Davis v. Baltimore & O. R. Co.

• Decision Date: 07 December 1905
• Citation: 62 A. 572,102 Md. 371
• Parties: DAVIS v. BALTIMORE & O.R. CO. et al.
• Court: Maryland Court of Appeals

62 A. 572

102 Md. 371

DAVIS v. BALTIMORE & O.R. CO. et al.

Court of Appeals of Maryland

December 7, 1905

Appeal from Circuit Court, Prince George's County, in Equity Geo. C. Merrick, Judge.

Action by Nannie E. Davis against the Baltimore & Ohio Railroad Company and others. From a decree dissolving an injunction and dismissing the bill, plaintiff appeals. Affirmed.

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

Clayton E. Emig, for appellant.

Robert W. Wells and Marion Duckett, for appellees. Jas. A.C. Bond for the Baltimore & Ohio Railroad Company.

JONES J.

This is an appeal from a decree of the circuit court for Prince George's county dissolving an injunction which had been granted in the cause and dismissing the bill of complaint upon which the suit had been instituted. The bill alleges that the plaintiff is the owner of a tract of land at or near Contee Station, on the main line of the Baltimore & Ohio Railroad Company, upon which she has expended more than the sum of $20,000 "for improvements upon the dwelling erected on said premises, and was about to erect yet larger improvements thereon, all of which enures to the benefit of said county and the taxes collectible therefrom, *** that she is the owner of valuable horses which she uses daily on said premises and on the county road bordering on said premises, and that she has no exit to drive from said premises other than by said county road; that the defendants [appellants here] Charles Hillers and Albert Taylor are the reputed owners of a tract of land adjoining the said premises along the center of the said county road, running northerly from the intersection of said railroad." Then, after alleging that the plaintiff "is informed and believes" that the Baltimore & Ohio Railroad Company "is about to construct, for the use and benefit of said Charles Hillers and Albert Taylor, a railroad track or siding intersecting with the Baltimore & Ohio Railroad track extending northerly immediately along the county road and along the premises" of the plaintiff (appellant here) "for the purpose of operating steam cars" thereon, the bill charges "that the construction, use, and operation of said railroad track or siding will greatly depreciate the value of her property as a resident, by reason of the noise and danger incident to the operation of said steam cars and locomotives passing immediately in front of her residence"; that the use aforesaid will imperil the life of "the plaintiff" and other members of her family while lawfully engaged in driving upon said county road; that the smoke, noise, and dust arising from the use of locomotives on said railroad in transporting sand and other materials from and to its terminus will constitute a nuisance to "the plaintiff" individually, as well as to the public using said county road, and inflict an irreparable injury; that the construction, use, and operation of said siding and said steam cars constitute a public, as well as a private, nuisance in frightening horses belonging to users of said county road; that the said siding has been graded by the defendants Hillers and Taylor "under a contract with the Baltimore & Ohio Railroad, which" agrees to lay the ties and tracks upon said roadbed; that "all of said grading is now ready" for the laying of the tracks upon said roadbed; "that the use and operation of said steam cars on said siding will greatly endanger the use of said county road by those who reside in the immediate vicinity and the public at large; that it will tend to inflict injury by continuously frightening horses and decrease the travel of said county road and greatly depreciate the value" of the plaintiff's "property and premises." Upon these allegations the bill prayed that the defendants therein named be enjoined from constructing the railroad or siding of which complaint was made, and from laying tracks on the roadbed graded as set out in the bill, "adjoining the county road or elsewhere in the near vicinity of said county road or the property" of the plaintiff (appellant), and "from operating or in any manner constructing said railroad or siding along said county road or the premises" of the plaintiff. A preliminary injunction was granted upon the filing of the bill. The defendants filed their answers. The Baltimore & Ohio Railroad Company its separate answer, and Charles Hillers and Albert Taylor their joint answer (in which the Contee Sand & Gravel Company united and asked to be allowed to intervene in the suit), and accompanied their answers with a motion to dissolve the injunction. A hearing of this motion upon the bill, answers, and testimony resulted in the decree dissolving the injunction and dismissing the bill, from which this appeal was taken.

The appellant contends that the injunction should have been continued; and further insists that, whether the injunction was continued or not, the bill should not have been dismissed at that stage of the proceedings. In this case no other relief was sought by the bill than the injunction to restrain the defendants from the acts complained of; and no other relief, under the general prayer for relief, could have been granted consistently with that specifically prayed for. It is now well settled in our practice that "where the injunction asked for is not ancillary, but the primary and principal relief prayed for, there is no reason for retaining the bill, if upon hearing, upon bill and answer, or bill answer, and depositions, it appears to the court, there is no ground for issuing or granting the injunction upon the merits." Kelly, Piet & Co. v. Baltimore, 53 Md. 134. Upon the case presented to the court below we are of opinion that the injunction which had been granted therein ought to have been dissolved, and that it was proper to dismiss the bill. That court in its opinion, filed with the decree, said the injunction had been improvidently granted, and with this we agree. The allegations of the bill were altogether too general and indefinite to authorize the granting of the injunction. The suit of the appellant was designed to restrain what was charged in the bill to be a threatened nuisance. In Adams v. Michael, 38 Md. 123, 17 Am.Rep. 516, this court said, through Judge Alvey: "To justify an injunction to restrain an existing or threatened nuisance to a dwelling house, the injury must be shown to be of such a character as to diminish materially the value of the property as a dwelling, and seriously interfere with the ordinary comfort and enjoyment of it. Unless such a case is presented, a court of chancery does not interfere. It must appear to be a case of real injury, and where a court of law would award substantial damages." The principle applied in the case referred to is clearly applicable here, where...