Blondell v. Consolidated Gas Co.

Fowler, J., delivered the opinion of the Court. The Consolidated Gas Company of Baltimore City filed the bill in this case for an injunction to restrain the defendants, who are co-partnei's trading under the name of “The Mutual Gas Saving Company of Baltimore City,” from interfering with or in any manner disturbing the meters, pipes and connections used by the plaintiff in distributing and supplying gas to the consumers thereof in Baltimore City and its suburbs. As a paid of the relief asked for in this bill the plaintiff also prayed for a mandatory injunction to compel the defendants to remove all their devices of every kind from said meters, pipes and connections. The bill alleges that the plaintiff is engaged in manufacturing illuminating gas and furnishing it to residents of the city of Baltimore and its suburbs; that in order to carry on its business it is necessary to place a meter, together with certain pipes and connections, in every house or building in which its gas is- used ; that it now has about forty-five thousand meters, with their pipes and connections, in use, which it is alleged are the absolute property of the plaintiff; that the defendants, without the consent of the plaintiff, have broken, disconnected, tampered with and otherwise disturbed and disarranged the plaintiff’s meters, pipes and connections for the purpose of affixing a certain device called “a governor,” which is used for the pui-pose of inducing the consumption of gas by consumers ; that the defendants have ali'eady affixed a large number of such governors to the meters of the plaintiff and are from time to time increasing the number ; that illuminating„gas being an agent dangei'ous to life, health and property, it is necessary to exercise the greatest care in its use; that in order to prevent injury and damage the plaintiff is required to use constant watchfulness and the utmost care to keep its meters, &c., in good repair, and that therefore it ought to ⁷⁴² have exclusive care of them, because it alone is responsible for the safety and protection of the consumers of its gas ; that the unlawful interference of the defendants with the plaintiff’s meters, &c., has occasioned them loss and risk, and will continue to do so ; that the action of the defendants in the respect mentioned has injured and destroyed the plaintiff’s pipes and connections, and has caused leaks through which gas escaped to the great risk of life, health and property ; that the actions of the defendants are liable to cause fires and explosions; that the injury to said meters and pipes has been occasioned by the incompetent and careless agents of the defendants, who disturb them, frequently at times unknown to the plaintiff; and that it is apprehensive it may be subjected to suits for damages on account of injuries to health and property, and of death caused by the unwarranted and careless acts of these defendants and their agents; and that it has no adequate remedy at law.

The defendants demurred to the bill upon the following grounds: 1. That there is nothing charged in the bill that the defendants did not have a legal and equitable light to do. 2. That the law afifords-the 'plaintiff an adequate remedy. 3. That the bill makes out only a simple case of trespass and negligence for which the law gives ample remedies. 4.

That the jurisdiction of a-Court of Equity cannot be successfully invoked by the allegation of apprehended loss to be caused by persons who 'are not in its employment or under its control. 5. That no facts are stated in the bill to show the defendants' are financially irresponsible. • 6. Want of proper parties. 7. Because the scope of the bill is to destroy the right of citizens to contract for mutual advantage and to allow a monopoly to force gas upon consumers with a pressure beyond its needs.

This demurrer was overruled, and the defendants there ⁷⁴³ upon answered. In their answer they admit that the plaintiff is required by law to furnish consumers of gas with meters to measure the gas consumed, but deny that the pipes and connections of said meters are the plaintiff’s property, and they allege that they have placed a large number of their “ governors ” upon plaintiff’s meters with the consent of the consumers; but they deny that they have ever injured or broken any of the pipes or meters of the plaintiff; they deny the right of plaintiff to have sole charge of the meters, pipes and connections or that they have injured the plaintiff’s property, and they aver an adequate remedy at law, and rely upon a want of proper parties. Without further rehearsing the allegations of the answer it is sufficient to say that it denies all the substantial allegations of the bill except the one relating to the ownership by the plaintiff of the meters, which appears not to have been specifically denied in the answer, although the defendant contends that the plaintiff’s claim of ownership of the meters is not sustained by the evidence. Testimony was taken by both sides, the case was argued, and the learned Judge below passed the decree of the 30th December, 1898, granting an injunction to restrain and prohibit the defendants from further interfering with plaintiff’s meters and connections, but refusing a-mandatory injunction to compel the removal of the “governors” now in use.

