#### MAYOR AND COUNCIL OF EASTON *vs. J.*FRANK TURNER et al.

*Municipal corporations: power over streets; changing grade; sewers; injury to trees; to property of abutting property-owners. Injunctions: pleading; motion to dissolve*— ; *hearing on bill and answer.*

Where a motion to dissolve an injunction is heard on bill, answer and testimony, and the bill shows a case entitling the plaintiff to the order, the injunction will not be dissolved unless the equity of the bill is denied by the answer. p. 115

In such a case the defendant can not rely upon the testimony for the purpose of denying or disproving the equity stated in the bill, if the answer is not a sufficient denial of it. p. 115

An injunction was filed against the Mayor and City Council of Easton to prohibit the construction of drains and curbing on a certain street, and from cutting down or injuring the shade or ornamental trees planted thereon; the bill alleged that the defendant was about to divert a large volume of surface water down the said street to carry off which, according to the plans proposed, large drains would be necessary, requiring very deep cuts, which would necessarily greatly injure, if not entirely destroy, the trees of the petitioner planted on the sidewalks; the answer in effect admitted the general purpose of changing the drainage as alleged, but neither affirmed nor denied the depth of the cuts required nor the injury to the trees; a preliminary injunction was granted; at the final hearing the city’s plans, having been practically admitted to bo improper, had been abandoned; the defendant made a motion that the injunction be dismissed; on appeal from an order of the Court making the injunction permanent, that order was sustained. p. 117

But it was further held that the continuing of the injunction was not to be construed as prohibiting the appellant (the City of Easton) from regrading the street under a general plan for the proper improvement, even if in execution of such a *112plan it should have to deepen the gutters and curb the street and injuriously affect the trees. p. 117

If such result can reasonably be avoided municipal corporations should not arbitrarily or unnecessarily cut or destroy trees, private property, planted on the side walk. p. 113

Municipal authority (in changing the grades of the streets, etc.) should not act ruthlessly without regard to the injurious effects to be sustained by the abutting property owners. p. 118

*Decided January*9th, *1912.*

Appeal from the Circuit Court of Talbot County, sitting in equity, (Peae.ce, O. J., AdkiNs and Hoppee, JJ.).

The cause was argued' before Boyd, C. J., BueKe, Thomas and Stockbeidge, JJ.

*Jamies Q. MulKlein*and *Wm. Mason Bhehan,*for the appellants.

*J. Franlc Turner*(with whom was *John W. D. Jump*on the brief), for the appellees.

Boyd, 0. J.,

delivered the opinion of the Court.

The bill in this case was filed by the appellees and Samuel Norris against the appellant, but subsequently it was, with leave of the Court, dismissed as to Mr. Norris, without prejudice to the other plaintiffs. It prayed for an injunction to prohibit the appellant from the construction of drains and curbing on Goldsborough street between Harrison and Hanson streets, in Easton, in the manner proposed as set out in the bill, and from draining the water of Dover, Harrison and Washington streets over and upon that part of Goldsborough street and from cutting down or in any manner injuring the shade and ornamental trees on it. A preliminary injunction was granted, and after filing its answer the defendant made a motion to dissolve it. On April 11, 1911, a decree was *113passed making the injunction perpetual and the Mayor and council wer-e ‘‘perpetually enjoined from draining the water on Dover-, Washington and Harrison streets into Goldsborough street as originally proposed by ordinance No. 198, and from so lowering the curb and gutters on Goldsborough street as to destroy or to injure in any manner the trees on said street between Harrison and Hanson streets in said town of Easton.” This appeal was taken from that decree.

The bill and answer, when taken in connection with subsequent events, must to a great extent dispose of this appeal, notwithstanding a large amount of testimony was taken. The theory of the bill was that the defendant (appellant) was about to divert large quantities of surface water from its natural and usual course, direct its flow along certain streets until it reached the corner of Harrison and Goldsborough streets and then conduct it in an open drain on Goldsborough street to Turner’s alley, thence in a stream flowing across the property of the complainants Turner and Jump. It is alleged that in order to conduct the greatly increased volume of water down Goldsborough street, between Harrison and Hanson streets, it would, according to the plans of the town, be necessary to deepen the drains from twelve to sixteen inches, and in order to secure a proper foundation for the drains it would be necessary to dig down eighteen inches below the bottom of them — thus making cuts in the sides of Goldsborough street to the depth of thirty-four inches — and that the cutting of the drains would necessarily he very injurious to, if not entirely destructive of the trees on the sidewalks.

