Brauer v. Baltimore Refrigerating & Heating Co.

Schmucker, J., delivered the opinion of the Court. The appellant owns a lot of ground on the northwest corner of Eutaw and Barre streets, in Baltimore City, fronting 25 feet on Eutaw street with a depth of 76 feet on Barre street. The appellee owns the adjoining lot on the west side of Eutaw street, on which it has a front of 104 feet to Wayne street. On Wayne street it runs west 125 or 130 feet and then extends southerly in the rear of the appellants lot to Barre street, on which it has another front of about 40 feet.

Eutaw street at this location is a wide thoroughfare running north and south and it is much travelled by vehicles and pedestrians. A freight track of the Baltimore and Ohio Railroad runs along the centre of the street on which cars stand to receive and deliver freight from and to the warehouses on the two sides of the street. The east side of the street contains the extensive freight warehouse of the railroad company and there is no foot pavement on that side. The only sidewalk provided for pedestrians along this portion of Eutaw street is the one on the west side lying immediately in front of the lots affected by the transactions out of which the present controversy arises.

Wayne street is only 18 or 20 feet wide and is used almost exclusively by wagons being seldom traversed by persons on foot. Barre street is 60 feet wide ³⁷⁴ but is not much travelled. Neither of the last-named two streets has any railway track on it. The appellant’s lot is improved by two small stores and dwellings fronting on Eutaw street.

The appellants occupy the one at the corner as a dwelling and retail liquor store, and rent the other one to a retail tobacconist. The appellee, having erected on its lot a large building for manufacturing ice and furnishing heat and power, applied to the Board of Estimates for a permit to erect and maintain upon the Eutaw. street sidewalk, in front of that part, of its building immediately adjoining the appellant’s lot, a platform 3⁴ feet high, 4 feet wide and 52 feet long, for the purpose of loadingthe ice to be manufactured by it into wagons, and also to remove the kerb and lower the sidewalk in front of the platform so as to allow wagons to back up against it over the sidewalk to receive their loads of ice. The Board of Estimates granted the permit asked for by the appellee allowing it to erect the platform and remove the kerb and pavement from the sidewalk and the street in front of it and replace them by an uniform pavement of vitrified brick so as to permit of the unobstructed approach by wagons from the bed of the street over the sidewalk to the platform. The appellants thereupon filed the bill in this case in Circuit Court No. 2, of Baltimore City, asserting that the erection and use of the proposed platform by the appellee would greatly obstruct and endanger the public use of the sidewalk and divert travel therefrom; and would also cause irreparable injury to the plaintiffs by depriving them and their tenants of the custom and patronage which they now enjoy or can reasonably expect to secure from persons using the sidewalk on that part of Eutaw street.

The bill also alleges that by reason of the location of the plaintiffs’ property and the nature of the business conducted therein they will suffer an especial loss, different from that sustained by the public generally, from the defendants proposed action and prays for an injunction to prevent the erection of the platform and lowering of the sidewalk by the defendant. ³⁷⁵ The Court granted a preliminary injunction on the filing of the bill, but upon the coming in of an answer and the taking of testimony it passed a final decree, dissolving the injunction and dismissing the bill, from which this appeal was taken. It appears from the testimony of Mr. Tough the general manager of the appellee, who testified on its behalf, that it has primarily with a view to its own interest and advantage, but also with a view to causing the least interruption to travel arranged to so construct its building as to deliver its entire output of ice over the proposed platform to wagons standing on the sidewalk backed up against it, and that it may also use the platform for handling coal. It further appears from the testimony of the same witness that the appellee intends to manufacture about ioo tons of ice per day which will fill ioo one-horse wagons or 50 two-horse wagons and that it will require eight minutes to load and start each wagon; also that a horse and wagon backed up against the platform would extend across the entire sidewalk, but if the horse or horses were turned at right angles to the wagon there would be a space of about two feet along the outside of the place formerely occupied by the sidewalk on which pedestrians might pass without actually going into the bed of the street. Mr. Tough also stated, both before the Board of Estimates and when testifying in the case, that the bulk of deliveries of ice over the proposed platform were expected to be made between the hours of 2 and 6 A. M., but upon the appellant’s counsel offering, when before the Board of Estimates, to withdraw all objections to the issue of the permit if upon its face it restricted the use of the platform to those hours, the appellee declined to accept the permit in that form.

This witness admitted in his testimony that ice would be delivered to customers whenever they called for it and there was other evidence in the case which satisfies us that the demand for ice would not be limited to that short portion of the day. There is evidence in the record of witnesses who say that they have frequently seen the street in front of the property now under consideration crowded with wagons and that at ³⁷⁶ times a congestion of traffic occurs there. It also appears .from the evidence that meat packing establishments in the neighborhood use an overhead steel trolley arrangement, for conveying their meat across the sidewalk from the bed of the street to the warehouses, which does not seriously interfere with the use of the sidewalk by pedestrians. The Courts have frequently been called upon to consider the legal propositions controlling the use of public streets.

The cases upon the subject agree that the fundamental right to their enjoyment is that of the general public for passage over and along them. In the exercise of this right persons employing vehicles are primarily entitled to occupy the bed of the street while pedestrians have a similar priority of claim upon the sidewalk. The owners of lots abutting on streets are permitted to encroach to a limited extent, for the necessary transaction of their business upon this primary right of the public provided they do not unreasonably interfere with its exercise. But it must always be borne in mind that the right of the public to employ the streets for purposes of travel and transportation is the paramount one and that of the abutter to occupy them for other purposes is a permissive and subordinate one.

Rex v. Russell, 6 East. 427; Rex v. Jones, 3 Campbell, 230; Callanan v. Gilman, 107 N. Y. 360 ; Flynn v. Taylor, 127 N. Y. 596 , (14 L. R. A. 556); Halsey v. Rapid Transit Co., 47 N. J. Eq. 380; Davis v. City of Corry, 154 Pa. 602 ; Elliott on Roads, sec. 20; Lake Roland Elevated R. R. Co. v. Baltimore, 77 Md. 379 . • A merchant or manufacturer whose place of business abuts on the street of a populous city may temporarily obstruct the sidewalk in front of his building in the process of loading or unloading his merchandise or the product of his factory pro-* vided he does not in so doing unreasonably encumber the footway or interfere with the reasonable use and enjoyment of the adjacent property. But If the adjacent owner suffer special or peculiar loss from an unlawful obstruction to a public sidewalk he can maintain a suit for damages or file a bill for ³⁷⁷ an injunction if the nature of his damage be such as to make the latter form of action appropriate. Flynn v. Taylor, supra; Callanan v. Gilman, supra. The extent of the right of the abutting owner to obstruct the sidewalk in front of his establishment is not to be determined by the necessities of his business but by the public convenience and the reasonable enjoyment by adjacent owners of their property.

In Flynn v. Taylor , where the suit was brougnt by the owner of adjacent property against the defendant for obstructing the sidewalk, in front of a saleratus factory owned by the latter, by having trucks stand across it for several hours each day to load and unload, the Court say “While the defendant was doubtless careful to interfere with the rights of the public no more than was necessary for the convenient transaction of his business with the facilities he had he could not lawfully supply the defects in his premises by virtually monopolizing the sidewalk for several hours every day. As the Court said in Rex v. Russell, 6 East. 427, he ‘could not legally carry on any part of his business in the public street to the annoyance of