Flersheim v. Mayor of Baltimore

Bryan, J.,

delivered the opinion of the Court.

The question in this case is whether there has been a dedication to the public of a portion of a street. On and prior to December ninth, eighteen hundred and seventy-three, Samuel Ellinger was seized in fee-simple of a tract of land in the city of Baltimore which was described as bounding seven hundred and seven feet and six inches on the centre line of Hampstead street. On that day he conveyed to Solomon Straus in trust for an infant grandson of the grantor a small portion of this tract, which was described in the deed as beginning on the north side of Hampstead street, at the distance of seventy-five feet easterly from the northeast corner of Hampstead street and Grove alley, and running thence easterly binding on the north side of Hampstead street fourteen feet. Hampstead street (now *492 Fairmount avenue) is laid down on Poppleton’s plat as one of the public streets of Baltimore. In December, eighteen hundred and seventy-four, for the benefit of another grandson he conveyed another portion of this tract of the same extent, and similarly described as binding on 'the north side of Hampstead street. These deeds are described in the testimony as presents to-the infants. They are not set out in full in the transcript of the record, and we suppose that we are to understand that the considerations are nominal.

“ When a lot of ground is sold within the limits of a city, and bounded by streets designated as such, in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies necessarily a covenant that the purchaser shall have the use of such streets.” We have quoted the words of the Court in White v. Flannigain, 1 Md. 540 . The covenant is implied solely for the reason that the parties are held to have intended that there should be a street. If the grantor intended that the grantee should have the benefit of a street, and the grantee intended to acquire that benefit, it would be very unjust and unreasonable if the law should refuse to permit a covenant to be implied to that effect. It is implied because that is the meaning of' the deed. But would not the words of the deed mean the same thing whether the consideration was valuable or merely nominal? Does the signification of the language depend in any degree on the nature of the consideration ? It is not the covenant for valuable consideration which gives a construction to the words of the deéd; but the meaning of the words which gives rise to the covenant. These remarks have been suggested by the ingenious-argument by the learned counsel for the appellant, in which he maintained that the doctrine stated in White v. Flannigain does not apply to mere donations of real estate. We wish to consider this question without referring to the technical rules relating to covenants, but we do not forget that covenants are contracts under seal, and that they may be made without the actual payment of a valuable consideration, inasmuch as the seal imports a consideration. When Ellinger made the *493 deed bounding the lot on the north side of Hampstead street, owning as he did the land to the centre line of the street, if he did not mean to convey a right to the street so far as he could give it over his own land, he would leave the grantee unprovided with any means of access to the land granted to him. To obtain the benefit of the street, he would be obliged to incur considerable expense. When the street was condemned and opened by the city he would be charged with the benefits conferred on the lot by the existence of the street. Can we suppose that Ellinger said to himself at the time: “ I will give this lot to my grandchild ; I will execute a deed so as to give legal effect to the donation, but I do not intend that the child shall have the same benefit from my gift as if he had purchased it from me. I wish to confer a benefit on the little infant, but I have a frugal mind.” We have no right to impute any such thoughts to him. It is very certain that they are not expressed in the deed which he executed. And in our opinion there is nothing in this case to prevent the application of the well established rule for the construction of deeds so often declared in our reports. White v. Flannigain, 1 Md. 540 ; Moale v. Mayor, &c., 5 Md. 321 ; McCormick's case, 45 Md. 524 , and many other cases. The dedication takes place by force of the terms of the deed. It confers on the grantee the right to the advantages of a public street binding on his property. Of course the grantor is not under an obligation to construct 'the street; but the grantee has a right of way over the bed of the street described in the deed, and the right to use it as a street. This easement relieves him from the burden of paying benefits when the street is condemned and opened by public authority. It also necessarily enures to the benefit of the public. The right acquired is to a public street; to be used by the general public, subject to the control of the municipal authority, with the incidental advantages which it may bestow upon it by the expenditure of the corporate money. The dedication of the land of the grantor extends to the nearest street or public way. Frick’s case, 82 Md. 85.

*494 (Decided April 1st, 1897).

The delay in opening the street cannot have the effect to defeat the easement granted by Ellinger’s deed. That was as effectually granted as the title to the soil of the lot; it was attached to the land as an incident and was necessary . to the beneficial ownership of the property, inasmuch as there was no mode of access to it except by the use of the •right-of-way. The dedication to th<_ public springs from and is supported by the title conveyed to the grantee. The public acquired a right-of-way at the time of the execution of the deed, because the grantor then declared his assent to its being a public street. It was not a condition of this dedication that the city of Baltimore should open and improve the street; the public right-of-way existed before an'7 action was taken by the city authorities ; the construction of a street only made it more convenient to exercise this antecedently existing right. ■ It has not been alleged that the title of the grantee of the lot has been barred by adverse possession. He is in possession of the lot according to legal construction, and his easement is appurtenant to his land and held by the same title. It is stated in the evidence that the whole of the tract from which the lot, in question was carved out has been used as a pasture continuously by Samuel Ellinger, his heirs and assigns, for twenty-three years; and that it has been fenced in on all sides during the whole of that time. But it is not stated in evidence, nor has it been maintained in argument that any portion of it has ever been held adversely to the title conveyed by Ellinger’s deed in favor of his grandchild. We refer for a further discussion of this subject to McCormick’s case, 45 Md. 527 ; and Frick’s case, 82 Md. 86—87.

The questions in this appeal arose on an appeal from the assessment of damages and benefits in the opening of Fair-mount avenue. The Court decided that the lot for which compensation was claimed was dedicated by the above mentioned deeds of Samuel Ellinger. The prayers by the appellant contradictory to this ruling were rejected. We agree in opinion with the learned Court.

Rulings affirmed.