Mayor of Baltimore v. Dobler

Adkiks, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court of Baltimore City enjoining the Mayor and City Council of Baltimore, the Highways Engineer, and the American Sugar Refining Company, and each of them, their respective officers, employees, agents and servants, from changing the grade of Clement Street in said city during these proceedings, and until the further order of court. This preliminary injunction was granted on the following amended bill of complaint of Charles J. Hobler, the appellee, filed August 9th, 1921: “AMENDED BILL OE COMPLAINT. “In the Circuit Court of Baltimore City. “Charles J. Doiler, Plaintiff, vs. Mayor and City Council of Baltimore, a Corporation; August E. Ghristhilf, Highways Engineer, and American Sugar Reft,wing Company, Defendants. “Amended Bill of Complaint Piled Pursuant to the Order of this Court of August 2nd, 1921. “To the Honor Able the Judge of said Court— “Your orator, complaining, says: “Birst: That he is a resident and taxpayer of Baltimore City, and is the owner of the unimproved fee simple lot in Baltimore City, described as follows: “Beginning for the same on the northeast side of Port Avenue at the distance of 275 feet 6 inches south ⁶³⁶ easterly from the comer formed by the intersection of the southeast side of Woodall Street (formerly Allen Street) and the northeast side of Port Avenue, and at the southeast side of a house on the lot adjoining the land now being described on the northeast, said place of beginning being the division line between lots 8 and 9 on Plat of Confiscated British Property at Whetstone Point, and running thence southeasterly, binding on the northeast side of Port Avenue, 315 feet 5 inches to the southernmost outline of the property of the grantor and to the northwest side of a house on the lot adjoining on the southeast; thence northeast-early at right angles to Port Avenue 466 feet to Clement Street; thence northeasterly on Clement Street 315 feet 5 inches to the northeasternmost outline of lot Ro. 9, and thence southwesterly 466 feet to the beginning. “That the said lot was conveyed to him by Sidney Turner Dyer et al., by deed dated April 1st, 1920, and recorded among the Land Records of Baltimore City in Liber S. C. L. Ro. 3563, folio 455, and is a large and valuable piece of property. “A certified copy of the said deed is hereto attached, as part hereof, marked ‘Plaintiff’s Exhibit Ro. 1.’ “Second: That Clement Street is a public street of the Mayor and City Council, bounding your orator’s said lot on the north, and runs parallel with Port Avenue, and is the first street to the north thereof; that your orator’s said lot has a frontage on Clement Street of three hundred and fifteen feet and five inches. That the present grade of Clement Street where it bounds your orator’s lot was established on or about October 14th, 1909.

Plat of plaintiff’s said lot is hereto attached as part hereof, marked ‘Plaintiff’s Exhibit Ro. 2.’ “Third: That the defendant, August E. Ohristhilf, is the Highways Engineer of Baltimore City, and is charged, among other matters, with the duty of letting such contracts and performing such work as may be necessary in connection with the change of grade ⁶³⁷ of streets as established by the city surveyor. The defendant, the American Sugar Refining Company, has constructed a large and valuable plant near that part of Clement Street which will be affected by the proposed change of grade and is now engaged in carrying out an extensive scheme of improvements. Upon information and belief, plaintiff avers that the proposed change in the grade of Clement Street is a part of the said scheme of improvements being carried out by the defendant, the American Sugar Refining Company, and plaintiff avers further, that the proposed improvement is for the sole benefit and advantage of the said American Sugar Refining Company, and that it is not a public improvement, and that if carried out it will involve the use of public funds for a private purpose. “Fourth: Tour orator further avers, upon information and belief, that the said proposed regrading of Clement Street is to be made pursuant to an agreement between the defendants, the Mayor and City Council of Baltimore and the American Sugar Refining Company, having for its purpose the lowering of the grade of Clement Street in such a manner so that convenient approaches may be made into the plant of said defendant, the American Sugar Refining Company, from the so called Belt Railroad of the defendant, the Mayor and City Council of Baltimore, by means of railroad tracks to be laid in the bed of Clement Street, to the end that cars of the Western Maryland Railroad Company and the Pennsylvania Railroad Company may have access to said plant of the American Sugar Refining Company. That your orator is advised and alleges, upon information and belief, that after the bed of Clement Street had been lowered as aforesaid, it is the intention to lay railroad tracks in said bed of Clement Street, and that said understanding or agreement was entered into with utter disregard of the rights of your orator or of the irreparable damage that would thereby be done on the lot of your orator. ⁶³⁸ “Eifth: Your orator alleges that the effect of the proposed change of grade, if carried out, would he to lower the present grade of Clement Street by an average perpendicular distance of approximately twenty feet throughout that part of Clement Street which bounds your orator’s said lot, leaving the whole of said lot an average height of twenty feet above the proposed bed of said street, and thus destroy your orator’s rights of ingress to and egress from the said property; that your orator will thereby be deprived of the use of said property by the defendants; that in order to make his lot conform to the proposed new grade and to permit the development of said lot in an advantageous manner, your orator will be compelled to pay in the neighborhood of fifty thousand dollars ($50,-000.00), or a sum representing approximately the entire value of said lot as it now is or will be after the completion of the proposed regrading; that your orator will thus be deprived of his property without due process of law and without compensation having been paid, tendered or secured therefor as provided by the Constitution of the State of Maryland and the Constitution of the United States of America. “Sixth: And your orator further alleges and avers that he will thus be deprived of his said property for a private and not for a public purpose, and that the defendant, the Mayor and City Council of Baltimore, has no right to take private property for a private purpose. “Seventh: Your orator is advised and avers that the Mayor and City Council, in changing the grade of Clement Street as aforesaid, is proceeding under sections 41, 42, 43 and 47 of article 35 of the Baltimore City Code of 1906, and that said sections were repealed, re-enacted and changed by the provisions of chapter 32 of the Acts of the General Assembly of Maryland, 1912, and that the said defendant is not proceeding in accordance with the provisions of said chapter 32 of the acts of 1912, and that the proceed ⁶³⁹ ings now being taken are therefore without warrant or justification in law, but are null and void. “Eighth: That even though said sections 41, 42, 43 and 47 of article 35 of the Baltimore City Code, have not been repealed, as hereinbefore alleged, but are still in full force and effect, nevertheless your orator is advised and therefore alleges that the said sections are not appropriate and do not apply to the case of your orator as hereinbefore alleged.

