Townsend, Grace & Co. v. Epstein

This case presents questions of more than usual interest and importance, but we think principles enunciated in comparatively recent decisions of this Court must so far control its decision as to render the solution of these questions free from difficulty. The facts giving rise to this litigation are as follows. The appellants (who were plaintiffs below) are the owners in fee of a lot of ground fronting about forty-nine feet on the south side of Fayette street in the city of Baltimore, and running southerly, with uneven width, back to and abutting about sixty-eight feet on a small street known as Garrett street, which runs east and west parallel with Fayette street to the north of it and with Baltimore street to the south of it. This lot is occupied by a large building extending from street to street which is used by the appellants as a factory for the manufacture of straw goods. In this building looking out upon Garrett street are a number of windows for the admission of light to the different floors thereof.

The appellee is the lessee and occupant of three parcels of ground with the buildings thereon fronting on the north side of Baltimore street and extending northerly to Garrett street, and is conducting upon these premises a large merchandising business. For the purpose of this business he has recently purchased a lot of ground lying between and abutting on Fayette and Garrett streets, fronting on the south side of the former and extending back to the north side of the latter street, and situated immediately opposite to where his premises, lying between Baltimore and Garrett streets, abut on the latter street, and to the west of the premises of the appellants. Upon this lot he proposes to erect a six-story warehouse and to establish communication between that and the premises and buildings occupied by him on Baltimore street by a tunnel under and a structure above and across Garrett street. The tunnel has been constructed. The structure across Garrett street has also been nearly completed. This is an enclosed structure, about thirty-three feet to the west of the premises of the appellants, and is about seventeen feet above the surface of the street. It is now connected with the building of the appellee which fronts on Baltimore street and extends back to the south side of Garrett street; is thirty feet in width, running with the latter street; and is built three and a half stories high across it to where this structure is intended to be connected on its north side with the warehouse which the appellee proposes to there erect.

Before proceeding to construct this tunnel or to erect this connecting structure, the appellee applied for and procured from the Mayor and City Council of Baltimore, after complying with all formal requirements, the passage of an ordinance purporting to grant to him the privilege and right, under regulations therein prescribed, to construct such tunnel under Garrett street and to erect an enclosed superstructure across said street to "connect one or more floors of the premises of Jacob Epstein on West Baltimore street * * with the corresponding floor or floors of the building or improvements to be erected by him on the south side of West Fayette street and the north side of West Garrett street." This ordinance recited that this right was granted "for the convenience of the public having business with Jacob Epstein."

The appellants began this suit by filing a bill in equity charging in substance that this ordinance in attempting to grant to the appellee the right to build a tunnel under and a structure over Garrett street as therein provided is invalid and void; and that the attempt made by the appellee to exercise such right is an invasion of their rights as abutting lot owners on said street. They pray that the said ordinance shall be declared invalid and inoperative and that the appellee be perpetually enjoined from digging the tunnel and from erecting the superstructure as proposed and that he be required to restore the earth removed from the tunnel and to take down and remove such part of said superstructure as had already been erected. The trial Court refused the relief prayed for by the appellants and decreed that their bill be dismissed.

Garrett street is a public street of the City of Baltimore and as such subject to the same control of the municipality as it has over all of its streets and highways. The rights of the parties to this controversy are therefore to be determined from their relation to this street as a public street or highway of the city. This being now fully conceded, and if not conceded being incontrovertibly shown, we need not undertake to trace the history of this street with a view to defining its status as involved in the present contention. The appellants in their bill based their claim to relief upon a different theory, as to thisstatus, which, in the brief of their counsel, is practically abandoned, and in view of the proofs in the case properly so, as their rights depend upon the conditions actually existing. Besides this, the appellants and appellee as lot holders abutting on this street claim under the same source of title and to this same source is due the dedication of the street in question, among others, as a highway to "be so deemed and taken to all intents and purposes whatever."

