Smith v. Shiebeck

• Decision Date: 03 March 1942
• Docket Number: 4.
• Citation: 24 A.2d 795,180 Md. 412
• Parties: SMITH et ux. v. SHIEBECK et ux.
• Court: Maryland Court of Appeals

24 A.2d 795

180 Md. 412

SMITH et ux. v. SHIEBECK et ux.

No. 4.

Court of Appeals of Maryland

March 3, 1942

Appeal from Circuit Court, Baltimore County; Wm. H. Lawrence, Judge.

Suit by Joseph F. Shiebeck and Frances R. Shiebeck, his wife, against James Smith and Viola Smith, his wife, for an injunction to compel removal of a fence which deprived complainants of their use of road which was the only convenient means of access from their farm to nearest county highway, and to enjoin the erection of any other barrier. From an order overruling defendants' demurrer to the amended complaint the defendants appeal.

Order affirmed, and cause remanded.

T Lyde Mason, Jr., of Baltimore, for appellants.

Israel S. Gomborov, of Baltimore (A. David Gomborov and Edward J Colgan, Jr., both of Baltimore, on the brief), for appellees.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

DELAPLAINE Judge.

The bill of complaint of Joseph F. Shiebeck and wife alleges that they own a farm in Baltimore County; that a road, laid out partly on the land now owned by them and bounding partly on property recently acquired by James Smith and wife, defendants, has been a public road by general, unobstructed and continuous use for more than twenty years; that the defendants, claiming they own the road, have wrongfully erected a fence along its east side, thereby depriving the complainants of its use; and that, since this road is their only convenient means of access from their farm to the nearest county highway, such an obstruction would cause them irreparable damage. The bill prays for an injunction to remove the fence and to enjoin the erection of any other barrier.

The Chancellor, upon sustaining a demurrer to the bill, allowed the complainants to amend it in respect to the location of the road by inserting the words 'without encroaching upon the land of the said defendants.' After the phrase was inserted, the defendants demurred again. The appeal was taken from an order overruling the second demurrer.

One of the objections made by the defendants was that the complainants did not make an affidavit to the bill after the interlineation was made. It is an established rule in Maryland that prima facie evidence of the facts upon which a complainant's right to relief rests must be presented to the Court to warrant the issuance of an injunction. This evidence may consist of the affidavit of the complainant or of a third person who knows the facts, or documentary evidence, its purpose being to verify the averments and induce the Court to credit the bill for the truth of its statements. Block v. City of Baltimore, 149 Md. 39, 58, 129 A. 887. For instance, in a case where the slaves of a testator applied for an injunction on the ground that they had been manumitted by his will, Chief Judge Le Grand said: 'In general it is necessary that the bill should be sworn to, but this is not in all cases indispensable. Here, the complainants are negroes, and * * * incompetent to give testimony in any case in which a white person is interested. They, therefore, could not have made the affidavit. What is required as preliminary to the granting of an injunction, other than the sufficiency of the averments of the bill, is, that the confidence of the court should be obtained, and this may be had on documentary evidence as well as on affidavit.' Negroes Charles et al. v. Sheriff, 12 Md. 274, 279. It is provided by statute that when a demurrer to a bill of complaint is sustained, the Court has the right, in its discretion, to allow the plaintiff to amend the bill upon any terms it shall deem to be reasonable.

Code, art. 16, § 182. It is the practice for the Chancellor, upon granting leave to the complainant to amend the bill, to allow him to make by interlineation any short and apparently unimportant amendments, such as the correction of a name or the insertion of an allegation not materially varying the general structure of the case. Of course, the complainant should not permit the interlineation to confuse the new matter with the original matter; nor should he repeat in an amended bill all the allegations of the original bill thereby making a complete duplicate of the record. Walsh v. Smyth, 3 Bland 9, 21; Wagoner v. Wagoner, 77 Md. 189, 193, 26 A. 284. But the Chancellor must determine the propriety of an amendment, and the allowance of an amendment is not subject to appeal. Calvert v. Carter, 18 Md. 73, 108; Scarlett v. Academy of Music, 43 Md. 203, 208.

