74 Md. 36 | Md. | 1891
delivered the opinion of the Court.
The declaration in this case alleges “that the plaintiff is possessed of a lot of ground, with the improvements thereon, being valuable warehouse property, known as Eo. 22 South Charles street, and while so possessed the defendant, without her authority or consent, and without making or offering to make compensation therefor, planted, a large and unsightly pole in the footway, in front of said premises, which obstructs and prevents the comfortable and reasonable and beneficial enjoyment and use of the said premises, and, though repeatedly notified to remove the 'said pole, refuses so to do, although a reasonable time for the removal of the same has elapsed, &c.” There is added an application for an injunction under sec. 117 of Art. 75 of the Code. The defendant filed three pleas. The second was the plea of not guilty, and the first and third are as follows, viz., “That the defendant, at the time of the alleged trespass, was duly incorporated as a telephone company under the laws of the State of Maryland, and was entitled as a coi’poration so formed, in the prosecution of its business, and for the purpose thereof, to erect and maintain the pole upon the footway of South Charles street, in the City of Baltimore, in front of the warehouse of the plaintiff, complained of in the declaration of the plaintiff, without making, or offering to make, compensation therefor to the plaintiff; and that the alleged trespass complained of in the declaration of the plaintiff was a use by the defendant of its said right.” Third: “That the plaintiff ought not further to have or maintain hex-aforesaid action against it, hecaxxse it says that by a certain oi-dinance of the Mayor and City Coxxncil of Baltimore, approved on the ninth day of May, in the year 1889, and since the institution of the suit in this cause, it, the said defendant, was and is authorized to maintain its said pole in axxd xxpon the footway of Soxxth Charles
It has been further insisted, as a reason for holding the declaration bad, that the prayer for an injunction was improperly included therein, because, so it is alleged, the facts disclosed by the narr. do not justify the application of that remedy. Sections 116 to and including 128 of Art. 15 of the Code make provision for the issuing of writs of injunction and mandamus by Courts of law in certain actions instituted in these Courts. Under
We now come to the consideration of the ruling of the Court sustaining the demurrer to the first and third pleas filed by the defendant. These pleas present some of the principal questions discussed in the argument at the bar. They rely, as a defence to the action, upon ah authority which the appellant claims to have under the
Whether, then, the appellee be the owner of the reversion in the bed of the street, or only entitled to the rights of an abutter on the street, the pleas demurred to set forth no facts which furnish a defence to the action; because as against the owner of the fee the provisions of the Code relied on in the pleas are inoperative for the reasons we have given; and, as respects the owner of a lot abutting on the street, they expressly reserve, and they could not have validly denied, his right to recover for such direct and immediate injuries as he might sustain by the construction of a line of telegraph and telephones upon a public street or thoroughfare. Whether the damages to be recovered shall be upon the basis of the permanent occupation of the premises, or only for the period up to the bringing of the suit, is left to the election of the company; and it would necessarily follow if the recovery should be limited at its instance to the latter period, that subsequent suits could be brought; and in an appropriate case an injunction could be procured to prevent a continuance of the interference. It results, then, that neither the rights of the owner of
The remaining questions involved are presented by the exceptions taken to the admission of evidence, and to the rulings of the Court on the prayers for instructions to the jury. There are twelve of these exceptions.. Eleven of them relate to the admissibility of evidence adduced by the appellee upon the question of damages, and the twelfth to the granting of the appellee’s second prayer, and the rejection of the appellant’s first.
It is not necessary to discuss separately the exceptions which relate to the measure of damages, for they all present the same question, substantially. The appellee proved by several witnesses the amount which, if they owned the property, they would, in their opinion, give not to have the pole placed where it is, and the amount they would give to have it taken away. She further proved by another witness that, with the pole removed, he would be willing to pay more rent for the property than he would with the pole standing where it is; and by still another, that for the purposes of his business he would make a difference of five hundred dollars in the rental value of the premises. None of this testimony was admissible. The true measure of damages in such a case as this is not what a particular individual would 'be willing to charge for having the pole put up or remain; nor the amount some other person might consi
Lastly, with regard to the prayers. There was no error in rejecting the first prayer of the appellant, because the prayer failed to refer or point to the pleadings. The correctness of this ruling must depend, not upon the state of the pleadings, but upon the evidence to which alone the prayer makes reference. Giles vs. Fauntleroy, 13 Md., 136. The declaration counts upon a possession by the plaintiff of the warehouse, and an interference with her use and enjoyment thereof, and the proof shows that the premises were in the occupancy and possession of a tenant of the plaintiff, and not in the 'possession of the plaintiff, who was only entitled to the reversion. Eor an injury to the possession, the tenant in possession alone can sue, though if the same injury affects the reversion the reversioner may sue in case. 1 Ch. Pl., 63. The evidence in the record shows that the appellee does not own the reversion in the bed of Charles street; and it further shows that no damage was done to the plaintiff’s possession because she was not in possession. The narr. does not declare for an injury to the reversionary interest in the warehouse, as it might have done, and the prayer did not point to the pleadings; but,
There is nothing in the appellee’s granted prayer of which the appellant can complain. Taken in connection with the appellant’s third instruction the recovery was limited to the time that suit was brought.
For the error in admitting the evidence objected to in the first eleven exceptions the judgment must be reversed, and a new trial must be awarded.
Judgment reversed, and new trial awarded..