Huebschmann v. Grand Company

Offutt, J., delivered the opinion of the Court. Eastern Avenue in Baltimore City runs east and west, intersecting ’Dean Street, running north and south. West of Dean Street and parallel to' it is South Conkling Street. John and Annie Huebsehmann, the appellants, own three adjacent lots lying on the south side of Eastern Avenue, numbered 3701, 3703 and 3705, of which No. 3701, lying at the intersection of Eastern Avenue and Dean Street, binds on the east side of that street for about one hundred and thirty-five feet to a point where it intersects Yankee Street, running east from Dean Street.

The Grand Company, the appellee, owns adjacent lots numbered 509 to 517 South Conkling Street, which extend ⁶¹⁸ easterly to the west side of Dean Street, and opposite the west side of the Huebschmann lot No-. 3701 Eastern Avenue. Dean Street between Eastern Avenue and Yankee Street, indifferently referred to as a street and as an alley, is used as a way of ingress and egress to and from the rear of properties fronting- on South Conkling Street, the west side of No. 3701 Eastern Avenue, and other properties abutting thereon, and for the accommodation and convenience of the general public. It is unpaved, but for seventy feet south of Eastern Avenue there is on either side of it a brick sidewalk. No.. 3701 Eastern Avenue is improved by a store and dwelling now in a dilapidated run down condition,, and in the rear by three corrugated iron sheds used and rented for the storage of automobiles.

When the Grand Company acquired the South Conkling Street property it was improved by an “'old -mortar built house and wooden structure,” which by certain alterations it converted into a motion picture theater. In connection with that improvement, in June, 1929, it applied to the board of estimates of Baltimore City for permission to- extend its building into the bed of Dean Street by erecting thereon, adjacent to the eastern line of its property binding on that street, a brick structure twenty-four feet wide, twenty-two feet high, and extending approximately five feet into the bed of Dean Street. Notice of the application was received by Huebschmann, who protested against the improvement, first to the attorney in whose name the notice was sent, then at the building engineer’s office, where he was told that there was “nothing here to- protest against.” Notwithstanding his protest, the board of estimates approved the application, on July 1st, 1929, a permit for the construction of the extension was. issued by the buildings engineer, and it was erected. On March 14th, 1931, John and Annie Huebschmann filed the bill of complaint in this case against the Grand Company to compel it to remove the encroachment, on the apparent theory that it was not only an unlawful nuisance, but that it inflicted a special injury on them in so narrowing Dean ⁶¹⁹ Street as to- deprive them of reasonable and convenient' access to their property abutting on that street opposite the extension.

To that bill the defendant filed a combined answer and demurrer. In its answer it averred that the extension was erected pursuant to- valid authority, denied that it interfered with the reasonable use of plaintiffs’ property, and invoked the doctrine of comparative injury and benefit. The demurrer was not considered, but upon those- issues the case was heard, evidence- taken, and on September 14th, 1933, the bill of complaint was dismissed. This appeal is- from that decree.

In addition to what has been stated, the- evidence sufficiently established that, while it would cost perhaps as much as $20,000 to- secure the benefits and advantages resulting to appellee from the construction of the extension, it co-st only $1,500 to- erect it, and it can bo taken down and the original wall bricked up at an expense of $500. It also appeared that the extension did substantially interfere- with the reasonably convenient use- of the plaintiffs’ garages, and made them less useful for the storage of automobiles- and more difficult to- rent. In the course of the examination of Henry L. Maas, the builder who- constructed the extension, as reflecting upon the plaintiffs’ acquiescence in the improvement, he gave- this testimony: “Q. While you were putting it up did you see Mr. Huebschmann here? A. I think he seen me several times down there.

He seen me while we were- do-wn there doing the other work in the Grand Theatre-. Q. Did you use part of his yard? A. Ye-s, we had a small concrete mixer in his yard. I asked him for permission to- put it in there.

Q. After you got through did he complain abo-ut his doo-r being broken and you fixed it? A. Yes, we fixed all his gates up. Q. IIo-w long were yo-u around there putting this projection up? A. This projection — -just the projection alone?

