Riggs v. Winterode
| Decision Date | 18 January 1905 |
| Citation | 59 A. 762,100 Md. 439 |
| Parties | RIGGS et al. v. WINTERODE et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County, in Equity; N. Charles Burke and Geo. L. Van Bibber, Judges.
Suit by George C. Winterode and others against T. Dudley Riggs and others. From a decree for plaintiffs, defendants appeal. Reversed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE SCHMUCKER, and JONES, JJ.
John I Yellott and David G. McIntosh, for appellants.
Redmond C. Stewart and W. Irvine Cross, for appellees.
This is an appeal from an order granting a preliminary injunction against the appellants at the instance of the appellees. The application for an injunction was set for hearing upon bill and answers. There can be no doubt that, as the answers were filed before the application for the injunction was heard they must be considered, and, if it be found that they deny the equity of the bill in such manner as would authorize the dissolution on motion to dissolve, the injunction ought not to have been granted. So far as they are responsive to the bill, they are taken as true. Miller's Eq.Pro. § 578, and cases cited. But new matter set up by way of avoidance does not avail to prevent the issuing of a preliminary injunction. Dougherty v. Piet, 52 Md. 429; Mayor, etc., of Baltimore v. Keyser, 72 Md. 115, 19 A. 706. Although, perhaps, not necessary to refer to other authorities, the same rules are announced in 10 Ency. of Pl. & Pr. 1000-1002, where many cases are cited. It may be well to say in this connection that there may be cases in which the new matter set up in the answer is such as would justify the court in refusing to grant an injunction at once, unless that be necessary in order to preserve the rights of the plaintiff in case he finally establishes them. When the court is satisfied that the plaintiff will not suffer by, not having the injunction issue at once, and testimony can be taken in a reasonable time, if the new matter be of a character that would ultimately require the dissolution of the injunction if proven, it would be useless to compel the judge to issue a preliminary injunction. Some discretion must be allowed him in such cases. On the other hand, when the answer is not responsive to the bill, but relies entirely upon new matter, which can only be established, if at all, by evidence, and the status of the property or other rights involved may be changed, it is proper to grant a preliminary injunction if the allegations of the bill make a proper case for that relief. Under the view we take of this case, this question is not very material, but, as it was argued at some length, we deemed it proper to dispose of it before entering upon a discussion of the merits of the case.
The bill alleges that the plaintiffs are taxpayers. The answer of Mr. and Mrs. Riggs, which is the only one we will refer to, admits that Mr. Winterode is a taxpayer, but alleges that they have caused the records to be examined, and have failed to discover that Mr. and Mrs. McLean are, and on that information they deny that they are. As a copy of the deed to Mrs. McLean is filed, and it may be that the property had not been transferred on the taxbooks, but she was in fact a taxpayer, as alleged in the bill, we will assume that allegation to be sufficiently established. The object of the proceedings is, briefly stated, to prevent the surrender or abandonment by the county authorities of a road which formerly ran through the farm of Riggs, claimed to be a county road; to prohibit the opening up or recognition of two other roads through the Riggs farm in lieu thereof; to stop the further expenditure of money collected from the taxpayers on those two roads; and to require Riggs to remove the fences built by him on the old road, and to restore it to its former condition. The case was very fully and ably argued by the respective solicitors, and many questions were discussed, but those most relied on by the plaintiffs (the appellees) are stated in their brief to be: First. That the county commissioners had no power to enter into the agreement of September 11, 1901, filed as an exhibit with the bill; that it was ultra vires and acts done in pursuance thereof are void. Second. That if that agreement was a valid exercise of the powers of the county commissioners, the roads described in the notice published as the first step in the proceedings have never been laid out, but the two new roads are entirely different, and no notice as prescribed by law has ever been given for them as actually constructed. Third. That the old road could not be closed without the appointment of examiners. Fourth. That if that be not necessary, the proceedings taken did not operate to legally close the old road.
After giving the notice required by law, nine persons, including Mr. Riggs, described as "taxable inhabitants of Baltimore county," applied to the county commissioners "to close a portion of an old road, and in lieu thereof to open two new roads, as follows, because the public convenience requires the same, viz." They are then described in the petition, and will be more particularly hereinafter referred to. The members of the board of county commissioners visited the property of Mr. Riggs, and afterwards signed what is called an "agreement." As that will be set out in full in the opinion to be filed at this term in the case of Jenkins and others v. Riggs and others, 59 A. 758, it will not be necessary to do so again; but it is contented by the appellees that the commissioners had no authority to make it. We cannot, however, agree with that contention. By section 12 of article 25 of the Code of Public General Laws, county commissioners "have power to open, alter or close any public road or roads in their respective counties." The local law (Acts 1900, p. 1086, c. 685) does not change that, but, on the contrary, section 205 of that act is in the exact words of section 83 of article 25: "All applications for opening, altering or closing roads shall be by petition to the county commissioners." When, then, "a notice as required by law" was published, as admitted in the bill, a petition for the closing of the old road and the opening of the new roads was filed, and 15 days had elapsed after the expiration of the 30-days notice required by section 206, p. 1086, c. 685, of Acts 1900, and no counter petitions were presented, the case was ready for the action of the county commissioners, as contemplated by the local laws of Baltimore county. The road to be closed and those to be opened were wholly on the lands of Mr. Riggs, and the commissioners had gone in person on his property. We can see no objection to their agreeing "that upon the opening of the two new roads as applied for and upon their being constructed, graded and bridged to the satisfaction of the Roads Engineer, and upon the execution and delivery to the Board of a proper deed *** the said two roads *** shall be accepted *** as County roads," and that the old road be closed at the end of a year from such acceptance, and be reconveyed to Mr. Riggs. They could not, with due regard to the public interests, close the old until the new road was ready for use, and it was therefore a wise provision. The plaintiff and other taxpayers surely could not object to the requirement that the new roads should be constructed, graded, and bridged, or that they be conveyed by a proper deed for the use of the public. The construction of the two new roads would necessarily occupy a considerable time, and it would seem to be difficult for the county commissioners ever to make an arrangement of this kind, however desirable it might be for the public, if they could not bind themselves in the way adopted in this instance.
The fact that the roads were to be constructed, graded, and bridged to the satisfaction of the roads engineer cannot invalidate the action of the commissioners. Section 1 of article 25 provides that the commissioners "may commit the whole matter of grading and constructing public roads, and the repairs thereof, and the construction and repairs of public bridges, to the charge of competent and scientifically educated civil engineers, who shall direct and manage all such public works under the immediate control of said county commissioners." Section 196, p. 1083, c. 685, of the act of 1900, provides that the roads engineer shall be "a man having the degree of civil engineer, and experienced in bridge and road building." It would therefore seem to be exactly in accord with the policy of our laws to require such work as is referred to in this agreement to be to the satisfaction of the roads engineer. If he is of the character of man contemplated by the local law, it is not likely the commissioners could select any one better qualified to determine whether the work was properly done. It was not a delegation of the powers vested in the commissioners to another person, but it was simply the selection of one presumably competent to see that the work was properly done. County commissioners must do many things which they have control over through agents, and in this instance they were only doing what the Public General Laws expressly authorized, and what the local law in no way forbids, when they required the work to be done to the satisfaction of the roads engineer.
It might, perhaps, have been better to have had a more formal agreement--signed by Mr. Riggs as well as the commissioners--but the failure to do that cannot of itself authorize a court of equity to now interfere. The petition had been filed by Riggs and others, and the agreement was the result of that. If Mr. Riggs had not done his part within a reasonable time, the board could have revoked its action and, until he did, the...
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