While the answer does not admit that the defendant proposed to drain the water precisely as the plaintiffs alleged, it does in effect admit a diversion of it from its accustomed flow, its concentration and increased volume and emptying it into the drain running through the Turner and Jump properties. It says that “in order to secure a proper drainage of the water along said Goldsborough street it is necessary to change and deepen the drains upon each side of *114said street, but (they) neither admit nor deny the depth alleged to be necessary” in the bill. They neither admit nor deny the injuries which the hill alleges the trees will sustain, by reason of the drains being made so deep, in order to carry off the large quantity of 'water.

The bill was filed on August 12th, 1909, and the 0answer on September 1st of that year. What is spoken of as resolution or ordinance 198, which had been passed by the Mayor and Council, seems to have given rise to the trouble. On ■ December 21, 1910, an agreement of solicitors was filed by which it was agreed that the defendant had put in a storm-sewer for the accommodation of the water which was originally intended by resolution 198 to pass down Goldsborough ■ street and down the culvert between Fountain’s and Turner’s properties into the stream. The present Mayor testified that 'he did not know what that resolution was until about the timo •the testimony was being taken in this case, and as he did not believe that was the scheme proposed by the engineers, who had made the plans several years before, an'd as he was opposed to carrying out that resolution, he recommended its repeal which was duly done.

The storm sewer in the opinion of the lower Court relieved the difficulty at present as to the diversion of the water, and it said that if it proved inadequate and resulted in flooding the plaintiffs’ properties, they could then apply for an injunction under the principles announced in *Guest*v. *Church Hill,*90 Md. 689. There would seeem to be but little room for doubt that the plan as proposed when the bill was filed might have resulted disastrously to the plaintiffs, and the appellant practically admits by its action that it was not a proper plan. Under the circumstances there can be no ground for complaint of the part of the decree that enjoined the defendant from draining the water as proposed by ordinance No. 198 and that is not now urged. It is strenuously contended, however, 1st, that the Court has no power to interfere with the exercise of the sound judgment and discretion of the municipal authorities as to the grading, draining and pav*115ing of the streets, inasmuch as it is empowered by the Legislature to act, and 2nd, that if the Court is ordinarily possessed of such right it should not have interfered in this case.

As the case is presented by the pleadings, the only reason for digging the drains or gutters on Gfoldsborough street so deep was to carry off the large quantity of water which the appellant proposed to divert from its regular course and to turn into that street. The bill so alleges and the answer in effect admits it. Inasmuch then as that plan has been abandoned, and it is practically admitted to have been an improper one, in so far as the disposition of the water is concerned, it would seem to be clear that when this case came before the Court on the motion to dissolve, there was nothing which it could properly do but continue the injunction. It is said in *Miller’s Eq. Proc.*708: “When the motion to dissolve is heard upon bill, answer and testimony and the bill shows a case entitling the plaintiff to an injunction, the injunction will not be dissolved if the equity of the bill is not denied by the answer. The defendant can not rely upon the testimony for the purpose of denying or disproving the equity stated in the bill, where the answer is not a sufficient denial of the equity” — citing *Hamilton*v. *Whitridge,*11 Md. 128; *Bouldin*v. *Mayor, etc., of Baltimore,*15 Md. 18.

At the time the bill and answer were filed, according to the allegations of the bill and the practical admissions of the answer, it was proposed to make the gutters so deep’that the trees would be injured or destroyed in order to carry out the plan of diverting and concentrating the water, which was confessedly an improper plan and has been abandoned. There is no other reason given in the answer for making the gutters so deep. It is not permissible for the appellant to change its position under the pleadings, as they stood without amendment, and.' contend that, although the answer admits that the object in changing and deepening the drains was to carry off the water which was to be brought to and conducted down Goldsborough street, it could still justify its proposed action in deepening the gutters because that is a part of a *116general scheme ‘to grade the streets. If the reason given in the answer for doing what would probably have injured, and possibly have destroyed the trees was the true one, then when the plan was abandoned the reason ceased. As was said by the Court below: “The only necessity alleged by the defendant for lowering the curb and gutters on Qoldsbo'rough street to the extent contemplated by the plan of Williams, Proctor and Potts was to enable the corporation to pass down that street all the water to be collected at Harrison and Qolds-borough streets; and as the change of plan now provides for passing all that water north on Harrison street to the stream at the end of that street, there is now no existing necessity whatever for changing the grade as contemplated by that plan.”