Q. Yes. A. And cutting the wall to it? Q. Yes. A- Took us about two- weeks.

Q. Did you see Mr. Huebschmann at that time ? Did you see him during that time? A. ⁶²⁰ I cannot tell you whether I seen him on each particular time, but I think I did.” It also was shown, that, while Huebschmann attempted to protest to the building engineer, he made no protest to' the board of estimates. The real line of cleavage between the contentions of the respective parties to the appeal is whether the right to- construct the extension in the bed of a public way was a franchise governed by the provisions of sections numbered 7, 8 and 37 of the Baltimore City Charter (Code Pub.

Loc. Laws -1930, art. 4), or a minor privilege within the provisions of section 37 of that charter. Since both sides concede their validity, it will for that reason be assumed that these several statutory provisions are valid constitutional enactments, and that we are concerned only with their construction. So far as this case is concerned the important distinction between a “minor privilege” and a “franchise” is that a “minor privilege” may be granted by the board of estimates, while a “franchise” must be granted by an ordinance of the Mayor and City Council of Baltimore.

The learned and carefyil chancellor who decided the case below was of the opinion that it was not material to decide that question, because “the: evidence shows that saleable and rental value of the frame sheds is negligible; that to remove the above named extension and make the changes and repairs then necessary .to allow the defendant to. use its building as a moving picture theatre, not only would cost about $20,000, but would seriously impair its value as such, and that any benefit resulting to' the plaintiffs from such removal would be negligible.” We are unable to accept that view of the law. If the right to construct the extension in the bed of a public highway was a franchise, the board of estimates was powerless to grant it, and the obstruction was erected without authority of any kind and constituted a nuisance. And the fact that the appellee, which created the nuisance in the first place, will gain more by its continuance than the appellants will by its abatement is no reason why it should be con ⁶²¹ tinued, if it substantially interferes with the appellants in the reasonable use of their property; for the right of the citizen to possess and enjoy property depends, not upon its value as compared with other property, but upon constitutional guaranties. There are cases in which the principle of balancing conveniences and inconveniences is properly recognized, but they are cases in which some element of estoppel enters and where the question is affected by a public interest.

In those cases, where the inconvenience or loss resulting to the complainant from the continuance of the nuisance is slight as compared with the inconvenience to the public or the loss h> the defendant resulting’ from its abatement, equity will refuse relief. But we know of no respectable authority for the principle that one may for his own private gain appropriate his neighbor’s property to improve his own because his. neighbor’s loss will be less than his gain. 20 R. C. L. 480; 46 C. J. 775; Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540 , 57 A. 1065 ; Town of Bristol v. Palmer, 83 Vt. 54 , 74 A. 332 ; L. R. A. 1916C, 1269; Brede v. Minnesota Crushed Stone Co., 143 Minn. 374 , 173 N. W. 805 . For, as was said in Sullivan v. Steel Co., 208 Pa. 540 , 57 A. 1065 , 1071: “There can be no balancing of conveniences, when such balancing involves the preservation of an established right, though possessed by a peasant only to a cottage as his home,, and which will be extinguished if relief is not granted against one who would destroy it in artificially using his own land. Though it is said a chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court and jury, and if, in conscience, the former should appear, he will refuse to enjoin (Richards’ Appeal [ 57 Pa. 105 ], supra,); that fit often becomes a grave question whether so great an injury would not be done to the community by enjoining the business, that the complaining party should be left to his remedy at law’ (Dilworth's Appeal [ 91 Pa. 247 ], supra); and similar expressions are to be found in other ⁶²² cases; 'none of them, nor all of them, can he authority for the proposition that equity, a case for its cognizance being otherwise made out, will refuse to protect a man in the possession and enjoyment of his property because that right is less valuable to him than the power to destroy it may be to his neighbor or to the public.’ ” Coming then to the question as to whether the permit granted to the appellee was a minor privilege within the meaning of section 37, Baltimore City Code (Code Pub.

