White v. Flannigain

1 Md. 525

• Court: Court of Appeals of Maryland
• Decided: June 15, 1852
• Status: Published

Opinion

Le Grand, C. J.,

delivered the opinion of the court.

The order which we pass in this cause, makes it our duty, under the act of 1832, ch. 302, to dispose of all the questions which may arise out of the record.

Several objections have been urged to the equity set up in the bill of complaint. These are as follows:

1st. That the street in question, is not such a street as gives to the complainant any right to its use.

2nd. That if■ it be such a street, yet the complainant has mistaken his remedy, which, it is claimed, is at law, and not in equity.

3rd. That the averments in the bill, are insufficient.

We propose briefly to examine these points of objection in the order in which we have stated them.

It is alleged in the bill, and admitted in the answer, that the locus in question, and also the neighboring possessions of complainant and defendants, were originally the property of the late Thomas McElderry, and that it was divided, laid off, and sold to the present owners, as bounding on and calling for the streets delineated on the plot which accompanies, and is, in fact, a part of the pleadings in the cause.

The question, then, is: what is the effect of such division and sale?

We hold, that where a party sells property lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such, in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies, necessarily, a covenant that the purchaser shall have the use of such streets. The value of property within a city, is, as is well known, much enhanced by the number of its feet which may bound on streets, either private or public, and the fact is notorious, that proprietors of land, with the view of increasing the value of it, very frequently divide it so as to establish streets at points where there are none, under the authority of the corporation. When a sale, therefore, is made in conformity with such plan, it seems to be but plain justice to insist that the vendor, and all claiming under him, should be held bound by the lines and designations by which thepro'perty has been sold. This doctrine is fully established by a number of adjudications, but a few of which, however, we deem it necessary to notice.

In the matter of the application of the mayor, &e., in relation to the extension of Lewis street, in the city of New York, 2 Wendall's Reps., 475, the court say, they “are, therefore, of opinion, that when a building lot is sold, bounded on a street in the city of New York, designated as such upon the map of the city, or on a map made by the owner of lands, in reference to which sales are made, although the street remains at the, time unopened, under the authority of the corporation, a covenant may well he implied, that the purchaser shall have an easement or right of way in the street, to the full extent of its dimensions.”

According to this authority, the sale made by the heirs of Thomas McElderry, gave to the purchasers, by virtue of an implied covenant, an easement or right of way to the forty-five feet street, designated on the plat to the full extent of its dimensions; a right in no way affected by the circumstance, that at the time of sale, the particular street 'was unopened.

The same doctrine is recognised and established in Parker, et al., vs. Smith, et al., 17 Mass., 415. The court there say: “ The principal question in this case, arises upon the construction of the deed of Joseph Russell to Benjamin Taber, in which he conveys a piece of land in what is now the town of Ncav Bedford, bounding southwardly and westwardly on a wa.y or street. By this description, the grantor and his heirs are estopped from, denying that there is a street or way to the extent of the land on those two sides. We consider this to be not merely a description, but an implied covenant that there are such streets.”

The defendants in the case now before the court, admit the sale, according to the pretensions of the complainant, and deduce their oAvn titles from the same source, exhibiting, by the conveyances under Avhich they hold, a recognition of the existence of the forty-five feet street. If, then, the case in 17 Mass., be law, and we regard it as such, the defendants, in the absence of all title but that derived from McElderry, are es-topped from denying there is such a street as that over which the complainant claims a right of way. The principle of Parker vs. Smith, is re-affirmed in Emerson vs. Wiley, 10 Pickering, 316, in which it was held, that such a call for a street, is not mere matter of description, but an implied covenant that there is such a street.

But, it is said, these views are in conflict with the doctrine laid down in Underwood vs. Stuyvesant, 19 John. Reps., 186. We think not. That case was decided on the ground, that the streets therein referred to, were laid out on the contingency that they would he adopted by the local authorities. Wyman vs. Mayor of N. Y., 11 Wendall, 500.

