Howard v. Western Maryland Railway Co.

⁴⁷ Urner, J., delivered the opinion of the court. By permission of the municipal authorities the Western Maryland Railway Company occupies with its tracks the hed of Burén Street south of Terminal Street, in the City of Baltimore. To the east of Burén Street is Liberty Alley, which the city has allowed the railway company to' wholly appropriate for purposes connected with the use of its roundhouse and turntable located on the adjacent ground, of which it is the owner. The hill in this ease was filed by persons claiming to own the reversion in the street and alley just mentioned, and the object of tbe suit is to procure a mandatory injunction compelling tbe railway company to remove therefrom all of its tracks and structures except its two main tracks on Burén Street, to the maintenance of which, as against the plaintiffs, the company is conceded to have a prescriptive right.

The tracks on Burén Street, of which the plaintiffs' complain, diverge from the main tracks and etxtend over the abutting ground of tbe railway company into its passenger and freight terminals. Eor the origin of their title the plaintiffs refer to a deed executed in 1804, which conveyed to' the persons, under whom they claim, a, tract of land through which the street and alley referred to were located. The grantees in that deed were John Eager Howard, Josias Pennington and James Ogleby, who partitioned among themselves the abutting lots hy conveyances which are said to' have failed to divest them of their ownership of the fee in the street and alley as tenants in common. It is upon the theory of their succession to the undivided interests' of those co-tenants that the plaintiffs in the pending suit assert the right in controversy.

Upon the evidence in the case it was coneluded by tbe court below that the plaintiffs have no title to the hed of Liberty Alley or to a, part of the hed of Burén Street, and that as to the remainder of the street area in question their reversionary interest may have become barred by the defendant’s adverse possession. The question of title thus involved was hold to be one which a court of equity should not undertake ⁴⁸ to determine. The court offered, however, to retain the bill for a reasonable time in order to afford the plaintiffs an opportunity to have their claim of title adjudicated in an action at law. After a formal refusal by the plaintiffs to resort to a court of law for that purpose, the decree appealed from was passed, dismissing the bill of complaint.

The extraordinary process of injunction is never granted for the decisive and permanent enforcement of a right which is involved in reasonable doubt. It has been definitely and repeatedly held that when an injunction is sought as a primary, and not as a mere auxiliary, remedy, and the title relied upon is contested upon grounds which do not appear to be unsubstantial, the court will not decree such relief until the title has been established in a forum more appropriate to the determination of such an issue. Some expressions in former decisions on this subject may be quoted to show the emphasis which has been laid upon the principle just stated. In' the-injunction case of Whalen v. Delashmutt, 59 Md. 252 , it was said: “The determination of this contention depends upon the true construction of the title deeds under which the respective parties claim, upon the exact location thereof, and upon questions of adverse holding and user by the owners of the respective premises.

These are all purely legal rights and questions, not at all appropriate to a court of equity. They appropriately belong to a court of