Atlantic Construction Corp. v. Shadburn

Prescott, J., delivered the opinion of the Court. The appellants contest the correctness of a decree of the Circuit Court of Baltimore City, which held that the appellees had a right, in common with others, to use an alley binding on the rear of all of the lots in the block bounded by Alta, Glenmore, Moyer and Royston Avenues in a subdivision known as Hamilton Meadows; enjoined the appellants from blocking said alley; and required the Atlantic Construction Corporation (Atlantic) to remove from the bed of part of the alley an obstruction it had placed there in 1952. ^{48 49} Note: The above is a portion of “Agreed Exhibit No. II.” The words “Glenmore,” “Royston,” and “Moyer Avenue” have been added to indicate the location of these avenues. In 1921, the owners of a tract of land containing 74 acres, which included the land in Exhibit II, laid the same out into lots and streets upon a plat, and recorded the same as a “Plat of Hamilton Meadows.” This plat contained no alleys. By mesne conveyances, the greater portion of this land passed to the Key Realty Company (Key), and that company, in 1941, filed among the Land Records of Baltimore City a plat entitled “Resubdivision of Part of Hamilton Meadows.” Exhibit II above, also, is a portion of this plat.

By several different conveyances in 1941 and 1942, Key conveyed to one Krebs lots 1112 to 1123, both inclusive. In the conveyance to Krebs of lots 1122 and 1123, the lots were described by metes and bounds only, and the south side of the 15-foot alley was named as a call, with the use of said alley in common. When Krebs received lot 1121, the lot was described by metes and bounds only, and the north side of a 15-foot alley on the south side and the west side of a 15-foot alley in the rear were named as calls, with the use of both alleys in common. There was a similar conveyance when he obtained lots 1112 to 1117.

The appellees’, Ruskus’ and Chmielewskis’, properties were included herein. When he received lots 1118, 1119 and 1120, the lots were described by metes and bounds only, with the west side of a 15-foot alley in the rear as a call; and the use of said alley was stated to be in common. On March 31, 1942, Key conveyed to one Miller lots 1124 to 1136, both inclusive; the conveyance was by lot numbers only with no reference to alleys or reservations. The appellees’, Shadburns’, property was included herein.

In 1944, Key conveyed by metes and bounds description, unto Lloyd E. Mitchell, Inc. (Mitchell), all of the subdivision, but excepted, by describing them by lot numbers, lots 1112 to 1136, both inclusive. In 1951, Mitchell conveyed lots 1108, 1109, 1110 and 1111 unto one Mandell, together with other lots. The conveyance contained a metes and bounds description of the property conveyed and this provision: ⁵⁰ “Being lots * * * 1108 to 1111 both inclusive * * *, together with portions of the bed of streets, avenues, rights of way, etc., on which said lots bound, all as shown on the aforesaid plat recorded in Tiber M.T.P. 6152 folio 614, etc., and subject to the rights of others in and to so much of said parcels of ground that may be in the beds of streets, avenues, rights of way and reservations as shown on the plat herein-before referred to.” Thereafter in 1951, Mandell conveyed to Atlantic lots 1108 through 1111, and referred to each lot as being subject to a reservation of feet in the rear. The Shadburns obtained their property, parts of lots 1132 and 1133, in 1942 and moved in; the Chmielewskis (parts of lots 1115 and 1116) in 1950; and the appellee, Ruskus, (parts of lots 1114 and 1115) in 1951.

All of these deeds referred to the plat and the 15-foot alley in the rear of the lots, with the use thereof in common. The mesne conveyances to the owners of these lots prior to the appellees not already named are not contained in the record, but it is reasonable to infer that they contained similar provisions. The chancellor found from the evidence, and we agree, that the north-south alley and the two east-west alleys were opened (not by the public authorities) and used at least as early as 1942 up until 1952, and there was hard paving of some nature, such as crushed stone or gravel, on parts of said alleys. In about 1952, Atlantic blocked off and obstructed the alley in the rear of lots 1108 to 1111, both inclusive; and, since then, the present owners of said lots, or some of them, have extended the lawns on their respective properties onto the bed of said alley and have refused the right of ingress and egress over and upon the same unto the appellees.

We shall confine our holding to the alley in the rear of lots 1108, 1109, 1110 and 1111; because it is the only one in dispute in this cause. We think the Chmielewskis and the appellee, Ruskus, are entitled to an easement in the alley by express grant. In the deed from Key, when it owned practically all of the subdivision, to Krebs (the Chmielewskis’ and Ruskus’s predecessor in title) in 1942, the conveyance was made according to the plat; the 15-foot alley was spe ⁵¹ cifically named as a call; and the use thereof was prescribed to be in common. At that time, the alley was clearly delineated on the recorded plat.

It extended from Alta Avenue to Moyer Avenue in the rear of lots 1108 to 1111, inclusive, and lots 1122 to 1125 inclusive; and in a north-south direction from the rear of lots 1121 and 1126 to the rear of lots 1112 and 1136. This was the alley referred to and named in the deed, and its use was to be in common. The same provision was contained in the deeds to the Chmielewskis and to Ruskus. It is obvious that if the owner of any lot or lots had the right to close or obstruct the alley at any point, the use thereof would not be in common.

It may be noted at this point that in the deed from Mitchell to Mandell that