Metaxas v. Easton Pub. Co.

• Decision Date: 03 February 1928
• Docket Number: 85,86.
• Citation: 140 A. 603,154 Md. 393
• Parties: METAXAS ET AL. v. EASTON PUB. CO. METAXAS ET AL. v. J. R. JARRELL CO.
• Court: Maryland Court of Appeals

140 A. 603

154 Md. 393

METAXAS ET AL. v. EASTON PUB. CO.

METAXAS ET AL. v. J. R. JARRELL CO.

Nos. 85, 86.

Court of Appeals of Maryland

February 3, 1928

Appeal from Circuit Court, Talbot County; Lewin W. Wickes and Thomas J. Keating, Judges.

"To be officially reported."

Suits for injunction by the Easton Publishing Company and by the J R. Jarrell Company, against Peter Metaxas and others. From orders continuing temporary injunctions in both cases and in effect requiring defendants to sue at law to test title defendants appeal. Cases considered together on appeal. Orders in both cases affirmed in part and reversed in part and both cases remanded for further proceedings, temporary injunction to be continued pending final decrees.

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

E. T Miller and H. H. Balch, both of Easton (Guion Miller, of Easton, on the brief), for appellants.

G. Elbert Marshall and W. Mason Shehan, both of Easton (Seth, Shehan & Marshall, of Easton, on the brief), for appellees.

SLOAN J.

We have here two appeals in two cases in which the principles involved are the same and the facts almost identical. The appellees, which have adjoining buildings in Easton, filed in the circuit court for Talbot county bills for injunction to restrain the appellants from erecting a building on land contiguous to the east side of the appellees' buildings, alleging that the land upon which the building was threatened is an alley which both appellees and their predecessors in title have used for more than 20 years, in connection with their respective buildings, and that the threatened invasion of the alley would work irreparable injury to the appellees. The Easton Publishing Company also claimed title in fee under its deed to a triangular piece of land on which its building abuts (so far as surface indications show, a part of the alley), 2.4 feet in width at the southeasterly corner, running to nothing at the northeasterly corner. The appellees alleged that, if the building of the appellants were erected, it would destroy the use of the alley as such, and would take away the access to the easterly end of their buildings, and would deprive them of light and air.

The appellants answered, denying all the claims and pretensions of the appellees as to any rights in the alleged alley, or that it is an alley, or that the Easton Publishing Company had title in fee to the triangular parcel of land adjoining its building, or that the contemplated building would irreparably injure the appellees, and admitted that it had been the purpose of the appellants to commence the construction of the building objected to, until enjoined.

On the day fixed by the court for the taking of testimony, July 28, 1926, the appellants withdrew their answers and filed demurrers, alleging as grounds of demurrer that the bill set up two separate and inconsistent grounds of relief; that it showed on its face that it raised a question of title; and that it did not show irreparable injury to the appellees was threatened, and for other manifest errors and inconsistencies. The demurrers were overruled, the answers were refiled, and the court proceeded with the taking of testimony as to the question of the character of use of the alleged alley by the appellants, to prove or disprove that the injury caused by the erection of the building threatened by the appellants would be irreparable, and the court thereupon passed an order continuing the injunction until dissolved by order of the court, and "further ordered that said writ of injunction shall not prohibit or restrain the defendants, Peter Metaxas, John S. Grouzes, and J. Russell Summers, or any of them, from instituting and prosecuting a proper suit or action against the plaintiffs to try and determine the title to the property."

The appellees' contention is that they have an easement in the alleged alley, and by reason of the threatened invasion and improvement of which they would be irreparably injured. On the other hand, the appellants, Metaxas and Grouzes contend that they have title to the alley, and that the appellees have no title. The appellees applied for an injunction to restrain the appellants from proceeding with their building. The court did not grant permanent relief, but did grant temporary relief, pending the determination of the question of title, and stayed any further proceedings pending suit to be brought by the defendant against the plaintiffs, the appellants contending that, even if the court could grant the writ, it should be conditioned on the plaintiffs suing at law to test their titles.

It has long been held in this state that the writ of injunction will issue to restrain the invasion or destruction of an easement or right of way, and that, in the case of a street or alley, allegations in the bill showing that its use as such would be destroyed by the invasion are sufficient to show irreparable injury. In White v. Flannigain, 1 Md. 525, 546, 54 Am. Dec. 668, this court said:

"In the language of the authorities, it is irreparable mischief, because it destroys it as a street." "The rule has been repeatedly declared that where a trespass works a destruction of the estate in the character in which the complainant was entitled to enjoy it, a proper case is presented for relief by injunction." Oberheim v. Reeside, 116 Md. 265, 275, 81 A. 590, 593, and cases there cited.

The bills of complaint and the testimony taken show clearly that, if the strip of land is an alley, and it is so alleged, then the writ of injunction should have been issued, and the demurrers were properly overruled.

With the bills of complaint the appellees filed as exhibits their respective deeds. The Easton Publishing Company's deed was from Robert B. Dixon and others, dated March 28, 1911, and conveys all that lot situate on the north side of Dover street, "beginning for the same at the southeast corner of the lot of ground owned by Robert B. Dixon, improved by a two-story brick office building occupied by Robert R. Walker, and running thence with the north side of Dover street, eastwardly thirty feet, more or less to an alley between the lands herein described and the lands of Dr. W. S. Kelley (the alley in controversy); thence northwardly with said alley thirty-two feet, more or less, to the lands of Charles C. Nickerson, the same being improved by a store building now in the occupancy of J. R. Jarrell and Company; thence with the said Nickerson land westward to the lands of the heirs of Elizabeth A. Lynch thirty feet more or less; thence with the said Lynch lands and the lands of the said Robert B. Dixon thirty-two feet more or less to the place of beginning. Together with the rights, alleys," etc.

The deed to the J. R. Jarrell Company from William H. Adkins and Lillian M. Nickerson, trustees, is dated January 25, 1926 and described the...