Mayor of Salisbury v. Camden Sewer Co.

Boyd, C. J., delivered the opinion of the Court. This is an appeal from an order passed by the lower Court overruling a demurrer of the defendant (appellant) to the ⁵⁶⁵ bill of complaint filed by the plaintiff (appellee) against the defendant. The bill alleges that by an ordinance passed by the appellant in July, 1902, it granted to four named persons, and others whom they might associate with them, the i ight and franchise of laying a sewer pipe on Camden avenue in Salisbury and such other streets and boulevards, intersecting or crossing said avenue, or convenient of access therefrom, as they may find advantageous, etc.; that by Chapter 12 of the Acts of 1904, the General Assembly of Maryland constituted those parties and their associates, successors and assigns, a body corporate by the name of Camden Sewer Company of Salisbury, Maryland, for the purpose and.with the power to lay, construct and maintain sewers in accordance with the provisions of said ordinance; that under and by virtue of the authority conferred upon it, and the rights and privileges granted it by said ordinance and charter, the plaintiff laid, constructed and maintained a main sewer pipe of not less than twelve inches in diameter on Camden avenue, and other sewer pipes, not less than eight inches in diameter, on certain other streets and boulevards intersecting and crossing Camden avenue, or convenient of access therefrom, uaming them, and in all matters complied with, and tenders itself willing, ready and able to comply with the restrictions, forms and conditions of the said ordinance and charter. It further alleges that the defendant has caused to be curbed, drained, graded and paved a certain street called Newton street, and has constructed on and in the said street at corners and places not formed by the intersection of Newton street with Camden avenne, drainage wells, and has caused fhem to he connected with plaintiff’s sewer pipe laid on Newton street, that the connection from the drainage wells to plaintiff’s sewer pipe drains the surface water from Newton street and other streets into plaintiff’s sewer pipe on Newton street, and that plaintiff has not given any privilege, right or authority so to do, etc. A plat was filed which, it is alleged, shows where the defendant has connected other drainage wells ⁵⁶⁶ with other sewers of the plaintiff, without right, license or .authority.

It is also alleged that although plaintiff’s sewer pipes are of sufficient size to meet the requirements of its franchise and charter, and to carry such sewerage as they are under the requirement to carry, they are not sufficiently largp, nor are they designed to carry surface water, and that the drainage of surface water 'through small sewer pipes is dangerous to their maintenance; that the plaintiff has demanded that the defendant discontinue such illegal and wrongful use of the sewers, but it has refused to do so and continues such use; that unless the Court passes an order requiring the defendant to cease from its wrongful acts, the plaintiff will suffer irreparable damage and will be without an adequate remedy. The prayers of the bill are: (1) That the defendant, its agents, etc., be enjoined from maintaining, making, using and employing any connection or connections between the drainage wells on Newton street and other streets named and the sewer pipes, or any of them, of the plaintiff located on, in and under said streets, and from draining and causing to be drained any surface water from, on and off said streets, etc., directly or indirectly into, through or by means of the sewer pipes, or any of them, of the plaintiff located on, in and under the said streets, etc.; (2) That the defendent be required to disconnect within such reasonable time as may be determined upon by the Court and specified in its order, its drainage wells from the sewer pipes of the plaintiff; (3) That a decree be passed against the defendant for such sum as may be made to appear to the Court as a reasonable charge for the use of said sewer pipes during the time that they have been, and shall be wrongfully used; and (é) For-general relief. The appellant -contends that the bill is defective for several reasons. The first one relied on is that it is too vague and indefinite to authorize an injunction.

It may be assumed that when the Mayor and Council of Salisbury granted the ⁵⁶⁷ franchise they were not influenced alone by a desire to aid a private enterprise, but had in mind the advantages to the public in having sewers, and in having them constructed and maintained by private enterprise, instead of being required to spend public money for the purpose. Indeed the ordinance refers to those advantages, and authorizes the city to make certain connections with a sewer on Camden avenue, and to purchase the pipes put down under the authority of the ordinance. The charter of the appellee refers in some detail to the ordinance, including the right to. connect with the sewer named, and to purchase the sewers. The portion of the ordinance about which the controversy arose is a part of Section 4 and is as follows: “In consideration of the permission hereby and herein granted be it further enacted, and it is hereby expressly understood and agreed, that the Mayor and and Council shall have the privilege of draining surface water on Camden avenue in said main sewer from the corners formed by any intersecting street, free of charge; provided, and so long as, the admission of such surface water shall not, and does not, interfere with the primary purpose for which said sewer is laid by said company, or prevent its efficiency in that regard, or prove detrimental to its permanency; and if the said company and the Mayor and Council should at any time disagree on any matter relating to the admission of said surface water into said sewer, then the matter shall be submitted to three disinterested persons * * * ; and the decision of the three shall he final.” The plat filed with the hill has nothing on it to designate the points of the compass, hut, for convenience of description only, we will assume that Camden avenue runs from north to south, north being toward Middle avenue and south towards Yewton street.

On that assumption all of the streets-on which there are drainage wells, as shown by the plat, are on the westerly side of Camden avenue. Although that is not so stated in terms, apparently Camden avenue is lower ⁵⁶⁸ than the streets west of it, and the surface water runs towards Camden on the streets going east and west. The appellee contends that the City of Salisbury was only authorized to connect with the sewer on Camden avenue directly, and not by connecting with other sewers which empty into the main one on that avenue, while the appellant contends that it has the right -to connect with the other sewers leading to the one on Camden avenue. It seems clear that if it be conceded, for the purposes of the case as now presented, that the appellee’s contention is correct, the bill is too vague and indefinite to justify the issuance of an injunction.

According to the plat filed there are thirteen of the drainage wells of which the appellee complains, none of them being on Camden avenue. It is fair to assume that in a place the size of Salisbury that number of such wells could not be built and connected with the sewers without a knowledge of them by the appellee, or its agents. Yet there is no allegation in the bill that the right to connect those wells was in any way questioned, or that it was objected to, or. that the- connections were made without the knowledge of the plaintiff or its agents, or without the belief of the defendant that it had the right to make the connections. The only allegation that can be claimed to relate to those matters are that the plaintiff has not granted or given any privilege, license, right or authority to the defendant, or to anyone else, to connect the drainage wells, or any of them, with the sewer pipe on Newton street, or to drain surface water from Newton street or any other street into the sewer pipe of the plaintiff laid on Newton street, and in reference'to the other sewer pipes that the defendant “has in other places and at other times, wrongfully and without right, license or authority, connected other drainage wells with other sewers of your orator, and thereby caused to be drained into such other sewer pipes, surface water from other streets”- — the plat being referred to to show where they are.

It is not stated when Newton street was curbed, drained, graded and paved, or when the connections were made with ⁵⁶⁹ the sewer pipe oil that, or any of the other streets. The bill is likewise silent as to the time when any of the sewer pipes were laid. It was filed over sixteen years after the ordinance was passed, and over fourteen years after the charter was granted to the plaintiff, and yet not the least information is given to the Court as to when, or under what circumstances, any of the things complained of were done. ETo one could tell from this bill whether they, or some of them, were done one, two, five, ten or fourteen years before it was filed.

If it bo suggested that such things are matters of defense, it need only be replied that, under the decisions of this Court as well as those elsewhere, the Chancellor must be informed as to all