Town of Frostburg v. Hitchins

Decision Date16 November 1904
Citation59 A. 49,99 Md. 617
PartiesMAYOR, ETC., OF TOWN OF FROSTBURG v. HITCHINS et al.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.

Action by William E.G. Hitchins and others against the mayor and councilmen of town of Frostburg. From a judgment for plaintiffs, defendant appeals. Affirmed.

Argued before McSHERRY, C.J., and FOWLER, BOYD, PEARCE, and SCHMUCKER, JJ.

Charles G. Watson, for appellant.

A.A Doub and Benjamin A. Richmond, for appellees.

SCHMUCKER J.

This is an appeal from a judgment of the circuit court for Allegany county in favor of the appellees as plaintiffs in an action of trespass quare clausum fregit. The trespass forming the basis of the suit was the forcible removal by the appellant of an elevated structure erected across an alleyway located on a lot of ground owned by the appellees on Main street, in the town of Frostburg. The alley, which lies entirely within the boundaries of the appellees' lot, was called for in a deed of the lot made in the year 1852 to J.S. Welsh, under whom the appellees claim title, and it has been freely used by the public as an alley ever since that time. It does not appear from the record that the appellant ever acquired title to the alley or the land under it, or ever accepted its dedication to public use, either by formal corporate action or by the transactions of any authorized public department or official. About 18 years prior to the institution of this suit, Peter Payne, who at that time owned the lot, and had his dwelling house on one side of the alley, and kept a hotel on the other side of it, erected the frame structure now in question over the alley for a distance of 36 feet, at an elevation of 10 or 11 feet above the surface of the land. This structure contained three rooms, and extended entirely across the alley, which was 16 feet wide. It communicated with the second story of both the residence and the hotel, although it was not built into either of them, but rested upon wooden posts 6 inches square, set up along the two sides of the alley against the hotel and the dwelling. At the institution of this suit, and for some time prior thereto, the three rooms over the alley, along with other rooms adjacent thereto, were rented to the Young Men's Christian Association, and used for its headquarters. The elevated structure so erected above the alley was used and enjoyed by the successive owners of the lot without objection on the part of any one until July 19, 1895. On that date, the appellees being about to close the alley entirely by erecting a building on its surface underneath the elevated structure, the appellant, jointly with certain individuals owning lands in proximity to the alley, filed a bill in equity in the circuit court of Allegany county praying for an injunction prohibiting the appellees from erecting their contemplated building on the surface of the alley, and requiring them to remove the elevated structure erected above it. The appellees answered the bill, asserting that they were the exclusive owners of the bed of the alleged alley, and denying that the public had a right to use it for any purpose. A final decree was passed in that case, in due course, on September 18, 1895, enjoining the appellees from closing the bed of the alley by the erection thereon of their contemplated building; but they were not required to remove the elevated structure built above the alley, nor was any mention of or allusion to that structure made in the decree. On April 20, 1903, the appellant, by a formal resolution, declared the elevated structure to be a nuisance, and gave written notice to the appellees to remove it within 60 days, or the municipality would tear it down. This notice not having been complied with, the appellant on June 30, 1903, forcibly tore down and removed the structure, and in so doing injured to some extent the plaintiffs' adjoining house. The appellees thereupon brought the present suit in trespass quare clausum fregit, and recovered the judgment against the appellant from which the present appeal was taken.

There is evidence in the record tending to show that the elevated structure obstructed to some extent the light and air in the portion of the alley lying below it, and that vehicles of exceptional height were unable to pass under it; also that persons and vehicles gathered under it in wet weather for shelter, and that nuisances were sometimes committed there by ill-behaved persons. It also appears that the charter of Frostburg confers upon the mayor and councilmen a general power to remove nuisances and obstructions from the streets, lanes, and alleys of the town.

The record contains 11 bills of exception, of which 10 relate to rulings upon questions of evidence, and the eleventh is to the court's action upon the prayers offered by the respective parties to the suit. We will consider the last exception first, as it is vital to the issue presented by the record.

The plaintiffs' first prayer asserted the proposition that if the jury found that the plaintiffs were the owners of the lot of ground over a part of which the...

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