It would seem, therefore, that the appellants as against the appellee, can claim no greater rights in or over this street than such as belong to both parties as abutting owners upon this highway. The question, therefore, is, do these rights entitle the appellants to the relief prayed for in their bill against the acts of the appellee in respect to the street in question which are therein complained of. In determining this we are to inquire what are the rights of the appellants? Have they been injured in respect to those rights in such manner as to entitle them to a remedy against the appellee? If so, are they entitled to the particular remedy which they have sought in this proceeding? That owners of lots or ground abutting upon the public streets have rights in the easement, which are valuable and are in addition to those which they have in common with the general public is recognized in our statute law which confers upon the City of Baltimore the power for laying out and closing up streets, by providing for compensation to such owners upon the closing of an adjacent street. Act 1898, chap. 123, sec. 6, sub-title "Streets, Bridges and Highways," the same provision being formerly contained in Code, Art. 4, § 806, Public Local Laws.

Such right of the abutting owner thus recognized, was enforced by this Court in the case of Van Witzen et al. v. Gutman,79 Md. 405, where it was said: "It is recognized by the statute that abutting owners have interests in the street or alley which are valuable, and that these cannot be taken for the public use without compensation. It is believed that no one will contend that they can be taken for private use on any terms whatsoever. Certainly such a doctrine has never at any time found any toleration in this State." In the case just referred to relief was sought against the obstruction of the public alley, there in question, so as to cut off the complaining lot holders from ingress and egress from and to another public street and to destroy the right of passage out and over said alley to this street. The obstruction of the alley was attempted by proceedings under the authority of an ordinance of the Mayor and City Council of Baltimore, providing for the closing of the alley. This Court held that the use for which the alley was authorized to be closed was not a public, but a private use and that therefore the ordinance authorizing the closing of it was void upon the ground as appears from the quotation just made that the abutting lot holders who were there seeking relief had valuable rights in the easement of the alley and could not be deprived, against their consent, of these rights for any but a public purpose and then only with compensation.

Now this valuable property right in the public street which this Court upheld in the case just referred to embraces something more than the mere right of passage over the surface of the street which was the right more directly involved in that case. The abutting lot holder has the right to the enjoyment of the light and air which the highway affords. To deprive him of this right would be to impair, or it might be, to destroy the comfort, enjoyment or use to be derived from the easement to which he is entitled; and we find this recognized by very high authority. In 2 Dillon on Mun. Corp. (4th ed.), sec. 712, it is said, "there is a large class of cases in which no recovery can be had for mere consequential injuries to adjacent property from the construction of public improvements in the streets, towns and cities, the lot owner holding subject to the right of the public to use the streets for any purpose consistent with the legitimate uses for which they were dedicated or acquired; but lot ownershave a peculiar interest in the adjacent street, viz., easements of access, light and air, which are property rights, and as such are as inviolable as the property in the lots themselves; and they may recover from the company making such improvements such damages as they may sustain by injuries to or invasions of such easements." Again in the case of Field v. Barling (149 Illinois, 556), 24 L.R.A. 406-9, the Court said, "it will not be necessary to cite authorities in support of the proposition that a private individual cannot appropriate to his own exclusive use a portion of the surface of a street dedicated to the public use. * * * The dedication of the strip of land for a public street embraced not only the surface of the ground, but the light and air above, and an individual has no more right to obstruct the light and air above the street than he has to obstruct the surface of the soil."

The case just cited is peculiarly apt here because it deals with facts and conditions very similar to those presented by the case at bar. We may also refer to the case of Barnett v.Johnson, 15 N.J. Eq. 481-7-8, in which the Court discusses the question whether the Morris Canal was a public highway, which being determined affirmatively, the Court in the course of discussing the further question as to the rights of an abutting property owner in respect to light and air from this highway says, "there are * * two classes of rights, originating in necessity and in the exigencies of human affairs, springing up coeval with every public highway and which are recognized and enforced by the common law of all civilized nations. The first relates to the public passage, the second, subordinate to the first, but equally perfect and scarcely less important, relates to the adjoining owners. Among the latter is that of receivingfrom the public highway light and air" — and again in the course of the opinion occurs this emphatic language, "where a strip of land is declared a public highway the adjoining owner has a right to light and air from it. The column of light and air above the road-bed whether of land or water is as much a part of the highway as the road-bed itself."

