Pope v. Clark

³ Burke, J., delivered the opinion of the Court. This is the appeal of the plaintiff from an order of the Circuit Court for Montgomery County, sustaining the demurrer of the defendants filed in the bill of complaint and dismissing the bill with costs to the defendants. The object of the bill was to obtain an injunction to restrain the defendants from using the sewers which they had laid under Percy and Douglas streets in the subdivision of Otterbourne, a village in Montgomery County, and requiring them to remove and fill up certain manholes opening in the said sewers. The Act of 1894, Chapter 622, added certain new sections to Article 16 of the Code of Public Local Laws of Montgomery County.

The two sections of that act which concern the question involved in this appeal are sections 60a- and 60ir. Section 60a provides that, “Wherever the owner or owners of lands, in Montgomery County, shall subdivide their lands for town or villa sites, streets, lanes or alleys, or for any other purpose, and shall desire, for purposes of description and identification a plat of said subdivision to be recorded among the land records of said county, and whenever any street, avenue, public road, lane or alley shall be acquired by condemnation or otherwise, by the County Commissioners of said county, or by any other person or persons or body corporate, of which a plat is now required by the laws of this State to be recorded, the Clerk of the Circuit Court for Montgomery County is hereby directed to receive and record the same, as hereinafter directed; but said clerk shall not receive for record, nor allow to be recorded in his office, any such plat, until the requirements of the succeeding section of this Act shall have been complied with.” The owners of a tract of land of about fourteen and one-half acres located in Montgomery County subdivided the tract for the purpose of town or villa sites. The tract is now known as the subdivision of Otterbourne. A plat thereof complying with and made in pursuance of the Act of Assembly above mentioned was recorded among the Land Records of Montgomery County.

Erom east to west the subdivision is about ⁴ 1,000 feet wide, and from north to south approximately 620 feet in length. There were four streets, each 60 feet wide, shown upon the recorded plat. Two of these streets — Douglas and Percy — run east and west, and two — Melrose and Dalkeith — run north and south. A copy of the plat is here inserted: Before the lots in the subdivision were offered for sale Percy, Douglas and Melrose streets were leveled and graded, and sidewalks were laid on each of the four streets along which shade trees were planted, which have grown to large proportions.

These road improvements were made at the joint expense of the founders of the subdivision, and the streets and sidewalks have been maintained in fair condition until the work of constructing certain sewers complained of in this suit. Section 60:f of the act provides: “When said plats are so recorded, those portions of said land designated on said- plats as streets, roads, avenues, lanes, alleys and public parks or squares, shall be and the same are hereby declared to be forever dedicated to public use, and shall not thereafter, on any ⁵ pretext whatsoever, he altered or taken for private use; provided, however, that nothing herein contained shall affect the rights of any person or persons owning or claiming any interest in said land derived by, from or under any persons other than the maker of such plat, or by, from or under such maker prior to such subdivision, etc.” The entire tract now comprising the subdivision of Otterbourne, was acquired in 1894 by the defendants, E. B. Olarke and R. I. Geare, in conjunction with the husbands, now deceased, of the defendants Louise H. Earle and Lillie M. Ellis; but the title to the land was taken in the name of John Eranklin Ellis. He executed the plat referred to, and caused it to be recorded with the consent of the other owners, and it was the intention of all the owners that the plat and recording thereof should operate as a dedication of the streets of the subdivision to public use, and for the common and equal benefit and use of all lot holders, present and prospective. The land was divided into 69 building lots,- — 20 in block 1; 16 in block 2; 17 in block 3, and 16 in block 4.

All the lots faced north and south, their frontage being either on Percy or Douglas street. The lots are mainly of a width of 50 feet, and of the depth of 125 feet. There are now ten dwellings in the subdivision, and as shown by the plat, egress and ingress' to and from the property is over Douglas and Percy streets to the Brookville road on the west. After the plat had been recorded, the lots were partitioned among the owners and the deeds from Ellis to his co-owners conveyed the lots by lot and block number, subject to certain covenants and restrictions, running with the land and binding on each lot owner, prohibiting the erection of any building costing less than two thousand dollars and permitting buildings to be occupied only for residental purposes.

The covenant or restriction with which we are concerned in this case, in each deed in the subdivision, is as follows: “Ho privy shall be constructed on the premises unless the same shall be provided with a brick vault thoroughly lined with cement, or a water-tight wooden box ⁶ provided -with metal pails, and that no cesspool shall be sunk or constructed on the premises unless the same shall be built of brick or stone laid in cement, and thoroughly lined and entirely covered with the same, and kept in repair so that it shall be at all times watertight, and kept from overflowing or leakage, subject at all times to the inspection and approval of the owners of property in said subdivision of Otterbourne.” The founders of the subdivision made no provision for a sewer system, or a public water supply, and it is alleged in the bill that the sanitary provisions above quoted were designed and intended to safeguard the purity of the ground water to be collected for household use in any well which a lot owner constructed on his premises. In March, 1902, the plaintiff purchased, and is now the owner of two lots in the subdivision upon which he has erected valuable improvements. One lot has a frontage of 101 feet on Percy street, -and the other 90 feet on Douglas street, and each lot- also binds on Dalkeith street. The defendants are the owners of all the other lots and improvements in the subdivision.

The owners of all the other lots desired to establish a sewer system in the subdivision. The plaintiff refused to co-operatfe with them in that enterprise, and objected to its construction. They, however, entered into an arrangement with the Ohevy Chase Land Company whereby it constructed through the center of Melrose street and through the center of lots to the north and south of that street a large trunk sewer, laid at a considerable depth below the surface for the purpose of carrying through Otterbourne the sewage of a subdivision lying to the south thereof, and under an arrangement made with that company they obtained the privilege of connecting lateral or branch sewers laid on Percy and Douglas streets with the trunk sewer in the bed of Melrose street. Defendants had completed the work of laying the lateral or branch sewers in Percy and Douglas streets before the institution of this suit, and were then engaged in making house connections.

These sewers were not laid on the half of said streets upon which ⁷ the lots of the plaintiff directly abutted, and none of the sewers are laid within the lines of his deeds. It is alleged that the plaintiff refused to “co-operate or consent to the carrying out of said sewerage scheme, because he deemed it unsanitary to put a net work of sewer pipes with joints every two feet in the ground from which the wells were supplied with water, because he feared the sewers would become unsanitary for want of a sufficient supply of water to properly flush the same, and because he was unwilling to become a partner in the construction and operation of sewers by voluntary associations irresponsibly controlled.” The bill further alleged that “the defendants, as authority for the acts done and threatened to be done by them, as heretofore averred claim and contend that by virtue of the respective conveyances to them of the lots owned by them respectively by lot and block number, they are the legal owners in fee to the center of the abutting streets, subject only to the public easement of passage, and have lawful right to take into their possession and control the streets and sidewalks of the subdivision, and to excavate therein at pleasure for the purpose of laying sewers or making house connections with the same or for the purpose of repairs either to the street mains or house connections or for any other purpose which may be deemed beneficial to the combination.” It is further alleged “that the acts and doings herein complained of, constitute in practical effect a