was made to show that the consumer paid for, and therefore owns these pipes, but such a view is unsupported by the testimony, which not only shows that they are “ placed ” on the consumer’s premises along with the meter, but they are also removed with it We think, therefore, it can hardly be contended with much show of reason that either the meter or its connections are not the property of the plaintiff. But whether this be so or not, it is very apparent from the testimony, and, indeed, is well-known independent of the testimony, that, as alleged in the bill, illuminating gas is an agent dangerous to life, health, and to property. Therefore, inasmuch as the law ruquires the plaintiff to keep the apparatus in proper working order, it will hold the plaintiff responsible for damage to property or loss of life, caused by a failure on its part to perform its duty. Along with this legal responsibility must necessarily be conceded to the plaintiff sole control — for it would plainly be as unjust as it would be absurd to impose such a responsibility, and withhold the right of protecting itself from loss caused by interference on the part of others. If, as we have said, the meter and its connections are the property of the plaintiff, and if, as the law requires, it is placed in the consumer’s house for the purpose, and for the sole purpose, of “ registering the consumption of gas,” we are unable to understand upon what theory the defendants can successfully claim the right to use this apparatus of the plaintiff for another and entirely different purpose. The meter is a device for measuring the consumption of gas, which the law requires to be used by the plaintiff as a part of its system, while the “ governor,” which the defendant claims the right to affix thereto, is a device designed for the purpose of regulating the pressure of the gas after it passes through the meter. Now it seems to us that the large mass of testimony contained in the record showing, on the one hand, that the affixing of the governor was, and on the other hand that it was not injurious to the meter and its connections, is entirely beside the question. For whether the alleged acts were orijwere not productive of injury, they were in the eye of the law trespasses, if, as we have said, the tmeers are the plaintiff’s property, arid if the acts were un authorized, there is a legal injury for which the plaintiff could recover, at least, nominal damages; (B. & O. R. R. v. Boyd, 67 Md. 32 ; Poe on Pl., sec. 247), and the continuation of which would be enjoined by a Court of Equity.

2. But the argument of the defendant is, that, assuming for the sake of. the argument the meter and connections to be the property of the plaintiff, yet there is a bailment of some kind in relation to them, and that being so, the consumer has the right to use them for any reasonable purpose — contending that the affixing of the governor to them is such a reasonable use.

It is apparent from what we have already' said, that the apparatus in question is not delivered to the consumer for any purpose.whatever. It is true, it is “placed,” as the law- requires it to be placed, temporarily in his house for the purpose of measuring the gas consumed, and at the same time to convey the gas from the supply-pipe of plaintiff to the pipe of the consumer. It is while thus in use, connected with and forms a part of the means by which the plaintiff sells and delivers the gas to the consumer, and while so in use cannot, in our opinion, be fairly considered as a separate chattel' subject to a bailment of any kind. In order to effect a bailment there must be' a delivery either real or constructive. -Here there is neither. Hale on Bailment& C., 12. But surely, if it be conceded that because the apparatus is placed in the house of the consumer, he thereby becomes a bailee, he would be bónnd to respect the terms of the bailment provided by the law under which it is created, namely, that it is to be used as a measure for the. consumption of gas under the care and control of the plaintiff- But, being of opinion that under the peculiar facts of this case there is no room for the application of the law relating to bailments, we will not further consider this contention of the defendant. ■

3. Again, conceding ex gra:tia the contention of the plaintiff that , the meter and connections'are its property, the defendants ■ urge that the alleged injuries and interferences amount only to trespasses for which a Court of law affords ample remedy. But we think the state of facts before us in this record shows that the alleged trespasses are not only continuous, and that therefore a Court of Equity will enjoin them, but the allegations of the bill, and the testimony as well, show that the property of the plaintiff is of a peculiar nature, interference with which leads to danger to life and property. Under these circumstances a Court of Equity will not hesitate to exercise its jurisdiction. White v. Flanagan, 1 Md. 525; Gilbert v. Arnold, 30 Md. 29; McCreary v. Southerland, 23 Md. 471 ; 2 Waterman on Trespass, sec. 1126; DeMattos v. Gibson, 4 DeG. & J. 276. In the case last cited it was held that where property either movable or immovable is disposed of to be used in a particular manner, equity will enjoin its use in any other manner, and in Trustees, &c., v. Hoesli, 13 Wis. 354, the language used by the Court is particularly applicable here : “ The circumstances of this case are so special, and the nature and use of the property itself so peculiar, that an ordinary action of trespass would furnish no adequate compensation.” But a.Court of Equity will afford the relief here asked for upon the ground of preventing a multiplicity of suits. According .to the concession, there have been thousands of those trespasses committed, and it is alleged and shown they will continue so long as the defendants are allowed to sell their governors and affix them to the meters.

4. The next contention of the defendant is based upon an alleged want of proper parties. The defendants allege that the trespasses complained of were committed with the consent of the consumers — and that they should, therefore, be joined in this suit. But even in a Court of Law it is not necessary to join in an action of trespass principal or agent or joint trespassers. The agent and his employer, or the joint trespassers, may be sued separately or jointly at the election of the party injured. Coal Co. v. McCulloh, 59 Md. 403. The consumers, however, are not really neces sary parties. We are of opinion that the defendants really represent the whole controversy. For they placed the governors on the meters, and unless the plaintiffs have been guilty of laches, the defendants and they alone will be required to undo what they have illegally done.

