Mayor of Salisbury v. Camden Sewer Co.

109 A. 333, 135 Md. 563, 1920 Md. LEXIS 10

• Court: Court of Appeals of Maryland
• Decided: January 14, 1920
• Status: Published

Opinion

Boyd, C. J.,

delivered the opinion of the Court.

This is an appeal from an order passed by the lower Court overruling a demurrer of the defendant (appellant) to the bill of complaint filed by the plaintiff (appellee) against the defendant. The bill alleges that by an ordinance passed by the appellant in July, 1902, it granted to four named persons, and others whom they might associate with them, the i ight and franchise of laying a sewer pipe on Camden avenue in Salisbury and such other streets and boulevards, intersecting or crossing said avenue, or convenient of access therefrom, as they may find advantageous, etc.; that by Chapter 12 of the Acts of 1904, the General Assembly of Maryland constituted those parties and their associates, successors and assigns, a body corporate by the name of Camden Sewer Company of Salisbury, Maryland, for the purpose and.with the power to lay, construct and maintain sewers in accordance with the provisions of said ordinance; that under and by virtue of the authority conferred upon it, and the rights and privileges granted it by said ordinance and charter, the plaintiff laid, constructed and maintained a main sewer pipe of not less than twelve inches in diameter on Camden avenue, and other sewer pipes, not less than eight inches in diameter, on certain other streets and boulevards intersecting and crossing Camden avenue, or convenient of access therefrom, uaming them, and in all matters complied with, and tenders itself willing, ready and able to comply with the restrictions, forms and conditions of the said ordinance and charter. It further alleges that the defendant has caused to be curbed, drained, graded and paved a certain street called Newton street, and has constructed on and in the said street at corners and places not formed by the intersection of Newton street with Camden avenne, drainage wells, and has caused fhem to he connected with plaintiff’s sewer pipe laid on Newton street, that the connection from the drainage wells to plaintiff’s sewer pipe drains the surface water from Newton street and other streets into plaintiff’s sewer pipe on Newton street, and that plaintiff has not given any privilege, right or authority so to do, etc. A plat was filed which, it is alleged, shows where the defendant has connected other drainage wells with other sewers of the plaintiff, without right, license or .authority. It is also alleged that although plaintiff’s sewer pipes are of sufficient size to meet the requirements of its franchise and charter, and to carry such sewerage as they are under the requirement to carry, they are not sufficiently largp, nor are they designed to carry surface water, and that the drainage of surface water 'through small sewer pipes is dangerous to their maintenance; that the plaintiff has demanded that the defendant discontinue such illegal and wrongful use of the sewers, but it has refused to do so and continues such use; that unless the Court passes an order requiring the defendant to cease from its wrongful acts, the plaintiff will suffer irreparable damage and will be without an adequate remedy.

The prayers of the bill are: (1) That the defendant, its agents, etc., be enjoined from maintaining, making, using and employing any connection or connections between the drainage wells on Newton street and other streets named and the sewer pipes, or any of them, of the plaintiff located on, in and under said streets, and from draining and causing to be drained any surface water from, on and off said streets, etc., directly or indirectly into, through or by means of the sewer pipes, or any of them, of the plaintiff located on, in and under the said streets, etc.; (2) That the defendent be required to disconnect within such reasonable time as may be determined upon by the Court and specified in its order, its drainage wells from the sewer pipes of the plaintiff; (3) That a decree be passed against the defendant for such sum as may be made to appear to the Court as a reasonable charge for the use of said sewer pipes during the time that they have been, and shall be wrongfully used; and (é) For-general relief.

The appellant -contends that the bill is defective for several reasons. The first one relied on is that it is too vague and indefinite to authorize an injunction. It may be assumed that when the Mayor and Council of Salisbury granted the franchise they were not influenced alone by a desire to aid a private enterprise, but had in mind the advantages to the public in having sewers, and in having them constructed and maintained by private enterprise, instead of being required to spend public money for the purpose. Indeed the ordinance refers to those advantages, and authorizes the city to make certain connections with a sewer on Camden avenue, and to purchase the pipes put down under the authority of the ordinance. The charter of the appellee refers in some detail to the ordinance, including the right to. connect with the sewer named, and to purchase the sewers.

The portion of the ordinance about which the controversy arose is a part of Section 4 and is as follows:

“In consideration of the permission hereby and herein granted be it further enacted, and it is hereby expressly understood and agreed, that the Mayor and and Council shall have the privilege of draining surface water on Camden avenue in said main sewer from the corners formed by any intersecting street, free of charge; provided, and so long as, the admission of such surface water shall not, and does not, interfere with the primary purpose for which said sewer is laid by said company, or prevent its efficiency in that regard, or prove detrimental to its permanency; and if the said company and the Mayor and Council should at any time disagree on any matter relating to the admission of said surface water into said sewer, then the matter shall be submitted to three disinterested persons * * * ; and the decision of the three shall he final.”

