Adams v. Commissioners of Trappe

Delaplaine, J., delivered the opinion of the Court. Charles B. Adams, appellant, operates a store in Trappe, a town with a population of about 300 in Talbot County. On February 2, 1953, he applied to the Commissioners of Trappe, a municipal corporation, for a permit to erect a gasoline pump on the sidewalk and a gasoline storage tank under the street in front of his store at the intersection of Main and East Streets. On February 9 the Commissioners denied his application.

In spite of the refusal, appellant on March 26 erected a gasoline pump on the sidewalk at the edge of the curb and dug up the street and buried a storage tank under the surface of the street. The tank is 10 feet long and 4 feet in diameter, and has a capacity of 550 gallons. The Commissioners requested him to remove the pump and tank, and upon his refusal to do so, they instituted suit in the Circuit Court for Talbot County for a mandatory injunction to compel him to remove them. The Commissioners produced evidence to show that appellant had acted in violation of a municipal ordinance, which has been in effect since its adoption on January 3, 1928, providing that it shall be unlawful for any person to construct, erect, alter or improve any building, gasoline pump, or filling station, or other structure within the town of Trappe, without first obtaining a permit from the Commissioners of Trappe.

The ordinance provides that any person violating it shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine not exceeding the sum of $50. The Commissioners prayed for an injunction on the ground that it is their duty to maintain the streets and sidewalks in a safe and usable condition and free of obstructions, and to protect the health, safety, and welfare of the citizens of the town. The Commissioners ¹⁶⁹ swore that the gasoline pump obstructs the vision of motorists driving at the intersection of Main and East Streets, and that the storage tank, which appellant buried two feet below the surface of the street, is a fire hazard, and therefore the pump and tank constitute a menace. Appellant did not contest the power of the municipal corporation to regulate the erection of gasoline pumps and storage tanks.

In fact, the chancellor stated that at the argument on the demurrer to the bill of complaint, appellant conceded the validity of the ordinance. His principal defense was that while a court of equity will issue an injunction to remove a substantial obstruction from a street, it will not interpose its aid to remove a slight encroachment which does not interfere materially with trafile on the street. The chancellor, finding that the pump and storage tank were unlawful encroachments on the public sidewalk and street, entered a decree enjoining appellant to remove them and to restore the sidewalk and street to the condition they were in before the pump and tank were installed. The appeal is from that decree.

It may be stated as a general rule that, with the exceptions of (1) the use of a street by the municipality itself for public purposes, such as sewers, drains, water pipes, etc., and (2) the use by franchise-holding corporations, such as street railways and gas and electric companies, no person, whether an abutting property owner or not, can permanently encroach on a street for a private use, and all such encroachments are nuisances, as least until a permit has been granted and the municipality has the power to permit the encroachment. Huebschmann v. Grand Co., 166 Md. 615 , 172 A. 227 ; Union Towel Supply Co. v. Mayor and Aldermen of Jersey City 99 N. J. L. 52, 123 A. 254 ; State ex rel. Latta v. City of Marianna, 183 Ark. 927 , 39 S. W. 2d 301 ; 10 McQuillin, Municipal Corporations, 3d Ed., sec. 30.73. This history of the jurisdiction of the English Courts of Chancery to abate public nuisances has been traced back as far as the reign of Queen Elizabeth I. The ¹⁷⁰ underlying principle governing equitable relief in suits to abate nuisances is that the injury is of such a nature that the complaining party cannot obtain an adequate remedy at law.

Thus, in nuisance cases, as in trespass, the equity court will grant an injunction where the injury is irreparable and cannot be adequately compensated in damages, or when full and adequate relief cannot be obtained at law, or when the nuisance goes to the destruction of the property, or when it is necessary to prevent a multiplicity of suits. Nuisances are classified as public and private. The public nuisance is an injury to the public at large or to all persons who come in contact with it; the private nuisance is an injury to an individual or a limited number of individuals only. Nuisances are also classified as nuisances per se and nuisances in fact, or per accidens.

