Mayor of Baltimore v. Frick

Fowler, J.,

delivered the opinion of the Court.

The questions here presented arise upon the appeals of certain land owners from the action of the Baltimore City Court in awarding damages and benefits in the matter of the opening of Bayard street in that city.

No objection has been made to the inquisition by reason of the amounts of damages awarded or benefits ascertained. On the contrary, it is conceded that both are properly estimated and set forth in the inquisition, unless it should be ascertained that the land to be taken had already been dedicated to public use, in which case, of course, the land owners could claim -no damages. In addition to the first prayer of the property owners, which was granted, by which it was held that no part of Bayard street as condemned, had been dedicated by the lease which will presently be referred to, they asked the Court again to declare as law the identical proposition which had already been adopted by granting their first prayer. After the Court had declared that no part of Bayard street had been dedicated, it was asked also to say that the part of said street between Herkimer street and Columbia avenue had not been dedicated. The first prayer having been granted, it wpuld seem to have been unnecessary to encumber the record with the other instructions. And, no doubt, this was the view entertained by the learned trial judge, who, as we have seen, granted the first and refused the other prayers.

It is from these rulings that the six appeals now before us were taken — the City appealing from the granting of the first, and the property owners from the refusal to grant the second and' third prayers. It will thus be seen that the only question presented is that raised by the first prayer, namely, whether the lease from Carroll to Porter & Davis of March 16, 1872, construed with reference to the facts and circum *83 stances surrounding the transaction and given in evidence, establishes an intention on the part of the lessor to dedicate the bed of Bayard street, as proposed to be condemned, or any part thereof to the public use, and if any part thereof, how much was so dedicated.

The doctrine of the dedication of land as and for a highway for the use of the public has been so frequently the subject of consideration by this Court, that we think needless now to enter into any general discussion of the principles applicable to cases of this kind. Indeed it has been found that it is very difficult to lay down any general rule applicable to all cases. It has been said “ that each individual case must be decided by itself, taking into consideration all the attendant circumstances, the condition of the respective parties and the acts, declarations and intentions of the landowner as manifested by his conduct. For it is largely on the ground of estoppel in pais that the principle of dedication rests.” It has been held, therefore, in many cases (Dovaston v. Payne, 2 Smith’s Leading cases, 1404, where the authorities are collected) as well as in a number of cases in this State, that it is very strong evidence of dedication where lots are sold and conveyed, laid out on a map or plat with a road or street running by them and designated as a street on such plat. White v. Flannigan, 1 Md. 540 ; Moale's case, 5 Md. 321 ; Hawley's case, 33 Md. 280 ; Tinge's case, 51 Md. 600 ; McCormick et al v. City, 45 Md. 523 , and others not necessary to cite. It does not appear from any of these.cases that the map or plat on which the street or public way may be laid out, must be made a part of or referred to by the deed or lease or other conveyance of the land under which the dedication is claimed to have been made, for the settled rule appears to be that if the lot is described as fronting or binding on a street which is designated on a public map or private plat, such description and calling for an unopened street raises an implied covenant that such right of way exists, and the presumption of dedication becomes conclusive, unless, as in Pitt's case, 73 Md. *84 and some others, there is language used by the grantor in his conveyance to show that no dedication to public use was intended.

Applying this rule to the lease under consideration, let us examine its provisions. We find that the lot thereby conveyed (which includes some of the lots owned by the appellant landowners,) is described as bounding on Bayard street. It. is admitted that at the time this lease was executed there was a private plat in existence on which Bayard street was laid out as now proposed to be opened and as said street was laid out on the plat used in the partition case of Carroll v. Carroll. A copy of this last named plat is also before us as part of the record. We cannot agree that the plat referred to as existing at the time the lease was made was not sufficiently brought home to lessor, James Carroll. Whether he had the plat before him or not when the lease was made does not appear, but it would seem to be reasonably certain that he and all parties interested were well acquainted with the then location of Bayard street. In his lease he locates it precisely as it is located on both plats, and his description calls for it and gives the exact number of feet arid inches between Herkimer and Bayard streets, and would be faulty and imperfect if, as is now claimed, the latter street had never been located and dedicated by him. The lessor at one time owned all the land between Bayard street and Columbia avenue, and his heirs and devisees subsequently adopted in the partition case above referred to, the location of the former and other streets as they appeared on the plats. It will not do, therefore, to say that because it is not shown by any affirmative testimony-that a plat was before the lessor when his lease was made, that therefore the lease was made without regard to it, for it is apparent that the lessor was fully informed as to the location of Bayard street on the plat, and that he drew his lease accordingly. Nor do we find anything in the lease which will prevent the operation of the rule above mentioned — that the sale and conveyance of a lot or lots binding on a street which is laid out on a public or private plat raises *85 an implied covenant that such street shall be opened to the public use, and become a public highway.

