Sieling v. State Roads Commission

Sloan, J., delivered the opinion of the Court. We have here two appeals, one from an order overruling the appellants’ (cross-defendants’) demurrer to the appellees’ cross-bill, the other from an order granting the appellees a preliminary injunction on their cross-bill restraining the appellants from interfering with the improvement of the state road known as the Baltimore-Washington Boulevard in the town of Laurel. The appellants filed a bill wherein they alleged that Anna A. Sieling held the legal title and John H. Sieling had an equitable interest in excess of the value of $20 (Code, art. 3 6, sec. 109) in certain lots “abutting on a certain Washington Avenue, sometimes called Baltimore and Washington Turnpike, in said Town of Laurel”; that John H. Sieling is the attorney in fact of Anna A. Sieling and in charge of and has the active management of the lots and improvements thereon, one of the improvements being a hotel which is profitably conducted; that the government of the Town of Laurel, under its charter, Acts 1912, c. 695, is vested in a mayor and five councilmen (the town was incorporated in 1870 and its act of incorporation from time to time amended); that the State Roads Commission, a quasi corporation created by the Acts of 1908, c. 141, at present composed of G. Clinton Uhl, John K. Shaw, and Lloward Bruce, who with the “Mayor and City Council of Laurel” are defendants, “desires to and is engaged in widening said certain Washington Avenue, immediately abutting on said properties of” the plaintiffs and, “acting without proper procedure or warrant * * * and without any compensation or payment” to the plaintiffs (appellants), “has attempted to widen said Washington Avenue at and abutting said properties * * * and has attempted to and ⁴¹⁰ did enter upon said lands * * * for the purpose of taking them as a public highway.” They then say that, when John H. Sieling protested against the invasion of the said properties and ordered the employees of the State Roads Commission to get off of said lands and to stay off of them until after it shall have acquired proper legal right and title to enter thereupon they had him arrested “for the purpose of duress, intimidating and coercing” the appellants. They allege that the ordinance of the mayor and city council- of Laurel, passed April 14th, 1930, transferring control of the Baltimore and Washington Boulevard to the extent to be improved to the State Roads Commission, is ultra, vires and void, and that the alleged invasion of the appellants’ properties is in violation of the State and Federal Constitutions and Bill of Rights.

The bill prayed for an injunction, and an order on the defendants (appellees) to show cause was passed. The appellees answered, and on the day following the filing of the answer filed a cross-bill, which prayed the court to grant them a mandatory injunction to the appellants to remove all obstructions and encroachments from the bed of The Washington Avenue adjacent to and in front, of their property, and to restrain them from interfering with the construction and widening of the roadway of Washington Avenue and the construction of five-foot sidewalks on each side of the roadway. The cross-bill, in addition to the averment that the appellants owned two lots on the west side of Washington Avenue and north of Main Street, known as the hotel property, alleges that the appellants owned a lot on the same side of Washington Avenue and about 125 feet south of Main Street, known as the garage property; that the hotel property extends into Washington Avenue, and that it will be necessary to remove a small portion of a frame addition to the hotel now encroaching on the street in order to lay a five-foot sidewalk as provided by the agreement of the Town of Laurel with the Roads Commission, and that in front of both properties and in the bed of the street the appellants placed “no trespassing” signs and employed a man to stand in the road ⁴¹¹ and prevent the Roads Commission’s contractor from proceeding with the improvement in front of and adjacent to the appellants’ properties. By the cross-bill it is further alleged that, by the Acts of 1812, c. 78, the Legislature incorporated a turnpike company by the name of “The President, Managers and Company of the Washington and Baltimore Turnpike Road,” for the purpose of making a turnpike sixty feet in width from Baltimore to Washington; that the road was made and operated by the turnpike company until 1862, when the charter was forfeited, and that from the time it was laid out and made it has been continuously used as a public road until the present time, and that repairs were made on it from time to time, since its surrender by the turnpike company, by the county commissioners of Prince George’s County, the Town of Laurel, and the State Roads Commission, in the order named; that the Town of Laurel was incorporated bv the Acts of 1870, c. 260, under the name of the- “Commissioners of Ilaurel,” and by the Acts of 1890, c. 201, under the name of “Mayor and City Council of Laurel,” and ever since the Act of 1870 has assumed control of the old turnpike.

