Chesapeake & Potomac Telephone Co. v. Mackenzie

McSherry, J., delivered the opinion of the Court. The declaration in this case alleges “that the plaintiff is possessed of a lot of ground, with the improvements thereon, being valuable warehouse property, known as Eo. 22 South Charles street, and while so possessed the defendant, without her authority or consent, and without making or offering to make compensation therefor, planted, a large and unsightly pole in the footway, in front of said premises, which obstructs and prevents the comfortable and reasonable and beneficial enjoyment and use of the said premises, and, though repeatedly notified to remove the 'said pole, refuses so to do, although a reasonable time for the removal of the same has elapsed, &c.” There is added an application for an injunction under sec. 117 of Art. 75 of the Code. The defendant filed three pleas. The second was the plea of not guilty, and the first and third are as follows, viz., “That the defendant, at the time of the alleged trespass, was duly incorporated as a telephone company under the laws of the State of Maryland, and was entitled as a coi’poration so formed, in the prosecution of its business, and for the purpose thereof, to erect and maintain the pole upon the footway of South Charles street, in the City of Baltimore, in front of the warehouse of the plaintiff, complained of in the declaration of the plaintiff, without making, or offering to make, compensation therefor to the plaintiff; and that the alleged trespass complained of in the declaration of the plaintiff was a use by the defendant of its said right.” Third: “That the plaintiff ought not further to have or maintain hex-aforesaid action against it, hecaxxse it says that by a certain oi-dinance of the Mayor and City Coxxncil of Baltimore, approved on the ninth day of May, in the year 1889, and since the institution of the suit in this cause, it, the said defendant, was and is authorized to maintain its said pole in axxd xxpon the footway of Soxxth Charles ⁴² street, in the City of Baltimore, in front of- the warehouse of the plaintiff complained of in the declaration Of' the plaintiff, for the period of two years after the said date of the approval of said ordinance, and so long as said pole is necessary to be maintained by the defendant, for the purpose of making distribution of and forming connections between any wire or wires forming part of the underground wire cables authorized by said ordinance to be laid within the limits of the City of Baltimore.” To these pleas — the first and third — the plaintiff demurred, and the Court of Common Pleas sustained, the demurrer.

It is insisted by the appellant, the defendant below, that, as the demurrer mounted to the first fault in the pleading, the Court ought to have ruled the declaration to be bad, and its failure to do so is assigned as the first error for review on this appeal. We are, of course, confined to the declaration itself in determining its legal sufficiency. Neither the averments of the pleas nor the evidence in the record can be looked to or, considered in passing upon that question. The forms*' of pleading have been materially changed by legislation, and since the adoption of the simplification Act, which is substantially incorporated in the Code, nothing more is needed in a declaration than a plain statement of the facts which are relied on to sustain a recovery.

Gode, Art. To, sec. 3. Whilst it does not appear from the narr. whether the footway in front of the warehouse premises is a public thoroughfare or not, or whether the title to it is in the plaintiff, it is distinctly alleged that the plaintiff is possessed of a valuable warehouse property, and that without her authority or consent the defendant planted a large and unsightly pole in front thereof, which obstructs and prevents the comfortable and reasonable and beneficial enjoyment and use of the premises. As framed, the narr. alleges a direct interference by the defendant with the use and ⁴³ enjoyment by the plaintiff of her property. And it further alleges that this interference was without her authority or consent.

If these facts be true, wby do they not furnish a ground of action ? That the appellee had the right to the comfortable, reasonable, and beneficial use and enjoyment of her property is undeniably true, unless the contrary be averred and shown. That the unauthorized obstruction of, or interference with, that right is a wrong which will support an action for damages cannot be open to controversy. Though it might have been more artificial pleading had the mode and manner of the obstruction aud interference been set forth in the declaration, they were not necessarily elements of the injury complained of, but rather matters of proof, showing the character and extent of that injury.

The narr., on its face, does not declare for an obstruction of the footway or the street; and it was, therefore, not necessary to allege that, by reason of the plaintiff’s possession of the premises, she was entitled to the way, in the exercise of which she was interfered with by the defendant. The averment is that the pole thus planted in the footway obstructed, not the footway,. but the plaintiff’s use and enjoyment of the property in her possession — her warehouse; and that averment, it seems to irs, is, under the Code, sufficient, if proved, to sustain an action. This conclusion is founded, of course, exclusively and solely upon the face of the declaration, without any reference to other parts of the record. It has been further insisted, as a reason for holding the declaration bad, that the prayer for an injunction was improperly included therein, because, so it is alleged, the facts disclosed by the narr. do not justify the application of that remedy.

