Schnepfe v. Consolidated Gas Electric Light & Power Co.

Pattison, J., delivered the opinion of the Court. On the 16th day of June in the year 1908, William G. Miller and Elijah E. Miller, owners of a farm in the second ⁶³¹ election district of Baltimore County, executed unto George G. Schnepfe, the appellant, and three others, a mortgage upon said farm to secure an indebtedness of $8,500. On October 28th, 1926, Elijah F. Miller and Jesse F. Miller, the then owners of the farm, conveyed unto the appellee, the Consolidated Gas Electric light & Power Company of Baltimore City, a public utility, a free and uninterrupted right of way of the width of sixty-six feet over the farm “for the purpose of erecting and maintaining thereon an electric transmission line, including the necessary towers, wires and attachments.” At the time of such conveyance, the appellee sought to obtain a partial release of the mortgage heretofore mentioned, which at that time had been reduced to $4,000, but the appellant refused to execute the release. After obtaining the grant from the owners, the appellee, with the full knowledge of the appellant, proceeded to erect the transmission line without any further effort to obtain a partial release from the mortgagees, and without instituting condemnation proceedings against them, thinking that the mortgage would soon be paid.

On July 7th, 1932, the farm was sold under the mortgage by one Chester A. Albrecht, to whom it had been assigned by the mortgagees, including the appellant, for the purpose of foreclosure; and at that sale the appellant became the purchaser “at and for the sum of three thousand dollars ($3,-000.00)”, an amount insufficient to pay the mortgage debt, interest, and cost. On July 29th, 1932, the appellant filed his petition alleging that he was the purchaser at the sale, and the sale was so reported, but it had not, at that time, been ratified. He also alleged the execution of the grant by the owners of the farm, conveying to the airpellee the right of way above mentioned, and that he, at that time, was asked by the appellee to execute a partial release, but refused to do so because, as stated in his petition, the rights .conveyed to the appellee by the owners were for an indefinite time, and the grant contained no provision for a payment by the grantee of a “reasonable ⁶³² proportion of the taxes” upon the property; and further “that the high voltage current could not be used by the people over whose property the transmission line passed.” It was further alleged in the petition that the appellee, after obtaining 'such right of way, “affixed to the freehold, four towers bearing signs reading: “Danger, High Voltage,’Keep off”; and that upon these towers cables “were suspended across the farm near its center.” From the last of these towers the cable was suspended to the tower on the adjacent property “makirig an angle of thirty-four degrees from a straight line, the whole being part of a zigzag transmission line across the country.” The petition then alleged that, after purchasing the farm under the mortgage foreclosure proceedings, the appellant informed the appellee “that the sending of dangerous electric current over the farm was a trespass on” his rights and prevented him “from enjoying the full possession of his property”; and he requested that “assurance be given by the Company that the transmission of dangerous electric current would be stopped”; that the appellee replied “that it could not give the assurance requested and that the transmission line must remain.” The petitioner then alleges that he did not know what damage might be done “to the property in the future by the maintenance of the transmission line and the sending of dangerous high voltage electric current across the farm.” Upon these alleged facts, the petitioner prayed (1) that he be made party to the mortgage foreclosure proceedings; (2) that “the ratification of the sale be postponed”; (3) that after hearing on the petition a permanent injunction be issued “enjoining and restraining” the appellee “and its e'mployees from being a party to the deliberate and dangerous transmission of high voltage electric current across the farm”; (4) “that a reasonable attorney fee be allowed” the petitioner, and that the appellee “be ordered to pay same,” as well as the cost resulting from the company’s refusal to discontinue the transmission line across the appellant’s property; and (5) for general relief. ⁶³³ On August 26th, 1932, the appellant filed a second petition in which he alleged, among other facts, that through inadvertence his first “petition was not marked filed,” and no entry of it was made on the docket; that the docket showed that the sale was finally ratified and confirmed on August 9th, as a result of the omission to file the petition. It was not known to the petitioner that such sale had been ratified and confirmed until about the time of the filing of his last petition; and he asked that his petition of July 29th be filed and entered on the docket as of that day, and that the ratification and confirmation of the sale be rescinded.

An order was passed upon the petition directing the petition of July 29th to be filed as of that date and rescinding the ratification and confirmation of the sale. On August 27th, 1932, the court passed an order upon the appellant’s petition of July 29th, by which the appellee was made a party to the mortgage foreclosure proceedings and was directed to answer the appellant’s petition. Thereafter, on the 29th of September, 1932, the appellant filed his third petition, in which he alleged many of the allegations of the petition of July 29th, and asked for the ultimate ratification and confirmation of the sale. The appellee both demurred to and answered the petition.

In its answer it admitted the erection of a transmission line upon the right of way granted to it by the owners of the land; and also the cutting of