From this decree both parties have appealed; the plaintiff from so much of the decree as refused the mandatory injunction for the removal of the “ governors,” and the defendant from that part thereof which enjoined them from the alleged interference with plaintiff’s metérs and other property. Having thus fully stated the case before us, we will proceed jto consider the questions of law and fact presented by the two appeals in this record : (1) In the first place, it maybe observed that there is no claim attempted to be set up that the consumer has not a ⁷⁴⁴ right to use such a device as is shown to have been used in this case and called a governor, or any other device which in his opinion will answer the purpose better; but the contention of the plaintiff is that in fact the meter and its connections are its property, and that whether this be so or not, the law gives to it the sole control and management of such meter and connections, and that neither the consumer nor any one with or without the consumer’s consent, has the right to disturb or interfere with the meter or its connections, for the purpose of connecting therewith a governor, or, for any other purpose without the consent of the plaintiff This contention, we think, is fully sustained by the evidence and by the Act of 1876, chapter 356, entitled “An Act to regulate gas meters in the city of Baltimore.” By this Act the plaintiff is required to place on the premises of every consumer of gas “ a correct apparatus or meter for registering the consumption of the same,” and it is made the duty of the plaintiff to see that the meter is kept in proper working order. To place the meter where the law requires it to be placed, the plaintiff must either manufacture or purchase them, and the evidence is that they are purchased at an average price of $22 or $23 apiece. When thus placed as required, the meter remains in the house of the consumer so long as he continues to use gas, subject to the control and inspection of the plaintiff and when the consumer ceases to be a consumer of gas, the meter and its connections, consisting of two lead pipes, are removed and taken again into the possession of the owner.

These pipes are, we think, a necessary part of the meter. Without them it could not be connected with the street or supply-pipe on the one hand, or the consumer’s pipe on the other, and it is shown by the evidence that they are furnished or supplied by the plaintiff in order to make the necessary connections. Some effort was made to show that the consumer paid for, and therefore owns these pipes, but such a view is unsupported by the testimony, which not only shows that they are “ placed ” ⁷⁴⁵ on the consumer’s premises along with the meter, but they are also removed with it We think, therefore, it can hardly be contended with much show of reason that either the meter or its connections are not the property of the plaintiff. But whether this be so or not, it is very apparent from the testimony, and, indeed, is well-known independent of the testimony, that, as alleged in the bill, illuminating gas is an agent dangerous to life, health, and to property.

Therefore, inasmuch as the law ruquires the plaintiff to keep the apparatus in proper working order, it will hold the plaintiff responsible for damage to property or loss of life, caused by a failure on its part to perform its duty. Along with this legal responsibility must necessarily be conceded to the plaintiff sole control — for it would plainly be as unjust as it would be absurd to impose such a responsibility, and withhold the right of protecting itself from loss caused by interference on the part of others. If, as we have said, the meter and its connections are the property of the plaintiff, and if, as the law requires, it is placed in the consumer’s house for the purpose, and for the sole purpose, of “ registering the consumption of gas,” we are unable to understand upon what theory the defendants can successfully claim the right to use this apparatus of the plaintiff for another and entirely different purpose. The meter is a device for measuring the consumption of gas, which the law requires to be used by the plaintiff as a part of its system, while the “ governor,” which the defendant claims the right to affix thereto, is a device designed for the purpose of regulating the pressure of the gas after it passes through the meter.

Now it seems to us that the large mass of testimony contained in the record showing, on the one hand, that the affixing of the governor was, and on the other hand that it was not injurious to the meter and its connections, is entirely beside the question. For whether the alleged acts were orijwere not productive of injury, they were in the eye of the law trespasses, if, as we have said, the tmeers are the plaintiff’s property, arid if the acts were un ⁷⁴⁶ authorized, there is a legal injury for which the plaintiff could recover, at least, nominal damages; (B. & O. R. R. v. Boyd, 67 Md. 32 ; Poe on Pl., sec. 247), and the continuation of which would be enjoined by a Court of Equity. 2. But the argument of the defendant is, that, assuming for the sake of. the argument the meter and connections to be the property of the plaintiff, yet there is a bailment of some kind in relation to them, and that being so, the consumer has the right to use them for any reasonable purpose — contending that the affixing