It is thus seen that the right of the abutting owner to light and air from a public highway as part and parcel of the easement is distinctly recognized in the authorities when such right has been drawn in question and it rests upon sound and obvious reason. Recognition of this right is not all at variance with the decisions, of this and other Courts of this country in regard to the doctrine of ancient lights, which hold that such doctrine is unsuited to conditions here. The case of Cherry v. Stein,11 Md. 1, cited and relied upon by the counsel for the appellee is an illustration of these cases. The doctrine of ancient lights that they repudiate involves an abridgment of the use which an owner can make of his own property. It puts upon the property of one a servitude in favor of another. This is not the nature of the right to light and air from a highway which belongs to an abutting owner as part of the easement. This right to light and air is the distinct right of every abutting owner; and in claiming protection for it such owner is not imposing a servitude upon his neighbor's property for his benefit; but is only asserting his equal right with his neighbor to the enjoyment of an easement common to them both.

Nor is there anything, as counsel for appellee insist, in the case of Garrett v. Janes, 65 Md. 260, in denial of the right we are here considering. The structure complained of in that case as interfering with the light and air from the street was erected under the authority of an Act of Assembly and an ordinance in pursuance thereof which extended and secured to all persons alike who resided within the limits designated in the ordinance the right to erect, under regulations prescribed, "steps, porticos, or porches or other architectural ornaments to houses fronting on Mount Vernon Place." This was a privilege in the interest of the general public and tending to the general comfort and enjoyment of the homes in the district to which the ordinance applied. The Court found that the structure complained of was one of a kind which the ordinance authorized and was therefore a lawful structure and refused to have it abated as a nuisance which it was claimed to be.

We have seen now the nature and extent of the rights of the appellants in and to the street of the obstruction of which they complain. If the public easement has been improperly and unlawfully obstructed by the appellee, then he has been guilty of creating a nuisance; and if the appellants have suffered therefrom an injury different in kind from and beyond that suffered by the community generally; or special and particular damage resulting to them by reason of the nuisance then they have a right to their private remedy for such injury. Garitee v. M. C.C. of Balto., et al., 53 Md. 422; Field v. Barling,149 Ill. 556, supra. To discover what injury, if any, the appellants have suffered from the acts of the appellee, and the character of the injury resort must be had to the proof. This does not show that the appellants have suffered or are suffering any injury from the tunnel constructed under the bed of the street in question as has been described. In reference to the superstructure the proof shows that it tends to and does diminish and obstruct the light from the street to the premises of the appellants. There was evidence upon the part of the appellee tending to contradict this, but the decided preponderance of testimony is with the appellants upon this point. The non-expert witnesses testifying on their behalf testified from actual observation of the conditions, in respect to light, made upon the premises of the appellants where these premises were affected in this particular by the superstructure; while those testifying on behalf of the appellee made their observations from other points and their evidence was more therefore the expression of opinions formed upon inferences drawn than a statement of actual facts. Expert testimony was offered on the part of the appellee with a view, and tending to show that the superstructure in question could not hinder but rather tended to improve the light to the premises of the appellants. This was opposed by expert testimony upon behalf of the appellants, which was much more satisfactory and much more consistent with common sense and common observation to the effect that such a superstructure as the one in question and so located with respect to appellants' premises necessarily tended to obstruct the access of light to, and to diminish it in, said premises.

