Mayor v. Meredith'S Ford & Jarrettsville Tpk. Co. in Baltimore & Harford Counties

• Decision Date: 15 November 1906
• Citation: 65 A. 35,104 Md. 351
• Parties: MAYOR, ETC., OF CITY OF BALTIMORE v. MEREDITH'S FORD & JARRETTSVILLE TURNPIKE CO. IN BALTIMORE & HARFORD COUNTIES.
• Court: Maryland Court of Appeals

65 A. 35

104 Md. 351

MAYOR, ETC., OF CITY OF BALTIMORE

v. MEREDITH'S FORD & JARRETTSVILLE TURNPIKE CO. IN BALTIMORE & HARFORD COUNTIES.

Court of Appeals of Maryland.

Nov. 15, 1906.

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Action by the Meredith's Ford & Jarrettsville Turnpike Company in Baltimore & Harford Counties against the mayor and city council of Baltimore. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, BOYD, SCHMUCKER, and JONES, JJ.

S. H. Lauchheimer, for appellant. Col. David G. McIntosh, for appellee.

BRISCOE, J. This is an appeal from an order of the circuit court of Baltimore county, passed on the 17th of February, 1906, overruling a motion by the defendant for a judgment of non pros. a motion to quash the writ of summons and the return of the sheriff thereto, and from the judgment entered thereon.

The plaintiff is a turnpike company doing business in Baltimore and Harford counties, under the corporate name of the Meredith's Ford & Jarrettsville Turnpike Company of Baltimore & Harford Counties. The defendant is the mayor and city council of Baltimore, a municipal corporation, and the owner of the bed of the Gunpowder river, and certain lands contiguous thereto, in Baltimore county, adjacent to the plaintiff's turnpike. The substantial cause of the action, and the grievance complained of by the plaintiff below, is the alleged wrongful acts of the defendant in erecting large banks of earth near the bed of the river, forcing the water and dirt to flow over and upon the turnpike, thereby causing injury and damage to the road. The defendant appeared specially to the suit, and based its motion for a Judgment of non pros. upon certain assigned reasons, which may be stated, for the purposes of this appeal, to be: (1) Because the mayor and city council of Baltimore is a municipal corporation, and can be sued only in its own courts, and because the attempt to subject it to the jurisdiction of the circuit court for Baltimore county cannot avail, in the absence of its consent. (2) Because the mayor and city council of Baltimore claims it is exempt from suit in any court except the courts of Baltimore City.

It is admitted that the turnpike road alleged to have been obstructed and injured lies in Baltimore county, and that the injury occurred in the county where the suit was brought. It must also be conceded, at the outset, that the action is in its nature local, because the declaration states that the turnpike road, which ran along the banks of the Gunpowder river, the obstruction which caused the injury to the plaintiff's property, and the river itself, where the alleged damage was done, are all situate in Baltimore county. The counsel for the city, in their very able and elaborate brief contend: (1) A municipal corporation can be sued in its own courts only. (2) The statute law of Maryland makes no provision for suits against a municipal corporation in any court other than its own. (3) There is nothing in the common law, as interpreted by the courts of Maryland, that is to be taken as a qualification of the rule that municipal corporations cannot be sued in courts other than their own. The sole question thus presented is whether a municipal corporation can be sued, in this form of action, in a court other than its own.

While the question is an important one, and may be regarded as unsettled, in so far as any direct decision of this court may be found, we are not, however, without what may be considered analogous adjudications upon the question here raised. The distinction between local and transitory actions has been carefully differentiated and sustained by a number of cases. In Crook v. Pitcher, 61 Md. 510, it is said: "If the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought in the county or place in which it arose. Actions for damages to real property, actions on the case for nuisances, or for the obstruction of one's right of way, are according to all the authorities local." In Ireton v. Mayor and City Council of Baltimore, 61 Md. 432, the plaintiff sued the city in the circuit court of Baltimore county for damages to his real estate and a mill thereon by the construction of a lake near the plaintiff's property. The contention in that case was that a municipal corporation could not be sued outside its territorial limits. This court however, reversed the judgment of the court below in quashing the writ of summons, upon the ground that the motion was too late, for the reason the city had appeared by attorney to the suit; but it distinctly held: "The injury sued for in this case was done to real estate, and the action was local, and not transitory. This is the common-law rule, and by the decision in Patterson v. Wilson, 6 Gill & J. 499, has been held to be the law in this state. The circuit court for Baltimore county, being a court of general jurisdiction, had undoubted cognizance of the subject-matter." In the case of Gunther v. Dranbauer, 86 Md. 1, 38 Atl. 33, it was said: "If the pending action involved the right of the plaintiff to use the alleged highway, if he claimed a right to use it and the defendant obstructed the way, and by that or other means denied the existence or...