A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances regardless of location or surroundings. A nuisance in fact is an act, occupation, or structure, not a nuisance per se, but one which becomes a nuisance by reason of the circumstances, location, or surroundings. Windfall Mfg. Co. v. Patterson, 148 Ind. 414 , 47 N. E. 2 ; Cooper v. Whissen, 95 Ark. 545 , 130 S. W. 703 ; Denney v. United States, 10 Cir., 185 F. 2d 108 .

The jurisdiction of equity has been invoked to prohibit not only public nuisances, strictly so called, but also purprestures on public property. Lord Coke defined the term “purpresture” as a close or enclosure, that is, when one encroaches or makes that several to himself which ought to be common to many. 2 Story, Equity Jurisprudence, 14th Ed., sec. 1248. Today a purpresture is commonly understood to mean an encroachment upon public rights and easements, such as highways, streets, public squares, bridges and other public accommodations. The general rule is universally accepted that a municipal corporation may invoke the aid of a court of equity to restrain or, remove any unlawful obstruction or encroachment in a street which constitutes either a public ¹⁷¹ nuisance or an unreasonable interference with the free use of the way by the public.

County Com’rs of Carroll County v. Rickell, 146 Md. 463, 469 , 126 A. 711 ; City of New York v. Rice, 198 N. Y. 124 , 91 N. E. 283 ; Breisch v. Locust Mountain Coal Co., 267 Pa. 546 , 110 A. 242 , 9 A. L. R. 1330; Board of Health of Medford Township v. Jennings, 129 N. J. Eq. 51, 18 A. 2d 62 ; Smith v. McDowell, 148 Ill. 51 , 35 N. E. 141 , 22 L. R. A. 393; Ackley v. Central States Electric Co., 204 Iowa 1246 , 214 N. W. 879 , 54 A. L. R. 474. The streets of a city or town are held by the municipal corporation in trust for the public, to be used for the purposes of travel and such other uses as customarily pertain thereto. Since the right of the public to use the streets in a proper manner is absolute and paramount, they must be kept free from all nuisances, obstructions and encroachments which destroy or materially impair their use as public highways. It is a basic principle that courts of equity have jurisdiction over issues of property and the maintenance of civil rights, and do not interpose their aid in matters merely criminal which do not affect any rights of property.

That principle, however, does not preclude injunctive relief against the commission of criminal acts which, unless enjoined, would operate to cause an irreparable injury to property or rights of a pecuniary nature. As we stated in Clark v. Todd, 192 Md. 487, 492 , 64 A. 2d 547 , if criminal offenses are primarily essentially an injury to property, preventive relief may be granted by the court of equity within the same limits as where the element of criminality is entirely absent. In such a case, the court does not intervene to prevent the commission of the crime, although that may incidentally result, but to protect individual property from destruction. It is beyond question that a gasoline supply pump near the curbstone of a city street may constitute a nuisance, and that the municipal corporation may maintain a suit for a mandatory injunction to remove the ¹⁷² nuisance.

Some of the Courts have held gasoline pumps to be nuisances per se; other Courts have held particular pumps to be nuisances in fact. In an Illinois case, where the City of Chicago had permitted the installation of the two curb gasoline pumps, the Court declared that any purpresture which materially encroaches on a public street and impedes travel is a nuisance per se and may be abated, even though it may have been permitted by the City. People ex rel. Lapice v. Wolper, 350 Ill. 461 , 183 N. E. 451 .

The Supreme Court of Pennsylvania has ruled that a gasoline filling station becomes a nuisance per se when it is conducted in a residential neighborhood. Pennell v. Kennedy, 338 Pa. 285 , 12 A. 2d 54 . On the contrary, it has been held in many cases that a gasoline filling station is not a nuisance per se. Wilson v. Evans Hotel Co., 188 Ga. 498 , 4 S. E. 2d 155 , 124 A. L. R. 373.

In an Arkansas case, Sander v. City of Blytheville, 164 Ark. 434 , 262 S. W. 23 , where a gasoline filling station was constructed with every possible safeguard against fire, the Court held that, although the filling station was a purpresture, it was not a public nuisance per se. In Smith v. Standard Oil Co., of New Jersey, 149 Md. 61, 70 , 130 A. 181 , the Maryland Court of Appeals held that a gasoline filling station on the corner of