Belbin v. Mullan

Urner, J., delivered the opinion of the Court. A building owned by the appellant was partly demolished by the operation of a steam shovel employed by the appellee as a sub-contractor in grading a section of Key Highway in the City of Baltimore. Bor this trespass the appellant-brought an action at law against the appellee ánd obtained a verdict and judgment against him to the amount of $1,650. An appeal from that judgment resulted in its affirmance. 130 Md. 313 .

Prior to the trespass for which the judgment was recovered, condemnation proceedings had been instituted for the acquisition by the city of a portion of the appellant’s building and lot, which were partly included within the lines of the highway then in course of construction. An award of $1,736.40 to the appellant for the property condemned was made by the Commissioners for Opening Streets. The owner appealed from the award to the Baltimore City Court, and the appeal was pending at the time of the trial of the action of trespass against the present appellee. After the verdict in his trespass suit was rendered the appellant dismissed his- appeal from the award in the condemnation proceedings.

About a year later, and after the affirmance by this Court of the judgment in the trespass case, the defendant in that action, who is appellee in this record, filed a bill in equity against the present appellant and the Mayor and City Council of Baltimore, alleging the facts we have just stated and averring further that the City has ⁴²⁷ accepted the award to the appellant reported by the Commissioners for Opening Streets, and has delivered to the appellant, for execution by liim, a deed conveying the condemned portion of his property to the city, and that upon the execution of the deed, payment will he made of the amount awarded. It is charged in the hill that as regards the building of the appellant, which was injured by the appellee’s trespass and partly included in the city’s condemnation proceeding, the judgment in the trespass case and the condemnation award represent the same loss of value to the property owner, for which, it is claimed, he would thus secure double payment if the judgment is allowed to be enforced. In order to prevent that result the bill prays that execution on the judgment be restrained and that the amount awarded in the condemnation case be applied under the Court’s direction to the end that the appellant “may have one full and complete satisfaction of his claim in the premises,” and that the appellee “may have his rights to the disbursements of said fund protected by the proper marshalling of said assets.” A preliminary injunction against the appellant was granted in accordance with the prayer of the bill. The City of Baltimore, having been made a defendant in the case, was permitted to pay the amount of the award into Court in pursuance of its petition asking for such leave and stating that it has no interest in the subject-matter of the suit other than the payment of the fund to the proper person.

The appellant demurred to the bill, and from an order overruling his demurrer he has taken this appeal. The question to he decided is whether the appellee is entitled to he wholly or partially relieved of an adjudicated liability for his trespass against the