Mayor of Baltimore v. Meredith's Ford & Jarrettsville Turnpike Co.

Briscoe, J., delivered the opinion of the Court. This is an appeal from án order of .the Circuit Court of Baltimore county, passed on the 17th of February, 1906, overruling a.motion by the defendant for a judgment of non-pros. , a motion to quash the writ of summons, the return of the Sheriff thereto and from the judgment entered thereon. The plaintiff is a turnpike company doing business in Baltimore and Harford counties, under thé corporate name of the Meredith’s Ford and Jarrettsville Turnpike Company in Baltimore and Harford Counties. ■ The defendant is the Mayor and City Council of Baltimore, a municipal corporation and the owner of the bed of the Gunpowder river, and certain lands contiguous thereto, in Baltimore county, adjacent to the plaintiff’s turnpike. ³⁵⁵ The substantial cause of the action and the grievance complained of by the plaintiff below is, the alleged wrongful acts of the defendant, in erecting and building a dam across.the Gunpowder river and in erecting large banks of earth near the. bed of the river, forcing the water and dirt to flow over and upon the turnpike, thereby causing injury and damage to the road. The defendant appeared specially to the suit, and based its motion, for a judgment of non-pros, upon certain assigned reasons, which may be stated for the purposes of this appeal to be: 1.

Because the Mayor and City Council of Baltimore is a municipal corporation and can be sued only in its own Courts, and because the attempt to subject it to the jurisdiction of the Circuit Court for Baltimore County, cannot avail, in the absence of its consent. 2. Because the Mayor and City Council of Baltimore claims it is exempt from suit, in any Court, except the Courts of Baltimore City. It is admitted that the turnpike road alleged to have been obstructed and injured lies in Baltimore County, and that the injury occurred in the county where the suit was brought. It must also be conceded, at the outset, that the action is in its nature local because the declaration states, that the turnpike road which ran along the banks of the Gunpowder river, the obstruction which caused the injury to the plaintiff’s property, and the river itself, where the alleged damage was done, are all situate in Baltimore county.

The counsel for the city, in their very able and elaborate brief contend: (i) A municipal corporation can be sued in its own Courts only. (2) The statute law of Maryland makes no provisions for suits against a municipal corporation in any Court other than its own. (3) There is nothing in the common law, as interpreted by the Courts of Maryland, that is to be taken as a qualification of the rule that municipal corporations cannot be sued in Courts, other than their own. The sole question thus presented, is whether a municipal ²⁵⁶ corporation can be sued, in this form of action, in a Court other than its own.

While the question is an important one, and may be regarded as unsettled in so far as any direct decision of this Court may be found, we are not however without what may be considered analogous adjudications, upon the question here raised. The distinction between local and transitory actions has been carefully differentiated and sustained by a number of cases. In Crook v. Pitcher, 6i Md. 510, it is said: If the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought in the county, of place in which it arose. Actions for damages to real property, actions on the case for nuisances or for the obstruction of one’e right of way are according to all the authorities local.

In Ireton v. The Mayor and City Council of Baltimore, 61 Md. 432 , the plaintiff sued the city, in the Circuit Court of Baltimore County for damages to his real estate and a mill thereon, by the construction of a lake near the plaintiff’s property. The contention in that case was, that a municipal corporation could not be sued outside its territorial limits. This Court, however, reversed the judgment of the Court below, in quashing the writ of summons, upon the ground, that the motion was too late, for the reason the city had appeared by attorney to the suit, but it distinctly held, “the injury sued for in this case was done to real estate and the action was local and not transitory. This is the common law rule and by the decision in Patterson v. Wilson, 6 G. & J. 499, has been held to be the law in this State.

The Circuit Court for Baltimore County being a Court of general jurisdiction had undoubted cognizance of the subject-matter.” In the case of Gunther v. Dranbauer, 86 Md. 1 , it was said, if the pending action involved the right of the plaintiff to use the alleged highway—if he claimed a right to use it and the defendant obstructed the way, and by that or other means denied the .existence or interfered with the exercise of the asserted, right, the cause of action would indisputably be local, ³⁵⁷ for the reason, that the injury to that particular real estate or easement could not possibly have arisen anywhere else than where the thing injured was actually situated. The rule seems to be well established both upon authority and reason, that trespass to real property, is a local action and the suit must be brought in the county or place where the cause of action arose. But it is earnestly urged upon the part of the appellant,