It is supposed, however, that the case of Howard vs. Rodgers, 4 Harr. and John., 278, is an authority conclusive against the appellant upon this question. On a careful examination of the record in that case, we find it is different, in an essential particular, from the statement in the printed report. The object of Col. Howard, was to lay off a public square for the use of the State, in the event of the removal of the seat of government from Annapolis to Baltimore; and the record shews such to have been the public square contemplated by him, and not that it was, in any event, to be dedicated to the public use of the city of Baltimore. The case appears to us to be within the principle of the one in 19 John. Reps., where the lot was sold as binding on a street, and which the purchaser took subject to the contingency of its being adopted as a public street by the authorities of New York. If the seat of government had been removed to Baltimore, and that lot had been selected for the public buildings, Col. Howard could not have resisted a claim to have it so dedicated. The lot sold to Rodgers, called for German street, which street bounds on the square intended for public uses. If German street had been then, for the first time, laid off on the plot mentioned in the record, Col. Howard could not have rightfully closed, or refused to have opened it; his vendee having purchased under an implied agreement, that he should have that right of way along the front of his lot. And if, as we presume was the case, German street was then a public street, the reference to it must be taken as merely descriptive of the location of Rodgers’ lot.

The next question presented for our consideration is: whether equity will interpose, by injunction, to protect the right of way of the complainant?

It is contended, on the part of the defendants, that even if the complainant be entitled to use the street in passing to and fro from his lot and wharf, yet he has mistaken his remedy in invoking the extraordinary forms of a court of equity, and that he would have sought redress, if entitled to any, at law, which is capable of giving him complete and adequate relief. In support of this view, the case of Amelung vs. Seekamp, 9 Gill and Johnson, 468, and the case of Hamilton vs. Ely, 4 Gill, 34, are relied on. We do not concur in the construction which has been placed on these cases by the court below, and by the counsel for defendants.

We understand the case in 4 Gill, as merely affirming the principle previously laid down in the case in 9 Gill and John., which we take to be this: that a court of equity will not, as a general rule, interfere by injunction, to restrain a mere trespass, pending litigation at law, to try the title to land; but that it will so interfere under certain circumstances, which are, as enumerated by the Court of Appeals, under its late organisation :—

1st. To prevent irreparable mischief or ruin.

2nd. To prevent a multiplicity of suits.

3rd. Where it is required by some peculiar circumstances.

In the case of Amelung vs. Seekamp, the court adopted the views of Chancellor Kent, in Jerome vs. Boss, 7 John. Ch. R., and also the views of Justice Story, in his work on Equity Jurisprudence.

In the case of Jerome vs. Ross, Chancellor Kent very fully reviews the course of decisions in England, and in the State of New York, and, as we understand his opinion, recognises the following principles:

1st. That an injunction will not be granted to restrain a trespasser, merely because he is a trespasser.

2nd. But that an injunction will issue where the injury is irreparable; or, where full and adequate relief cannot be granted at law; or, where the trespass goes to the destruction of the property as it had been held and enjoyed; or, where it is necessary to prevent multiplicity of suits in cases where the right is controverted by numerous persons, each standing on his own pretensions.

In the case before us it appears, that the wharf of the complainant, as laid down on the plot, has no outlet over the land, except by means of the thirty feet street; the twenty feet way and the locus in dispute. To the twenty feet way the complainant has no right, except such as grows out of the permission of the defendant Flannigain, which may be withdrawn by him, from all we can see, whenever it may suit his pleasure. There is nothing in the case to show the present condition of the thirty feet street; it may be wholly closed up by buildings or otherwise. The bill avers, that the complainant cannot have access to his lot and wharf along the forty-five feet street, except over the obstructions which have been placed on said street; and the defendant Flannigain admits, this street is closed up by obstructions placed there by himself, and points out the twenty feet way as the only one by which the complainant can approach his lot and wharf. Considering this case, therefore, as presented by the bill and answer, we must regard the twenty feet way as the only one open to the complainant, and even that, as wholly dependent on the pleasure of the defendant Flannigain.

In such a case as this, is it necessary that a suit should be instituted and prosecuted, to a successful termination at law, before a court of equity can interpose by injunction? A majority of the judges who sat in this case think not.

