Garrett v. Lake Roland Elevated Railway Co.

Bryan, J., dehvered the following dissenting opinion: Robert Garrett is the owner in fee simple of a lot of ground in the city of Baltimore, situated on the west side of North street, between the north side of Eager street and the south side of Chase street, fronting about four hundred and thirty-six feet on North street, with a depth of one hundred and sixty-eight feet westerly to Hunter alley. He also owns in fee another lot on the Avestern side of North street, with a frontage thereon of about ²⁸⁸ three hundred and fifty-six feet, and running back westerly about one hundred and sixty-eight feet to Hunter alley, and extending from the north, side of Chase street to the south side of Biddle street. He does not own the fee in the bed of North street. The Lake Boland Elevated Railway Company has erected on North street a stone abutment in front of the first mentioned lot.

This abutment is eighty-eight feet long and fifteen feet and eight-tenths wide, and is distant about nine feet and eight inches from the curb-line on the western side of the street It commences at grade at the northern end, and ascends as an inclined plane until it reaches the height of nine feet at its highest point-. It is distant about ten feet six inches from the curb-line on the ea-stern side of the street. North street is a public highway, having a width of thirty-six feet between the curb-lines on the opposite sides of the street. The stone abutment above mentioned was erected shortly before the commencement of proceedings in this case.

Since that time an non superstructure has been placed upon it for an elevated railroad. Garrett filed a bill in equity for. an injunction to restrain the Lake Roland Company from placing its elevated railroad! structure on the abutment, and praying for its demolition and removal and for general relief. The Lake Roland Company claims the right to erect this abutment under the authority of an ordinance of the Mayor and City Council of Baltimore. The Court below' dismissed the bill of complaint.

Before we examine the ordinance let us inquire what are the rights of the complainant independently of its provisions. When North street was opened, two-thirds of the expense of its construction was assessed upon the property benefited by the opening of the street. The existence of the street enhanced the value of the coterminous property, and the proprietors were required to pay the price of this enhancement by contributing two-thirds of the expense of the improvement. They paid for something ²⁸⁹ quite distinct from the rights which all other inhabitants of the city had in the street.

They, of course, had the same right of using the street as belonged to the general public, but beyond and in addition to this right they acquired great advantages and conveniences by having a wide public street in front of their lots1 of ground. These advantages and conveniences were bought and paid for; and the money was paid for the purpose of increasing the value of their property. These advantages and conveniences, comprising among other things facility of access, adapted the ground to those uses for which in a large city it is most desirable. Ordinance No. 23 of the Mayor and City Council of Baltimore (approved April 8th, 1891) authorized the construction of an elevated railway by the corporation to whose rights the Lake Boland Company has succeeded.

The fifth section of this ordinance enacted that the said corporation should have the power to bridge. the tracks of the Northern Central Railway Company from the corner of Eager and North streets to the corner of Saratoga and North streets; and to make the proper and necessary elevated structure for the purpose of effecting said crossing and the approaches thereto. This ordinance has been ratified and confirmed by the Act of 1892, chapter 112. We may assume for all the purposes of this discussion that the structure in question has been erected in conformity with the requirements of the ordinance. Its effect upon the condition of the street is very obvious.

It very seriously impedes travel and transportation. And, with respect to the complainant, it erects an impassable barrier in front of a portion of his property, and takes away from it the value derived from a frontage upon an open public street thirty-six feet wide. The available space is reduced to about ten feet. We do not at present find it necessary to make an estimate of the damage thus inflicted.

The testimony shows it to be very great. If this structure had not been authorized by ²⁹⁰ legislative authority, it would have been a public nuisance of an aggravated character. But as a matter of course it cannot be so regarded after it has received the sanction of the General Assembly and the Mayor and City Council of Baltimore. Private rights, however, are not affected by any legislation which has taken place.

