Hawley v. Mayor of Baltimore

Extent of the Right of Way over a Street not opened by Public Authority, in the Purchasers of Lots binding thereon — Dedication of Property to Public lose— Ordinance, No. 26, of the City of Baltimore, approved 3d April 1866 — Appeals from the Returns of the Commissioners for Opening Streets, The owner of certain lands lying between Madison and Druid Hill avenues, in the city of Baltimore, offered at public auction certain portions of them, marked in lots upon a map or plat. Upon this map lots and streets were laid down, and among others there was one designated as Mosher street; it ran from Madison avenue, across McCulloh street, to Druid Hill avenue. The lots advertised for sale and described as being on Mosher street, were all between Madison avenue and McCulloh street. There was no sale at auction; subsequently four of the lots, calling to bind on Mosher street, were disposed of at private sale. Afterwards, Mosher street, lying between Madison and Druid Hill avenues, was condemned by authority of the city. Held : 1st. That the right of way or easement in Mosher street acquired by the purchasers of the lots binding thereon, extended from Madison avenue only to McCulloh street, their lots lying between these streets; and to that extent only, was there a dedication of Mosher street to public use by their vendor. 2d. That the vendor of the lots was entitled to substantial damages for that part of Mosher street lying between McCulloh street and Druid Hill avenue, there having been no dedication of the same to public use. The purchaser of a lot calling to hind on a street not yet opened by the public authorities, is entitled to a right of way over it, if it he of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way. Under Ordinance Ho. 26, of the city of Baltimore, approved 3d April, 1866, a person assessed for benefits arising from the opening of a street, who appeals from the return of the Commissioners, can only question the propriety of his own assessment, and cannot disturb or question the return of the Commissioners in refererco to any other person who is assessed for benefits or allowed for damages.

Appjbals from the Baltimore City Court. On the 14th day of May, 1867, an ordinance was passed by the Mayor and City Council of Baltimore, to condemn and open Mosher street, from Druid Hill avenue to Madison avenue. In pursuance of said ordinance the Commissioners for Opening .Streets proceeded on the 13th day of April, 1868, to perform the duties required of them in regard to the opening of Mosher street, in accordance with the provisions of the general ordinance in relation to streets in the city of Baltimore. They estimated the value of the ground lying in the bed of Mosher street, between Druid Hill avenue and McCulloh street, to be $13,612.50, and between McCulloh street and Madison avenue to he $2, and the expenses incurred in enforcing the ordinance for the opening of said street to be $997.78, making an aggregate of $14,612.28 for damages and expenses. They awarded the amount estimated as damages to Philip Hiss for his interest in the ground lying in the bed of the street; and assessed upon all the adjacent ground and improvements, certain sums amounting in the aggregate to a sum equal to the estimated damages and expenses, for benefits to said ground and improvements by the condemnation and opening of said street. The appellants in the first entitled case, adjacent property holders, being dissatisfied with the assessment of benefits made by the Commissioners, appealed therefrom to the Baltimore City Court. Hiss also appealed. On the trial of said appeals, the same were consolidated. The appellants offered in evidence certain leases and a deed from Hiss; the plat made by him according to which sales were made and conveyances prepared ; the testimony of the auctioneer by whom the plat was publicly exhibited, and the testimony of Armstrong and Morgan, who negotiated with Hiss for the purchase of lots, the first named negotiating according to the plat, and both with the understanding that Mosher street was to be opened without expense to the purchasers of lots. Other facts in the case will be found in the opinion of this Court. Exception of Hawley and- others: Hawley and others prayed the Court to instruct the jury as follows: 1st. If they shall find from the evidence, that Philip Hiss was the owner of á tract of land lying within the limits of the city of Baltimore, and that he laid out said tract of land into building lots, bounding said lots on streets designated as such on the map of the city of Baltimore; and that-he made a map of said tract of land in conformity with the map of the city of Baltimore, and designated certain portions of said tract of land as streets; and that he sold or leased certain building lots laid out on said map so made by him; and in the conveyances thereof, bounded said lots on Mosher street as so located on said maps; that although Mosher street so designated on the map of the city, and 'on the map made by said Hiss, was at the time unopened under the authorities of the corporation of the city of Baltimore; that then, upon the jury so finding, the purchasers or lessees of the said Hiss acquired an easement or right of way in said Mosher street to the full extent of its dimensions as designated on his map to wit: from Madison avenue to Druid Hill avenue. 