Chancellor Kent, in his collocation of cases in Jerome vs. Ross, when speaking of the application of the remedy by injunction, says: “The practice has been introduced, and justly and reasonably applied to special cases, where irreparable ruin would have followed the refusal to injoin the trespass. It was allowed by Lord Thurlow, in Fleming’s case, (cited, 6 Vesey, 147,) where the defendant had worked from his own land into the coal mine of the plaintiff; and that case was followed by Lord Eldon, (6 Vesey, 147, 7 Vesey, 307,) on the principle, that irreparable mischief and ruin of the property, as a mine, would be the consequence, if the party was not stopped. On the same ground, the injunction is granted against diverting a water course from a mill, (1 Bro., 538;) against the destruction of timber, (10 Vesey, 290;) against the taking of stones of a peculiar value, (17 Vesey, 128.) But all these are cases of great and irremediable mischief, which damages could not compensate, because the mischief reaches to the very substance and value of the estate, and goes to the destruction of it in the character in tohich it is enjoyed.'”

Now the principle on which the court interfered in these cases is, that the trespass produced a mischief which reached to the very substance and value of the estate, and went to the destruction of it in the character in which it is enjoyed. In the cases reported in 6 Vesey, 147, and 7 Vesey, 307, relief was granted on the principle, that irreparable mischief and ruin of the property as a mine, would be the consequence of the trespass. The case now before the court falls directly within the principle. We have seen that the complainant is entitled under an implied covenant to a right of way over the forty-five feet street. Any obstruction which denies the exercise and use of this right, works irreparable mischief to the street, as a street. The thing ruined by the obstructions is a street, and, as in the case of the mine, the complainant, on the principle there recognised, has a right to the aid of a court of equity. What he complains of is, the destruction of the street. He is entitled to the enjoyment of it as a street. His title is clear, and, as we have already observed, cannot, be denied by any one claiming under the heirs of McElderry. In the case of Hughes vs. The Trustees of Weston College, (1 Vesey, 188,) the commissioners of a turnpike company entered, took possession of, and were destroying, by digging for gravel, large garden grounds of the plaintiff, who was n gardener by trade. The turnpike act had specially excepted gardens, as well as orchards, planted walks, &c.; Lord Hardwicke thought it a clear case of trespass, and of such a nature, that the plaintiff was entitled to seek his remedy by injunction, though he had his remedy at law. The interposition in that case, was clearly on the ground, that the orchard and garden, as such, Were being destroyed. On such a case, although the party could have gone to law and had damages for the injury done him, yet, as these damages could not restore the thing, to wit, the garden, the court of equity gave him the relief sought.

In judging of the application of the remedy by injunction', reference must always be had to the nature and character of the thing to be protected. In the case of the mine, to which we have referred, the thing was the coal; in the case before us, it is the street. By throwing obstructions over the street, so as to prevent a passage along its bed, it is just as much destroyed as if it were covered by a house; in the language of the authorities, it is irreparable mischief, because it destroys it as a street.

Justice Story says, (2 Equity, J. P. sec. 926,) “ That where a party builds so near the house of another party, as to darken his windows, against the clear rights of the latter, either; by-contract, or by ancient possession, courts of equity will interfere by injunction, to prevent the nuisance, as well as'to, .remedy it, if already done, although an action for damages wo’uld lie at law: for the latter can, in no just sense, be deemed'an adequate relief, in such a case. The injury is material, and operates daily, to destroy or diminish the comfort and use of the neighboring house ; and the remedy, by a multiplicity of actions, for the continuance of it, would furnish no material compensation.” And in section 927, he observes, “ cases of a nature, calling for the like remedial in-interposition of courts of equity are, the obstruction of watercourses, the diversion of streams from mills, the baclc-flowage on mills, and the pulling down of the banks of rivers, and thereby exposing adjacent lands to inundation, or adjacent mills to destruction.. So where easements or servitudes are annexed by grant or covenant, or otherwise, to private estates.” And there are cases in which courts will interfere to prevent multiplicity of suits and vexatious litigation. 2 Story’s Eq. Jur., 930. Lucas vs. McBlair, 12 Gill and Johnson, 1.

We do not understand the case of Amelung vs. Seekamp, as in any degree conflicting with these well established principles, so far from it, we regard it as distinctly recognizing and confirming them.

What was that case? It was a case in which the complainant asked the interposition of a court of equity, on the ground, that a right of way over the land of the defendants, had been obstructed by them; alleging that he had instituted his suit at law, to recover damages for the trespass. He claims the easement, on the ground of user, for more than twenty years, and alleged, that by the obstruction complained of, “great and irremediable damage will accrue to him, his mills aforesaid, being thus wholly cut off from their ancient and accustomed outlet.

