Turner v. Holtzman

54 Md. 148, 1880 Md. LEXIS 77

Opinion

Grason, J.,

delivered the opinion of the Court.

The declaration in this case contains three counts,'the first of which alleges that the appellants assaulted and beat the appellee and took him into custody, and held him under duress and gave him into the custody of an officer of the law, or one unlawfully and improperly claiming to be an officer of the law, and unjustly and maliciously obstructed him in the prosecution of his lawful business, and prevented him from pursuing the same to his great loss. .

The second count' charges that the appellants maliciously and falsely assumed to be deputy sheriffs, or officers of the law, and by virtue of such wrongful, malicious and false assumption and claim, took the appellee into^custody and detained him and prevented him from prosecuting his lawful and proper business, to his great loss and injury.

The third count avers that the appellants wrongfully, maliciously and wilfully conspired and combined to injure the appellee in the prosecution of his lawful business, and to prevent him from pursuing the same, and in pursuance of such unlawful and malicious combination and conspiracy, arrested the appellee and held him under duress and in custody for a long space of time, and prevented him from pursuing his lawful business, &c.

The Superior Court of Baltimore City, in which this case was tried, granted the four prayers of the appellee and the first and twelfth of the appellants, but rejected the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth and fourteenth prayers of the appellants, and gave an instruction of its own in lieu of the appellants’ sixth, seventh, eighth, ninth, tenth and eleventh prayers. The appellants excepted to the granting of the appellee’s prayers, and to the rejection of all of their own prayers, which were rejected, as also to the instruction given to the jury by the Superior Court in lieu of their sixth, seventh, eighth, ninth, tenth and eleventh prayers, and the verdict being against them they took this appeal, after having interposed a motion in arrest of judgment, which was overruled.

The facts appearing in proof are substantially as follows : In August, 1818, there was a camp-meeting on the land of Mr. Lazear, in Baltimore County, he having granted permission to the managers to hold the meeting on his land, upon condition that no public conveyances should be permitted to discharge or take up passengers at the entrance to the grounds, which was opposite and near to Mr. Lazear’s dwelling house, and that none but private conveyances should enter and leave the grounds at that entrance. This condition was imposed because of serious inconvenience and annoyance whichhe and his family had sufered from public conveyances, their drivers and passengers, during previous camp-meetings at the same place. An entrance for passengers by public conveyances was, therefore, arranged at a place further down the road, at a greater distance from Mr. Lazear’s house, and where the road was much wider than at the entrance nearer his house. Mr. Turner, one of the appellants, was chief manager of the meeting, and held in his possession written papers signed by the sheriff of Baltimore County; one appointing him deputy sheriff at said camp-meeting during its continuance, with power to make arrests for any violations of law, and the other empowering him to appoint special officers for the preservation of order at, and in the vicinity of Summerfield camp-meeting ground, with full power to make arrests for any violation of law. He wore a badge of deputy sheriff, as also a badge as chief manager. Stoddard was also one of the managers of the camp-meeting, ■and was appointed a special officer hy Turner, and wore the badge of deputy sheriff. During the meeting and on Sunday, the coaches of McFarland were transporting passengers for him between Baltimore City and the place of meeting, and on the morning of Sunday began to discharge their passengers at the entrance to the camp-meeting, which was forbidden to passengers hy such conveyances ; and the persons who were in charge of them put up on Lazear’s land a sign directing attention to McFarland’s coaches, and also placed steps for their passengers to pass over Lazear’s fence into the grounds where the meeting was held. Lazear insisted upon the steps and sign being removed by the persons who had placed them there, hut they refused to remove them, when they were at length removed hy one of the policemen from Baltimore City. McFarland’s agent and drivers were also remonstrated with by Lazear and one or more of tbe managers of the meeting about bringing their passengers to this particular entrance, without effect, as they still continued to stop their coaches at this entrance and to set down and take in passengers at that point. The public road opposite this entrance is narrow, and the track of the Powhatan horse railroad occupies part of the bed of the road, leaving between fifteen and sixteen feet between the end of the cross-ties and the line of the road next the fence. The track of the railroad is raised about a foot above the level of the public road, and there is a ditch or gully between the fence and tie road. Later in the day a six-horse omnibus, about twenty feet long and capable of carrying thirty-five or forty passengers,' belonging to McFarland, and driven hy the appellee, after setting down passengers at the entrance for private carriages, passed up the road a short distance, and after a time came down again and stopped a short distance above the entrance.