Sections 116 to and including 128 of Art. 15 of the Code make provision for the issuing of writs of injunction and mandamus by Courts of law in certain actions instituted in these Courts. Under ⁴⁴ these provisions, the prayer for an injunction to restrain the appellant from continuing the pole in its place, and to order the removal thereof, was added to the declaration. By sec. 119 it is provided that, “the defendant may demur to so much of the plaintiff’s declaration as claims such writ, and such demurrer shall raise the question whether the facts stated as the ground of such claim disclose any such legal duty as that so sought to he enforced, but shall be subject to all rules governing general demurrers at law, both as to the proceedings thereon and thereafter.’’ Now, it was argued that the general demurrer filed by the plaintiff to the defendant’s first and third pleas mounted, according to the well settled rule, not only to the declaration proper, but also to the prayer for relief by injunction. Whether this view is correct or not depends upon the meaning of the section from which we have just quoted.

The remedy by injunction'from a Court of law is a purely statutory remedy. The mode to be pursued for obtaining it is defined and pointed out in the Code. If the facts stated in the declaration do not disclose a case which will justify the issuing of such a writ, the defendant may demur “to so much of the plaintiff’s declaration as claims such writ,’’ and the statute expressly declares what question that demurrer shall raise. It is consequently a special demurrer that is thus provided for notwithstanding the antecedent provision in section 6 of the same Article that no special demurrer shall be allowed in civil cases.

Can a general demurrer be treated as equivalent to or the samé as this special demurrer? If so, then the general demurrer to the pleas would reach any defect in the prayer for injunctive relief in the narr. Inasmuch as the demurrer prescribed by the statute is a special demurrer, it seems to us quite apparent that a general demurrer would not answer, if interposed by the defendant directly to the narr. Of course, therefore, a general ⁴⁵ demurrer interposed by the plaintiff to pleas of the defendant could not serve any other or wider purpose, or raise any other question, than a general demurrer filed by the defendant to the declaration would itself have done, unless the clause declaring that the special demurrer “shall be subject to all rules governing general demurrers at law, both as to the proceedings thereon and thereafter" was intended to convert the special into a general demurrer.

No such intention is manifested by the language used, as we read' it. The special demurrer is declared to be subject to the rules governing general demurrers, only so far as respects the proceedings on a general demurrer, and the proceedings after a ruling is made thereon. In other words, when a special demurrer under this statute is interposed to the declara7 tion, the same proceedings shall be had as are provided by the rules of law with reference to proceedings on and after a general demurrer. That is to say, the right to amend, if the demurrer be sustained, and the right to plead over, if it be overruled, are preserved, precisely as in the case of similar rulings on a general demurrer.

This, and this only, is the effect of the clause just quoted from the Code. Our interpretation of the statute, then, is this: If a defendant desires to raise a question as to 'whether .the additional relief by way of injunction or viandamus, is appropriate under the facts disclosed by the declaration, he must do so by special demurrer, and a general demurrer, whether interposed directly to the declaration or to some subsequent pleading, will not be sufficient to raise that question. We now come to the consideration of the ruling of the Court sustaining the demurrer to the first and third pleas filed by the defendant. These pleas present some of the principal questions discussed in the argument at the bar.

They rely, as a defence to the action, upon ah authority which the appellant claims to have under the ⁴⁶ Code, and under an ordinance of the Mayor and City Council of Baltimore, to plant, in its present position, the pole complained of, without making or offering to make compensation to the appellee. By Sections 224 and 232 of Article 23 of the Code, telegraph and telephone companies, incorporated under the General Corporation Law of this State, are empowered to construct their lines along and upon any postal roads and postal routes, roads, streets and highways, provided their fixtures, posts, and wires do not “ interfere with the convenience of any land owner more than is unavoidable.” It is expressly provided in section 224 that “the said corporation shall be responsible for any damages which any person or corporation may sustain by the erection, continuance, and use of .such fixtures. ” It is further provided that, in any action brought for the recovery of damages, the company may elect to have included the damages for allowing the said fixtures permanently to continue. The following proviso is then added : “Provided, that no person or body politic shall be entitled to sue for or recover damages, as aforesaid, until the said corporation, after due notice, shall have failed or refused to remove, in reasonable time, the fixtures complained of.” It is not necessary to allude to the ordinance of the Mayor and City Council of