Main v. City of Hagerstown
| Decision Date | 27 February 1918 |
| Docket Number | 5. |
| Parties | MAIN v. MAYOR, ETC., OF HAGERSTOWN et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Washington County, in Equity; M. L Keedy, Judge.
Suit by Martin L. Main against the Mayor and Council of Hagerstown and another, to enjoin interference with an easement. From a decree for defendants, complainant appeals. Affirmed and bill dismissed.
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Levin Stonebraker and J. A. Mason, both of Hagerstown, for appellant.
Alex. R. Hagner, of Hagerstown, for appellees.
Acting under the authority granted by Act 1813, c. 121, the moderator and commissioners of Hagerstown acquired a lot in that town upon which to erect a market house. It developed that the land purchased was more than was required for the purposes of the market, and by Act 1821-22, c. 66 legislative authority was given to the officials of Hagerstown to sell a portion of the ground so acquired. Thus authorized, they sold to George Brumbaugh the eastern half of the lot. In the deed conveying the property to Mr. Brumbaugh there was included a covenant reading as follows:
It will be observed that the effect of this covenant was to grant to Brumbaugh, his heirs and assigns, an easement of light on the west in favor of the building which might be erected by him. It did not include an easement of air or a right of way.
Upon the remaining portion of the lot the Hagerstown officials erected a market house, and left open a space of 10 feet between the lot conveyed to Brumbaugh and the east side of the market house. The easement granted by the deed mentioned has been a source of litigation, the latest phase of which is the present bill of complaint.
In 1875 a proceeding was had in the circuit court for Washington county by which the assignee of Mr. Brumbaugh sought to establish an easement to a right of way over the 10-foot space, but failed to do so, and the bill then filed by Mr. Kauffman was dismissed by Judge Alvey sitting in that court, and no appeal was taken from his decree. In that case, as in this, the town officers apparently placed some reliance upon the ground that the grant of the easement was an ultra vires act. So far as this case is concerned, the same contention, again set up by the defendant might well be regarded as res adjudicata, but that does not seem necessary in the establishment of the defendant's case, and the ground assumed by the judge from whose decree the present appeal is taken is clearly sound.
That ground is that a grant of power of sale necessarily carries with it a grant of power to transfer an interest less than an absolute one. The act of 1821 left to the discretion of the moderator and commissioners the amount of the lot acquired which should be sold, and it was clearly within their power to grant an easement appurtenant to the portion which they did in fact sell.
The bill filed in the present case recites that Martin L. Main, by virtue of sundry mesne conveyances, became the assignee of the lot sold to Brumbaugh. It recites the covenants in the deed already quoted; complains that the mayor and council of Hagerstown have caused to be placed in the 10-foot open space certain "trestles, timber, boards, and structures of wood and other articles" used by those attending the market. The bill then charges that the articles mentioned are obstructions upon the 10 feet, and constitute a breach of the covenant, and closes with the following prayers: "(a) That the defendants, their servants and agents, and all persons acting by their authority, may be enjoined and prohibited from causing or permitting the articles mentioned in the fifth and sixth paragraphs of this bill of complaint to be placed or stored upon the open space mentioned in said bill of complaint.
(b) That a mandatory injunction be issued by this honorable court requiring the defendants, their servants and agents, and all persons acting by their authority, to remove, or cause to be removed, from said open space the articles mentioned in the said fifth and sixth paragraphs of this bill of complaint."
These recitals have been made in some detail for the reason that it is nowhere alleged or suggested in the bill, that the light of the building belonging to Mr. Main has been interfered with, nor that the injury suffered by him is irreparable, and the testimony in the case shows rather that what the plaintiff is seeking is to establish his right to an easement of right of way over the 10-foot space then a question of light, or of light and air.
It is not necessary in a case of this sort that irreparable injury should in terms be alleged, but it is necessary that there should appear in the bill such facts as make it apparent to the court that the damage will be irreparable, going to the destruction of the estate of the plaintiff in the manner in which he has been accustomed to enjoy it. Baugher v. Crane, 27 Md. 36; Gilbert v. Arnold, 30 Md. 29; Davis v. Reed, 14 Md. 152; Blaine v. Brady, 64 Md. 373, 1 A. 609.
The cases in which an injunction have been granted are such cases as Dudley v. Hurst, 67 Md. 44, 8 A. 901, 1 Am. St Rep. 368, in which the owner of a farm having a large canning establishment thereon was held entitled to an injunction to prevent the removal of the machinery, the deprivation of which would destroy his canning business; Scully v. Rose, 61 Md. 408, where an injunction was granted to restrain the removal of ore from an ore bank, on the ground of the permanent injury to the property; and Douglass v. Riggin, 123 Md. 18, 90 A. 1000, which arose over the right of way in an alley that the defendant was repaving in a manner to effectually prevent the plaintiff's use of the same in the manner in which sh...
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