They are amply secured against infringement by the Declaration of Rights. According to the nineteenth Article, “ every man for any injury done to him in his person or property ought to have remedy by the course of the law of the land, and ought to have justice and right * * * * according to the law of the land.” And the twenty-third Article declares that “ no man ought to be * * * * deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land.” The legislature has paramount authority over all public highways, and may direct the mode in which they are to be used. It has seen fit to confer on the Mayor and City Council of Baltimore the power to regulate the use of the streets in that city. But it has never been supposed that either the Legislature or the Mayor and City Council could exempt a. private corporation from responsibility for any wrongs done in using the streets under their authority.

And no such proposition has been maintained in the argument of this case. When the city in the exercise of its corporate powers proceeds to close a street, it is required to ascertain by due process of law the amount of damage which will be done by closing it, and to pay over to each one who is injured the amount he is entitled to receive, or invest it in city stock for his benefit before the street is closed. Public local Laws, Article 4, section 806. In this way those persons are indemnified, who, by the closing of a street are deprived of the advantages, conveniences and valuable legal rights dependent on its existence as a public highway.

It is true that Rorth street has not been closed by the proceedings in this case. But other injuries are to be re- ²⁹¹ dressed by the remedies which the law has prescribed as appropriate to their particular circumstances. Where a railroad company had a right to make a tunnel in a street, and in the careful exercise of this right, it damaged the walls of a house, it was held that the owner of the house was entitled to recover compensation for the injury, even although it were the natural or inevitable consequence of the act which was authorized by law. Balto. & Potomac Railroad Co. vs. Reaney, 42 Maryland,117.

In the present case the abutment to the extent of its dimensions subverts and destroys every possible use for which a street is intended; it obstructs the access to the property adjacent to it, and makes it impossible for the owner to use it in the manner in which he has a right to use his property. The street for a distance of eighty-eight feet has disappeared, and a narrow alley has been substituted in its place. Now, admitting this to be an injury which must be redressed, the inquiry is, what remedy has the law declared to be appropriate to such a case. If the ordinance and the ratifying statute cannot exempt the Lake Roland Company from responsibility for injuries committed, it must follow as a consequence that it is liable to the same proceedings as any other wrong-doer under similar circumstances.

The appropriate remedy for obstructing a right of way is an injunction to remove the obstruction. This was clearly decided in White vs. Flannigain, 1 Md., 525 . In general terms the rule in equity is stated to be that an injunction will not be granted “ when a trespass is fugitive and temporary, and adequate compensation can be obtained in an action at law.” But the rule does not imply that where a trespasser is destroying the property of another person, equity will refuse to interfere, because the value of the property might be recovered in an action at law. Every man is entitled to the use and enjoyment of his property in any lawful- manner which suits his wishes and purposes.

Hence there is a neces ²⁹² sary limitation or explanation of the general rule. An injunction will be issued where the trespass reaches to the substance and value of the estate, and goes to the destruction of it in the character, in which it is enjoyed, or where it would impair the just enjoyment of it in the future. White vs. Flannigain, 1 Md., 545 ; Shipley vs. Ritter et al., 7 Md., 413-415; Story’s Equity Jurisprudence, section 928. InWhite vs. Flannigain it was said: “We have seen that the complainant is entitled under an implied covenant to a right of way over the forty-five foot street.

Any obstruction which denies the exercise and use of this right works irreparable mischief to the street as a street. The thing ruined by the obstructions is a street, and, as in the case of the mine, the complainant, on the principle there recognized, has a right to the ■aid of a Court of equity. What he complains of is, the destruction of the street. He is entitled to the enjoyment of it as a street.” In Corning vs. Lowerre, 6 Johnson’s Chancery Reports, 439, a bill was filed for an injunction to restrain the defehdant from obstructing Vestry street in the city of New York, averring that he was building a house upon it to the great injury of the plaintiffs as owners of lots on and adjoining that street.

