Hamilton v. Whitridge , 11 Md. 128 ( 1857 )

Tuck, J.,

delivered the opinion of this court.

The injunction in this case was granted upon a bill stating that the appellees are owners of property in the city of Baltimore, in the immediate vicinity of a house which the appellant had purchased, and to which she intended to remove, for the purpose of keeping a house of ill-fame, in which business she had been for a long time, and was then engaged. The bill charges, also, that in addition to the wrong and injury inflicted upon them, in common with other citizens of that city, by the occupation of the premises for the unlawful and immoral purpose complained of, “the complainants will be especially wronged and injured, inasmuch as they will be severally deprived of the comfortable enjoyment of their property, and that it will be greatly depreciated and lessened in value, by the close proximity of their said property to the premises in which it is charged that the defendant is about to open a bawTdyhouse.” The defendant, by her answer, admits the averments of residence and ownership of property by the complainants, setting forth particularly their relative situation to the house she had purchased; but declines to answer the averments that she had previously kept a bawdy-house, and intended to keep one at the house mentioned in the bill.

The case comes before us on appeal by the defendant from an order continuing the injunction, passed on motion to dissolve, and a hearing on bill, answer and affidavits, under the act of 1835, ch. 380. In this stage of the cause, if the bill shows a case entitling the parties to the injunction, it will not be dissolved, if the equity is not denied by the answer. Hardy vs. Summers, 10 G. & J., 316. Hutchins vs. Hope, 12 G. & J., 256. This rule of practice is an answer to the objection taken on the part of the appellant, that the judge below had passed the order appealed from in the absence of evidence that she was, at the time of filing the bill, the keeper of a bawdy-house, and intended to pursue that business at her new residence. But we think that the case authorizes the conclusion, as a matter of fact, that the appellant purchased and was fitting up this house for the offensive purpose stated in the bill. As late as November 1855, she had been convicted, on her own confession, of having been so employed, and two previous convictions had been obtained, in the same manner, in the years 1854 and 1855. Between the last of these convictions and the month of April 1856, when the bill was filed, not one circumstance is shown from which we can infer that she had changed her course of life. On the contrary, the inference is most strongly rebutted by her conversation with one of the witnesses, when she was having the house repaired. This view of the case derives strength from her refusal to answer the allegations of the bill on this point. Touching, as it did, her reputation, she would doubtless have denied the fact alleged, if it had been false. By her silence, or refusal to answer, we think she subjects herself to the remarks of the late Chancellor Bland, in 3 Bland, 132, "that a defendant who manifestly omits to answer, or answers evasively any substantial part of the bill, who evidently and purposely holds back something, cannot complain if he should find himself regarded with suspicion and distrust, and be refused that to which he may, in truth, be entitled, and, under other appearances, might have obtained.” So, in Bentley vs. Cowman, 6 G. & J., 155, it is said, Pleadings in equity are founded in the purest principles of ethics, and marked by frankness and fair dealing.” It is no answer to say that the defendant was not obliged to criminate herself, for, conceding that this would have relieved her from answering the allegation that she was then carrying on that business, it is very clear that she would not have subjected herself to a prosecution, by denying that she had purchased this house with a view to coniinue it there. We are constrained, therefore, to consider the appellant as a person about to open the premises as a house of ill-fame, and the prominent question for decision is, whether the jurisdiction of courts of equity embraces the prohibition of such public nuisances, where the complaint is, that they will, by reason of their close proximity, deprive other persons of the comfortable enjoyment of their property, and greatly depreciate and lessen its value.

As was observed by the appellant’s counsel, no decision has been found in which the power was exercised in such cases as the present. Nor is there any in which the writ of injunction has been applied for and denied. But the absence of precedents, though not to be overlooked entirely, does not, of itself, determine questions of jurisdiction. We consult adjudged cases to ascertain their reason and spirit. These are the foundation of the law. 3 Bland, 133. Fisher vs. Prince, 3 Burr., 1364. Rust vs. Cooper, Cowp., 632. Courts are not to assume jurisdiction, but they may amplify remedies, and apply rules and general principles for the advancement of substantial justice. Broom’s Maxims, 36. 50 Law Lib., 50. Russell vs. Smyth, 9 Mees. & Wels., 818, per Ld. Abinger. If this were not so, and courts were confined to particular precedents, there would be no power to grant relief in new cases constantly occurring. And, hence, when they do arise, and rights can be asserted, or wrongs prevented or redressed, consistently with established principles, it would be a great failure of justice to deny relief, merely because no decision could be found in which the jurisdiction had been invoked and exercised. The point on this appeal, then, is not whether an injunction has ever issued to prevent the establishment of a public nuisance of this kind, but whether the doctrines of equity, applicable to nuisances, should be applied to the present case.

