Maxa v. County Commismissioners

Parke, J., delivered the opinion of the Court. The appeal on this record is from a decree of the chancellor overruling the demurrer of two of the defendants, Frank Maxa, Jr., and Harry Farr, to the bill of complaint of the County Commissioners of Harford County against them and another, named John Reisinger. The plaintiff is a municipal corporation administering the public affairs of Harford County, whose territorial boundaries embrace certain navigable waters of the State of Maryland. Since 1810 there has been a highway extending, as resurveyed in 1858 and again in 1880, from a public road, known as Hall’s Cross Road, to a public landing on the shore of navigable water called Swan Creek.

The thoroughfare and landing were both established at one time by public authority and have since been continuously controlled, supervised, and maintained by the municipality for the constant use, benefit, and enjoyment of the public. The roadway is two perches wide and runs east and west until, at the beginning of its last eastern course, it turns sharply to the northeast and runs to the water’s edge. The public landing is a triangular piece of land, containing about 120 perches, with its apex where the last course of the highway ends at the water, and lying between this final length of the highway on the west and the waters of Swan Creek on the east. There is nothing to indicate that the landing was improved.

After this preliminary descriptive narrative, the bill of complaint avers that the three defendants, who are residents of the vicinity, have entered upon said landing and continuously and habitually occupied it as if it were their private property, by storing and placing therein boats, vessels, timber, and lumber, so as to cover up a great portion of the landing, and thereby preventing the public use of the portion so covered, and hindering and obstructing the full and complete ²³¹ enjoyment of the landing in the manner in which the public are accustomed and entitled. The bill of complaint also shows that when the plaintiff was informed of the described unauthorized encroachments and public nuisance, the plaintiff immediately protested to the defendants and severally requested them to remove their boats, vessels, lumber, and timber from said landing, so as not further to interfere with its public use, but without effect, and the defendants have defiantly continued their wrongful use and obstruction of the landing by having their said boats, vessels, lumber, and timber remain on the landing. In view of these circumstances, the plaintiff avers that their continuation will, if not prevented, work irreparable injury by denying to the public the rightful use and enjoyment of the landing, and thereby seriously impair or destroy the public purposes and necessity to which it is dedicated. The relief sought is a mandatory injunction to compel the defendants to remove their subsisting encroachments, and to enjoin them from future obstructions; and for general relief.

The chancellor did not grant the injunction, but passed an order requiring the defendants to show cause why it should not issue as prayed; and thereupon two of the defendants demurred to the bill, and, on their demurrer being overruled, took the present appeal. On these admitted allegations the defendants created and deliberately maintain against the rightful demand of constituted authority a public nuisance on a highway. The landing was provided for the ease, convenience, and accommodation of public travel and the exchange, delivery,