Chancellor Kent granted the injunction, saying that it was “a special, grievance to the plaintiffs, affecting the enjoyment of. their property and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs.” Of course, in the present case the complainant cannot maintain that the obstruction is a public nuisance; but he is entitled to protection against “a special grievance affecting the enjoyment of his property, and the value of it.” In Hart vs. Buckner, 2 United States Appeals, Fifth Circuit, at page 488, the Court say: “ Owners of lots abutting on and adjacent to a public street of a city, even if not owners of a fee in the street, have the right of access ahd ²⁹³ the right of quiet enjoyment, and such rights are property which may be protected by injunction when invaded without legal authority.” Prom many other cases illustrating this point, we will select two from the Supreme Court of the United States. In Rail Road Company vs. Schurmeir, 7 Wallace, 272, the complainant alleged that the railroad company was constructing a railroad track over and along a public street, levee and landing in front of certain real estate in the city of St. Paul, belonging to him, and that the purpose was to run cars thereon for the transportation of freight and passengers, and that if this purpose should be carried into effect the street, levee and landing could not be occupied and used for the purposes for which they were constructed, and to which they were dedicated, and that his premises would be rendered useless and valueless. The railroad company denied that Schurmeir was the owner of the fee in the street, and set up title in itself as grantee of the State of Minnesota.

It was shown in evidence, among other things, that the person under whom Schurmeir claimed title had by certain formal proceedings dedicated to the public the street, levee and landing; and it was contended that thereby under the laws of Minnesota, the entire fee was vested in the State. It was also shown that the city of St. Paul claimed entire control over the said premises, and had established a grade for the same. In reference to the statute which was alleged to vest the fee in the State, the Court said: “ Suppose the construction of that provision, as assumed by the respondents, is correct, it is no defense to the suit, because it is nevertheless true, that the municipal corporation took the title in trust, impliedly, if not expressly, designated by the acts of the party in making the dedication. They could not, nor could the State, convey to the respondents any right to disregard the trust, or to appropriate the premisas to any purpose which would render valueless the adjoining real estate of the complainant.” It was decreed ²⁹⁴ that the railroad company should be enjoined from the further prosecution of its work,- and that it should remove from the street, levee and landing in front of Schurmeir’s premises all tracks, trestle-works, buildings and obstructions of every kind which it had constructed for railroad purposes.

In Barney vs. Keokuk, 94 United States, 324, it appeared, among other things, that a railroad company had erected in Water street, in¡ the city of Keokuk, a permanent and substantial building, and that it covered the whole of the front of the plaintiff’s lots binding on the street. The Circuit Court decided that the railroad company had acquired from the municipal authorities a right to lay down their tracks in the street, but the assent of the municipality could not confer the right to erect this building in the street. The Supreme Court said: “ The construction of a permanent freight depot in Water street was an unauthorized and improper occupation of that street. It was a total obstruction of the passage; and this, as we have said, cannot be created or allowed.

It is subversive of, and totally repugnant to the dedication of the street as well as to the rights of the public.” It may be said that in this case the complainant is not entirely deprived of the use of the street. This is true. But there is a very serious impediment to the use of the street by vehicles; although the obstruction is not total. A solid stone structure eighty-eight feet long and about sixteen feet wide ascends from' the grade of the street to a height of nine feet.

Before its erection there was an open street in front of Garrett’s lot measuring thirty-six feet from curb to curb; the open space in front of his lot has been so much reduced that it measures less than ten feet. He is not deprived of all use of his lot; but he is prevented from the advantageous use of it which he has a right to make, and upon which its value very largely depends. It cannot be said that his property has been destroyed; but in the language of the authorities, the injury reaches to ²⁹⁵ the very substance and value of the estate, and goes to the destruction of it in the character in which it has been enjoyed. And it impairs the just enjoyment of the property in the future.