But in the second place, it was contended by the City that the whole bed of Bayard street, from Ohio avenue to Columbia avenue, had been dedicated to public use by the said lease and its recitals. We cannot, however, agree to this. It appears to us clear that only so much of Bayard street was dedicated in each direction as would enable the owners of the leased lot and their successors in title to reach some other street or public way, that is, from Ohio avenue to Herkimer street. The ruling in Hawley's case, supra, we consider conclusive upon the question of the extent of the dedication. This Court there said that “the doctrine of implied covenants will not be held to create a right of way over all the lands of a vendor in the bed of the street. The lands must be contiguous to the lot sold, and there must be some point of limitation. The true doctrine, as we understand it, is that the purchaser of a lot calling to bind on a street not yet opened by the public authorities, is entitled to a right of way over it, if it is on the land of his vendor, to its full extent and dimensions only until it reaches some other street or public way.” And in this case the dedication, under the above rule, would extend from Ohio avenue to Herkimer street, both of which are streets or public ways— the former being open and in use by the public, while the latter has been dedicated to the public, but has never been used by it for a public way. The contention that the street which limits the extent of the dedication must be an open public street, is not supported by the cases heretofore decided by this Court. In Hawley's case, supra, the land over which the right of way is given, it is said, must not be remote, but contiguous to the lot sold; but if the contention of the city, that in all cases we must presume a dedication of a right of way over the grantor’s land until the next or nearest open street is reached be correct, such right of way would in many cases extend over land not only not contiguous, but very remote from the lot sold. No distinction *86 has been made by this Court in any of the cases referred to, in applying the rule just mentioned, between an open and used street and one not open, but the general rule has been always announced without reference to the - limitation suggested now for the first time. We are not disposed to give this rule such a construction that it may work an injustice to the land owner by taking his land for public use without compensation. No one should be thus deprived of his property on the ground of a dedication, unless there has been some clear and decisive act indicating an intention to dedicate to public use. McCormick's case, 45 Md. 527 . And hence, the city which is here claiming exemption from the payment for land taken for a public street, will not be allowed to stand upon a mere presumption or upon a rule of construction that the grantor’s deed must be taken most strongly against him. On the contrary, it is incumbent on the city to establish clearly and beyond doubt that the dedication has been made, and that, too, to the extent claimed, and having failed in this, its contention must fail as to that part of Bayard street which lies between Herkimer street and Columbia avenue.

The remaining question is whether conceding there was a dedication of any part of the bed of Bayard street there has been an abandonment by the public. It was urged on the part of the land owners, that inasmuch as there has been neither acceptance nor user by the public, the dedication, if any, never became complete, and that this continued non-user for twenty-five years amounts to and constitutes an abandonment. This view, however, is not consistent with what was said by this Court in McCormic's case, supra; Alvey, former Chief Judge, delivering the opinion: “In the case of a clear act of dedication, as for a street, it is not essential to the validity of such act that the space thus dedicated should at once be used by the public for that purpose, or that it should be so used within any limited time, in the absence of any condition to that effect.” This being so, it follows that the dedication of Bayard street, between *87 Ohio avenue and Herkimer street, by the lease of 1872, was perfect and complete without either acceptance or user by the public. And inasmuch as the public is not bound to avail itself of its rights under the dedication within any limited time, it would not be reasonable to hold that such rights have been lost by the mere lapse of time without any other evidence of abandonment. Nor are we willing to go to the extent of holding, as contended, that because the bed of Bayard street has been from time to time dug up for clay for making bricks, and because a brick kiln was located on part of the bed of said street, until 1890, the effect of the original act of dedication has been nullified. In Elliott on Roads and Streets, page 669, the learned author says that the rule best supported by reason and authority is, that the common right of highway cannot be lost by the attempted adverse possession of a private individual. But the question of the effect of adverse possession on the rights of the public obtained under a valid and clear act of dedication is not directly presented here, for the facts above mentioned were relied on only for the purpose of showing abandonment, for which purpose they cannot be relied on if we are to be guided by what was said in McCormick's case as to the Effect of the original act of dedication.

It follows that the first prayer should have been refused because by it the Court below declared .that no part of Bayard street was dedicated by said lease, while our conclusion is that by the true construction of said lease the bed of said street between Herkimer street and Ohio avenue was so dedicated. The second prayer was covered by the first, and for that reason was therefore properly refused. The third prayer announced the correct rule of law, namely, that the bed of Bayard street, between Herkimer street and Columbia avenue, had not been dedicated by said lease, and said third prayer should have been granted. It follows that there was error in granting the first prayer, and in refusing to grant the third prayer. Hence the rulings upon the first and third prayers must be reversed. This cause will be *88 remanded in order that further proceedings may be had in accordance with this opinion.

(Decided December 6th, 1895.)

Rulings in all the appeals reversed and cause remanded.