5. And this brings us to the consideration of the defence of laches.

The grounds upon which the defendants rely to establish this defence, are, first, because the plaintiff through its former secretary consented to the use of the meters and connections.

And, second, long delay in taking steps to prevent the defendants from placing their governors.

In regard to the first, we need only say that in our opinion it is not supported by the testimony. The then secretary of the Gas Company informed the witness, Mr. Dickson, who ca led to get his views in regard to the introduction of governors in Baltimore, and the secretary said in substance what the plaintiff now says, that he had no objection to offer — “ we would not do anything against you if we could, and we could not if we wouldthat the matter of placing governors on has been decided, that is, that it was entirely in the province of the consumer; if the consumer wanted a governor that they could not prevent them from having one. There is nothing in this testimony or in any other testimony we have found in the record which shows or tends to show that there was any consent given to use the meters and its connections in the manner now complained of. Indeed the inference from all the testimony is the other way.

Whether the defence of laches should be allowed to prevail depends upon the. circumstances of each case in which it is set up. We have already said that the dictates of ordinary justice require that the plaintiff should have exclusive control of its meters and its connections. And this is so, as already pointed out, not only because of the rights of the plaintiff, but in addition it is so because in our opinion, and the evidence shows it, a double control increases the danger to the lives and property of the consumers, and in case of death or injury to property would increase the difficulty of discovering which of the two is liable. Each would attempt to place responsibility on the other. The difficulties which lie in the path of recovery while the plaintiff alone is in control and when there is no governor on which to place the blame, are sufficiently great without adding to them. But it appears also that the use of governors on the meters is a growing one. It may well be that for a long time when the evil complained of had not reached the great proportions to which it has now grown, the plaintiff may have preferred to endure it, rather than resist it. But surely such a condition should not be allowed to be used in a Court of Equity as ground to prevent the exercise of its jurisdiction, when it is apparent that not only the plaintiff, but a large portion of the public are entitled to protection from an evil, which, if it be an evil, is daily growing larger. In our opinion the mere delay or acquiescence of the plaintiff, in the absence of any evidence showing that it induced in any way the defendants to place governors on the meters, is no answer to the bill, under all the circumstances of this case.

6. What we have already said, in regard to the questions of fact and law presented by the appeal of the defendant, from the part of the decree granting the restraining injunction, renders it necessary to say but little in regard to the appeal of the plaintiff from that part of the decree which refused the mandatory injunction requiring the defendants to remove their governors from the meters. For if we are correct in what we have said, namely, that the plaintiffs are legally entitled to the sole control of the metres and connections, and if the governors were illegally placed on the meters without the consent of the plaintiffs and without any inducements on the part of the latter, being free from laches, it follows necessarily that the governors should be removed. Who should remove them ? Undoubtedly the defendants who placed them there. It is no answer to this requirement of the decree that the defendants are not in control of the premises of the consumérs; the consumers gave their consent, as alleged, to placing the governors, and it is not to be presumed that they will attempt to prevent the defendants from performing a plain duty imposed on them by the decree — or put themselves in the position of resisting a valid decree of a Court of competent jurisdiction. When such a condition arises it will be time enough to consider the questions it may present.

7. In conclusion, we think it proper to consider some of the suggestions which have been made to the form of the decree.

■If the meter and its connections belong to the plaintiff, it is equally clear that the iron pipe which carries the gas from lead pipe or meter connection of the plaintiff is the property of the consumer or of the owner of the house, and we think it is clear he is at liberty to place the governor on any part of that pipe. And if he should determine to use the end of his iron pipe nearest to the meter as the point at which he will'place the governor, we are of opinion he should be allowed to do so, under such reasonable regulations as may be made by the Governor Company and the Gas Company. 'There can, it seems to us, be no difficulty in making such regulations as should be satisfactory to each party." It appears by the testimony that if the governor is not allowed to be placed on the meter nor at the end of pipe connecting with the house pipe, the latter would have to be cut to put it on. Now, inasmuch as it also appears from the testimony that the plaintiff does not claim to have the absolute right-in all cases to connect its lead-pipe with the house-pipe, but'leaves that to the consumer and requires him to do it, it would seem to be going very far to say that under no circumstances shall the consumer of his agent make that connection. We think that having the right, as we have said, to use the end of his iron pipe which we have indicated, as the place where he may put the governor, it is the duty of the parties interested to make reasonable rules as to the manner in which, and by whom the work is to be done.

(Decided June 22nd, 1899).

In this respect, therefore, the decree should be so modified that the necessary connection may be made under such reasonable regulations as the plaintiffs and defendants shall agree upon ; the Court retaining control of this case to see that this be done.

Inasmuch as we have said that in our opinion the “ governors ” now on the meters of the plaintiff must be removed, it is proper that we should also say that this work of removal, as well as the making of the new connection, if the governors shall be placed on the end of the consumer’s pipe nearest the meter, should be done according to such rules and regulations as shall be adopted by the parties.

Affirmed in part and reversed in part, and remanded, &c. Each party to pay its own costs.