Riggs v. Winterode

⁴⁴¹ Boyd, J., delivered the opinion of the Court. This is an appeal from an order granting a preliminary injunction against the appellants at the instance of the appellees. The application for an injunction was set for hearing upon bill and answers. There can be no doubt that as the answers were filed before the application for the injunction was héard, they must be considered, and if it be found that they deny the equity of the bill in such manner as would authorize the dissolution on motion to dissolve, the injunction ought not to have been granted.

So far as they are responsive to the bill they are .taken as true, Miller's Eq. Pro., sec. 578, and cases cited, but new matter set up by way of avoidance does not avail to prevent the issuing of a preliminary injunction. Dougherty v. Piet, 52 Md. 429 ; Mayor, &c., of Baltimore v. Keyser, 72 Md. 115 . Although perhaps not necessary to refer to other authorities, the same rules are announced in 10 Ency. of Pl. and Pr., 1000—1002, where many cases are cited.

It may.be well to say in this connection that there may be cases in which the new mattei set up in the answer is such as would justify the Court in refusing to grant an injunction at once, unless that be necessary in order to preserve the rights of the plaintiff, in case he finally establishes them. When the Court is satisfied that the plaintiff will not suffer by not having the injunction issue at. once, and testimony can be taken in a reasonable time, if the new matter be of a character that would ultimately require the dissolution of the injunction, if proven, it would be useless to compel the Judge to issue a preliminary injunction. Some discretion must be allowed him in such cases. On the other hand, when the answer is not responsive to the bill, but relies entirely upon new matter which can only be established, if at all, by evidence, and the status of the property, or other rights involved may be changed, it is proper to grant a preliminary injunction, if the allegations of the bill make a proper case for that relief.

Under the view we take of this case this question is not very material, but as it was argued at some length we deemed it proper to dispose of it before entering upon a discussion of the merits of the case. ⁴⁴² The bill alleges that the plaintiffs are taxpayers. The answer of Mr. and Mrs. Riggs (which is the only one we will refer to) admits that Mr. Winterode is a taxpayer, but alleges that they have caused the records to be examined and have failed to discover that Mr. and Mrs. McLean are, and on that information they deny that they are. As a copy of the deed to Mrs. McLean is filed and it may be that the property had not been transferred on the tax books, but she was in fact a taxpayer as alleged in the bill, we will assume that allegation to be sufficiently established. The object of the proceedings is, briefly stated, to prevent the surrender or abandonment by the, county authorities of a road which formerly ran through the farm of Riggs, claimed to be a county road, to prohibit the opening up or recognition of two other roads through the Riggs farm in lieu thereof, to stop the further expenditure of money collected from the taxpayers on those two roads, and to require Riggs to remove the fences built by him on the old road and to restore it to its former condition.

The case was very fully and ably argued by the respective solicitors, and many questions were discussed, but those most relied on by the plaintiffs (the appellees) are stated in their brief to be; First. That the County Commissioners had no power to enter into the agreement of September nth, 1901, filed as an exhibit with the bill — that it was ultra vires and acts done in pursuance thereof are void. Second. That if that agreement was a valid exercise of the powers of the County Commissioners, the roads described in the notice, published as the first step in the proceedings, have never been laid out, but the two new roads are entirely different and no notice, as prescribed by law, has ever been given for them as actually constructed.

Third. That the old road could not be closed without the appointment of examiners. Fourth. That if that be not necessary, the proceedings taken did not operate to legally close the old road.

After giving the notice required by law, nine persons, including Mr. Riggs, described as “taxable inhabitants of Balti ⁴⁴³ more County” applied to the County Commissioners “to close a portion of an old road and in lieu thereof to open two new roads, as follows, because the public convenience requires the same, viz.” They are then described in the petition and will be more particularly hereinafter referred to. The members of the Board of County Commissioners visited the property of Mr. Riggs and afterwards signed what is called „an “Agreement. ” As that will be set out in full in the opinion to be filed at this term in the case of Jenkins and others v. Riggs and others, it will not be necessary to do so again, but it is contended by the appellees that the commissioners had no authority to make it. We cannot, however, agree with that contention. By sec. 12 of Art. 25 of the Code of Public General Laws County Commissioners “have power to open, alter or close any public road or roads in their respective counties.” The Local Law, Act of 1900, ch. 685, does not change that, but on the contrary sec. 205 of that Act is in the exact words of sec. 83 of Art. 25 — “All applications for opening, altering or closing roads shall be by petition to the County Commissioners.” When, then, “a notice as required by law” was published, as admitted in the bill, a petition for the closing of the old road and the opening of the new roads was filed, and fifteen days had elapsed after the expiration of the thirty days notice required by sec. 206 of Act of 1900; and no counter petitions were presented, the case wás ready for the action of the County Commissioners, as contemplated by the Local Laws of Baltimore County.

