Callahan v. Clemens

• Decision Date: 02 March 1945
• Docket Number: 28.
• Citation: Callahan v. Clemens, 184 Md. 520, 41 A.2d 473 (Md. 1945)
• Parties: CALLAHAN v. CLEMENS et al.
• Court: Maryland Court of Appeals

41 A.2d 473

184 Md. 520

CALLAHAN v. CLEMENS et al.

No. 28.

Court of Appeals of Maryland

March 2, 1945

Appeal from Circuit Court, of Baltimore City; E. Paul Mason, Judge.

Suit by Martin J. Callahan against Lennox B. Clemens, individually and as trustee under the will of Augustus D. Clemens, and others, to require defendants to abate a nuisance. From an order sustaining demurrers of all defendants to second amended bill of complaint, without leave to amend, and dismissing the bill, the complainant appeals.

Affirmed.

Paul F. Due, of Baltimore (Due, Nickerson & Whiteford, of Baltimore, on the brief), for appellant.

Joseph J. Rehm, of Baltimore, for appellee Lennox B. Clemens.

Wirt A Duvall, Jr., of Baltimore, for appellees Joseph Meyerhoff et al.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN HENDERSON, and MARKELL, JJ.

HENDERSON, Judge.

This appeal is from an order of the Circuit Court of Baltimore City, sustaining demurrers of all the defendants to the complainant's second amended bill of complaint, without further leave to amend, and dismissing the bill.

The allegations of the second amended bill are substantially as follows:

Martin J. Callahan acquired the property 6013 Clear Spring Road, in Baltimore City, in fee simple, on September 30, 1938, by deed from the Home Owners Loan Corporation, which in turn had acquired the property, in some manner not disclosed by the Record, from W. Scott Jones and wife. The lot has a frontage to the west of 54 feet on Clear Spring Road, and a depth along the northern boundary of 220 feet. The front of the lot is occupied by a dwelling house, and the ground slopes to the south east. There is a stone retaining wall along the northern boundary, running from the rear of the house a distance of some 70 feet, which is 1 1/2 feet wide, and from 5 to 15 feet in height. This wall began to crumble and fall upon the complainant's property in 1939, and to spill earth thereon. The allegation is that this was due to negligent construction and design, and that the builders concentrated the surface water into pipes through the wall which discharge water on complainant's land.

The bill further alleges that the wall was erected under the following circumstances:

On November 9th, 1929, the appellant's predecessors in title, W. Scott Jones and wife, donveyed a lot 25 feet in width immediately adjoining the appellant's property to the north, to Augustus D. Clemens. The grantors 'reserved in themselves, their heirs and assigns, the use of a 12 foot alley to be laid out by the said Clemens along the southernmost line of said 25 foot lot.' Augustus D Clemens and Lennox B. Clemens, his brother, assembled several other properties to the north, and on November 30th, 1929, by deed recorded immediately following the deed from Jones and wife, conveyed to the Parkway Development Company all the property fronting on Northern Parkway and 'extending southerly to the north side of the 12 1/2 foot alley there laid out.' A row of two-story brick houses fronting on Northern Parkway, with access to the 12 1/2 foot alley in the rear, was subsequently erected on this tract by the corporation. The bill alleges that as part of the consideration for the purchase, the grantors agreed that the Parkway Development Company should be permitted to erect a retaining wall on the south side of the 12 1/2 foot alley, adjacent to complainant's property, in order to make the tract level by means of a fill. The ground to the north is somewhat higher than the complainant's lot, due to the slope of the land.

Augustus D. Clemens died some time after the foregoing conveyance, and his will was probated on January 31st, 1931. Under his will, he devised and bequeathed all of his real and personal property to Lennox B. Clemens, trustee for his children and others, and it is alleged that title to the 12 1/2 foot strip, subject to the easement of an alley in Jones and his assigns, passed to Lennox B. Clemens, trustee.

