Moore v. McAllister

Hornjjy, J., delivered the opinion of the Court. This appeal presents a technical question of jurisdiction. Stillson A. Moore and his wife, Grace R., (the Moores), filed a bill in the Circuit Court for Dorchester County complaining that John J. McAllister (McAllister) was encroaching upon, and interfering with the lawful use of, a 50 foot-strip of land situated between the respective tracts of the opposing parties, and extending from the Sharptown-Eldorado state highway approximately 3000 feet to the northwest fork of the Nanticoke River. The Moores contend (i) that they own the strip of land, (ii) that for more than twenty years they have used a single track roadway which has always existed within the limits of the strip, and (iii) that Mc-Allister has plowed, planted, and tilled crops on the strip as if it were his own.

In addition to alleging irreparable damage, the Moores further claim that the roadway is the only access to their tract, and that the destruction thereof had caused them great distress and hardship. The bill sought a permanent injunction and further relief. McAllister, by his answer, admits that his property is bounded by a 50 foot strip of land, but denies that the roadway described in the bill lies within the strip referred to in the deeds. He contends that the roadway which he has plowed, and otherwise tilled, lies either wholly or partly within the lines of his own property.

No question as to jurisdiction was raised by the pleadings. Other than the bill and answer, the only oilier proceedings filed consisted of interrogatories and a “request for admission” filed by the plaintiffs, and the “answers” to both filed by the defendant. The chancellor passed an order for a hearing, but before the hearing was commenced, he dismissed the bill by a final decree for the reason that he was satisfied that the court was without jurisdiction to determine the issues raised by the pleadings. From the decree of dismissal, the Moores appealed.

Although the appeal presents other minor points or questions of law, the only real question for us to decide is whether the chancellor under the circumstances in this case could ⁵⁰² raise, on his own motion, the lack of jurisdiction to hear and determine a title dispute on the theory that there was an adequate remedy at law. There is no doubt that in the early decisions, an injunction would not be granted to restrain a trespass where title was in dispute between the parties until the question of title had been settled by an action at law. It was axiomatic that equity would not determine a controversy involving the legal title to land. There is, however, no clear exposition in the decisions of the reason for the rule. 1 The cases simply state the rule without explaining its origin.

It certainly could not rest upon the question-begging maxim that “equity will not determine legal rights,” for quite often equity would determine controversies involving the construction of purely legal rights and questions of fact. In specific performance cases, for example, equity did not hesitate to construe the law and determine the facts as to whether a valid legal contract existed or not. Great respect for the rule was engendered in 1801 when Lord Eldon in Pillsworth v. Hopton, 6 Ves. 51, refused an injunction against a defendant in possession, it appearing that the plaintiff had failed in an action of ej ectment. He said: “I remember perfectly being told from the bench very early in my life, that if the plaintiff filed a bill for an account, and an- injunction to restrain waste, stating, that the defendant claimed by a title adverse to his, he stated himself out of the Court as to the injunction.” Gradually, however, the judiciary in both England and the United States began to realize that there was no • longer any ⁵⁰³ good reason for the rule.

Exception after exception have whittled away the rule from time to time to such an extent that by 1952 Judge Markell in Lichtenberg v. Sachs, 200 Md. 145 , 88 A. 2d 450 (1952), was able to say: “Whether or not in the course of a century the rule that equity ordinarily has not jurisdiction to enjoin trespasses or interference with easements until after title has been established at law has become an exception and the exceptions to the rule have become the rule is a speculation we need not pursue.” 2 The most important exception to the rule is that a temporary injunction will be granted against irreparable damage pending an action in a court of law in ejectment or trespass to determine a dispute as to title. This exception has repeatedly been stated and applied in Maryland. Clayton v. Shoemaker, 67 Md. 216 , 9 A. 635 (1887). See also Herr v. Bierbower, 3 Md. Ch. 456 (1851); White v. Flannigain, 1 Md. 525 (1852); Chesapeake & Ohio Canal Co. v. Young, 3 Md. 480 (1853); Long v. Ragan, 94 Md. 462 , 51 A. 181 (1902) ; Oberheim v. Reeside, 116 Md. 265 , 81 A. 590 (1911); Mullikin v. Hughlett, 142 Md. 539 , 121 A. 244 (1923); Metaxas v. Easton Publishing Co., 154 Md. 393 , 140 A. 603 (1928); Haldas v. Commissioners of Charlestown, 207 Md. 255 , 113 A. 2d 886 (1955).

