Reddall v. Bryan

Digging deep holes and planting therein large stone pillars or abutments,, digging and carrying away large banks of valuable clay, and constructing an aqueduct by ditches and embankments through, and thus permanently dividing the complainant’s land, are acts which, if done without authority of law, would present a case of irreparable damage, authorizing the interference of a court of equity by injunction. The right to an injunction is not ex debito jusliticD, but the application is addressed to the sound conscience of the chancellor acting upon all the circumstances belonging to each particular case. Tho chancellor has the right to require a .“nil and candid disclosure of all the facts, and if there appears in the proceedings sufficient to show that this lias not been made, he may properly refuse to grant au injunction. The Constitution of this Stale declares that, “The Legislature shall enact no law authorizing private property to be taken for public use without just compensation, as agreed upon between the parlies, or a weeded by a jury, being first paid or tendered to the party entitled to such compensation.” llni.r: 1st. "’lidÍ these words are, mandatory, both as to the use for which private properly may he taken and the previous payment or tender of compensation therefor: it can be taken oul» for public use. 2nd. Hut the woids, “public use,” do not mean merely a use of the government or State of Maryland, and its inhabitants as such, but embrace within their scope a use of the Government of the United States. 3rd. The expropriation of land in Maryland for the purpose of supplying the city of Washington with water, is, in every sense, a taking of it for public use, and, therefore, the Act of 2d53, ah. 179, authorizing such expropriation, is not uuconstitu ional. 4th. The Government of the United States has power, under tho last, two clauses of the Constitution of the United States, to construct an aqueduct, drawing its supply of water for tho city of Washington, from within the limits of 'Maryland, and using and occupying land for that purpose in Maryland, by permission and consent of the State.

Appeal from the equity side of the Circuit Court for Montgomery county. This appeal is from an order refusing an injunction, upon a bill filed by the appellant against the appellees in April 1858. The bill alleges that the complainant is and has been for a long time, and was, long before the commission of the trespasses hereinafter described, seized and possessed of a valuable tract of land called “The llesurvey of Magruder’s and Bell’s Honesty,” situated in Montgomery county, containing one hundred and thirty acres, more or less; that certain individuals, (the defendants,) contriving and confederating together, on the 1st of April 1857, and on divers days and times between that day and the day of the filing of this bill, with force and arms, broke and entered complainant’s said close or tract of land, tore down his fences, cut down and destroyed bis crops, dug up and subverted his soil, and other great, and irreparable .damage to him then and there did, to his great injury; that said defendants have resolved and declared to complainant, and openly to others, that it is their fixed determination to continue said trespasses, and to do in and upon said land, and to complainant, like and further and greater irreparable damage; having dug deep holes in the earth and soil of the complainant, they are steadily and recklessly proceeding to plant and build thereon a large and heavy stone pillar or abutment, of about forty feet at the base, to be planted above one hundred feet beneath the soil, the said pillar being, as they allege, intended for the support of a bridge or aqueduct across a stream of water called “The Cabin John Branch,” adjacent to complainant’s said land, and they aver and declare that it is their fixed resolution and determination to continue the erection of said stone pillar or abutment until it shall be finished, or until the said bridge or aqueduct shall be completed and permanently established, which will be doing irreparable damage to complainant, inasmuch as it will be impossible for him except at incalculable and ruinous expense, to remove, fill up and restore the same, and that said bridge and pillar will be wholly useless to him, and if it were not, it is the fixed and avowed determination of the defendants so to construct, said bridge or aqueduct, that it shall never be used by him or the public at large. The bill further charges that the defendants have, in addition to their other trespasses, driven down into complainant’s land two lines of stakes, beginning at I he proposed termination of said bridge on his land and extending entirely across or through a part of his land, and have marked out a space between said lines of two hundred feet in width through the whole of said extent, for the purpose, as they allege, of digging up, carrying away and converting to their own use, the inexhaustible banks of clay there to be found/ which clay is of a character peculiarly valuable to complainant, being of that sort known as aluminous clay, and worth to him a large sum of money, all which they