It is alleged that the wall in question was erected or caused to be erected by Joseph Meyerhoff, Isidore Goldberg and Jacob Meyerhoff, and by the Parkway Development Company shortly after the conveyance to it in 1929. It was not placed exactly on the dividing line, but encroached on complainant's property from .02 of a foot to .6 of a foot at the rear. The 12 1/2 foot alley was paved with concrete, but did not follow the property line. Taking a swing to the north, it left a space of earth, up to 12 1/2 feet in width adjoining the retaining wall.

The Parkway Development Company was dissolved by the State Tax Commission for nonpayment of taxes, on February 23rd, 1939. The defendants Joseph Meyerhoff, Isidore Goldberg and Jacob Meyerhoff were directors of the corporation at the time of its dissolution, and they are joined as directors on the theory that they are trustees and jointly liable to any creditor, having a claim against the corporation, to the extent of its assets in their hands. It is not alleged that there are any such assets.

None of the conveyances make any reference to the retaining wall; it is alleged that neither the complainant nor his predecessors in title gave permission to anyone as to the erection of the wall. The bill alleges that its erection was not beneficial to the complainant, but was erected for the sole benefit of the Development Company. It also alleges continuous efforts by the complainant to compel the defendants to correct the situation from 1939, when the wall began to crumble, until the bill was filed in June, 1944.

The prayers of the bill are (1) that the defendants be required to abate the nuisance by erecting a wall of sufficient size and strength to retain the land; (2) that the defendants be required to remove from the complainant's property that part of the wall originally erected thereon as well as that part which has since collapsed and fallen on his property; (3) that the defendants be enjoined from concentrating and casting water on his property; and (4) other and further relief.

Separate demurrers were filed by the Meyerhoffs and Goldberg, individually and as directors of the Parkway Development Company, and by Lennox B. Clemens, trustee, and Lennox B. Clemens, individually, on numerous grounds, including limitations and laches.

The theory of the bill seems to be that the complainant is entitled to relief in equity against continuous trespasses, encroachments and nuisances created or continued by adjoining landowners and others acting with their consent or under their direction. The general principle of equity jurisdiction is well established. In Levenson & Zenitz v. Bonaparte, 131 Md. 635, 636, 102 A. 998, 999, this court said: 'It is a familiar and well-established rule of law, both in this and other states, that while for a single act of treapss upon real property equity is without jurisdiction, where the effect of that trespass will result in causing irreparable mischief or ruin, or reach to the very substance and value of the estate, operating to the destruction of it in the character in which it is enjoyed, equity will intervene. White v. Flannigain, 1 Md. 525, 54 Am.Dec. 668; Baltimore Belt R. R. v. Lee, 75 Md. 596, 23 A. 901; Long v. Ragan, 94 Md. 462, 51 A. 181.' See also Neubauer v. Overlea Realty Co., 142 Md. 87, 120 A. 69, and Harms v. Kuchta, 141 Md. 610, 119 A. 454.

In the case at bar, however, there are special difficulties in the application of the general principle.

We shall first consider the case made out by the bill against Lennox B. Clemens, individually. This defendant never had title to any part of the 25 foot lot adjoining the complainant's lot to the north. He joined in the deed to the Parkway Development Company, because of his joint interest in two of the five parcels making up the assembled tract. According to the bill, he agreed that this corporation should be permitted to erect a retaining wall along the southern boundary of the alley, but it is difficult to see upon what theory he could be held liable for the negligent design and construction of the wall by a third party, upon land in which he had no interest whatever. Compare Caretti v. Building Co., 150 Md. 198, 208, 132 A. 619, 46 A.L.R. 1. We think the demurrer as to this defendant was properly sustained.

As to the claim against Clemens, trustee, it seems clear that neither this defendant, nor his brother in his lifetime would have been liable for the negligent construction of the wall by a third party. Permission to erect the wall would not in itself constitute a tortious act. The complaint is not that the...