This is an appeal from a judgment of the Circuit Court for Allegany County in favor of the appellees as plaintiffs in an action of trespass quare clausum fregit. The trespass forming the basis of the suit was the forcible removal by the appellant of an elevated structure erected across an alley way located on a lot of ground owned by the appellees on Main street in the town of Frostburg.
The alley, which lies entirely within the boundaries of the appellees' lot, was called for in a deed of the lot, made in the year 1852, to J.S. Welsh under whom the appellees claim title, and it has been freely used by the public as an alley ever since that time. It does not appear from the record that the appellant ever acquired title to the alley or the land under it or ever accepted its dedication to public use either by formal corporate action or by the transactions of any authorized public department or official.
About eighteen years prior to the institution of this suit Peter Payne, who at that time owned the lot and had his dwelling-house on one side of the alley and kept a hotel on the other side of it, erected the frame structure now in question over the alley for a distance of thirty-six feet at an elevation of ten or eleven feet above the surface of the land. This structure contained three rooms and extended entirely across the alley, which was sixteen feet wide. It communicated with the second story of both the residence and the hotel although it was not built into either of them but rested upon wooden posts six inches square set up along the two sides of the alley against the hotel and the dwelling. At the institution of this suit and for sometime prior thereto the three rooms over the alley along with other rooms adjacent thereto were rented to the Young Mens' Christian Association and used for its headquarters. *Page 625
The elevated structure so erected above the alley was used and enjoyed by the successive owners of the lot without objection on the part of any one until July the 19th, 1895. On that date, the appellees being about to close the alley entirely by erecting a building on its surface underneath the elevated structure, the appellant jointly with certain individuals owning lands in proximity to the alley filed a bill in equity in the Circuit Court of Allegany County praying for an injunction prohibiting the appellees from erecting their contemplated building on the surface of the alley and requiring them to remove the elevated structure erected above it. The appellees answered the bill asserting that they were the exclusive owners of the bed of the alleged alley and denying that the public had a right to use it for any purpose. A final decree was passed in that case, in due course on September 18th, 1895, enjoining the appellees from closing the bed of the alley by the erection thereon of their contemplated building, but they were not required to remove the elevated structure built above the alley nor was any mention of or allusion to that structure made in the decree.
On April 20th, 1903, the appellant by a formal resolution declared the elevated structure to be a nuisance and gave written notice to the appellees to remove it within sixty days or the municipality would tear it down. This notice not having been complied with, the appellant on June 30th, 1903, forcibly tore down and removed the structure and in so doing injured to some extent the plaintiff's adjoining house. The appellees thereupon brought the present suit in trespass quare clausum fregit and recovered the judgment against the appellant from which the present appeal was taken.
There is evidence in the record tending to show that the elevated structure obstructed to some extent the light and air in the portion of the alley lying below it and that vehicles of exceptional heighth were unable to pass under it; also that persons and vehicles gathered under it in wet weather for shelter and that nuisances were sometimes committed there by ill-behaved persons. It also appears that the charter of *Page 626 Frostburg confers upon the Mayor and Councilmen a general power to remove nuisances and obstructions from the streets lanes and alleys of the town.
The record contains eleven bills of exception of which ten relate to rulings upon questions of evidence and the eleventh is to Court's action upon the prayers offered by the respective parties to the suit. We will consider the last exception first, as it is vital to the issue presented by the record.
The plaintiff's first prayer asserted the proposition that if the jury found that the plaintiffs were the owners of the lot of ground over a part of which the elevated structure was erected and that the defendant by its agents or servants entered upon the lot and tore down the structure and injured the other improvements on the lot the plaintiffs were entitled to recover even though the jury should find that there was an alley way reserved over the portion of the lot lying under the structure and that the public had been accustomed to use the alley as a public way ever since the year 1857, unless the jury further found that the structure at the time of its removal formed such an obstruction to public travel in the manner in which said alley had been accustomed to be used as to constitute the structure a nuisance.
