City of Frostburg v. Wineland

• Citation: 56 A. 811,98 Md. 239
• Parties: MAYOR, ETC., OF CITY OF FROSTBURG et al. v. WINELAND.
• Decision Date: 12 January 1904
• Court: Court of Appeals of Maryland

56 A. 811

98 Md. 239

MAYOR, ETC., OF CITY OF FROSTBURG et al. v. WINELAND.

Court of Appeals of Maryland

January 12, 1904

Appeal from Circuit Court, Allegany County; Ferdinand Williams Judge.

Bill for an injunction by Marx Wineland against the mayor and council of the city of Frostburg and others. From a decree for plaintiffs, defendants appeal. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE SCHMUCKER, and JONES, JJ.

Charles G. Watson, for appellants.

D.J Blackiston and Benjamin A. Richmond, for appellee.

BRISCOE J.

On the 5th day of November, 1902, the appellee filed a bill in the circuit court for Allegany county, in equity, against the appellants, for an injunction to restrain the mayor and councilmen of Frostburg from cutting down and removing two shade trees at the curb between the sidewalk and the street and in front of the appellee's property, and within the corporate limits. The bill, in substance, charges that the destruction of the trees is wholly useless and without authority, and that it is not necessary to the proper grading, paving, curbing, or sewering of the street. It is further alleged that the destruction of the trees, on account of their intrinsic value, their beauty and comfort as shade trees, and their enhancement of the value of said property, will be an irreparable loss, which could not be compensated for in any way by a suit for damages or by any proceeding at law; that said street, although a main business street of the town, is still not entirely devoted to business houses, but is also a most important and fashionable residence street of the town, and thickly occupied by persons living upon the same, from end to end; that said shade trees, so far from being a nuisance, are an ornament and benefit to said street and the people thereon, and their destruction would be a great harm to the citizens of the town, apart from the special harm that would be done to the plaintiff. The bill admits the right of the mayor and council to improve the streets, and to repave or to change the width of the sidewalks or the curbing, but charges that the plan adopted in this case is a wholly unnecessary, unreasonable, unjust, and arbitrary plan, and will result in the useless destruction of the plaintiff's property. A preliminary injunction was issued on the bill, with leave to dissolve after five days' notice to the plaintiff. On the 11th of November, 1902, the defendants filed an answer to the bill, denying that the trees are not an obstruction to the street, but charging that they are a great nuisance, and a serious obstruction to the public use of the street of the town. It admits the passing of an ordinance declaring the two trees to be a nuisance and an obstruction to the paving and curbing of the street, and instructing the street commissioners to remove them, but states the order was passed for the good of the public, and with a view to a proper discharge of their duty as the officers of the town, in having all serious obstructions that are likely to cause damage removed from the street. The answer further denies that the corporation has acted in an unreasonable and arbitrary manner, but insists that they have complete control over the streets and alleys, by and under their charter, with full power to remove all nuisances and obstructions, and to regrade and improve the streets of the town in any manner that, in their judgment, will be to the best interest of the town, and that their acts as a municipal corporation are not reviewable in this court. The case was heard on bill, answer, and proof, and from a decree passed on the 6th day of August, 1903, continuing and making perpetual the preliminary injunction, with certain modifications, this appeal has been taken.

The law has been settled in this state since the case of Alberger v. Mayor, etc., of Balto., 64 Md. 7, 20 A. 988, that where the Legislature confers the power on a municipality, in general terms, to provide by ordinance for paving or repaving the streets, the discretion exercised by the city council in regard to the propriety or necessity of the improvement provided by the ordinance cannot be controlled by the courts except where the power is exceeded, or fraud is charged and shown to exist, or where there has been a manifest invasion of private rights. Judge Alvey, in delivering the opinion of the court, cites 1 Dill. on Municipal Corporations (3d Ed.) § 94, where it is said that, where the law or charter confers upon the city council or local legislature power to determine upon the expediency or necessity of measures relating to the local government, their judgment upon matters thus committed to them, while acting within the scope of their authority, cannot be controlled by the courts. In such case the...