Although at law, the remedy in respect to public nuisances is by indictment, and in respect to private ones, by action at the instance of the person injured, yet, in the common law tribunals, redress may be had for damage resulting from public as well as private nuisances. These remedies can only abate or afford compensation for an existing nuisance, and are ineffectual to restrain or prevent such as are threatened or in progress. Hence there is a jurisdiction in equity to enjoin, whenever the nature of the inj ury is such that it cannot be adequately compensated by damages, or from its continuance or permanent mischief, will occasion a constantly recurring grievance. And as a party injured by a public nuisance may have his action at law for damages thereby sustained, so he may apply for an injunction to prevent such nuisance, if its existence will cause a substantial prejudice to his property, or the reasonable enjoyment thereof. Drewry on Injunctions, 240. 36 Law Lib., 165. Adams' Equity, 210. 68 Law Lib., 185. 2 Story's Eq., sec. 920 to 926. Jeremy's Equity, 309, 310. This author says: “The foundation of this court’s jurisdiction on the subject of nuisance, is the probability of irreparable mischief; that sort of material injury by one to the comfort of another, which requires the application of a power to prevent, as well as to remedy, the evil.”

We need not review here the cases on which these writers rely. They generally sustain the doctrine as laid down by them. Formerly the jurisdiction was more restricted than at present; but, for many years, both in England and in this country, this process has been more extensively employed, as the exigencies of society created a necessity for its use, according to recognized doctrines of equity. The English decisions were examined by the vice-chancellor, in Soltau vs. DeHeld, 9 Eng. Law & Eq., 104, upon the'authority of which, he considered himself warranted in applying the remedy in restraint of ringing church bells, “so as to occasion any nuisance, disturbance, or annoyance to the plaintiff, and his family residing in his house,” upon the ground that a private person may bring his bill in equity, where he apprehends injury or disturbance in the enjoyment of his property from a public nuisance.

In this country, too, there are decisions full to the point. We mention, particularly, Corning vs. Lowerre, 6 Johns. Ch. Rep., 439, recognized in 12 Peters, 91, where Chancellor Kent allowed the writ, “inasmuch as there was a special grievance to the plaintiffs, affecting the enjoyment of their property, and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs.” The Supreme Court, in 12 Peters, 91, said, that “a court of equity, pursuing the analogy of the law, that a party may maintain a private action for special damage, even in case of a public nuisance, will now take jurisdiction in case of a public nuisance, at the instance of a private person, where he is in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy.” This principle appears to have been acted upon in this State; for in the case of Harrison vs. Sterett, 4 H. & McH., 540, a claim for damage resulting from a public nuisance, was sustained at law; and in The Del. & Md. R. R. Co. vs. Stump, 8 G. & J., 479, the jurisdiction of courts of equity in such cases was recognized, but not cn - forced, because the bill did not state a case of private grievance.

But the appellant’s counsel suggested that a distinction should be taken between the cases relied on in support of this power and the present, because here the object is to prevent what is offensive to the moral senses. We need not inquire how far this jurisdiction can be defended on grounds of morality, and to preserve the decencies of life from gross violation. The case does not require this. But it would be strange, indeed, if when the court’s powers are invoked for the protection and enjoyment of property, and may be rightfully exercised for that purpose, its arm should be paralyzed by the mere circumstance that, in the exercise of this jurisdiction, it might incidentally be performing the functions of a moral censor, by suppressing a shocking vice denounced by the law, and amenable to its penalties from the earliest times. And if, as the authorities show, the court may interfere where the physical senses are offended, the comfort of life destroyed, or health impaired, these alone being the basis of the jurisdiction, the •present complainants, presenting as they do a case otherwise entitling them to relief, should not be disappointed merely because the effect of the process will be to protect their families from the moral taint of such an establishment as the appellant proposes to open in their immediate vicinity.

The objection of multifariousness as to parties, was made at the hearing, and not by demurrer, which is the usual practice. When raised at the hearing, it is not always fatal, but will be allowed at the discretion of the court. Story’s Eq. Pl., secs. 271, 284, a. 530, 540, 541. One ground for such objections is, that the defendant might be required to unite in one answer defences not applicable to all the complainants, thereby presenting various issues in the same cause, and involving the defendant in unnecessary litigation and expense. Where, however, the court can perceive that the reason of the rule does not apply, and the objection is not made by demurrer, it ought not to interfere sua sponte. Here the objection has been waived by the answer, which takes defence as to all the complainants, and under it, the real point in controversy can be determined as well as if there were as many suits as there are plaintiffs. Therefore, without deciding whether the bill be demurrable or not, we are of opinion that the point was properly ruled against the appellant.

Order affirmed, and cause remanded.