How far Courts can or ought to interfere with a municipality which, in grading or paving a street, is about to destroy or seriously injure shade trees on the sidewalk of an abutting owner, is a question of some delicacy, and not always easily determined so as to avoid doing injury either to the public or to such owner, but when there is clearly no necessity for such destruction or injury the law of this State is well settled. In *Frostburg*v. *Wineland,*98 Md. 239, the bill admitted the right of the Mayor and Council to improve the streets, to repave or change the width of the sidewalks or the curbing, but charged 'that the plan adopted was a wholly unnecessary, unreasonable, unjust and arbitrary one. The municipality by ordinance had declared that two trees of Wineland were a nuisance and an obstruction to the paving and curbing of the street, and had instructed the street commissioner to remove them. An injunction granted below was sustained by this Court. Judge Pexscoe, in delivering the opinion, said: “The law has been settled, in this State, since the case of *Alberger*v. *Mayor, etc., of Baltimore*64 Md. 7, that where the Legislature confers the power on a municipality in general terms, to provide by ordinance for paving the streets, the discretion exercised by the city council in regard to the propriety or necessity of the improvement *117provided by the ordinance can not be controlled by the Courts, except where the power is exceeded or fraud is charged, and shown to exist, or where there has been a manifest invasion of private rights,” and he concluded the opinion by saying: “The general doctrine, as stated by the appel-lee in his brief, can not be denied, that a city which is invested with power to regrade and repave a street can determine upon the expediency and necessity of so regrading, and upon the kind of pavement to be used, free from the interference of a Court of equity; but if a municipality in doing an act of that kind arbitrarily or unnecessarily undertakes to destroy private property which is not a nuisance, it then undertakes to do an act beyond its delegated power and those acts are within the corrective powers of a Court of equity.”

That case clearly recognized the right of the Court to interfere when a municipality unnecessarily undertook to destroy trees which were private property and did not constitute a nuisance, and it resulted'in the municipality being required to build the curb to each side of the trees and let the trees remain. Such being the decision of this Court, we can not hestitate to say that, inasmuch as it is clearly shown that there is no necessity for injuring these trees for the purpose for which it was alleged and in effect admitted the work was to be done, the injunction was properly continued, and we are therefore of the opinion that the decree must be affirmed.

Inasmuch, however, as the record discloses that the town of Easton has begun a general plan of improving the grades of certain of its streets, which includes Goldsborough street, we deem it proper to add that the decree continuing this injunction, being affirmed for the reason we have stated, must not be construed to prohibit the appellant from grading this street under a genera] plan of improvement adopted or to be adopted, even if in the execution of such plan it becomes necessary to so lower the gutters or drains along that street, or to so curb it, as will injuriously affect the trees on it. If such an effect can reasonably be avoided the municipal authorities should' not “arbitrarily or unnecessarily” destroy or *118injure the trees, but if a general plan for the improvement of this and neighboring streets can only be properly carried out by adopting a grade that will necessarily injure the trees, then, although it is to- be regretted, it can not be interfered with by the Court. Trees on residence streets are ornamental, useful and sometimes very valuable, but they can not be permitted to hinder improvements authorized by the Legislature, if made in a proper and reasonable way, and it is only when there is some such exception to the general rule as to the powers of Courts to control municipalities as were pointed out in *Alberger's case,*or *Wineland’s case,*that they will interfere. Municipal authorities should not act ruthlessly or without regard to the injuries likely to be sustained by abutting owners, and it is a wise rule, adopted by some Courts, which requires them to give an owner of trees planted in the highway an opportunity to remove them, or, if possible, protect and save them, if that can be done without intei’-fering with the proper use of the highway. .

We will therefore affirm the decree, but with the understanding that *this*injunction is not to have the effect of prohibiting the defendant from lowering the curb and gutters on Goldsboro-ugh street, if that be necessary in carrying out a general plan for the improvement of the streets. Whether or not the defendant can be prohibited from executing any particular plan can no-t now be properly determined, as we can not anticipate what action will be taken, but it must be understood that the continuance of this injunction under the circumstances we have stated will not of itself preclude the municipality from lowering the curb and gutters in the execution of a proper plan for improvement of the streets.

*Decree affirmed, the appellant to pay the casts.*