Gallagher v. Flury

• Decision Date: 22 March 1904
• Citation: 57 A. 672,99 Md. 181
• Parties: GALLAGHER v. FLURY et al.
• Court: Maryland Court of Appeals

57 A. 672

99 Md. 181

GALLAGHER v. FLURY et al.

Court of Appeals of Maryland

March 22, 1904

Appeal from Circuit Court, Allegany County; Ferdinand Williams and Wm. J. Witzenbacher, Judges.

Bill for injunction by Dominick Gallagher against Theresa Flury and Clarence V. Derr. From a decree dissolving the preliminary injunction, and dismissing the bill, plaintiff appeals. Affirmed.

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

David J. Lewis, for appellant.

R.T Semmes, for appellees.

PEARCE J.

The plaintiff below filed a bill in equity in the circuit court for Allegany county to restrain the defendants from erecting a stable upon the property of one of the defendants in their joint possession and occupancy. The bill alleges that the plaintiff owns his residence on Glenn street, in the city of Cumberland, fronting 25 feet on that street, with a depth of 100 feet on Lincoln alley (which is 12 feet wide), and running back to Shinbone alley, which opens on Lincoln alley and runs parallel to Glenn street; that Mrs. Flury owns a lot fronting on Decatur street at right angles to Glenn street, and running back to Lincoln alley, on which it binds 41.9 feet, opposite the rear part of plaintiff's lot, and that she and her codefendant, Derr, without a permit therefor as required by an ordinance of the city, have commenced the erection of a stable fronting 28 feet on Lincoln alley, bringing the end of the building 12 feet 8 inches from the nearest corner of plaintiff's kitchen in the rear of his dwelling. The bill further alleges that the erection of this stable will not only be a nuisance to the plaintiff, but a common nuisance to the neighborhood, by reason of the bad odors which will arise from it, and the danger from fire on account of keeping hay, straw, and other inflammable material therein, and that the erection of this stable will do irreparable injury to the plaintiff's property, and to his comfort in his home. The prayer of the bill is for an injunction restraining the defendants from "placing any building material upon the portion of the lot mentioned, or building upon the same in any manner whatsoever," and a preliminary injunction was issued conforming to the prayer of the bill. The defendants answered, admitting the ownership and occupancy of the two lots as charged, and that they were about to erect a building on that part of Mrs. Flury's lot which abuts on Lincoln alley; that this alley is 12 feet wide, and that plaintiff's kitchen abuts thereon nearly opposite the proposed building; but they denied that it was about to be erected without a permit from the city authorities, and filed with their answer a paper purporting to be a formal application to the mayor and city council, in accordance with their requirements, for such permit, and also a paper purporting to be a permit for the erection of said proposed building, granted to said Derr by the city engineer, who was duly authorized to grant the same. They alleged that the building was to be of wood, one and a half stories high, the walls and roof to be covered with corrugated iron as a safeguard against fire, as required by a city ordinance, and was to contain a coal house, feed room, stable, and carriage house, with the corner of the stable at least l8 feet from the nearest part of the plaintiff's dwelling; that application had been made to the proper officer for a permit to connect the stable with a twenty-four inch city sewer in the bed of Lincoln alley, and that every reasonable precaution had been taken to prevent the building from annoying any one. They further alleged that, after the permit to build was granted, the city council, without notice to the defendants, undertook by a resolution of the body to cancel the permit, which resolution was vetoed by the mayor on the ground that it was beyond the power of the body, and that the resolution was subsequently passed over said veto; but they denied that the permit could be thus legally canceled or revoked, and alleged that it remained a valid and effective permit. They denied that the proposed building was likely to become a nuisance by reason of foul odors, or producing danger from fire, or any other cause, or that it will cause irreparable injury to the plaintiff or his property. After motion to dissolve, testimony was taken for the plaintiff, and it was agreed that the answer should have the same effect as if the defendants had testified on the stand to the facts alleged therein. Upon hearing, the injunction was dissolved and the bill dismissed, and the appeal is taken from that order.

It clearly appears from the charter of the city that the city council was authorized by the Legislature to enact the ordinance making it unlawful to erect "any house stable, outhouse, or other building" without first making application to the city engineer for permission to erect such building, and without obtaining from him a permit therefor, in accordance with the provisions and specifications of the City Code relating thereto, and there can be no question as to the validity of the ordinance as respects its form and the uniformity of its application to all citizens or property holders in Cumberland, but it satisfactorily appears from the evidence also that such an application was made, and such a permit was granted. The application for a permit was made upon a printed blank authorized by the city engineer, and it gave the dimensions and material of the proposed building, and described it as one "to be used as a carriage house, stable, and coal house." The City Code (section 1, c. 2), expressly names stables among the building not to be erected without a permit, and therefore allowed under a permit. Section 4 of the same chapter forbids the erection of any frame building within certain limits, unless the wall and roof were covered with iron;and section 12 of chapter 2 forbids the erection of any stable upon any lot fronting on any street in the city within 30 feet of the line of the street, while section 5 of chapter 12 provides penalties for any one permitting any cow or horse stable on their premises to become offensive to or to annoy any neighbor or other person by reason of want of attention to the cleanliness thereof, and authorized the board of health to...