The plat filed with the hill has nothing on it to designate the points of the compass, hut, for convenience of description only, we will assume that Camden avenue runs from north to south, north being toward Middle avenue and south towards Yewton street. On that assumption all of the streets-on which there are drainage wells, as shown by the plat, are on the westerly side of Camden avenue. Although that is not so stated in terms, apparently Camden avenue is lower than the streets west of it, and the surface water runs towards Camden on the streets going east and west. The appellee contends that the City of Salisbury was only authorized to connect with the sewer on Camden avenue directly, and not by connecting with other sewers which empty into the main one on that avenue, while the appellant contends that it has the right -to connect with the other sewers leading to the one on Camden avenue. It seems clear that if it be conceded, for the purposes of the case as now presented, that the appellee’s contention is correct, the bill is too vague and indefinite to justify the issuance of an injunction. According to the plat filed there are thirteen of the drainage wells of which the appellee complains, none of them being on Camden avenue. It is fair to assume that in a place the size of Salisbury that number of such wells could not be built and connected with the sewers without a knowledge of them by the appellee, or its agents. Yet there is no allegation in the bill that the right to connect those wells was in any way questioned, or that it was objected to, or. that the- connections were made without the knowledge of the plaintiff or its agents, or without the belief of the defendant that it had the right to make the connections. The only allegation that can be claimed to relate to those matters are that the plaintiff has not granted or given any privilege, license, right or authority to the defendant, or to anyone else, to connect the drainage wells, or any of them, with the sewer pipe on Newton street, or to drain surface water from Newton street or any other street into the sewer pipe of the plaintiff laid on Newton street, and in reference'to the other sewer pipes that the defendant “has in other places and at other times, wrongfully and without right, license or authority, connected other drainage wells with other sewers of your orator, and thereby caused to be drained into such other sewer pipes, surface water from other streets”- — the plat being referred to to show where they are.

It is not stated when Newton street was curbed, drained, graded and paved, or when the connections were made with the sewer pipe oil that, or any of the other streets. The bill is likewise silent as to the time when any of the sewer pipes were laid. It was filed over sixteen years after the ordinance was passed, and over fourteen years after the charter was granted to the plaintiff, and yet not the least information is given to the Court as to when, or under what circumstances, any of the things complained of were done. ETo one could tell from this bill whether they, or some of them, were done one, two, five, ten or fourteen years before it was filed. If it bo suggested that such things are matters of defense, it need only be replied that, under the decisions of this Court as well as those elsewhere, the Chancellor must be informed as to all material facts and circumstances reflecting upon the questions involved, before he should grant an injunction. As said in Johnston v. Glenn, 40 Md. 200: “To warrant the Court in issuing an injunction, strong prima, facie evidence of the facts, on which the complainant’s equity rests, must be presented to the Court, and a full and candid disclosure of all the facts. # * * The bill should fully and fairly state the case, within the knowledge of the plaintiff, so that the Court may see that prima facie the thing is fair, in the aspect in which it is presented to the Court — all the facts must be brought before the Court which are material — there must be no concealment- — all the res gestae must be represented as they actually are. Kerr on Inj., 608.” That has been repeated in substance in many of our decisions,, amongst them being County Commissioners v. Franklin Coal Co., 45 Md. 470; Lamm v. Burrell, 69 Md. 272; Lipson v. Evans, 133 Md. 370, 377.

Then there is another well settled doctrine which should be very controlling iu a case of this kind, where the party sought to be enjoined is, a public corporation. The city must not only have incurred expense in the construction of the thirteen drainage wells, and the connections with the sewer pipes, but it may be that if the plaintiff had made the claim it now makes promptly and within a reasonable time, and that had been decided in its favor, the city would have long since made provision for sewers of its own, or have taken .steps to purchase those of the plaintiff under the terms of the ordinance. As to such matters we are left in the dark by this bill, as we have no idea when the wells, etc., were constructed. Certain it is, if there is any necessity for the city to build sewers now, the cost will be greatly in excess of what it would have been five, six or more years ag'o. In one of the leading cases in this State reflecting upon this subject, B. & O. R. R. Co. v. Strauss, 37 Md. 237, Judge. Robinson, in speaking for the Court, said: “Whatever may have been the original equities of a party, if he has been guilty of laches or unreasonable delay, if fully cognizant of his rights, he has lain by, and suffered a public corporation to expend large sums of money in laying down and completing its railroad tracks in contravention of his rights, and makes no complaint, and no attempt to interfere or interrupt them during the progress and construction of the work, such aequiescense will preclude him from relief by way of injunction.” See also Md. Hotel Co. v. Engraving Co., 92 Md. 710; Spencer v. Falls Turnpike Road, 70 Md. 136; Levinson v. Bonaparte, 131 Md. 635, 642. Judge Phelps in his work on Juridical Flquiiy, discusses at some length laches, and in Section 272 he speaks of acquiescence, and in illustration of it says: “Thus, where a party expends money or does some act under a mistake as to his legal rights, misled either by the conduct, language or silence of the real owner, he being fully aware of his own right and of the mistake made by the other party, there is such fraud as will entitle the Court to. restrain the possessor of the legal right from exercising it.” In this connection it may be well to call attention to the fact that the bill is also wholly silent as to whether the plaintiff knew that the defendant claimed at the time the connections were made that it had the right to do so., under its construction of the ordinance, and also as to whether any attempt was made to .settle the controversy out of Court, as was evidently contem plated by the ordinance, as shown by Section 4, quoted above.. While we are, of course, aware that laches, acquiescence, etc.,, are generally matters of defense, unless disclosed in the bill, when they can he reached by demurrer, we refer tc them because there is enough in this bill to suggest that what is complained of, at least in part, took place sufficiently long ago. to call for some explanation for the delay and the circumstances, in order to authorize a court of equity to grant this extraordinary writ. Injuries that the appellant may have sustained by delay or acquiescence suggest themselves. Of course, we do not mean to decide that there were such laches and acquiescence as will preclude relief, but only that the plaintiff is, under the facts- which we have before us, required to clear the atmosphere sufficiently to enable the Court to- see that prima fade it has. the right to call upon the Court for such relief as it asks. It cannot he doubted that it is the duty of the plaintiff to disclose all material matters necessary to inform the Court of the actual conditions., and when the bill shows that the plaintiff was created to- carry out the purposes of the Ordinance of 1902 as far back as 1904, if there was any considerable delay, the hill should show it and explain why there was. If in fact there was such delay, or such acquiescence as would prevent the plaintiff from procuring an injunction, a court of equity co-uld not sanction the withholding of the facts, and he answered by saying, “we have not alleged anything in the bill which can be reached by demurrer, and hence we are immune fro-m such attack.” One bill in equity may he demurrable for what it does not say, while another may he for what it does say, and one may be for saying too little as to seme matters, and too much as to- others.

