Howard v. Western Maryland Ry. Co.

• Decision Date: 02 February 1921
• Docket Number: 9.
• Citation: Howard v. Western Maryland Ry. Co., 138 Md. 46, 113 A. 574 (Md. 1921)
• Parties: HOWARD et al. v. WESTERN MARYLAND RY. CO. et al.
• Court: Maryland Court of Appeals

113 A. 574

138 Md. 46

HOWARD et al. v. WESTERN MARYLAND RY. CO. et al.

No. 9.

Court of Appeals of Maryland

February 2, 1921

Appeal from Circuit Court of Baltimore City; James M. Ambler, Judge.

"To be officially reported."

Suit by McHenry Howard and others against the Western Maryland Railway Company and others.From a decree dismissing the bill of complaint, plaintiffs appeal.Affirmed.

Frank E. Welsh, Jr., and Charles Morris Howard, both of Baltimore (Thomas Hughes, of Baltimore, on the brief), for appellants.

George P. Bagby and George R. Gaither, both of Baltimore, for appellees.

URNER J.

By permission of the municipal authorities the Western Maryland Railway Company occupies with its tracks the bed of Buren street south of Terminal street in the city of Baltimore.To the east of Buren street is Liberty alley, which the city has allowed the Railway Company to wholly appropriate for purposes connected with the use of its roundhouse and turntable, located on the adjacent ground, of which it is the owner.The bill in this case was filed by persons claiming to own the reversion in the street and alley just mentioned, and the object of the suit is to procure a mandatory injunction compelling the railway company to remove therefrom all of its tracks and structures except its two main tracks on Buren street, to the maintenance of which, as against the plaintiffs, the company is conceded to have a prescriptive right.The tracks on Buren street of which the plaintiffs complain diverge from the main tracks and extend over the abutting ground of the railway company into its passenger and freight terminals.For the origin of their title the plaintiffs refer to a deed executed in 1804, which conveyed to the persons under whom they claim a tract of land through which the street and alley referred to were located.The grantees in that deed were John Eager Howard, Josias Pennington, and James Ogleby, who partitioned among themselves the abutting lots by conveyances which are said to have failed to divest them of their ownership of the fee in the street and alley as tenants in common.It is upon the theory of their succession to the undivided interests of those cotenants that the plaintiffs in the pending suit assert the right in controversy.

Upon the evidence in the case it was concluded by the court below that the plaintiffs have no title to the bed of Liberty alley or to a part of the bed of Buren street, and that as to the remainder of the street area in question their reversionary interest may have become barred by the defendant's adverse possession.The question of title thus involved was held to be one which a court of equity should not undertake to determine.The court offered, however, to retain the bill for a reasonable time in order to afford the plaintiffs an opportunity to have their claim of title adjudicated in an action at law.After a formal refusal by the plaintiffs to resort to a court of law for that purpose, the decree appealed from was passed, dismissing the bill of complaint.

The extraordinary process of injunction is never granted for the decisive and permanent enforcement of a right which is involved in reasonable doubt.It has been definitely and repeatedly held that when an injunction is sought as a primary, and not as a mere auxiliary, remedy, and the title relied upon is contested upon grounds which do not appear to be unsubstantial, the court will not decree such relief until the title has been established in a forum more appropriate to the determination of such an issue.Some expressions in former decisions on this subject may be quoted to show the emphasis which has been laid upon the principle just stated.In the injunction case of Whalen v. Delashmutt,59 Md. 252, it was said:

"The determination of this contention depends upon the true construction of the title deeds

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