Stinson v. Ellicott City & Clarksville Co.

Boyd, O. J., delivered the opinion of the Court. This is an appeal from an order overruling a demurrer to a bill of complaint, filled by the ajipellee against the appellant. The bill alleges that the plaintiff under -its charter constructed a turnpike road leading from Ellicott City to Clarksville, in Howard County, “and that by virtue of a grant from the late John B."Clarke, who was then the owner of the property hereinafter referred to and which is now ¹¹³ owned by William H. Stinson as hereinafter referred to, yonr complainant was granted the right to go upon the property and build through and npon said property the pike herein-before referred to, and that they have exercised the said right and privilege for the past thirty years or more.” It then alleges that while the roadway was in peaceful possession of the complainant, and it was enjoying the privileges granted by its charter “and by the grant from the said John R. Clarke,” the defendant, who owned and resided upon the farm binding npon said turnpike, without the consent of the plaintiff, and against its protest, with his servants and employees entered upon the turnpike and dug a large number of holes in it, placed posts in said holes from four to five feet in height and built a fence commonly called a “post and rail fence,” and is about to buiild more fence of a like character upon the pike. It further charges that the fence will greatly lessen the width of the pike, will endanger lives and property of persons having occasion to use it, will prevent the cleaning of the drains and ditches in connection with the pike and will subject the complainant to great loss and injury.

It also charges that the fence L so constructed that the Citizens Telephone Company has been compelled to place its poles outside of the fence and in the roadway, which greatly ádds to the danger of all persons using the pike, hnt it does nPt state how that company acquired the right to so place its poles. The hill prays for a writ of injunction, enjoining and prohibiting the defendant from digging holes in and upon the pike, mid planting posts therein, from cohstructing the fence and commanding him to remove the fencing already constructed by him on the pike. There is also a prayer for general relief. A copy of the charter of the plaintiff' was filed with the hill, but no deed or other exhibit.

A motion to dismiss the appeal was made on the ground that the appellant had not paid the ten dollars and costs referred to in Section 154 of Article 16 of the Code. That section provides that the party whose demurrer is overruled or withdrawn, without leave of Court, “shall pay to the op ¹¹⁴ posite party the sum of ten dollars, and the costs thereof, and be in contempt until the said sum of money and costs are fully paid, unless the Court shall otherwise specially order.” The appellee relied on Gilbert v. Arnold, 30 Md. 29 , to sustain its motion. In that case the Court had announced its determination to overrule a demurrer which had been filed, 'and to grant an injunction prayed for, and had prepared an order to that effect which was not filed at the time “at the request of and in' courtesy to the solicitors for the defendants,” who desired time to examine into their right to withdraw the demurrer and file their answer, after the opinion had been announced and the order signed. They then, without leave of the Court, filed an order with the Clerk with'drawing the demurrer and filed their answer.

On the same' day the order of the court overruling the demurrer and granting the injunction was placed on file. This Court held that as the defendants were in contempt, for the non-payment of the fine and costs, they had no Tight to file their answer and the Court below was justified in acting upon the bill and exhibits without considering the answer, but as it appeared that the fine and costs were paid before the appeal was taken, the answer would be considered “in so far as to entitle the defendants to the right of appeal from the order granting the writ of injunction.” That had reference to the statute, now Section 27 of Article 5 of the Code, which required the answer of the party appealing from an order granting an injunction to be first filed. It is manifest that that decision does not sustain the motion to dismiss this appeal. The question involved was the right to file an answer, without leave of the Court, after withdrawing a demurrer without first obtaining leave to do so.

Such action of the defendants put them in contempt by the terms' of the statute, and they had no right to file their answer without obtaining leave of the Court—at least until they pitrged themselves of the contempt by paying the ten dollars and costs. No such question could have arisen in this case as the Court below