Loc. Laws 1930, art. 4), or a franchise within the meaning of sections. 7 and 8 (Ibid.), it may be repeated that we are not dealing with a question of power or of the right of the municipality to adopt those ordinances, for that was conceded by the parties, and we express no opinion as to it, but we are dealing solely with the meaning to be given the terms ''franchise’.’ and ''minor privilege”. ''Minor privilege” is a colloquialism ordinarily used to describe a license or a privilege granted mediately or immediately by the state, less extensive in its duration and incidents than a franchise. i “Franchise” is a word which has come to> be used to describe a grant by a state to some person, natural or corporate, of some privilege or power, not common to the people generally, in respect to property or rights subject to the control of the state or of some agency of the state. McQuillen on Mun. Corp. 1739 et seq.; Bouvier Law Dict.; Words and Phrases, Second, Third and Fourth Series; 26 C. J. 1008 et seq.

But the terms “privilege” and “franchise,” when used in connection with such a grant, merge and dissolve, and are so differently applied that it is impossible to define or distinguish them with any precision or accuracy, or to say in what cases a privilege may be considered as a franchise or a franchise as a privilege. So that,- in interpreting the statute in this case, little help is to be had from any generally accepted definition of the terms, but we are remitted to the illustrations used in the statute itself for aid in defining and limiting the meaning of the terms. ⁶²³ Section 7, Baltimore City Charter, (Ed. 1927), provides: “The title of the Mayor and City Council of Baltimore, in and to its water front, wharf property, land under water, public landings, wharves and docks, highways, avenues, streets, lanes, alloys and parks, is hereby declared to be inalienable.” Section 8, Ibid., provides in part: “The Mayor and City Council of Baltimore may grant for a limited time and subject to the limitations and conditions contained in this Charter, specific franchises or rights in or relating to any of the public property or places mentioned in the preceding section; provided that such grant is in compliance with the requirements of this Charter, and that the terms and conditions of the grant shall have first been authorized and set forth in an ordinance duly passed by the city.” Section 37, Ibid., after providing that, “Before any grant shall be made) by the; Mayor and City Council of Baltimore, of the franchise or right to use any street, avenue, alley or highway, or the grant of the franchise or right for the use of any public property mentioned in Section 7 of this Charter, the proposed specific grant, with the exceptions hereafter in this Section made, shall be embodied in the form of an ordinance, with all the terms and conditions required by the provisions of this. Charter, and such others as may be right and proper, including a provision as to the rates, fares and charges, if the grant provides for the charging of rates, fares and charges, and a provision that the franchise or right shall be executed and enjoyed six months after the grant,” further provides “that the right to use the streets, avenues, alleys or public property, by any person or body corporate for steps, porticoes, bay windows, bow windows, show windows, signs, columns, piers or other projections or structural ornaments of any character except so far as the same may be prohibited by law, and covered vaults, covered areawa.ys, drains, drainpipes, or any other private purpose not prohibited by laws and not being a franchise or right requiring a formal grant by ordinance under the terms of this section, may bo granted ⁶²⁴ Ly the Board of Estimates for such an amount of money and upon such terms as the said Board may consider right and proper.” These several statutes may be construed together as in pari materia,, and so construed, it is apparent that the. intent of the Legislature was to limit the meaning of the word “franchise” to grants' of privileges in public highways in furtherance of the public convenience or welfare, and to exclude from it the grant of rights in such highways less extensive and of a private nature. To make that meaning clear and intelligible it enumerated different privileges which should not be considered as franchises, such as the right to' use such highways for “steps, porticoes, bay windows, bow windows, show windows, signs, columns, piers or other projections or structural ornaments of any character except so> far as the same-may be prohibited by law, and covered vaults, covered areaways, drains, drain-pipes, or any other private purpose.” So construed, the conclusion seems inevitable that the right to make the extension authorized in this case must be classified as a “minor privilege” rather than as a “franchise,” for if it can be allowed at all it must come within the term “other projections”, used in section 37.

When, in section 37, reference is made to granting a “franchise,” it is provided that the ordinance embodying the grant shall include a provision ,as to the rates, fares, and charges. Such a provision would in a grant to a public utility company of the right to use the streets in furtherance of its sendee be natural and appropriate, but it yrould have no necessary, place in a grant merely conferring upon a private person the right to' encroach upon a public way for the improvement of his property. So when the statute comes to deal with the granting of such rights, it treats them as of less importance and different from “franchises,” which must be granted by an ordinance, but permits them to be granted by the board of