It appears therefore that the appellants have suffered injury from the erection of the superstructure complained of. It further appears that this injury is one different in kind and degree from, and in addition to such injury as the general public suffer by reason of the obstruction. This results from the situation of the premises of the appellants with respect to the obstruction, and the nature of the use of these premises and the construction of the part thereof abutting on Garrett street. The proof shows that in the part thus abutting there are many windows as to some of which, in the lower floors of the building, there is an entire dependence for light, upon Garrett street. The premises are used for manufacturing purposes for which a proper supply of light is more of a necessity than a mere matter of comfort or convenience. It is further shown that owing to the diminution of light resulting from the obstruction in question the appellants have been compelled to resort to an increased supply of artificial light for the purposes of their business. These considerations would seem to make a distinct difference between the injury to the appellants caused by the obstruction of which they complain as a nuisance, and that suffered by the general public. It is contended on behalf of the appellee however that though there may result injury and inconvenience to the appellants from the erection and maintenance of the structure in question, the appellants have no cause of action and are without remedy because the structure is a lawful one in that it was authorized by the ordinance of the Mayor and City Council which has already been referred to.

The Corporation, The Mayor and City Council of Baltimore, is invested with the title to and control over the public streets. This control, however, is not an arbitrary control. The streets and highways are held in trust for the benefit, use, and convenience of the general public. There are many ways in which the power to control and regulate the use of the streets can be and must be exerted by the municipality to meet the necessities and the convenience of an urban population; but the exertion of this power must have for its object a public purpose. It is not in accord with the trust upon which the municipality holds the streets, nor with the nature of the control which it has over them to make use of the power and authority with which it is invested in that regard to promote a mere private purpose, to subserve a mere private interest or to subordinate the right of one citizen in the streets, or in a street of the city to the private interest and convenience of any other. In the case ofVan Witzen v. Gutman, 79 Md. supra, this Court held that this could not be done even if compensation were made; and though done under the guise of serving a public purpose. A fortiori it cannot be done without compensation. We are confronted here with the same inquiry that the Court was called upon to make in the case last cited.

Was the ordinance under which the appellee here undertakes to justify the acts complained of passed to subserve a public purpose or does it serve a mere private purpose and private and individual interests? Upon the face of it it seems to recognize the limitations upon the right and power of the municipality to pass ordinances of this nature by expressing its object to be "for the convenience of the public having business with Jacob Epstein." This is a rather thin disguise. It is but another form of saying to promote the private business of Jacob Epstein and his convenience in respect thereto. How does it serve the general public or a public purpose to facilitate Jacob Epstein, at the expense of his neighbors, in attracting customers to, and serving them at his store? Aside from this the proof makes it perfectly clear that only private interests are to be subserved by the privileges obtained under the ordinance in question. The appellee in his testimony says "that he intends to use this superstructure after his Fayette street building is completed as a means of egress and ingress from the Baltimore street premises to his Fayette street premises, for hiscustomers and his help on the floor;" "that if anybody wants to go through there, to use it as a way to go between Baltimore and Fayette streets he would not object, but that he does notintend it for a public thoroughfare." This only condenses what sufficiently appears otherwise; and evidences the absolutely private purpose for which the structure is to exist and the private control that it is to be under. If the municipality can grant a privilege of the character of the one here in controversy it implies a power to practically destroy a street as an open, light, and comfortable highway, and its use for the purposes of residence or business by the abutting owners in total disregard of the rights of such owners. If the privilege be granted to one it cannot be denied to others who may apply for it in like circumstances; and the grant of such privilege might go to the extent of practically transforming any part of a street from an open highway affording unobstructed passage, light and air into a covered and darkened way. The exercise of such a power as was attempted in the ordinance to which reference has been had cannot receive the sanction of this Court. The ordinance for the reasons assigned is an invalid act and affords to the appellee no bar to the legal redress to which the appellants are entitled for the injury caused to them by the acts of which they here complain.

