Somerset Rapid Transit Co. v. Mayor of Crisfield

³⁶⁹ Pattison, J., delivered the opinion of the Court. The appellee in this case, on January 2, 1915, filed-its bill in the Circuit Court for Somerset County, asking, first, that the appellant, the Somerset Rapid Transit Company, be enjoined from running or operating its motor buses along and over the streets of Crisfield; and, second, for general relief. The bill alleged that the appellant company, at the time of the filing of the bill, was engaged in carrying passengers from points in Somerset County to points in Crisfield, along and over the streets of said town. That the two motor buses used by it were of great weight, the larger weighing, when loaded to its full capacity, .from thirteen to fourteen tons, and the smaller one, when fully loaded, from eight to ten tons, and were too heavy for the width of the tires with which they were equipped, and that by reason of said weight and the insufficient width of the tires they damaged the highways of the town by running and operating said motor buses upon them.

The bill further alleged that the town of Crisfield “is built upon low and marshy ground, and that the streets of said town are constructed by means of shell-and gravel bedding upon said marshy under soil; that said streets-are sufficiently firm and strong for ordinary travel, but that-because of the excessive weight of said buses and the insufficient width of the tires thereof, the said buses break through the bed of said streets as fast as your Orator, by the use of all possible care and diligence, can repair said breaks”; and that the plaintiff was unable to keep said streets and highways in repair and safe for public travel “because of the continuous destruction wrought upon said streets by said motor buses”; and that said damage or injury to said streets “is irreparable and not susceptible of adequate compensation in the ordinary course of law.” To this bill the following demurrer was thereafter filed on January 11th: “The defendant demurs to so much of the bill of complaint in the above cause as prays the Court That ³⁷⁰ the said Somerset Rapid Transit Company may he enjoined from running or operating its motor buses over and along the streets of Crisfield.’ “(1) Because the defendant is a public service corporation doing business under the control of the Pub-lie Service Commission of the State of Maryland, and with its leave and license for the year 1915, and according to the statute in such cases made and provided. “(2) Because it is a common carrier within the State of Maryland under the laws of the said State, and under the control of the Public Service Commission of Maryland, and is operating with its license for 1915, and in conformity with the statute. “(3) Because there are no sufficient allegations in the bill of complaint to sustain the injunction. “(4) Because this Honorable Court is without jurisdiction to enjoin the defendant.” The demurrer was set down for argument on January 23rd. The docket entries disclose that on January 15th an “answer, plea and motion to dissolve” were filed. The answer, although in the case at the time when the demurrer was considered and acted upon, was thereafter, on the 6th of February, withdrawn. The plea was as follows: “For a plea to so much of the bill of complaint as charges 'that if the said defendant continues to use the said motor buses as aforesaid, all of the streets of the said town, used by the said motor buses, will be rendered unsafe and unfit for public travel in spite of all the efforts that can be made to keep the said streets in repair,’ the respondent not only denies the said allegation, but says it is a public service corporation, organized under the laws of Maryland, and is a 'common carrier’ for hire, of passengers and traffic between points within