The case of Diener v. Wheatley, 191 Md. 690 , 62 A. 2d 783 (1948), is not in point, but therein the Court implied that equity proceedings may be stayed under proper circumstances. Also see Davis v. Reed, 14 Md. 152 (1859), which did not involve a disputed title, but is relevant on the issue of irreparable injury. Many of the early cases, as well as some of the later ones, denied a temporary injunction solely because the alleged damages were not irreparable. Thus, when a right of way ⁵⁰⁴ was obstructed but plaintiff had another reasonably convenient outlet, his damage was not irreparable and he could not obtain a temporary injunction.

This strict rule was adopted in Amelung v. Seekamp, 9 Gill & J. 468 (1838), and has been cited in many subsequent cases. See also Gulick v. Fisher, 92 Md. 353, 48 A. 375 (1901); Finglass v. Franke Sons Co., 172 Md. 135 , 190 A. 752 (1937). The cases of Stewart v. Chew, 3 Bland 440 (1831), (cutting timber), Lanahan v. Gahan, 37 Md. 105 (1872), (using wall of another building for support), and Whalen v. Dalashmutt, 59 Md. 250 (1883), (erecting awning post in pavement of adjoining property owner), did not concern rights of way, nevertheless the same rule of law as to the absence of irreparable damage was applied. But where the plaintiff had no other reasonably convenient outlet, his damage was irreparable and he was entitled to a temporary injunction.

Shipley v. Caples, 17 Md. 179 (1861); Smith v. Shiebeck, 180 Md. 412 , 24 A. 2d 795 (1942); Campbell v. Bishields, 197 Md. 572 , 80 A. 2d 262 (1951); Lichtenberg v. Sachs, supra (1952). The trend away from the stricter rule in cases seeking an injunction to restrain a trespass where the title was in dispute began with White v. Flannigain, supra, decided in 1852, when this Court declared that “a court of equity will not, as a general rule, interfere by injunction, to restrain a mere trespass, * * * to land; but that it will so interfere under certain circumstances, * * * [to] prevent irreparable mischief or ruin.” When there is a real dispute as to the legal title to land— sufficient to constitute substantial doubt as to who is the owner thereof — and a question of the jurisdiction of equity to try the issue has been properly and seasonably raised, then the question of ownership must be determined in a court of law. The proper procedure in such an event was laid down in 1887 by this Court in Clayton v. Shoemaker, supra, at p. 221: “There should be a temporary injunction prohibiting the * * * [defendant] from proceeding with the erection of his building until the title has ⁵⁰⁵ been decided in a Court of law * * *. The plaintiffs below should be required to institute immediately an action at law with a view to have their title determined, and if they fail to do so, or having done so, are unsuccessful in maintaining their title, the injunction should be dissolved.

But if the decision of a Court of law is adverse to the claim of title set up by the defendant below, the injunction should be made perpetual.” 3 See also Miller, Equity Procedure (1897), Sec. 258, in which the practice “to retain the bill for a time in order to give the parties an opportunity to have the legal question decided at law,” is discussed in general terms. A footnote to the section cites many cases, including the Clayton case. But when there is no real dispute over the title, or when there has been a waiver of jurisdiction, a court of equity has full and complete jurisdiction to try and determine the question of title. When there is no real dispute over the legal title sought to be protected, or when such title is not in doubt, there is no reason to require the parties to resort to a court of law to determine the title issue.

