Turner v. King

• Decision Date: 02 February 1912
• Parties: TURNER v. KING et al.
• Court: Maryland Court of Appeals

83 A. 649

117 Md. 403

TURNER v. KING et al.

Court of Appeals of Maryland

February 2, 1912

Appeal from Circuit Court, Calvert County; Fillmore Beall, Judge.

Bill by Thomas B. Turner against Isaac N. King and others. From a decree for defendants, complainant appeals. Affirmed.

Argued before BOYD, C.J., and PEARCE, BURKE, THOMAS, PATTISON URNER, and STOCKBRIDGE, JJ.

John B Gray, for appellant.

J. B Bunting, for appellees.

BURKE J.

The appellant is a resident and taxpayer of Calvert county, and is the owner of a hotel in Prince Frederick, in that county called the Hotel Calvert, in which he resides with his family, and in which he entertains such guests and customers as may present themselves. The ground upon which the hotel is erected borders on the line of a tract of land owned by Calvert county, and which is under the control of the county commissioners of that county. This tract is known as the "courthouse green or lot," and was acquired by the county under the authority of the Act of 1725. c. 11. There is a county road in front of the hotel property of the plaintiff, and across this road at the distance of about 75 feet from the hotel and on the courthouse lot there is a grove of fine shade trees, "affording" as the bill alleges, "shade to the guests of the hotel in summer, and are the only trees which afford any protection to the guests of the hotel in the heated season." On the 25th of April, 1905, the county commissioners of Calvert county leased a part of the courthouse lot to Isaac N. King and Clarence T. Hutchins, their personal representatives and assigns, for a period of 99 years. The lessees covenanted to pay $1 on the 25th of April in each and every year, and they were granted by the lease the privilege to build and maintain on the leased lot a frame building. This lease was not recorded until the 23d day of May, 1911. The lot leased lies across the county road mentioned, and directly in front of the plaintiff's hotel and in the grove of shade trees referred to. The lessees began the erection of a building upon the lot, and had progressed with the construction to the point of placing the rafters and upper joists in place, when the bill in this case was filed against them and the county commissioners of Calvert county, praying, first, that a preliminary and perpetual injunction be issued against King and Hutchins enjoining them from erecting the building upon the lot so pretended to be leased to them, and restraining them and the county commissioners of Calvert county and each of them from doing any act or thing or exercising any power or authority under or by virtue of said pretended lease; second, that said lease be declared null and void and of no valid force or effect; third, for further and other relief.

The grounds upon which this relief was asked are stated in the eighth, ninth, and tenth paragraphs of the bill, which are as follows:

"(8) That the erection of said building will practically destroy the shade trees aforesaid and deprive your orator and his guests of the comfort thereof, and will also deprive your orator and other citizens of Calvert county of the use of the ground occupied by said building and the comfort of the shade afforded by the trees in the heated season.

"(9) That the erection of said building will interfere seriously with your orator's reasonable comfort and occasion a material injury to his property by diminishing its value as a dwelling and hotel.

"(10) That the erection of said building will not only interfere with your orator's reasonable comfort and occasion a material injury to his property, but as a taxpayer and citizen of Calvert county he will be restrained from the free use and enjoyment of the property which belongs exclusively to Calvert county and the citizens thereof, and which was bought by the county for public, and not for private, uses."

The answer of the lessees denied that the erection and maintaining of the building would destroy or in any manner injure the shade trees growing on the courthouse lot, or that it would deprive the plaintiff or any one else of the comfort thereof. It averred that the courthouse lot contains about three acres of ground, and that more than two acres thereof are unoccupied or used except as public grounds surrounding the courthouse and other buildings, and that the use of the small lot of ground leased would cause no material inconvenience or injury to the citizens of the county, or materially restrict them in the use of the public grounds. It further denied that the erection and maintaining the building would seriously interfere with the reasonable comfort or occasion a material injury to the plaintiff's property or diminish its value, or materially interfere with the plaintiff's reasonable use and enjoyment of the public grounds or the exercise of his right therein. No answer was filed by the county commissioners. A preliminary injunction was issued on the bill. The lessees moyed to dissolve the injunction. This motion was heard upon bill, answer, and testimony, and from the order of the court dissolving the injunction the plaintiff has appealed.

It is settled by a long line of decisions in this state and elsewhere that, "to justify an injunction to restrain an existing or threatened nuisance to a dwelling house, the injury must be shown to be of such a character as to diminish materially the value of the property as a dwelling, and seriously interfere with the ordinary comfort and enjoyment of it. Unless such a case is presented, a court of chancery does not interfere. It must appear to be a case of real injury, and where a court of law would award substantial damages. ...