The road to be closed and those to be opened were wholly on the lands of Mr. Riggs, and the commissioners had gone in person on his property. We can see no objection to their agreeing “that upon the opening of the two new roads as applied for and upon their being constructed, graded and bridged to the satisfaction of the Roads Engineer,” and upon the execution and deliverjr to the board of a deed the said two roads shall be accepted as county roads, and that the old road be closed at the end of a year from such acceptance and be reconveyed to Mr. Riggs.” They could not with due regard to the public interests "close the old until ⁴⁴⁴ the new road was ready for use, and it was therefore a wise provision. The plaintiffs and other taxpayers surely could not object to the requirement that the new roads should be constructed, graded and bridged, or that they be conveyed by a proper deed for the use of the public. The construction of the two new roads would necessarily occupy a considerable time, and it would seem to be difficult for the'County Commissioners ever to make an arrangement of this kind, however desirable it might be for the public, if they could not bind themselves in the way adopted in this instance.

The fact that the roads were to be constructed, graded and bridged to the satisfaction of the Roads Engineer cannot invalidate the action of the commissioners. Sec. i of Art. 25 provides that the commissioners “may commit the whole matter of grading and constructing public roads, and the repairs 'thereof, and the construction and repairs of public bridges, to the charge of competent and scientifically educated civil engineers, who shall direct and manage all such public works under the immediate control of said County Commissioners.” Sec. 196 of the Act of 1900 provides that the Roads Engineer shall be “a man having the degree of civil engineer,'and experienced in bridge and road building.” It would therefore seem to be exactly in accord with the policy of our laws to require such work, as is referred to in this agreement, to be to the satisfaction of the Roads Engineer. If he is of the character of man contemplated by the Local Law, it is not likely the commissioners could select anyon'e better qualified to determine whether the work was properly done. It was not a delegation of the powers vested in the commissioners to another person, but it was simply the selection of one presumably competent to see that the work was properly done.

County Commissioners must do manj^ things which they have control over through agents, and in this instance they were only doing what the Public General Laws expressly authorized and what the Local Law in no way forbids, when they required the work to be done to the satisfaction of the Roads Engineer. ⁴⁴⁵ It might perhaps have been better to have had a more formal agreement — signed by Mr. Riggs, as well as the commissioners — but the failure to do that cannot of itself authorize a Court of equity to now interfere. The petition had been filed by Riggs and others and the agreement was the result of that. If Mr. Riggs had not done his part within a reasonable time, the board could have revoked its action, and until he did the old road was still to be kept open. The agreement was dated September nth, 1901, and on the 14th day of October, 1902, a deed was delivered to the County Commissioners and an order passed by the commissioners accepting the road described in the deed as a public road, according to the provisions of sec. 202 of ch. 68$ of the Act of 1900, “it appearing to the satisfaction of said County Commissioners that said road is not less than thirty (30) feet in width and duly and properly graded and that the same is necessary and convenient for public use.” The deed having been executed, delivered and accepted, there can be no doubt that the title to the land included in it was as securely vested in the county as it could be by any other means.

It is of no consequence whether it was technically an acceptance under sec. 202 of the Act of 1900, as the order states, or under the other provisions. When the notice is given, petition is filed, and other provisions complied with, but no counter petitions are presented or objections filed, and the commissioners are of the opinion that the road is necessary and convenient for the public use, what else is necessary if the owners are willing to make a deed ? When the County Commissioners deem it expedient that a road be opened, they are expressly authorized to contract with the owners of the land, sec. 208. The recitals in the agreement of September nth, 1901, conclusively show that they thought it was expedient, although it does not use that precise language.

So without further consideration of that point, we think the agreement was not ultra vires, but was within the powers conferred upon the commissioners. 2. Were the roads so different from those described in the notice as to require us to hold that those described were not ⁴⁴⁶ laid out? The upper road is described in the notice as “beginning at the point first mentioned and running with a northerly course about thirteen hundred feet through and across the property of the said Riggs; thence easterly about one thousand feet until it meets the road known as the ‘Red House Road’ at the southeast corner of Mr. Riggs’ore bank.” The deed describes that road as running north 5 degrees 50 minutes west 1,122^ feet; thence by courses and distances therein given — the total distance being 1,026 feet, the course being in a northeasterly direction. It is contended by the appellees that the variance between the proposed road as described in the notice, and that actually adopted, makes the action of the commissioners null and void.

Authorities are cited to show that “northerly” means “due north,” and therefore when the first line of the road was laid out, as north five degrees 50 minutes west, it was a fatal variance. But we do not understand the law so to be as applicable to a case such as this. When a line in a deed, or other instrument, intending to give an accurate description of the property is described as running “northerly” without anything else to govern it, if it be not construed to mean “due north,” there would be no possible way of locating it, but when, as here, persons intend to apply for the opening of a road, it could not have been intended to necessarily run due north. Section 206 of the Local Law, in speaking of the notice, says, “setting forth as near as may the length and location of said road,” thus plainly indicating that the road need not be precisely and accurately described in the notice.

The law throughout contemplates the ultimate location of a road which may not be definitely and accuratetly described in the notice. If the commissioners contract with the owners of the land, they shall cause a plat to be made by the Roads’ Engineer and filed and recorded, “which said plat shall be referred to in and