Roman v. Strauss

| Md. | Dec 15, 1856

Tuck, L,

delivered the opinion of this court.

This appeal is taken from air order of Baltimore city circuit court, granting an injunction on the bill of the appellees, and the propriety of that order is to be determined by the bill alone, without reference to the answer of the appellants, subsequently filed. Wagner vs. Cohen, 6 Gill, 97.

The bill alleges that the complainants are the owners of a lot on the north-west corner of Nicholson and Towson streets, Locust Point, in the city of Baltimore, fronting on Nicholson street, and running back for the depth of ninety feet, to an alley fifteen feet wide, from Towson street to Cooksie street; that they are entitled to a right of way over, and to the use of, the alley; that the defendants, now appellants, claim title to the adjoining property on the west, by conveyances from Eliicott, under whom the complainants also claim, which refer to and reserve all the rights of the appellees, by virtue of their deed; that the whole of the property is situated near the water;, that Nicholson and Cooksie streets, which bind on the appellees’ property, are interlaid with rail road tracks, and rendered almost impassable for drays and waggons, so that the only reasonable and convenient access to their property for drays and wagons, is through the said alley by way of Cooksie street; and that the property is used for purposes of business, and as: such is of great value to them, provided they are left in the free enjoyment of the easement or alley. The bill then charges that the defendants, through their agents, in violation of the' rights of the complaints, and to their irreparable injury, are causing a rail way or rail road track to be laid directly across the alley, and nearly adjoining the property of the complainants; that thereby they will be prevented from enjoying their easement, and will be subjected to daily irremediable damage; that except through the alley, there is no reasonably convenient access to their property, and that blocking up or impeding the: same, by said track and by the uses thereof, will almost destroy the value of (heir property; and they pray that these grievances may be prevented by an injunction.

We do not perceive how the court below could have refused the injunction. The case made by the bill is embraced by the principles established in Amelung vs. Seekamp, 9 G. & J., 468, and White vs. Flannigain, 1 Md. Rep., 525. The latter decided that a party entitled to a right of way over a street, may be protected in the enjoyment thereof by restraining the erection of obstructions thereon; and tire former established the same doctrine as to roads. In both cases, however, the mere allegation of irremediable mischief from the acts complained of, is insufficient: CiTo satisfy the conscience of the court, the facts must be stated, to show that the apprehension of injury is well founded.” 9 G. & J., 474. The defect imputed to the bill in that case, was that it was not charged that the complainant had no other reasonably convenient outlet from his mills; that by the obstruction a valuable portion of his customers would be driven from them. We think the facts stated in this bill sufficiently show the character of the obstruction and its consequences. If, as we must assume, the streets binding on this property are already rendered nearly impassable by the rail road tracks laid upon them, leaving the alley as the only reasonably convenient mode of reaching the property and place of business of the complainants, and if, by the rail road track which the appellants arc causing to be laid across the alley, and the uses thereof, the complainants will be prevented from enjoying their easement — that is, from using the a]ley — .which they aver to be their only reasonable and convenient outlet, thereby nearly destroying the value of their property, the objection taken to Seekamp’s bill cannot be sustained as to that before us.

We cannot notice the improvements and increasing value of the property at Locust Boint, by reason of the coal trade, and the necessity for laying these tracks, as urged in the appellants’ argument. This may all be so. But we are not aware that such a state of things confers on the owners of property the right to make such roads, to the prejudice of their neighbors. Courts may be supposed to possess knowledge enough of the uses of a rail road to determine that trains of cars, whether drawn by horses or steam, may have a very injurious effect on the trade and business, and on the value of property, on streets across which they may pass, though they may also be productive of much advantage; and when the irreparable damage is shown, as it is here, relief must be granted in the first instance, leaving the facts of the. case to be inquired into afterwards.

The order granting the injunction will be affirmed, and the cause remanded.

Order affirmed and came remanded.