Now we do not understand the court as saying, that that would not have been a proper case for an injunction, had the complainant shown by the averments and facts, stated in his bill, that the obstructions of which he complained, woul irreparable mischief to him. So far from it, we v the court as asserting directly the reverse. After . the statement in the bill, that great and irremediabl would accrue to him, the court proceed to say, “be sons are not given, the facts not stated, which she . court, that this great and irremediable damage, wo. suit by the continuance of the obstruction.” And, say the court: It is not charged, that he has no other reasonably convenient outlet from his mills, that by this obstruction, a valuable portion of the customers of his mills, will be driven from' them. The mere allegation of a complainant, that irremediable damage, or irreparable mischief will ensue, is not sufficient. To satisfy the conscience of the court, the facts must be stated, to show that the apprehension of injury, is well founded. Without such a statement of facts, no injunction should have issued.” And again, “so far,” says the court, “from its exhibiting a case, where the continuance of the out•rage complained of, would work great and irremediable damage, it shews one which warrants the inference, that the loss or injury would be trivial,” &c.

The plain inference from all this, is; that if Seekamp had set out in his bill, a case of irreparable mischief, the injunction ought to have issued. And the court intimate, what would have made out such a case, to wit: that he had no other reasonably convenient outlet from his mills, and that by the obstruction, a valuable portion of the customers of his mills, would be driven from them.

We have already said, that in treating of a question like that involved in this case, it is important, the nature of the right sought to be protected, should be constantly kept in view; and it is no less so, that the place where the property is located, should be considered as an element of consequence. The dictates of common sense require this. A street in a populous city, is a very different thing from a road in an agricultural region. In the latter case, it may be of comparatively slight consequence, whether the road be in one place or another; an approximation to the reasonable convenience' of the neighborhood and customary travel, is all that is generally desirable; but with the thronged thoroughfares of trade in a populous commercial city, a square may be of the greatest 'importance. In fact, property in a city derives its principal value from its location; its eligibility for business purposes, 'and in estimating this, facility of access is always deemed a '•circumstance enhancing the value; and therefore it is, the inhabitants of a city readily submit to the heavy burden of taxation necessary to the proper location of streets. In this view, therefore, we should not hold the same fullness of averment 'in a bill necessary, where the obstruction complained of, is a street. A road that would be reasonably convenient in the ■county, would render property, similarly situated in regard to streets in a city, comparatively, if not wholly valueless for business purposes.

It was urged in argument, that the municipal authorities of the city of Baltimore are competent to grant the relief which the complainant asks, and that he should have made his application to the mayor and city counsel to have opened the street. An examination of the several acts of Assembly on this subject has brought us to a different conclusion.

By the 16th section of the act of 1817, ch. 168, the city is only authorised to open, widen, extend or straighten any street or alley, on the application in writing of the proprietors of two-thirds of the property intended to be taken.

By the act of 1832, ch. 57, the mayor and city council of Baltimore are authorised, in their discretion, upon the application of the proprietors of a majority of the feet, in front or length, or any private wharf, dock, street, lane or alley in said city, to cause the same to be paved, cleaned out, mended, or otherwise repaired or kept in good condition.

By the act of 1833, ch. 182, the local authorities are authorised on the application of one or more persons interested in the ground to be taken, provided the same be unenclosed and unimproved, to sanction any streets which may be laid out by heirs, joint tenants, or tenants in common, in any divi sion of real estate which may he made by them.

And by the act of 1838, ch. 226, the mayor and city council have conferred upon them full authority to provide for the laying out, opening, extending, widening, &c., any street, &c., which, in their opinion, the public welfare or convenience may require.

