Mayor, Etc., of Hagerstown v. Young

⁴⁸³ Boyd, C. J., delivered the opinion of the Court. The appellee filed a bill for an injunction against The IvCayor and Council of Hagerstown, The Board of Street Commissioners and the Street Superintendent. The prayers of the bill were: (1) That the defendants be enjoined and restrained “from entering upon, digging up or changing the grade of that portion of the complainant’s lot of ground which lies in the acute angle” therein described; (2) that they be enjoined and restrained from removing or taking away certain hay scales therein mentioned, or otherwise interfering with the reasonable use of the same by the complainant, and from changing the grade of the ground at the approaches of said scales so as to impair the reasonable use of said scales, and (3) for general relief. An injunction was granted and the defendants filed a demurrer to the whole bill, in which the only ground given was “That the plaintiff has not stated in his bill such a case as entitled him to any relief in equity against the defendants.” The same day a motion for the dissolution of the injunction was made, but no answer to the bill was filed, and as the motion does not appear to have been acted upon it is unnecessary to determine whether the Court could properly have entertained such a motion before an answer was filed, unless a demurrer to the bill had been previously sustained.

Without discussing the question, we will simply refer to Alexander’s Chancery Practice, 85, and Preface, page X, and Miller’s Eq. Proc. 700. The demurrer was overruled, and the only appeal taken was from the order overruling the demurrer, none being taken from the order granting the injunction. The appellants’ solicitor devoted most of his argument to showing that the hay scales, being, as he claims, in the street, and not shown by the bill to be there by any lawful authority or any right vested in the appellee, can lawfully be removed by the municipal authorities in making the contemplated improvements on Baltimore street, referred to in the bill.

The bill does not show by what authority the hay scales were ⁴⁸⁴ placed where they are, but we do not feel called upon to pass on the right, if any, of the appellee to maintain those scales, as the order of the Court must be affirmed, regardless of that question. The bill does sufficiently allege that the defendants are about to dig up and change the grade of a part of complainant’s lot, which lies in an acute angle formed by the intersection of Potomac and Baltimore streets, and a sidewalk running along the north side of and adjacent to the building on plaintiff’s lot. Apparently a part of that strip is included in plaintiff’s deed, and the bill alleges that it is a part of complainant’s lot. There is nothing in the bill to show that he or his predecessors had surrendered that part of the lot to the city.

If it be a part of his lot, then unquestionably the municipal authorities have no right to take it without his consent or paying him just compensation for it. It may