After the passage, of the Act of 1890, the mayor and city council of Laurel, “in order to officially determine the streets of said town and the limits thereof,” employed an engineer and surveyor, Benjamin A. Dashiell, to lay out and plot and mark the streets of the town, which he accordingly did, and the plat so made by him and officially adopted by the mayor and city council of Laurel was conspicuously hung in the city hall of Laurel and ever since has been recognized as the official plat of the streets of the town. The plat shows Washington Avenue to be fifty feet in width. The mayor and city council of Laurel, by ordinance passed October 21st, 1912, granted to the State of Maryland the public easement in the bed of Washington Avenue to the extent of its title thereto, so that the same might thereafter be under the jurisdiction and control for road purposes of the State Roads Commission, with reservations of police control and such improvements as may from time to time be ⁴¹² made by the town. The ordinance of April 14th, 1930, was merely supplemental to the first ordinance, and provided for the improvement by the State Roads Commission of the entire width of fifty feet, to include forty feet of driveway and five-foot sidewalks.

In pursuance of the ordinance of October 12th, 1912, and the Acts of 1908, c. 141, the State Roads Commission macadamized or hard-surfaced fourteen feet of the road, and later added a paved shoulder of three feet on each side, and is now, and for the past three years has been, engaged in widening the paved portion of the turnpike from Washington to Baltimore to forty feet. The cross-bill in detail shows the recognition by deeds, from 1861, of a 50-foot street on Washington Avenue from the intersection of the southerly side of Main Street, the hotel property of the appellants being across or on the northerly side of Main Street, and filed as an exhibit the Dashiell' plat, showing Washington Avenue to be of the full width of fifty feet by the appellants’ property through the Town of Laurel and by actual location running with the lines of the Talbott property from Main Street south. The cross-bill also avers that tbe street now known as Washington Avenue has been openly and notoriously used as a public road of the full width of fifty feet for more than twenty years, and that, since Anna A.. Sieling acquired the first of her conveyances, September 10th, 1918', she has, by additions since made to her hotel property, encroached on the westerly side of the road or avenue.

The appellants, answering the cross-bill of the appellees, deny every act of the appellants against which relief is sought by the appellees, deny that a sixtv-foot road was ever authorized by the Acts of 1812, ch. 18, and assert that the act only authorized the. use of an eighteen-foot road, and then conclude the answer by demurring to the cross-bill and every part thereof for reasons which will be hereinafter considered. The case was set for hearing on motion for a preliminary injunction, evidence received, and an order passed overruling the appellants’ demurrer to the cross-bill, and a decree passed ⁴¹³ whereby “John II. Sieling and Anna A. Sieling, their servants, agents and employees” were “strictly prohibited and enjoined until further ordered” by the court “from interfering with the State Roads Commission of Maryland, its servants, agents, employees or contractors in the widening and paving of AVashington Avenue in the Town of Laurel, Prince George’s County, Maryland, in front of the two properties owned by the defendant, Anna A. Sieling, being the two properties mentioned in said cross-bill and complainants’ (appellees’) exhibit Mo. 20, to a width of forty feet, provided the existing buildings and improvements on said property or properties are not broken, damaged or removed,” etc., and appeals were taken by the appellants from the order overruling the demurrer to the cross-bill and from the order granting the appellees (cross-plaintiffs) a preliminary injunction. 1. The appellants’ first contention is that the subject-matter of the suit could not be heard until decision on the demurrer contained in the appellants’ answer to the cross-bill, and that, the demurrer not having been set down for hearing, “the matter was not ripe for ruling thereon,” and “the ruling on said demurrer should be set aside and disregarded.” General Equity Rule 18 provides that a demurrer may be set down for hearing at any time on five days’ notice, and the appellants here contend that they were entitled to this formality before the court could pass on the demurrer.