This last circumstance is one of the tests given by Judge Story to determine the propriety of an injunction. Story’s Equity Jurisprudence, section 928. If an individual should blockade the access to the complainant’s lots, and say to him, “you may sue me for damages, and recover full compensation for the injury which I have done to you,” a Court of equity would not tolerate such an excuse for the trespass, but would order the removal of the obstruction. In whatever way the City Council may authorize the public use of the streets for railroad purposes, it can in no manner diminish or disparage private rights in connection with them.

These are under the protection of the law of the land, and any invasion of them must be redressed by the ordinary process of the tribunals of justice. It is not competent for the City Council (with or without the sanction of the Legislature) to debar an injured party from a resort to the ordinary remedies provided by the law of the land for the protection of property, and to restrict him to an action for damages. If any such effect be attributed to the ninth section of the ordinance of the Mayor and City Council of April 8th, 1891, it must be determined that for such purpose it is simply void. In O’Brien vs. Baltimore Belt Railroad Co.,74 Maryland, 363, it was decided that as there had not been a physical invasion of the property of the complainant by the railroad company, there was no taking of private property within the meaning of the Constitution, and that, therefore, there was no ground to require a condemnation before proceeding with the work of the railroad.

The complainant was the owner of property abutting on a street in which the railroad company was making a cut so as to provide an entrance to a tunnel, which it was ²⁹⁶ authorized to construct. The injury to the complainant was not regarded as serious. It would not, therefore, according to the principles above stated, have justified an injunction. Let us quote the language of the Court: “ It is not charged or in any way claimed that the plaintiff will be deprived of, or seriously hindered in the right of access to his property from the street by the making of the cut * * * * The street, after the cut is made, will still remain in front of the plaintiff’s property on the east side of the cut, about forty-one feet. wide.

There is no question, therefore, presented here as to the right of the plaintiff to compensation for obstructing access to his property from the street,” page 371. This passage shows a marked difference between that case and the. present one. I see nothing to defeat the complainant’s right to such relief as a Court of equity is able to give him, unless he has lost it by delay in instituting these proceedings. The evidence does not show the precise time at which the abutment was completed; but the plans for the elevated road were approved by the City Commissioner, July the twenty-eighth, eighteen hundred and ninety-two, and the bill of complaint was filed November the fifteenth of the same year.

The superstructure was placed on the abutment after the filing of the bill. There could not have been much delay on the part of the complainant in instituting these proceedings; certainly not so much as would defeat his right to relief on. the ground of laches, or acquiescence in the construction of the abutment. The usual course would be to decree a removal of the obstruction, and this ought to be done in the present instance, if it were necessary for the protection of the complainant’s interests. But a Court of equity in the exertion of its powers is always governed by a benignant sense of justice, and never, even in the redress of wrongs, inflicts needless injury.

The removal of the abutment would prevent the Lake Boland Company from making efficient use of its ²⁹⁷ road, and would cause incalculable damage to its business. We ought, therefore, to forbear to order the removal if it will repair the injury which it has produced. It has been often said that the granting or refusing an injunction is a matter resting in the sound discretion “of the Court. This may, perhaps, be considered rather a vague statement.

But, however, in exercising this jurisdiction the Courts take into view all the facts affecting the rights of the parties concerned, and frame their decisions in such manner as to do complete justice between them. They may grant an injunction on terms, and they may dissolve it on terms. We do not fail to' see that in this case a rigid application of abstract rules of procedure would do more injustice than it would remedy. But by reason of the plastic character of equity practice we are enabled to mould our decree in this case in such manner as to attain substantial justice.

A notable instance in which the relief was modified to suit the circumstances of the case may be found in Green vs. Drummond et al., 31 Md., 71 ; although it was entirely different from that prayed in the bill of complaint. A bill in equity was filed for the specific performance of a contract for the purchase of real estate. The Court decided that specific performance could not be decreed; but nevertheless as the complainant had expended money on the faith of the contract, it decreed him pecuniary compensation. The complainant contends that the Lake Roland Company has no right to deprive him of