The acts about to be done will result in the destruction of ingress to and egress from your orator’s property, and therefore amount to the taking thereof, and that the defendant, the Mayor and City Council of Baltimore, in undertaking to act as aforesaid under such sections, is acting without warrant of law and its said action is illegal and void. “.Ninth: Your orator further alleges that the defendants have arranged with contractors for the doing of the work involved in said regrading, and that machinery and tools are already on the location of the said work, and that said work is about to be begun, and your orator further alleges that this complete preparation has already for some time been made, although the City Surveyor of Baltimore established the proposed regrading only on the 27th day of July, 1921. “Tenth: That irreparable loss and damage will be inflicted upon your orator by the proposed re-establishment and change of the grade of Clement Street, for which lie has no adequate remedy at law, and he will be remediless in the premises unless this honorable court intervenes, and by its writ of injunction restrains the defendants from the unlawful re-establishment and change of the grade of Clement Street as proposed. “Wherefore, your orator prays that this honorable ■court will issue its writ of injunction directed to the said defendants, the Mayor and City Council of Baltimore; August E. Ohristhilf, Highways Engineer, and the American Sugar Refining Company, enjoining them, and each of them, their respective officers, employees, agents and servants, from taking any steps ⁶⁴⁰ to go upon your orator’s premises, and from taking any action or proceedings whatever looking to the reestablishing or changing the grade of Clement Street as proposed, and that your orator may have such other and further relief as he may be entitled to receive. “And as in duty, etc., “Charles Lee Merriken, “Frank, Emory & Beeuwkes, “Solicitors for Plaintiff.” The Mayor and City Council of Baltimore, one of the defendants, filed its answer on August 13th, 1921, and at once entered an appeal from the order granting the preliminary injunction. On such an appeal the answer cannot be considered, and it is therefore unnecessary to set it out. The contention arising under paragraphs seven and eight of the bill were abandoned- by appellee in his brief and oral argument. The remaining questions are: First — Is the averment of the bill, that “the proposed improvement is for the sole benefit and advantage of the said American Sugar Refining Company and that it is not a public improvement and that if carried out, it will involve the use of public funds for a private purpose,” sufficient as a basis for an injunction ?

Second- — Do the injuries which appellee alleges he would suffer from the regrading as contemplated, amount to a taking of his property ? They will be considered in the order stated. The averment quoted in Ho. 1 follows immediately, and as a part of the same sentence, the words “upon information and belief, plaintiff avers that the proposed change in the grade of Clement Street is a part of the said scheme of improvements being carried out by the' defendant, the American Sugar Refining Company, and plaintiff avers further that.” Taking the entire sentence together it is difficult to impute to the latter part or to the entire sentence the character of definite ⁶⁴¹ ness necessary in an application for injunction, or to escape the conviction that it is at best merely a conclusion of the plaintiff based on information the source of which is not disclosed. At any rate no facts or circumstances are given to enable the court to reach its own conclusion.

The application therefore must fail so far as it depends upon that averment. Mil ler's Equity, sec. 581; Adams v. Michael, 38 Md. 123 ;