Lange v. Wagner

Bartol, C. J., delivered the opinion of the Court. At the instance of Lange, the appellant, a writ of injunction was issued by the Circuit Court for Baltimore County, prohibiting the appellee from completing the erection of a brick stable upon an alley-way, which Lange averred the appellee had no right to close, without his consent. The injunction was afterwards dissolved, and this suit was brought on the injunction bond of the appellants, to recover damages sustained by the appellee, by reason of the injunction. The right of action is not disputed, the only questions raised by the bills of exception relate to the subject of damages and are presented in the form of exceptions to testimony, and to the rulings by the Court below upon the prayers.

These exceptions will be disposed of in the order in which they appear in the record. First Exception.—Proof was offered that the appellee was engaged in supplying his customers with milk, and kept a number of milch-cows. . His frame stable having become somewhat out of repair, was partially torn down in the summer of 1877 and he began to erect a brick stable in its place. In August of that year he was stopped by the injunction, which continued till the 6th day of December following ; after it was dissolved, the appellee went on to compíete the building and had it finished about the 25th of the same month.

While the injunction was in force, the ³²⁰ appellee’s cows were deprived of their accustomed and proper shelter, and were more exposed to the weather. The question propounded to the witness, and objected to hy the appellants, was “ what was the effect upon the cows, if any, in consequence of being exposed to the wet and cold weather, because you could not finish the brick stable while the injunction suit was pending?” It seems to us the question was pertinent and legal. One of the grounds of special damage stated in the narr. was “the injury done to his cattle by exposure to the weather, requiring extra care and food and causing their flow of milk to greatly decrease.” Such damage was one of the direct consequences of the injunction, for which the plaintiff was entitled to recover. Hamilton vs. The State, 32 Md., 348 ; Lawson vs. Price, 45 Md., 124 ; B. & O. R. Co. vs. Thompson, 10 Md., 76, 88 .

Second Exception.—The evidence offered by the defendants, set out in this bill of exceptions, was clearly inadmissible, and there was nó error in excluding it. It was offered for the purpose of proving that the brick stable was built in part upon land belonging to the defendant Lange. It was not competent for the defendant to prove title to the property in this collateral way. He was concluded on that question by the decision in the injunction case.

Moreover, the evidence by which it was attempted to prove title, was in itself inadmissible, the survey and measurement of the ground by Mr. Martinet, was not made in the presence, or by the authority of the plaintiff, or by any authority of law. It was made ex parte, and could not bind the plaintiff or affect his rights in any way. Third Exception.—This was taken to the ruling by the Circuit Court upon the prayers. By granting the plaintiff’s prayer and the fourth prayer of the defendants, the jury were instructed that they