Finding that this omnibus, thus standing in the road, was in the way of other vehicles, coming to and returning from the meeting and passing along the road, and obstructing their passage, the appellee, its driver, was ordered to move down the road. He then drove down and halted his horses so near the entrance into the grounds as to obstruct 'vehicles passing into and out of them. When the drivers of other conveyances,’carrying passengers for pay, saw this omnibus standing at this entrance, they also drove up to the same place, and the road, in consequence, was so blocked up that there was not room left for the passage of carriages between the vehicles, so remaining on the road, and the railroad track, and the entrance to the meeting was so obstructed that carriages could neither enter nor leave the grounds on which the meeting was held, and the road leading from the entrance to the meeting also became blocked up. The appellee was requested to move, and he replied that he would move when he got a load. This request was made several times, and was met with the same reply. He was given time and assisted to get a load, and when it was obtained, he transferred it to another of McFarland’s coaches, which came alongside to receive it. This was done three times. He was again and again requested to move his coach, and replied that he would not move unless ordered by Watkins, McFarland’s agent. The managers then applied to the agent, and he referred them to the appellee. After the lapse of some time, while Turner was talking to some one, Stoddard got up on the hub of the wheel and said to appellee, “Is., why don’t you move?” and then got down. During the time he was making this remark to the appellee, Mr. Haslup and another person attempted to move the coach by taking hold of the leaders and endeavoring to lead them off, hut the appellee put his foot on the brake, and thus prevented the coach from being moved. Haslup then suggested that the reins of the leaders should be unfastened, and they were unfastened by him and some one else. So soon as this was done, the appellee removed his foot from the brake and loosened the reins of the other horses, and thereupon the coach at once started down hill, got towards the centre of the road, ran into a wagon, and was likely to collide with others,' when Stoddard seized the wheel horse and managed to stop its further progress. He then fastened the reins of the leaders and asked Turner if he wished the coach moved, who replied that he did; and thereupon Stoddard mounted to the box beside the. appellee, took the reins, which were hanging loose, put his foot on the brake, and drove down the road as far as the entrance assigned for passengers brought by public conveyances. There he left the coach and horses with the appellee, who during the whole time had been sitting quietly and passively on the driver’s seat. Some of the witnesses for the appellee state, that when Stoddard got on the coach, he said to the appellee “ I arrest you,” and that he pushed the appellee’s foot off the brake. Other witnesses deny' that such a remark was made, or that the driver’s foot was on the brake at all when Stoddard- took a seat beside him. Stoddard swears that he said nothing about arresting the driver, that he did not touch him, unless some part of his person may have come in contact with him in sitting beside him ; and the appellee, himself, swears that Stoddard did not push his foot off the brake, but that he had taken it off himself. He also swears that he asked Stoddard when he got up beside him, whether he got up as George Stoddard or as a deputy sheriff, but does not state that Stoddard made any reply to the question. Stoddard further swears that he did not arrest the appellee, and that the only thing he did say about arrest was after he had driven the coach down the hill, when some one told the appellee to drive back to the entrance, and that then he said “ if he does I will arrest him.” The proof shows, that for a long time before the coach was removed, it had stood near the entrance, and caused the obstruction in the public road, which prevented other vehicles from passing, and the road consequently became blocked.

The law in regard to the use of public highways and streets, has been clearly and definitely settled by numerous decisions in England, as well as in this country. Persons have a right to travel over public streets and roads, stopping only for necessary purposes, and then only for a reasonable time. Stage coaches may stop to set down and take up passengers, as this is necessary for the public convenience; but this must be done in a reasonable time. A person travelling on the highway must do so in such a way as not unnecessarily or unreasonably to impede the exercise of the same right by others; and if he does not exercise this right in a reasonable manner, he is guilty of a nuisance. Rex vs. Cross, 3 Camp., 226; Rex vs. Jones, 3 Camp., 230; The People vs. Cunningham, 1 Denio, 524; Wood on Nuisances, sec. 529.

The proof in this case clearly shows that the co§ch of the appellee, by remaining in the highway, under the circumstances as testified to by nearly all the witnesses' on both sides, obstructed the travel over it for an unreasonable time, and was a public nuisance.

