Whalen v. Dalashmutt

• Decision Date: 25 January 1883
• Parties: JOHN W. WHALEN v. ELIAS E. DALASHMUTT.
• Court: Maryland Court of Appeals

59 Md. 250

JOHN W. WHALEN v. ELIAS E. DALASHMUTT.

Court of Appeals of Maryland

January 25, 1883

APPEAL from the Circuit Court for Frederick County.

The bill in this case was filed by the appellee against the appellant; and the appeal is taken from the decree of the Court below, (LYNCH, J.) making perpetual the injunction asked for in the bill. The case is stated in the opinion of the Court.

The cause was argued before ALVEY, STONE, ROBINSON, and IRVING J.

James McSherry, for the appellant.

William P. Maulsby, Jr., and James W Pearre, for the appellee.

ALVEY J. delivered the opinion of the Court.

The claim on the part of the defendant to the exclusive user of the alley mentioned in the bill, and to the right to replace the stair-way removed therefrom, having been renounced by him in such unconditional and unequivocal manner as to preclude him in this, or in any other like proceeding, from re-asserting such claim, that ground of the plaintiff's bill for an injunction is completely removed. For it is a well settled principle in the practice of injunction, that where a defendant asserts positively that it is not his intention to do a certain act, or to violate any particular right asserted by the plaintiff, and there be no evidence to show to the contrary, the Court will not interfere by injunction. It will neither grant nor continue an injunction in the face of such disclaimer. Woodman vs. Robinson, 2 Sim., (N. S.) 204, 210; Fooks vs. Wilts, Somerset & Weymouth R. Co., 5 Hare, 199, 202; Hanson vs. Gardiner, 7 Ves., 305; Kerr on Inj., 198.

The whole question then comes down to the right of the defendant to erect the awning post at the curb on the side walk of the street, at the end of a small disputed strip of ground, running across the pavement, of the width of from twenty to thirty inches, on the north side of a small gutter or drain, running down the alley to the street gutter, between the premises of the plaintiff on the north and the premises of the defendant on the south, in the city of Frederick.

The exclusive title to this small strip of ground, extending over the pavement, as shown by the plats exhibited in the cause, is asserted on the part of the plaintiff to be in himself, while, on the other hand, such pretension is positively denied by, and the right thereto is claimed to be in, the defendant, subject to the right of an easement therein by the plaintiff, and those claiming under him.

The determination of this contention depends upon the true construction of the title deeds under which the respective parties claim, upon the exact location thereof, and upon questions of adverse holding and user by the owners of the respective premises. These are all purely legal rights and questions, not at all appropriate to a Court of equity. They appropriately belong to a Court of law, to be tried and determined in an action of ejectment or an action of trespass. The case really presents no element or equitable circumstance to justify a Court of equity in assuming jurisdiction of it.

It is true, a Court of equity will assume jurisdiction to aid and protect a legal right, until it can be asserted and established in a Court of law; but the application for such protection and assistance being founded on the...