Dundalk Holding Co. v. Easter

• Citation: 215 Md. 549,137 A.2d 667
• Decision Date: 23 January 1958
• Docket Number: No. 123,123
• Parties: DUNDALK HOLDING COMPANY and Equitable Trust Company, v. Andrew J. EASTER.
• Court: Court of Appeals of Maryland

Page 549

215 Md. 549

137 A.2d 667

DUNDALK HOLDING COMPANY and Equitable Trust Company, v. Andrew J. EASTER.

No. 123.

Court of Appeals of Maryland.

Jan. 23, 1958.

William Saxon and Ellis Peregoff, Baltimore, for appellants.

George Washington Williams, Baltimore, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The Andrew Easter-Dundalk Holding Company appellate saga reaches the fourth chapter in this opinion.

In Dundalk Holding Company v. Easter, 195 Md. 488, 73 A.2d 877, an action of ejectment, the jury found that one wall of Dundalk's theater building rested in part on a strip of Easter's land and this Court affirmed a judgment for Easter that described the encroached upon strip as being 132 feet long and from .36 feet to .95 feet wide.

In Easter v. Dundalk Holding Company, 199 Md. 303, 86 A.2d 404, we refused the theater company's prayer that the enforcement of the ejectment order be enjoined.

In a second appeal under the same name--Easter v. Dundalk Holding Company, 199 Md. 324, 86 A.2d 477--a judgment below for Dundalk in Easter's suit for damages for loss of lateral support was affirmed.

In the present appeal, Dundalk asks us to reverse an order of the Superior Court, entered in the ejectment case in June, 1957, that 'The Dundalk Holding Company do forthwith in accordance with the judgment of this Court remove said wall within six months of the date of the service hereof.' Although a writ of possession had been delivered to the sheriff of Baltimore City in 1950, he had not executed it, and the matter rested until 1956 when, at the instance of Easter, the sheriff filed an amended return setting forth that he could not execute the writ as commanded because he could not enter on the land which is 'occupied by a long side wall of the Paramount Theatre'. Thereupon, Easter filed a petition in the ejectment case, reciting these facts and praying that Dundalk be required to remove the wall in accordance with the judgment of the court and that he might have such further relief as the exignencies of his case required. Dundalk's answer denied Easter's right to the relief prayed for and set forth a defense on equitable grounds, in which it was alleged that in order to put Easter in possession, it would be necessary to tear down and remove the base or superstructure of the brick wall constituting part of the theater building; that if this is done, the building would be materially damaged; that it would take six months to accomplish the delivery of possession, that it would occasion the loss of $5,000 rental income and that it would cost $100,000 to tear down and reconstruct the wall. It is further alleged that after the completion of the theater building, Easter still had an unimproved frontage on Belair Road of over 300 feet, and that the value of his lot has increased by reason of the erection of the theater from $42 a front foot to $100 or $150 a front foot. The Superior Court decided that Easter was entitled to the relief prayed and ordered Dundalk to remove the wall.

We neither know, nor have we been referred to, any authority or precedent that would enable a court of law to issue an injunction directing execution of its judgment, unless such authority has been given by rule (such as Maryland Rule 628d) or statute (such as the provisions of Ch. 456, Laws of 1888, now Code, 1951, Art. 75, Secs. 135 to 147). 2 Poe, Pleading and Practice (Tiff.Ed.), Sec. 623, says that possession of land is completely and effectually restored either by the writ of habere facias possessionem at law or the decree of a court of equity. In Sec. 334E at 314, Mr. Poe sets forth what are now Secs. 135-147 of Art. 75, and says: 'There is no reason why these liberal statutory provisions should not be freely invoked and applied * * * as an easy mode of avoiding the necessity of separate and distinct proceedings, either by way of mandamus or injunction, and no doubt is entertained that constant advantage will be taken of this valuable statutory amendment of our law and practice.' (Emphasis supplied.) See Superior Construction Company v. Elmo, 204 Md. 1, 25-26, 102 A.2d 739, 104 A.2d 581, 48 A.L.R.2d 932. Although Secs. 135 to 144 do not, in terms, apply to actions in ejectment, Sec. 145 provides that any party to an action at law, whether before or after judgment, may apply '* * * for a writ of injunction to restrain the other party in such action from the repetition or continuance of the wrongful act * * * or the committal or injury of a like kind * * * relating to the same property or right;' this section authorizes the court of law to give judgment 'that such writ may be granted or denied * * * upon such terms * * * as to such court may seem reasonable and just.' The appellant argues that the order of the Superior Court appealed from could only be supported by the statute we have quoted, and we agree. Appellant continues its argument by urging that the same tests and standards are applicable to a mandatory injunction issued by a court of law as to such an injunction issued by a court of equity, and that an equity court will not require the removal of an encroachment which was made innocently where the damage to the offender would be grossly disproportionate to the benefit to be obtained by the owner whose land is invaded.

Injunction is historically and fundamentally a process of equity. 'The remedy of injunction was undoubtedly borrowed by the chancellors from the 'interdicts' of the Roman law.' 4 Pomeroy, Equity Jurisprudence, Sec. 1337 at 933. 'Injunctions are granted only by courts of equity and only in cases of equitable cognizance according to the established principles of equity jurisdiction * * *.' 1 High, Injunctions, 4th Ed., Sec. 2 at 6. We think that the Legislature, in conferring upon the courts of law the power to issue injunctions, intended that the court should act in the issuance of the writ as would a court of equity. Clearly, the object was to liberalize the rigid procedures of the law and to avoid a multiplicity of actions. Finglass v. George Franke Sons Co., 172 Md. 135, 137, 190 A. 752. Section 145 of Art. 75 clearly authorizes the enjoining of continuing trespasses such as the encroachment of a wall. Equity in proper case historically enjoined trespasses of that nature. See Herr v. Bierbower, 3 Md.Ch. 456; Schaidt v. Blaul, 66 Md. 141, 6 A. 669. It did so either in exercise of its original jurisdiction or in aid of a title already declared by a court of law. For example, in Hirschberg v. Flusser, 87 N.J.Eq. 588, 101 A. 191, where there was an encroachment and the title had been settled at law, the chancellor held that a mandatory injunction could issue to compel the defendant to remove the offending structure 'if equitable considerations do not prevent'. See, too, Cutrona v. Columbus' Theatre, 107 N.J.Eq. 281, 151 A. 467, where the sheriff could not deliver possession under judgment at law and equity issued a mandatory injunction. We read the statute as conferring upon the law court the right to do in the action before it what a court of equity could do in a separate action. Pomeroy, in the work cited, says in Sec. 1337 at 934-935 that injunctions 'all depend upon the same general principles, doctrines, and rules which determine and regulate' equity jurisdiction, and adds: 'In the states adopting the reformed procedure, the codes contain general provisions describing the cases in which an injunction may be issued, but these provisions do not materially alter the settled equitable jurisdiction * * *.' The decisions in Code States, such as California and New York, indicate that traditional equity principles control in the issuance of injunctions. Morgan v. Veach, 2nd Dist. 59 Cal.App.2d 682, 139 P.2d 976; Croker v....