declare they mean to use in the construction of said aqueduct, or for purposes connected therewith, both on and off his land-. In procuring said clay and in con. structing said aqueduct, they aver their intention of digging up complainant’s soil to a great depth, and, for the purpose of forming an aqueduct through his land, will necessarily be compelled to go to the depth of twelve or fifteen feet in many places, and in others, where the land is lower, will be compelled to raise great banks upon his land, and also to erect brick walls through the same, and to cause a large and perpetual stream of water to flow through it for the sole use and benefit of said aqueduct, and to his entire exclusion, all which they declare it is their intention to do. This the Complainant alleges will be doing irreparable damage to him, by permanently dividing his land, not only to depriving him of said valuable clay, and of the use of the land over and through which the said deep holes shall be dug, and the said ditches shall be cut, and the said aqueduct shall be built, but totally and forever obstructing him in his necessary use of his land for tillage, and his passage and progress for farming and other purposes, from one part to (he other of that portion of his land so intended to be divided, dug up, built upon and obstructed. The bill further states that, complaiuant has instituted his action of trespass quare clausum fregit in the Circuit Court of Montgomery county, for the purpose of recovering damages against the defendants for the said trespasses, in the trial of which cause his rights will be adjudged by said court, and justice done him, so far as relates to said past trespasses, but not to any trespass which may be subsequently committed, or the exercise of any preventive justice by which they may be restrained from doing irreparable damage to him. It further states that said defendants pretend that in all trespasses which, as above charged, they have committed, and for all they threaten and meditate doing, as now set forth, they are authorized and protected by the authority of the Executive of the United States, such action of the Executive not being sanctioned by any Act of Congress, as complainant avers, under which any taking of private property for actual or pretended public use could be justified, but the only purpose of such aclion being the supply of water to the city of Washington, or the cities of Washington and Georgetown, beyond the territory of the State of Maryland, for which supply Congress has made merely, from time to lime, appropriations, without any legislative enactment prescribing the taking of property, or any other proceedings or means for effecting such supply. The complainant further stales that said persons so transgressing, claim colour of authority for that action of the Executive of thé United Slates, under the Act of the Legislature of Maryland of 1853, ch. 179, which purports (invalidly and ineffectually, as complainant insists) to give authority to the United States to purchase land for so supplying water through construction of dams/reservoirs, buildings and other works, and over such land to exercise necessary jurisdiction concurrently with the State of Maryland, and authorizing, in case of owners of lands and materials not agreeing with the United States for a sale, adverse appropriation of such lands and of requisite materials from lands in Maryland, by condemnation, and in valuation in manner as prescribed in the case of the Chesapeake and Ohio Canal Company’s occasions for land and materials for that compares works, and he avers that no Act of Congress allowing any purchase by or for the United States, was éver passed, nor was any attempt by or for the United States ever made towards an agreement with him for a purchase of his land with reference to said works, and he insists and charges that all pretended authorization and sanction aforesaid, under said action of the Executivemf the United States, and under such Act of the Legislature of Maryland, is repugnant to the Constitution of the United States and the Constitution of Maryland, and apart from any constitutional interest, and without regard to any organic law or principle of written law, is invalid, and cannot operate or deprive him of his properly to transfer it to a municipal corporation or corporations beyond the limits of a State within whose jurisdiction and protection it lies, and for no public purpose of the State of Maryland, nor for a purpose connected with (he United States, as such, and of a federal and general character, nor even so declared to be in said Act of Assembly, or in any action of Congress. The bill then prays for an injunction restraining the defendants from cutting down any further timber on said land of the complainant, or further proceeding in the planting or erecting any stone pillar or abutment thereon or therein, or any further digging in or through the same, or building brick or stone work thereon or therethrough, or the introduction of water through the same, or any further trespass thereon. On this bill the court (Brewer, J.) passed an order refusing the injunction, from which the complainant appealed.