We find no error in this proposition of which the appellant can complain. In the case of New Windsor v. Stocksdale,95 Md. 196, both the form of action and the issue raised by the pleadings were the same as in the present case and the principles held by the very full opinion there filed to have been the controlling ones in that case are conclusive of this one. In Stocksdale's case the town of New Windsor was sued in trespassquare clausum fregit for entering upon an alley which the public were entitled to use over the plaintiffs' land and removing therefrom certain door steps attached to her house, which had by corporate action of the municipality been declared to constitute a nuisance. The plaintiff recovered a judgment in the case and upon the appeal of the defendant we held that as it did not appear that the alley had ever been conveyed to the town or that it had been dedicated to the public and accepted *Page 627 by the municipality, the town authorities had no right to enter upon the alley and remove the steps. We there distinguished between the right of the public to use the alley and the authority claimed by the municipality to enter upon the alley and remove the alleged obstruction after having first by corporate action declared it to constitute a nuisance. In support of the views expressed in our opinion in that case we cited from the opinion of the Supreme Court of the United States in Yates v.Milwaukee, 10 Wall. 479, the statement. "It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State within which a given structure can be shown to be a nuisance, can, by a mere declaration that it is one, subject it to removal by any person supposed to be aggrieved or even by the city itself. This would place every house, every business, and all property in the city at the uncontrolled will of the temporary local authorities." Stocksdale's case has been cited and relied upon by us as conclusive of the still more recent case ofFrostburg v. Wineland, 98 Md. 239, where we upheld a decree enjoining the municipality from removing from the sidewalk of a public street certain trees which had been declared by municipal corporate action to constitute a nuisance, it not appearing from the evidence that the trees did so obstruct public travel as in our opinion to constitute a nuisance. Municipal corporations even when clearly authorized by their charter to remove or abate nuisances and obstructions on the public streets should never undertake to forcibly destroy or remove structures like the one now in question constructed between private houses above a mere right of way over private property. They should institute appropriate proceedings before a Court of competent jurisdiction to establish the fact, if that can be done, that the structure amounts to a nuisance or an unlawful obstruction upon a public street and to require its abatement or removal.
Nor do we find any error in the plaintiffs' second and third prayers which declared the measure of damages according to recognized standards in the event of a verdict for the plaintiffs. *Page 628
The question whether the elevated structure which was removed constituted such a material obstruction to travel and light on the alley as to amount to a nuisance was fairly submitted to the jury by the defendant's three prayers all of which were granted after having been modified by the Court.
The defendant's first prayer as offered by it based its claim to a verdict in its favor upon the finding by the jury that the structure constituted a public nuisance by obstructing light and travel on the alley. Its second and third prayers based its claim to a verdict upon the finding by the jury that the structure obstructed the light and travel on the alley. The Court so modified these three prayers as to make them distinctly require the jury to find that the obstruction to light and travel on the alley by the structure was so material as to amount to a public nuisance, before they could find for the defendant.
The question whether a given state of facts, if found to exist by a jury, constitute a nuisance is ordinarily one of law for the Court or is at least a mixed question of law and fact, but we do not think that the defendant can complain of the Court's action on its prayers, because by its own first prayer it asked the Court to submit to the jury whether the alleged obstruction constituted a public nuisance. We are further of the opinion that the slight degree of obstruction shown by the evidence to have been caused by the structure to light and travel on the alley did not amount to a nuisance. We are also upon the whole case of the opinion that the facts offered in evidence did not at all justify the municipality in forcibly entering the plaintiffs premises and destroying the elevated structure.
The first, third and fourth exceptions were taken to the admission of evidence tending to prove that after the appellant sent its notice to the appellee to remove the elevated structure a verbal agreement was made between Mr. Watson, the regularly elected attorney of the town of Frostburg, and Mr. Doub, representing the appellees, that nothing further would be done in reference to the removal of the structure until after the decision *Page 629 of the then pending case against Mrs. Parker which it was supposed would settle the principle involved in the present one. The agreement, if there was one, was not observed by the town and it was proper that the evidence should go to the jury, for if they found that the agreement had been made and broken by the appellant those facts might have been considered by them along with other features of the transaction in determining the character of the appellant's conduct in committing the trespass for the purpose of assessing the damages. The agreement was not one between counsel in reference to a pending litigation which is required to be made in writing, for the suit had not then been brought, and there was evidence tending to show that Mr. Watson was a regular municipal official within the scope of whose duties the making of such an agreement for a moderate delay might reasonably be regarded as included. The evidence was properly admitted. Schindel v. Schindel, 12 Md. 122; Snively v.Fahnestock, 18 Md. 395.
The second, sixth and ninth exceptions were to the refusal to permit the appellant to introduce evidence tending to show that the value and appearance of the appellees' adjoining property were improved by the removal of the structure over the alley. This ruling was clearly correct as a trespasser cannot relieve himself from the damages resulting from his trespass by showing that some advantage may have accrued to the plaintiff therefrom.
The other exceptions were to rulings on matters of evidence, involving no error on the part of the Court below, which by reason of the view which we have taken of the whole case we deem it unnecessary to notice in detail.
The judgment appealed from will be affirmed.
Judgment affirmed with costs.
(Decided November 16th, 1904.) *Page 630