Didier v. Merryman

Urner, J., delivered the opinion of the Court. The appeal in this case is from a decree of Circuit Court Eo. 2 of Baltimore City overruling a demurrer to a bill for mandatory injunction and granting the writ as prayed. It is alleged in the bill of complaint that the plaintiff is a tenant for life in possession of the lands and improvements known as 203 East Lafayette avenue, in the City of Baltimore, and that such tenancy has existed for more than twenty-five years; that connected with the premises and appurtenant thereto is a drainpipe carrying off the refuse from the well in the yard and the toilet in the house; that this drain was constructed at great cost for the use of the premises in question in the year 1882; that when originally constructed the drain was also for the benefit of the contiguous properties known as 201, 205 and 207 East Lafayette avenue; that subsequently permission was granted the owner of Eos. 209 and 211 on the same avenue to connect the drain with his premises; that at various times the drain has become choked and the waste material from the premises Eos. 205, 207, 209 and 211, instead of passing-down the drain to the public sewer', have backed on the premises of the plaintiff to the injury of her property and the detriment of the health of herself and her family, obliging her to vacate her home for a time; that the relative position and grade of the plaintiff’s ground is several feet lower than the other lots, except Eo. 201, and that consequently, when the drain is choked the plaintiff’s lot becomes a reservoir for the sewage flowing from the premises Eos. 205, 20^, 209 and 211; that this has occurred on three several occasions, and that the plaintiff, upon demand of the City authorities, as well as for the protection of her health and property, has been compelled to abate the nuisance at her own expense and to call upon the adjacent projuietors contributing to the overflow of the ⁴³⁷ drainage for their due proportion of the expense of the abatement, and that she has received such reimbursement except in the case of one of the overflows, in reference to which suits against two of the adjoining owners are now pending. The bill then proceeds to charge in effect that in the preceding August the defendants purchased the premises Xo. 1721 Xorth Calvert street, situated in the rear of the lots above mentioned and bordering on an alley through which the drainpipe referred to is laid (the location of the several, properties and of the drain being shown on a plat filed with the bill); that the defendants, without any lawful right and intending to invade and trespass on the property of the plaintiff, have connected the pipes on their premises with the drain and are passing into it the flow from the toilets, sinks and baths in their apartment house accommodating five families; that the drainpipe as originally constructed was intended to drain only the refuse from wells on the various lots first mentioned, the flow from the sinks and baths on the premises having a surface drainage; but that the owner of lots Xos. 209 and 211, upon being given permission to connect his wells with the drain, closed the wells and has s,ince discharged' .into it all the drainage from his premises; and that the addition of the sewage from the property of the defendants increases the danger from an overflow on the plaintiff’s premises and makes her liable to greater burden and expense from stoppage in the drain which may occur at any time.

The demurrer, while admitting these allegations, questions their sufficiency to entitle the plaintiff to an injunction, for which she prayed, prohibiting and restraining the defendants from using the drain and requiring them,to remove their connections. It is contended, first, that the averments are deficient in not stating the origin and character of the plaintiff’s title to the property affected by the defendants’ alleged trespass; and it is insisted that if her title is a matter of written or ⁴³⁸ record evidence an exhibit of the instrument under which it was acquired should have accompanied the bill. The assertion of title vs as not necessary to the plaintiff’s case. It is alleged, and admitted by the demurrer, that she is in possession of the premises exposed to the nuisance which is threatened by the defendants’ wrongful acts, and that she is in the actual use of the drain with which they have unwarrantably interfered.

If her right to the relief sought could be held to be depen lent upon her title, there would he no question as to the necessity for clear and certain allegations as to that essential fact and for the production, if procurable, of an appropriate exhibit. But a bare possessor of property is entitled to he protected against a mere trespasser without reference to the question of title. This principle has been repeatedly applied in actions of trespass at law; Tyson v. Shuey, 5 Md. 540 ; Wilson v. Hinsley, 13 Md. 64 ; New Windsor v. Stocksdale, 95 Md. 196 ; Carter v. Md. & Pa. R. Co., 112 Md. 599; Stanton v. Lapp, 113 Md. 324 ; and it is equally applicable to suits in equity where the conditions are such in other respects as to justify the granting of equitable relief. 28 Am. & Eng.

Encyc. Law, 2nd Ed., 595, 573; 2 Waterman on Trespass, 346, 576. The rule in reference to the filing of exhibits in proceed ings of this nature is that “where the right to an injunction is based upon a written instrument in the possession of the complainant, or to which he has ready access, the instrn ment itself, or a copy, ought to be filed with the hill, in order that the Court may see