Huebschmann v. Grand Co.

• Decision Date: 06 April 1934
• Docket Number: 50.
• Citation: Huebschmann v. Grand Co., 166 Md. 615, 172 A. 227 (Md. 1934)
• Parties: HUEBSCHMANN ET UX. v. GRAND CO.
• Court: Maryland Court of Appeals

172 A. 227

166 Md. 615

HUEBSCHMANN ET UX. v. GRAND CO.

No. 50.

Court of Appeals of Maryland

April 6, 1934

Appeal from Circuit Court of Baltimore City; Charles F. Stein Judge.

Suit by John Huebschmann and wife against the Grand Company.From a decree dismissing the bill of complaint, plaintiffs appeal.

Reversed and remanded.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Wm Purnell Hall, of Baltimore (Elmer H. Miller, of Baltimore, on the brief), for appellants.

J. Calvin Carney, of Baltimore, for appellee.

OFFUTT Judge.

Eastern avenue in Baltimore City runs east and west, intersecting Dean street running north and south.West of Dean street and parallel to it is South Conkling street.John and Annie Huebschmann, the appellants, own three adjacent lots lying on the south side of Eastern avenue numbered 3701, 3703 and 3705, of which No. 3701, lying at the intersection of Eastern avenue and Dean street, binds on the east side of that street for about one hundred and thirty-five feet to a point where it intersects Yankee street running east from Dean street.

The Grand Company, the appellee, owns adjacent lots numbered 509 to 517 South Conkling street, which extend easterly to the west side of Dean street, and opposite the west side of the Huebschmann lot No. 3701 Eastern avenue.

Dean street between Eastern avenue and Yankee street, indifferently referred to as a street and as an alley, is used as a way of ingress and egress to and from the rear of properties fronting on South Conkling street, the west side of No. 3701 Eastern avenue, and other properties abutting thereon, and for the accommodation and convenience of the general public.It is unpaved but for 70 feet south of Eastern avenue there is on either side of it a brick sidewalk.No. 3701 Eastern avenue is improved by a store and dwelling now in a dilapidated run down condition, and in the rear by three corrugated iron sheds used and rented for the storage of automobiles.When the Grand Company acquired the South Conkling street property it was improved by an "old mortar built house and wooden structure," which by certain alterations, it converted into a motion picture theater.In connection with that improvement in June, 1929, it applied to the board of estimates of Baltimore City for permission to extend its building into the bed of Dean street by erecting thereon adjacent to the eastern line of its property binding on that street a brick structure twenty-four feet wide, twenty-two feet high, and extending approximately five feet into the bed of Dean street.Notice of the application was received by Huebschmann, who protested against the improvement first to the attorney in whose name the notice was sent, then at the building engineer's office, where he was told that there was "nothing here to protest against."Notwithstanding his protest the board of estimates approved the application, on July 1, 1929, a permit for the construction of the extension was issued by the buildings engineer, and it was erected.

On March 14, 1931, John and Annie Huebschmann filed the bill of complaint in this case against the Grand Company to compel it to remove the encroachment, on the apparent theory that it was not only an unlawful nuisance, but that it inflicted a special injury on them in so narrowing Dean street as to deprive them of reasonable and convenient access to their property abutting on that street opposite the extension.To that billthe defendant filed a combined answer and demurrer.In its answer it averred that the extension was erected pursuant to valid authority, denied that it interfered with the reasonable use of plaintiffs' property, and invoked the doctrine of comparative injury and benefit.

The demurrer was not considered, but upon those issues the case was heard, evidence taken, and on September 14, 1933, the bill of complaint was dismissed.This appeal is from that decree.

In addition to what has been stated, the evidence sufficiently established that while it would cost perhaps as much as $20,000 to secure the benefits and advantages resulting to appellee from the construction of the extension, it cost only $1,500 to erect it, and it can be taken down and the original wall bricked up at an expense of $500.

It also appeared that the extension did substantially interfere with the reasonably convenient use of the plaintiffs' garages and made them less useful for the storage of automobiles and more difficult to rent.