Oberheim v. Reeside, supra; Greenbaum v. Harrison, 132 Md. 34 , 103 A. 84 (1918); Potomac Edison Co. v. Routsahn, 192 Md. 449 , 65 A. 2d 580 (1949). See also White v. Elannigain, supra. Likewise, when a defendant to a bill in equity files an answer, and does not think it proper or omits to make objection by the pleadings to the jurisdiction of equity to try and determine the question of title, he is deemed to have waived jurisdiction, and the equity court should proceed to try the issue. Shryock v. Morris, 75 Md. 72 , 23 A. 68 (1891) ; ⁵⁰⁶ Punte v. Taylor, 189 Md. 102 , 53 A. 2d 773 (1947); Haldas v. Commissioners of Charlestown, supra.

See also Wissler v. Elkins, 149 Md. 318 , 131 A. 444 (1925), (boundary line dispute); Weeks v. Lewis, 189 Md. 424 , 56 A. 2d 46 (1947), (relocation of right of way); Feldstein v. Segall, 198 Md. 285 , 81 A. 2d 610 (1951), (widening of right of way). In Shryock v. Morris, supra, this Court said, at p. 77: “[I]f the objection to the want of jurisdiction be not taken at the proper time, and in the proper manner, the Court will entertain the suit, although the defendant may object at the hearing, unless it be in cases in which no circumstances whatever could give the Court jurisdiction. * * * This principle has been, by statute, incorporated into our chancery practice, in respect to appeals, * * The case of Punte v. Taylor, supra, is also in point. At p. Ill, we said: “The pleadings in this case show that a question of title to land is directly involved. The appellee, in her bill of complaint, avers she owns the land involved.

The appellant denies this in his answer, and asserts he owns the locus in quo. Though he thus raises a question which, in the absence of special circumstances, ordinarily may be tried at law and therefore is not within the jurisdiction of a court of equity, nevertheless, in his answer, and apparently at the trial, he did not raise the question of jurisdiction of a court of equity to decide the question of title. He did not traverse appellee’s allegation that she had no adequate remedy at law, but did traverse her allegation of title; i. e., her right to any remedy at all. In the circumstances, when the question of equity jurisdiction is not raised below, it is waived and cannot be raised on appeal.” And in the Haldas case, supra, in which the defendant had failed to raise any question of jurisdiction in the circuit court, we stated, at p. 263: “By acquiescing in complainant’s ⁵⁰⁷ choice of the court of equity as the forum for the case, defendant waived the question of jurisdiction.” The statute referred to in the Shryock, Punte and Haldas cases, all supra, — cited in many cases during the period of more than a century between 1841 and 1957 — is Chapter 163 of the Acts of 1841, which provides: “No defendant to a suit in equity in which an appeal may be taken shall make any objections to the jurisdiction of the court below, unless it shall appear by the record that such objection was made in said court.” This statute, which was last codified as Code (1951) and (1956 Cum.

Supp.), Art. 5, sec. 41, was repealed by Chapter 399 of the Acts of 1957. Parallel Table Two appended to the Maryland Rules as Appendix C (in Volume 9, p. 491, of the 1957 Code) shows that Art. 5, sec. 41, supra, was “repealed, superseded, modified by or incorporated, in full or in part,” in Maryland Rule 885. The bill for injunction in this case was filed after the repeal of Art. 5, sec. 41, supra, but it would have had no application to the question which confronts us. The jurisdictional question was not raised for the first time in this Court, but was raised in the lower court by the chancellor himself when he dismissed the bill on his own motion after the defendant had waived the question of jurisdiction.

Whether the chancellor had a right to raise the lack of jurisdiction requires a limited inquiry into the meaning of that equivocal word “jurisdiction”. Juridically, jurisdiction refers to two quite distinct concepts: (i) the power of a court to render a valid decree, and (ii) the propriety of granting the relief sought. 1 Pomeroy,