Mayor & Council of Salisbury v. Camden Sewer Co.

• Citation: 109 A. 333
• Decision Date: 14 January 1920
• Docket Number: No. 70.,70.
• Parties: MAYOR AND COUNCIL OF SALISBURY v. CAMDEN SEWER CO.
• Court: Court of Appeals of Maryland

109 A. 333

MAYOR AND COUNCIL OF SALISBURY
v.
CAMDEN SEWER CO.

No. 70.

Court of Appeals of Maryland.

Jan. 14, 1920.

109 A. 333

Appeal from Circuit Court, Wicomico County, in Equity; Joseph L. Bailey, Judge.

Suit by the Camden Sewer Company against the Mayor and Council of City of Salisbury. From an order overruling demurrer to the bill of complaint, defendant appeals. Order reversed, and cause remanded.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ.

Benjamin A. Johnson, City Sol., of Salisbury, and S. S. Field, of Baltimore (Long & Johnson, of Salisbury, on the brief), for appellant.

Thomas H. Lewis, Jr., of Salisbury (Hooper S. Miles, of Salisbury, on the brief), for appellee.

BOYD, C. J. This is an appeal from an order passed by the lower court overruling a demurrer of the defendant (appellant) to the bill of complaint filed by the plaintiff (appellee) against the defendant. The bill alleges that by an ordinance passed by the appellant in July, 1902, it granted to four named persons, and others whom they might associate with them, the right and franchise of laying a sewer pipe on Camden avenue in Salisbury and such other streets and boulevards intersecting or crossing said avenue, or convenient of access therefrom, as they may find advantageous, etc.; that by chapter 12 of the Acts of 1904, the General Assembly of Maryland constituted those parties and their associates, successors, and assigns, a body corporate, by the name of Camden Sewer Company of Salibury, Md., for the purpose and with the power to lay, construct, and maintain sewers in accordance with the provisions of said ordinance; that under and by virtue of the authority conferred upon it, and the rights and privileges granted it by said ordinance and charter, the plaintiff laid, constructed, and maintained a main sewer pipe of not less than 12 inches in diameter on Camden avenue, and other sewer pipes, not less than 8 inches in diameter, on certain other streets and boulevards intersecting and crossing Camden avenue, or convenient of access therefrom, naming them, and in all matters complied with, and tenders itself willing, ready, and able to comply with the restrictions, terms, and conditions of the said ordinance and charter. It further alleges that the defendant has caused to be curbed, drained, graded, and paved a certain street called Newton street, and has constructed on and in the said street at corners and places not formed by the intersection of Newton street with Camden avenue, drainage wells, and has caused them to be connected with plaintiff's sewer pipe laid on Newton street; that the connection from the drainage wells to plaintiffs sewer pipe drains the surface

109 A. 334

water from Newton street and other streets into plaintiff's sewer pipe on Newton street, and that plaintiff has not given any privilege, right, or authority so to do, etc. A plat was filed, which it is alleged shows where the defendant has connected other drainage wells with other sewers of the plaintiff, without right, license, or authority. It is also alleged that, although plaintiff's sewer pipes are of sufficient size to meet the requirements of its franchise and charter, and to carry such sewerage as they are under the requirement to carry, they are not sufficiently large, nor are they designed to carry surface water, and that the drainage of surface water through small sewer pipes is dangerous to their maintenance; that the plaintiff has demanded that the defendant discontinue such illegal and wrongful use of the sewers, but it has refused to do so and continues such use; that unless the court passes an order requiring the defendant to cease from its wrongful acts, the plaintiff will suffer irreparable damage, and will be without an adequate remedy.

The prayers of the bill are: (1) That the defendant, its agents, etc., be enjoined from maintaining, making, using, and employing any connection or connections between the drainage wells on Newton street and other streets named and the sewer pipes, or any of them, of the plaintiff located on, in, and under said streets, and from draining and causing to be drained any surface water from, on, and off said streets, etc., directly or indirectly into, through, or by means of the sewer pipes, or any of them, of the plaintiff located on, in, and under the said streets, etc.; (2) that the defendant be required to disconnect, within such reasonable time as may be determined upon by the court and specified in its order, its drainage wells from the sewer pipes of the...