The appellants cannot even pretend that any formalities in the hearing on the demurrer were denied them wfith the following appearing in the record: “(The Court): Mr. Ash, I understand you first want a ruling on the demurrer ? (Mr. Ash) : I want a ruling on the demurrer. (The Court): The demurrer is overruled. (Air.

Ash) : I now presume the plaintiffs on the cross-bill are ready to proceed.” 2. The appellants complain that the cross-bill injects .new" matter into the case which was not included in the original bill, and that is, that if sets up the same contention and prays the same relief against the appellants as the owners of the garage property south of Alain Street that it asks against ⁴¹⁴ them as owners of the hotel property, north of Main Street, which was the only property mentioned in the original bill. The rule as, stated by Mr. Miller (Equity Procedure, 243, sec. 192) is: “A subject which is not germane to a pending controversy cannot, by means of a cross-bill, be injected into the litigation; but a cross-bill may set up additional facts not alleged in the original bill where they constitute part of the same defense and relate to the same subject matter.” “It is generally considered as a defense, or as a proceeding to procure a complete determination of a matter already in litigation in the court.” Hooper v. Central Trust Co., 81 Md. 559, 576 , 32 A. 505, 508 . “A cross-bill may also be directed to be filed when, at the hearing of a cause, it appears that the suit already instituted is insufficient to bring before the court all matters necessary to enable it to decide upon the rights of all the parties.” Daniels, Ch. Pr.

(6th Am. Ed.), sec. 1550. By alleging in the cross-bill that Anna A. Sieling owned a lot fronting on the west side of Washington Avenue less than two hundred feet south of the lot mentioned in her bill of complaint, the appellee did not import into the case a question or controversy which was not already there. There were two lots abutting on the same turnpike, both of which were being appropriated by the State Roads Commission without compensation, or both of which encroached on the same public road; but one lot and a fifty foot (Main) street separated them.

If the appellees had not brought the garage lot into the case, the court could very properly have directed an amendment of the cross-bill so as to include it and the acts of ownership and claims arising therefrom with respect to the street or road. There is only one controversy common to both lots and all the parties to this case, in which all questions involved are identical. The appellees, if their contention that Washington Avenue is the old Baltimore and Washington turnpike is correct, and the appellants have encroached upon it and have interfered with the contractors, are entitled to affirmative relief, and a cross-bill is proper procedure to that end. The bill is therefore not multifarious as to subject- ⁴¹⁵ matter, and, inasmuch as the appellants by the original bill have made both the State Eoads Commission and the Town of Laurel parties, they cannot now object to them as improperly joined as plaintiffs in the cross-bill.

Hooper v. Cent. Trust Co., 81 Md. 559, 576 , 32 A. 505 ; Chew v. Glenn, 82 Md. 370 , 33 A. 722 ; Whitman, Recvr., v. United Surety Co., 110 Md. 421 , 72 A. 1042 ; Ruhe v. Ruhe, 113 Md. 595 , 77 A. 797 ; Roth v. Stuerken, 124 Md. 404 , 92 A. 808 ; Whitaker v. Coudon, 130 Md. 234 , 100 A. 279 ; Saul v. Sturm, 149 Md. 629 , 132 A. 158 ; Oakford Realty Co. v. Boarman, 156 Md. 65 , 143 A. 644 ; Buckner v. Jones, 157 Md. 239 , 145 A. 550 . 3. The appellants, by their demurrer, also contend that the cross-plaintiffs have an adequate remedy at law by which their rights may be determined. A sufficient- answer to that is the following quotation from Carroll County v. Rickell, 146 Md. 463, 469 , 126 A. 711 , 714: “Assuming the encroachment as alleged in the bill, the jurisdiction of a court of equity to grant relief by injunction is supported by authorities everywhere.

It is the duty of a municipality to preserve the beneficial enjoyment of streets to the public.” 4. The order for a preliminary injunction, from which one of the appeals is taken, limits its operation