Without stopping to inquire whether any one, whose rights are not injured or interfered with, by a public nuisance may abate it, about which there is some conflict in the decisions, there can be no doubt whatever that any person whose rights are injured or interfered with, may abate it, provided its abatement does not involve a breach of the peace. It is unnecessary to cite authorities in support of a proposition so plain and well settled. Both of the appellants were managers of the camp-meeting and with the other managers had control over the grounds where the meeting was held, and over the entrance to said grounds and the road leading from the entrance to the place of meeting, with the right to keep the entrance and the private road unobstructed, and this included the right to keep the public highway immediately in front of said entrance clear so that vehicles might be able to enter and leave it. This was rendered, impossible by the coach of the appellee remaining for a long time so near the entrance as to prevent the ingress and egress of vehicles into and out of the meeting grounds, and to cause the '’public highway to be so blocked as to prevent the passing and repassing of carriages over it.' Throughout the whole time during which this obstruction lasted’ the appellants and others, having the control of the grounds and the meeting, acted with the utmost forbearance and prudence. They made appeals to the appellee, as well as to others who had the charge and superintendence of this coach, to remove it from the place where it was standing; nor did any one attempt to remove it until all efforts to induce the appellee, the driver, and the agents, having the superintendence of it, to move it, had failed, nor did either of the appellants interfere with the coach until the reins of the horses in the lead had been unfastened by other persons of their own accord, and the appellee had slackened the reins of the other horses and let up the brake; and the coach had, in consequence, started down the hill; had run into one wagon and there was imminent danger of serious damage being done to others and to their occupants. Then it was that Stoddard succeeded in stopping the coach; and, having asked Turner if he wished the coach moved, who replied “ yes,” fastened the reins, mounted to the seat beside the appellee, took the reins, and quietly and safely drove down the hill to the entrance assigned for passengers brought by public conveyances, and there left the coach, the appellee in the meantime sitting quietly and passively in his seat. There was testimony in the case, given hy witnesses for the appellants as well as hy some of the witnesses for the appellee, and also by the appellee himself, tending to prove these facts, and if found to he true hy the jury, the appellee was not entitled to recover, even if the coach was removed hy the appellants as private individuals.

But the proof shows that Turner, one of the appellants, acted not only as a manager of the meeting, hut was also a deputy sheriff of Baltimore County, duly appointed hy writing hy the sheriff of that county. The Court helow instructed the jury that there was no evidence that the appellants were deputy sheriffs, or held any official position whereby they had authority or right to make arrests, or do any act which any private citizen might not lawfully do ; and it was contended in argument in this Court that the appellants were not lawfully deputy sheriffs, because they had not taken the oath of office as such. The office of under or deputy sheriff is a common law office. No such office has been created either hy the Constitution or statute law of this State. A deputy sheriff, in this State, is, therefore, still a common law officer and not required to take any oath as a qualification to act as such, unless required to do so by the common law. 8 Bacon’s Abr., 671. Deputy sheriffs were first required to he sworn hy Act of Parliament of 27 Eliz., ch. 12, and afterwards hy 3 George 1, ch. 15. But these statutes are not in force in this State and are to he found in Kilty’s British Statutes classed among those statutes which were found not to he applicable in this State. Turner, then at the time of the alleged assault and arrest of the appellee, was a deputy sheriff of Baltimore County, duly appointed and possessing authority such as the sheriff himself could exercise. 8 Bacon’s Abr., 675.

There can he no doubt that the sheriff has the power of keeping the peace within his county, 8 Bacon’s Abr., 689, and to raise the posse cómitatus to aid him, when necessary in executing his office. We think it equally clear that the sheriff or his deputy may abate a public nuisance in a public highway ; and that Turner, as deputy sheriff, had the lawful authority to remove the coach of the appellee, when he found it obstructing the public highway and preventing other parties, who had the right to use the same, from travelling upon it, and to remove the appellee with it, if he did not chose to leave his seat, or to arrest him if he should resist him in its removal. He also had the right to call to his assistance the other appellant, Stoddard, and such other persons as he might deem necessary in effecting the abatement of this nuisance thus caused and maintained by the appellee.

(Decided 29th June, 1880.)

It follows from these views that the Court helow erred in granting the four prayers of the appellee and in the instruction given to the jury in lieu of the appellants’ sixth, seventh, eighth, ninth, tenth and eleventh prayers, which were refused. All the evidence shows conclusively that the coach of the appellee constituted a public nuisance in the public highway, and Turner, as deputy sheriff of Baltimore County, had the lawful authority to remove it, as the evidence shows it was removed, and to call Stoddard to his assistance in removing it, and to remove the appellee with it, if he chose to remain upon, instead of leaving it, and to arrest him if he attempted to prevent its removal. All the evidence shows that the appellants were fully justified in all they did in abating the nuisance, and, therefore, the judgment appealed from will be reversed without granting a new trial. It is therefore unnecessary to pass upon the prayers offered by the appellants and rejected by the Court below.

Judgment reversed.