2d. If the jury shall find from the evidence, that Philip Hiss made a map of his land, designating certain portions thereof as streets, and that he sold or leased building lots laid out on said map, and in the conveyances thereof bounded them on the streets so laid out on said map, that then Üie ■ground so laid out and designated on said map as streets, has been dedicated to the public use, to be opened as streets, whenever the municipal authorities shall think proper to do so, and that when so opened, the said Hiss is only entitled to nominal damages for the value of the fee of said streets to the full extent of their dimensions, as laid out on the map so made by him, from Madison avenue to Druid Hill avenue. This instruction the Court refused to give, but directed the jury, that one provision of the Act of 1838, eh. 226, and of the Ordinance Ho. 26, secs. 6 to 9, of the Mayor and City Council of Baltimore, approved 3d of April, 1866, was to give an appeal from or review of the proceedings of the Commissioners for Opening Streets. This right of appeal is given to each person interested for himself and for his own assessment. Ho one can appeal but the party assessed, and such appeal is on account of his own separate assessment. On such appeals it is not competent for one party to question the propriety of another’s assessment. One appellant cannot disturb another appellant’s assessment. It is competent for the city only, the appellee, to show that such other assessment was not proper, and ought therefore to be altered. The jury are instructed, therefore, that it is immaterial to those assessed for benefits, what others may have been allowed for damages; that no one assessed the one way is interested in the other assessments the other way. And the jury are only to disturb those assessments from which there have been appeals. The others are not before them for review. To the rejection of their prayers, and to the instruction given by the Court to the jury, Hawley and others excepted, and the verdict and judgment being against them, they appealed. Exception of Hiss: Philip Hiss offered the following prayers: 1st. If the jury find from the evidence that Philip Hiss is the owner of the bed of Mosher street, as proposed to be opened between McCulloh street and Druid Hill avenue, and of all the ground binding on the sides thereof, then the jury ought to assess to him as damages the value of the ground taken for the bed of said part of Mosher street, estimated as if said part of the street was not to be opened. 2d. If the jury find from the evidence, that at the time of the executions of the four leases, offered in evidence, from Philip Hiss to Morgan, Moale, T. P. Scott, trustee for Armstrong, and Vm.J. Hiss, respectively, it was expressly understood and agreed between the said Philip Hiss and the said lessees, that Mosher street, between Madison and McCulloh streets, should be opened without delay, and that he should appropriate the damages received by him for the bed of said street, so far as might be necessary to the payment of the assessments on said lots, for benefits from the opening of said parts of said streets, that then the jury, in assessing the damages to Philip Hiss for that part of Mosher street, between Madison and McCulloh streets, may give as damages the real , value of said ground as taken for the bed of said street, and are not limited to nominal damages. The Court granted the first prayer and rejected the second. The Mayor and City Council of Baltimore then offered the four prayers following: 1st. If the jury shall find from the evidence that Philip Hiss owned the land constituting the bed of Mosher street from Madison avenue to Druid Hill avenue, as laid down on Poppleton’s plat, if they shall find said street was so laid down, and that he owned all the other property on both sides of said street as so laid down, and that prior to the passage of the ordinance for condemning and opening said street, between Madison avenue and Druid Hill avenue, he sold or leased portions or lots of said property, between Madison avenue and McCulloh street, and in the deeds of conveyance or leases thereof, described the said portions or lots so sold or leased, as binding on said Mosher street, then such selling or leasing was a dedication of the bed of said street from Madison avenue to Druid Hill avenue, to the use of the public as a public highway, and the said Hiss is entitled to nominal damages only, for the taking, by the Mayor and City Council of Baltimore, of the land so constituting the bed of said street, from Madison avenue to Druid Hill avenue, for the purpose of opening the same. 2d. If the jury shall find from the evidence the facts stated in the foregoing prayer, then the said Hiss is entitled to nominal damages only, for the taking by the appellee of the ground so constituting the bed of said street, from Madison avenue to McCulloh street, for the purpose of opening the same. 3d. If the jury shall find from the evidence the facts slated in the first prayer of the Mayor, Ac., of Baltimore, and shall further find that prior to the passage of the ordinance of the said Mayor, &c., of Baltimore, for the condemnation and opening of said street, the said Hiss published a plat of said property, upon which the said Mosher street was laid down as a street from Madison avenue to Druid Hill avenue, and shall further find that said Hiss advertised and offered for sale at public auction, lots laid down upon said plat, and shall further find that the witness, Armstrong, attended at the offering of said lots for sale, at the time and place mentioned in the said advertisement, and there obtained one of the said plats, and that he afterwards negotiated and contracted with said Hiss for the purchase of one of the lots laid down in said plats, to wit, the lot on the corner of Madison avenue and Mosher street; and shall further find that the deed executed by said Hiss in consummation of such contract, if they shall find the same was executed, was drawn with reference to the said plat, and executed by the said Hiss with knowledge that the same was so drawn, then the purchaser of said lot was entitled to an easement or right of way over the ground constituting the bed of Mosher street from Madison avenue to Druid Hill avenue, and the said Hiss is entitled to nominal damages only, for the taking by the Mayor, &c., of Baltimore, of the ground so constituting the bed of said street, from Madison avenue to Druid Hill avenue, for the purpose of opening the same. 4th. If the jury shall find from the evidence the facts stated in the foregoing third prayer, then the said Hiss is entitled to nominal damages only, for the taking by the Mayor, &c., of Baltimore, of the ground so constituting the bed of said street, from Madison avenue to McCulloh street. The Court refused to grant the first and third of the said prayers, but granted the second and fourth. To the granting of the first prayer of Hiss, and to the refusal to grant its first and third prayers, the Mayor and City Council excepted, and the verdict and judgment being , against it, this appeal was taken.