Neither of these acts are adapted to the case of the complainant. By the act of 1817, ch. 168, the power of the city cannot be exercised, unless two-lhirds of the proprietors of the property intended to be taken, should ask it. Under this act, the complainant of himself, could ask nothing of the municipal authorities, as his right, unless the requisite number of property holders should unite with him in the request. The act of 1832, ch. 57, submits the whole matter to the discretion of the mayor and city council, provided the proprietors of a majority of the feet in front, &c., shall authorize its exercise. Under this act they have no power to act, unless the requisite number of proprietors grant it, and when the power is conferred, they are under no obligation to exert it. The act of 1833, ch. 182, confers no power over ground which is enclosed or improved. In the case before the court, the bed of the street was enclosed, and was, therefore, not within the statute. And under the act of 1838, ch. 226, the power to open is only to be exercised whenever the mayor and council shall be of the opinion that the public welfare and convenience require it. The individual welfare and convenience of the complainant is not sufficient to call for the exercise of the opinion of the mayor and council, and if they were, the opinion which might be formed of them by the mayor and council, possibly might be in direct opposition, not only to his own judgment, but to his rights as guaranteed to him by his contract.

From this brief analysis of these acts of Assembly, it will be seen that the complainant could not ask, as matter of right, that the particular street should be opened by the direction of the corporate authorities.

The plea of limitations relied on in the answer is not available on a motion to dissolve an injunction. Hutchins vs. Hope, 12 Gill and John., 257.

From this view it is apparent, a majority of the court are of opinion that the complainant would be entitled to relief by an injunction, provided he has made the proper averments in-his bill. The next question then for our examination, is, whether the averments are sufficient ? By the act of 1832, ch. 302, this court is precluded from noticing any objection to the sufficiency of the averments of the bill, unless the exception was taken below.

One of the exceptions below, was, that it is not shown by the bill, that the injury complained of, is of that “material and intolerable character which calls for the extraordinary preventive remedy of an injunction.”

We do not understand the court either in the case of Amehmg vs. Seefcamp, or in the case of Hamilton vs. Ely, as saying, it is necessary, in words, to aver tire injury to be irreparable, but that fads showing it to be so must be stated in the bill. In the case before us the averment is, that the obstruction complained of, -works to his “great injury and in manifest violation of the obligations of the said Flannigain.” This we consider a sufficient averment, if the facts stated in the bill show the truth of it, but this we are of opinion they do not. It is nowhere alleged in the bill, that the complainant has ever used his lot No. 128, or his wharf; nor, that such use has been interfered with. This, we think, essential to the relief asked.

We do not deem it necessary to expend too many words in regard to the dissolution of the second injunction. The dissolution of the first, necessarily carries with it the dissolution of the last. But independently of this, we are of opinion, that Flannigain had the right to apply to the city council, as he did, not having bound himself by any contract not to do so, and that the court of equity possessed no power to enjoin him from the exercise of a right, wdiich, belonged to him in common with all other owners of property in the city of Baltimore.

The sixth section of the act of 1832, ch. 302, authorises the Court of Appeals to remand the case, wdiere the “purposes of justice will be advanced by permitting further proceedings, or the introduction of further evidence or otherwise;” and following the precedent set in the case of Brawner and wife vs. Franklin, 4 Gill, 472, this court will sign a decree affirming the decision of the superior court, and remanding the case to said court, that such further proceedings may be had therein, by way of amendment or otherwise, as may be deemed proper.

Eccleston, J.,

delivered the following opinion:

I concur with the court in affirming the orders dissolving both injunctions in this case. But I do not assent to all the views expressed by them, in their opinion, in regard to the right of a party to invoke the aid of the extraordinary power of a court of equity, by injunction.

Conceding that the partition of the McElderry estate and the subsequent deeds for different parcels thereof, are to be considered as implied covenants, giving to the grantees under the deeds a private right of way, over the forty-five feet street, yet, if that street never was used as such, and the complainant stood by and saw the obstructions, of which he complains, existing for many years, I do not think he has a right to relief by way of preliminary injunction. Notwithstanding the industry and ability for which the counsel of the complainant are distinguished, no case, under similar circumstances, has been produced, in which such an exercise of the power of a court of equity has been successfully invoked.

In Amelung, et al. vs. Seekamp, 9 G. & J., 475, after showing that the complainant had not set forth in his bill, such facts as established a case of irreparable injury, the court say: “But if it were otherwise, the default of the appellee in standing by and permitting the appellant, Amelung, to enclose the land affected by the way in question, and to cultivate and improve the same for four years, would interpose a strong, if not an insuperable barrier to any interference in his behalf by way of preliminary injunction.” That case was decided as late as the year 1838, by a full court, and without a dissenting voice.

By the Court :

Order dissolving injunctions affirmed and case remanded under the act of 1832, for further proceedings.

Case remanded.