The Chesapeake and Ohio Canal Company vs. John Young, 3 Md. 480

Le Grand, C. J., delivered the opinion of this court. The bill filed in this case was for an injunction.

It, in substance,- states, that a small piece of land running parallel with Wilb creek, and lying between the inner basin and the guard-bank, which was so prepared and arranged by complainant, partly for the purpose of strengthening the guard-bank, partly for the purpose of a lock-house lot, and partly for the purpose of erecting thereon work-shops, buildings and sheds: that it is the only spot of ground the company has reserved to itself about Cumberland for these purposes, and that it is absolutely necessary for the proper management and working of the canal,- and that it acquired the title to the land by agreement with the owners,-and has been in the quiet and uninterrupted possession of the same, since about the year 1839.

It then alleges that the appellee had entered upon and possessed himself of it, and commenced erecting thereon a work-shop, and declared his object to be, the establishment of a boat-yard on it. It avers, further, that the injury consequent upon the forcible ousting of the company from the land could not be compensated in damages, and that the use of the plot is absolutely necessary to the daily operations of the canal. The answer of the appellee states that he took possession of the' property, and commenced to improve it, and that whilst- so engaged the injunction was served upon him.

It denies that the company “has any right, title or interest in the property purchased by the appellee, by possession, improvement, or agreement with the owners thereof,” and, that it is absolutely necessary for the proper management and working of the canal, and avers that there are other pieces of land along-the canal which will answer for the purposes set forth in the bill, as- well as the land in dispute.- There was, under an order of the court, below, considerable testimony taken in regard to the alleged title of the company, and the exercise by it of dominion over the lot in question; The testimony in regard to the kind of possession of the company is conflicting, and that showing tide, far from conclusive or satisfactory.

The company has not, by evidence, shown that it has a title to the property. It admits in the bill, that all its title is derived from an agreement with the owners, and an uninterrupted possession since about 1839. Both of these facts are emphatically denied by the answer. And the only evidence which it lias exhibited in proof of title is, a proposition of M. N. Falls to deed certain property on certain conditions, and of conversations which took place in regard to the draft of a conveyance and its execution, between Messrs. McKaig and Thurston and its agents and officers.

There is no proof whatever that any of these conveyances were ever executed, and the question therefore is: — will an injunction lie to restrain a party in possession who claims title, and who expressly denies all title on the part of the complainant, either legal or equitable? We think the authorities are clear on this subject and speak but one language.

The right, which a court of equity exercises to arrest proceedings by a permanent writ of injunction, is one of great importance but ought not to be employed unless the case imperatively demands it, and this is never so, when the object is to restrain a mere trespass which can be compensated for in damages, or where the title is not clear or is disputed.

In the latter class of cases sometimes a temporary injunction will be granted to preserve the property uninjured, till an answer can be filed, 9 How., 28; but this is never done in this State, unless the damage complained of is intolerable and the mischief irreparable, or, where the trespass goes to the destruction of the thing. Amelung and others vs. Seekamp, 9 Gill & Johns., 468. While vs. Flannigan, 1 Md. Rep., 525.

But even in these cases of irreparable damage, the averment that the particular case is one of that character, is not sufficient to justify the intervention of the court; the fads on which it rests must be stated, to show that the apprehension of injury is well founded. 9 Gill and Johns., 474.

Sometimes, when the title is disputed, a court of equity will retain the bill until the title be tried at law, but this does not commit it to the acknowledgment of an equity in the complainant, if he should fail at law to establish his title; it is left free to dispose of the case as justice and propriety require. 2 Daniell's Ch. Pr., 1202. The proper course, where the legal title is doubtful, is to send the complainant to a court of law to have his title first established.

And where the party claims to take the case out of the statute of frauds, on the ground of part performance of the contract, he must make out, by clear and satisfactory proof the existence of the contract as laid in the bill; the act of part performance must be of the identical contract set up. It is not enough that the act is evidence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill. Phillips vs. Thompson, 1 Johns. Ch. Rep., 132.

But it is alleged the complainant would be remediless were it forced into a court of law, because it has not a legal title. This may be so, but the fact'cannot entitle it to a remedy in equity, which is dependent on the possession of title when none such exists. By the 19th

section of the act of 1824, ch. 79, it is provided, that whenever it shall become necessary to subject the lands of any individual to the purposes provided for in the act, and their consent cannot be obtained, it shall and may be lawful for the company to enter upon such land, and proceed to the execution of such works as may be requisite, and the pendency of any suit in the nature of a writ of ad quod damnum, or any other proceedings, shall not hinder or delay the progress of the work. Under this act it is competent for the company to condemn the land and appropriate it to the uses of the canal.

But it is said, this cannot be done in this case, because the owners of the land have agreed to dispose of it to the company. If this be so in point of fact, then it is competent to the company to file its bill for a specific performance. The existence or non-existence of such an agreement would be a matter for the decision of the equity court.

If it should decide in favor of the existence of such an agreement, a conveyance would follow by virtue of its decree, and if its decision should be to the contrary, then, the fact of the non-existence of the agreement would be established, and the company would be authorized to proceed under the act of Assembly, to which we have adverted. For these reasons we concur with the court below, and accordingly affirm its decree with costs. Decree affirmed.