Another allegation in this bill may be referred to in connection with wbat we have said above. It is alleged that, although the sewer pipes are of sufficient size to carry such sewerage as they are under the franchise and charter required to carry, “they are not sufficiently large, nor are they designed to carry surface water, and that the drainage of surface water through small sewer pipes is dangerous to the maintenance of such sewer pipes.” The bill does not give the size of the pipes — except to say that the one on Camden avenue is not less than twelve inches in diameter, and the others not less than eight -inches — and does not state whether in point of fact there has ever been any trouble from the surface water in them. A notation on the plat filed does show that the pipe on Camden avenu'e as far as Newton street is fifteen indies in diameter, but fails to show the size of any on the other streets. At most the- plaintiff complains of what is only an anticipated injury, and while a court of equity may under some conditions grant an injunction to prevent such injury, it will not do so unless it can be satisfied from all the circumstances of the ease before it, as to the illegality of the acts complained of and that irreparable injury will ensue. Adams v. Michael, 38 Md. 123; Warren Mfg. Co. v. Baltimore, 119 Md. 188, 222; Pope v. Clarke, 122 Md. 1.

Again, the bill alleges that the rights and franchises grant ed to the four persons named in the ordinance and others “were assigned and set over by the owners thereof unto your orators.” It does not state whether the assignment was in writing, although presumably it was, but if not, the bill should have said so and have given the date of the assignment. If in writing, then it or a copy should have been filed. It is possible that the original parties made an arrangement, or did some act, before they parted with the franchise, by which the city was authorized to do what it did, even if the appellee’s contention as to the construction of the ordinance is correct, but we are not told when the assignment was made, and have no way of determining whether it was a valid assignment. The bill only alleges that the connections were made without the plaintiff*s authority. The decisions in this State require an instrument, or a copy of it, under which a plaintiff claims the right to relief by injunction, to be filed, or its absence accounted for. Laupheimer v. Rosenbaum, 25 Md. 219; Hankey v. Abrahams, 28 Md. 588; Nagengast v. Alz, 93 Md. 522; Miller's Equity, 689, Sec. 582. The absence of an instrument of that kind can be taken advantage of by a demurrer. Miller v. Marble Co., 52 Md. 642; Morton v. Graffin, 68 Md. 545.

Another objection is that there is no sufficient statement of facts in the bill to show irreparable damage. The mere allegation that the plaintiff will suffer irreparable damage is not sufficient, but facts must be stated which will satisfy the Court that the apprehension is well founded. Although there are many cases in this State, we need only refer to some of the late ones. Consolidated Gas Co. v. R. R. Co., 107 Md. 671; Fowler v. Pendleton, 121 Md. 297, 301; Pope v. Clark, 122 Md. 1; Mayor, etc., Baltimore v. Sackett, ante p. 56.

Erran what we have said, it will be seen that we are of the opinion that the demurrer should have been sustained, and it will be noticed that we have net construed the ordinance and determined the rights of the parties under it. We have purposely avoided doing so, because we are of the opinion that the bill is defective for the reasons we have given, and we do not deem it desirable to construe the ordinance in the absence of information on the matters referred to. We will remand the case, so the bill can be amended within such time as the lower Court may fix.

Order overruling demurrer reversed, a/nd cause remanded, the appellee to pay the costs in this Court and those below to abide the final result.