It remains now to inquire whether the appellants are entitled to the particular remedy which they have invoked in this case. It is contended by counsel on behalf of the appellee that this legal redress, if the appellants be entitled to any, can only be by way of a suit or suits at law for consequential damages caused by acts of the appellee which they seek to make the grounds of action. They here invoke a principle that is illustrated and applied in a class of cases of which the case of Garrett v.Lake Roland El. Ry. Co., 79 Md. 277, is an example. That principle is applied however in cases where the public street is put to some additional lawful use, a use not inconsistent with its use as a highway and a use intended to further serve the public interest and convenience. In such cases the injured property owner cannot prevent the lawful use to which the street is put, but can only recover damages for any consequent injury. This principle is not applicable however to a case, such as we find this to be, where the injury complained of results from an unlawful and unauthorized use of the street. In such a case there is no reason why the injured party should not have such remedy as may give suitable redress. In this case the appellee is unlawfully obstructing a public street as respects its character as an open highway, and the light and air which as such a highway it affords. The appellants have shown as we have seen that they are injured by the obstruction in such way as to entitle them to redress. The obstruction is a continuing one operating to their annoyance, inconvenience and pecuniary loss from day to day. Though they would be entitled to recover damages at law for the injury and loss to which they are subjected they could not recover for the whole damage past and prospective in one suit but only for damages to the time of suit brought. These damages would be difficult to estimate and in any one case would be comparatively trivial. In seeking redress at law therefore they would be driven to a multiplicity of vexatious and unprofitable suits and continuous litigation. To tell them that this is the only redress they can have would be to say that all the law can do for them is to aggravate the nuisance from which they are already suffering. "To suppress oppressive and vexatious litigations" is one of the grounds of equity jurisdiction in regard to public nuisances. 2 Story Eq. Jur., sec. 924; Amelung v. Seekamp, 9 Gill John. 474; Elliott onRoads and Streets at page 497, speaking of the phrase "irreparable injury" says "it does not necessarily mean as used in the law of injunctions, that the injury is beyond the possibility of compensation in damages nor that it must be very great. And the fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages only, often furnishes the very best reason why a Court of equity should interfere in cases where the nuisance is a continuous one." In the present case to seek redress at law would for the reasons given prove vexatious and oppressive to the appellants and it is entirely apparent from the circumstances of the case that no adequate redress can there be afforded them. They have properly sought redress by injunction to have the nuisance they complain of abated and its future continuance prevented.

The further contention on behalf of the appellee is that the appellants are estopped from maintaining their present suit because of acquiescence on their part in the erection of the structure now complained of or of laches in not sooner making known their objection to the same. This contention is based on the grounds: 1st. That there is evidence that Mr. Townsend one of the appellants when consulted by the appellee in regard to his plans which included the construction of the tunnel under and the strucure across Garrett street gave his assent to the same and even encouraged the appellee to carry them forward; 2nd. That pending the proceedings for procuring the ordinance to authorize the carrying out of the plans of the appellee, the appellants did not appear to make any objection or offer any suggestion as to the same; 3rd. They stood by and saw the tunnel completed and the superstructure nearly so before making known the objections they now urge

In regard to the first of these grounds it may be sufficient to say that the evidence fails to clearly establish it. The appellee testified on his own behalf to the purport which has been indicated as to what said by Mr. Townsend when the appellee sought him in reference to his plans, c. Mr. Townsend, however, denies that the conversation was as detailed by the appellee and gives quite a different version of it. Besides this, Mr. Townsend is only one of the appellants, and if the conversation occurred between him and the appellee, as the appellee states, there is no evidence that he communicated it to his co-appellants and co-owners with him of the abutting property which they occupied, and we may at least express a doubt whether an express acquiesence on his part in the plans of the appellee would bind his partners as respects the interests they had in the property. As to the second it is not perceived how the failure to object to an ordinance which we find to be invalid and inoperative could give to the ordinance validity or effect or to authorize an act which with or without the ordinance was unlawful and a public nuisance. As to the third ground the appellants could not complain of injury to themselves until it was ascertained that injury would result to them from the acts of the appellee. They seem to have been prompt to act when that discovery was made. Until then they had only the right to object as members of the public and their failure to object in that capacity could not render a public nuisance lawful. What has been said as to the title of the appellants to relief does not apply to the tunnel since they have shown no injury resulting to them from this construction or maintenance of that.

From the foregoing views it follows that the decree of the Court below must be reversed and the cause remanded that a decree may be passed in accordance therewith.

Decree reversed with costs to the appellants and causeremanded.

(Decided June 13th, 1901.)