Mayor and Councilmen of Frostburg v. Sleeman

Decision Date17 December 1945
Docket Number26.
Citation45 A.2d 113,185 Md. 393
CourtMaryland Court of Appeals

Appeal from Circuit Court, Allegany County; Walter C. Capper and William A. Huster, Judges.

Suit in equity by the Mayor and Councilmen of Frostburg against James Sleeman and others for a mandatory injunction to compel defendants to restore a sidewalk in front of their apartment house to its former grade. From a decree dismissing the bill of complaint, plaintiff appeals.


D. Lindley Sloan and William A. Gunter, both of Cumberland, for appellant.

Edward J. Ryan, of Cumberland, for appellees.


The following opinion, prepared by Judge MELVIN, was adopted by the Court, after his death, and ordered filed as the opinion of the Court.


The appeal in this case is from a decree of the Circuit Court for Allegany County dismissing the appellant's bill of complaint against the appellees for a mandatory injunction to compel them to restore to its former grade the sidewalk in front of their apartment house on East Main Street Extended in the City of Frostburg.

It is conceded that the municipality, itself, has never passed any ordinance establishing a grade for this sidewalk, and that the only action ever taken to that end was by the individual property owners, including the appellees, under a private agreement entered into between them about nine years before this territory was acquired by the City by annexation in 1935. The annexation ordinance has not been included in the record in the instant case, so that whether or not it contains any reference to the subject of grades of streets curbs or sidewalks is not disclosed on this appeal. The appellant's contention is that at the moment of annexation the grades then existing in the annexed territory became automatically established as the official city grades without necessity for the passage of any ordinance to accomplish this result, and can only be changed by municipal action.

As the appellant's whole case is based on the correctness, vel non, of this assumption of law, it will not be necessary to discuss the other aspects of this appeal, further than to make reference to the affirmative action which the appellant took in 1938 in establishing a curb for this and other streets in Frostburg in connection with the Works Progress Administration, and to the allegation in the bill of complaint that the appellees' re-laid sidewalk constitutes a nuisance.

It is relevant to note at the outset just what power and authority this municipality has over its curbs and sidewalks, as delegated to it in these words of the applicable statute (Section 216 of Article 1, Public Local Laws of Allegany County):

'The Mayor and Councilmen of Frostburg shall have power and authority to grade and pave all sidewalks and gutters which in their judgment the public convenience may require, and to cause said sidewalks and gutters to be regarded, repaved, repaired or otherwise improved, and to cause said sidewalks and streets to be curbed and recurbed, and to collect the cost thereof from the person or persons owning the property fronting on any of said sidewalks, curbs or gutters, and whenever the person or persons owning the property fronting on any such sidewalks, curbs and gutters shall fail or refuse to have such sidewalks, curbs or gutters paved, graded, curbed, repaved, regraded, recurbed, when and as directed to do so by any ordinance of said city, within thirty days from the date of its passage, or shall fail or refuse to repair the same after thirty days' written notice given by the Street Superintendent, the said Mayor and Councilmen shall have the materials found and the work done, and shall cause the Street Commissioner to ascertain the amount chargeable to each proprietor or owner,' etc.

Under the authority of this statute the appellant in 1938 directed its City Engineer to establish the grade of a curb to be constructed between the street and the sidewalk now in question and, according to the testimony of that official, the 'Mayor and Council called the abutting owners into the council chamber and asked them just what kind of a curb they would require.' A majority of them chose a stone curb, and in due course the curb was laid, the work being done by the Works Progress Administration and the City paying for the materials. The whole project was under the authorization of the municipal government and the procedure followed was the same as in all other cases for establishing curbs and grades throughout the City.

Although at the conclusion of the job the City Engineer made the usual official report to the Mayor and Councilmen, as well as to the Street Commissioner, and although the placing of the curb was equivalent to establishing the grade of the sidewalk--according to the Engineer's answer to a direct question by the Chancellor on this point--no action was taken by the City to require the abutting owners to conform to this grade. As a result, pools of water formed in the space between the curb and the sidewalk because of the latter's lower level, and created the condition about which the appellees consulted the City Engineer in 1940. It was then that he told them, according to the uncontradicted testimony, that the only way they could correct that condition would be to raise their sidewalk up to the curb. This the appellees proceeded to do in June, 1943 after first having applied to the City Clerk for a permit. In connection with this point appears the only dispute as to any of the facts in the case. One of the appellees, Wesley Sleeman, testified that he asked the City Clerk for a permit 'to remove our pavement. He says 'I didn't need anything, I came on down and we started to work.' The City Clerk's version,...

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2 cases
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