According to the ancient English doctrine, chancery had no jurisdiction to decide question relating directly to contested titles to real estate. Clayton v. Shoemaker, 67 Md. 216, 9 A. 635. In this State an injunction should not be granted to protect a disputed legal right pending its adjudication in a court of law, unless serious injury would result from the act sought to be restrained, but an injunction may be granted for permanent enforcement of a title which is free from reasonable doubt. The party seeking the protection of equity for his property must be able to show a clear title, or at least a fair prima facie case in support of the title he asserts, and he must also show that irreparable injury will result from the invasion of his legal right, as well as the irreparable nature of the injury likely to be sustained before the legal right upon which the application for injunction is founded can be fully vindicated in the proper forum. Bernei v. Sappington, 102 Md. 185, 190, 62 A. 365. Thus, where a complainant's claim to a right of way by prescription over the defendant's land is disputed, and the complainant has another reasonably convenient outlet from his land, an injunction will not be granted to restrain the obstruction of the disputed way before the complainant has established his right in an action at law. Gulick v. Fisher, 92 Md. 353, 48 A. 375. However, when a landowner alleges that the use by the public of a road across his land was not adverse and did not constitute a dedication of the road, the burden is upon him to show that the use of the road was by license or permission, or was under a contract inconsistent with the claim of right. Canton Co. v. City of Baltimore, 104 Md. 582, 65 A. 324. Even though the pleadings present conflicting contentions of the parties as to title, and evidence is adduced to support both contentions, nevertheless if it appears that there is no reasonable ground for the dispute, the Chancellor has the right to determine the question of title and grant a decree of injunction without waiting for a decision on the question of title by a court of law. Maulsby v. Scarborough, 179 Md. 67, 16 A.2d 897. But when an injunction is sought to obtain decisive and permanent relief, not as a mere auxiliary remedy, and the title is contested upon grounds which appear to be substantial, the Chancellor should refrain from granting relief until the title has been definitely established at law. Oberheim v. Reeside, 116 Md. 265, 274, 81 A. 590; Howard v. Western Maryland Ry. Co., 138 Md. 46, 113 A. 574; Mullikin v. Hughlett, 142 Md. 539, 543, 121 A. 244. A court of equity has express statutory authority in Maryland, whenever a question of law appears which might conveniently be decided before evidence is offered, to pass an order directing the question to be raised for the opinion of the court. Code, art, 16, § 226. Hence, while it is proper for the Chancellor to send question of title to a court of law for trial, a permanent injunction may be granted at once if the complainant's title is clear, even though it is denied by the defendant. Baltimore & Ohio R. R. Co. v. Silbereisen, 121 Md. 407, 418, 88 A. 252, 89 A. 102. When the aid of a court of equity is sought on any ground, the Chancellor should retain jurisdiction until he makes a final decree determining all the rights and equities of the parties within the scope of the pleadings for the purpose of granting complete relief. Poe v. Munich Re-Insurance Co., 126 Md. 520, 532, 95 A. 164.

One of the grounds upon which the defendants challenged the legal sufficiency of the amended bill was that it fails to allege that the use of the road has been notorious and hostile. It is a familiar principle that to establish a right of way by prescription it is necessary to prove an adverse, exclusive and uninterrupted use of the way for twenty years. The term 'adverse use' means use without license or permission, for an adverse right of an easement cannot grow out of a mere permissive enjoyment. Where, however, a person has used a right of way for twenty years unexplained, it is fair to presume that the use has been under a claim of right unless it appears to have been by permission. In other words, the use of a way whenever one sees fit over the land of another, without asking leave is an adverse use, and the burden is upon the owner of the land to show that the use of the way was by license or contract inconsistent with a claim of right. Cox v. Forrest, 60 Md. 74; Waters v. Snouffer, 88 Md. 391, 41 A. 785; Hansel v. Collins, Md., 23 A.2d 686. But the complainants in this case are basing their claim, not upon a private right of way, but upon the ground that their road has been dedicated to public use. In Maryland no particular form or ceremony is necessary to...