In the course of the examination of Henry L. Maas, the builder who constructed the extension, as reflecting upon the plaintiffs' acquiescence in the improvement he gave this testimony:

"Q.While you were putting it up did you see Mr. Huebschmann here?A.I think he seen me several times down there.He seen me while we were down there doing the other work in the Grand Theatre.

Q.Did you use part of his yard?A.Yes, we had a small concrete mixer in his yard.I asked him for permission to put it in there.

Q.After you got through did he complain about his door being broken and you fixed it?A.Yes, we fixed all his gates up.

Q.How long were you around there putting this projection up?A.This projection--just the projection alone?

Q.Yes.A.And cutting the wall to it?

Q.Yes.A.Took us about two weeks.

Q.Did you see Mr. Huebschmann at that time?Did you see him during that time?A.I cannot tell you whether I seen him on each particular time but I think I did."

It also was shown that while Huebschmann attempted to protest to the building engineer, he made no protest to the board of estimates.

The real line of cleavage between the contentions of the respective parties to the appeal is whether the right to construct the extension in the bed of a public way was a franchise governed by the provisions of sections numbered 7, 8, and 37 of the Baltimore City Charter(Code Pub. Loc. Laws 1930, art. 4), or a minor privilege within the provisions of section 37 of that charter.Since both sides concede their validity, it will for that reason be assumed that these several statutory provisions are valid constitutional enactments, and that we are concerned only with their construction.

So far as this case is concerned the important distinction between a "minor privilege" and a "franchise" is that a "minor privilege" may be granted by the board of estimates, while a "franchise" must be granted by an ordinance of the mayor and city council of Baltimore.

The learned and careful chancellor who decided the case below was of the opinion that it was not material to decide that question because "the evidence shows that saleable and rental value of the frame sheds is negligible; that to remove the above named extension and make the changes and repairs then necessary to allow the defendant to use its building as a Moving Picture Theatre, not only would cost about $20,000; but would seriously impair its value as such and that any benefit resulting to the plaintiffs from such removal would be negligible."We are unable to accept that view of the law.If the right to construct the extension in the bed of a public highway was a franchise, the board of estimates was powerless to grant it, and the obstruction was erected without authority of any kind and constituted a nuisance.And the fact that the appellee which created the nuisance in the first place will gain more by its continuance than the appellants will by its abatement is no reason why it should be continued if it substantially interferes with the appellants in the reasonable use of their property; for the right of the citizen to possess and enjoy property depends, not upon its value as compared with other property, but upon constitutional guaranties.

There are cases in which the principle of balancing conveniences and inconveniences is properly recognized, but they are cases in which some element of estoppel enters and where the nuisance complained of is private in its nature, or where the question is affected by a public interest.In those cases where the inconvenience or loss resulting to the complainant from the continuance of the nuisance is slight as compared with the inconvenience to the public or the loss to the defendant resulting from its abatement, equity will refuse relief.But we know of no respectable authority for the principle that one may for his own private gain appropriate his neighbor's property to improve his own because his neighbor's loss will be less than his gain, 20 R. C. L. 480;46 C.J. 775;Sullivan v. Jones & Laughlin Steel Co.,208 Pa. 540, 57 A. 1065, 66 L. R. A. 712;Town of Bristol v. Palmer,83 Vt. 54, 74 A. 332, 31 L. R. A. (N. S.) 882;L. R. A. 1916C, 1269;Brede v. Minnesota Crushed Stone Co.,143 Minn. 374, 173 N.W. 805, 6 A. L. R. 1096.For as was said in Sullivan v. Jones,208 Pa. 540, 57 A. 1065, 1071, 66 L. R. A. 712: "There can be no balancing of conveniences when such balancing involves the preservation of an established right, though possessed by a peasant only to a cottage as his home, and which will be extinguished if relief is not granted against one who would destroy it in artificially using his own land.Though it is said a chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court and jury, and if, in conscience, the former should appear, he will refuse to enjoin (Richards' Appeal [57 Pa. 105, 98 Am. Dec. 202], supra); that 'it often becomes a grave question whether so great an injury would not be done to the community by enjoining the business, that the complaining party should be left to his remedy at law'(Dilworth's Appeal [, supra); and similar expressions are to be...