Beale v. Town of Takoma Park

Bomd, C. J., delivered the opinion of the Court. The appellants filed a bill in equity to enjoin the defendants from selling or offering for sale their property situated on Grant avenue and Llaneock avenue on what is known as General S. S. Carroll’s Addition to Takoma Park, Md., for the enforcement of special assessments made against their lands for the extension of a water main on Grant avenue and a four-inch main on Hancock avenue, and to have said special assessment declared null and void. The defendants are the Town of Takoma Park and the Mayor and Councihnen of said town, individually. Takoma Park was first incorporated in 1890 (by Ch. 480 of the Acts of that year), and the charter ³⁰⁰ was amended by Chapter 310 of the Acts of 1896, which, with some other amendments, constitute sections 571 to- 633, inclusive, of Article 16 of the Code of Public Local Laws, title Montgomery County, as codified by Chapter 790 of the Acts of 1912.

The principal questions involved are: First, whether there has been a dedication of the streets or avenues on which the water mains were laid; and, second, whether assuming they had been so dedicated the requirements of the charter have been complied with in making the assessments and offering the properties for sale. First: In 1893 a creditors’ bill was filed to sell the lands of General S. S. Carroll, deceased. The defendants were his widow, his daughter, Katherine O. Beale and John W. Beale, her husband, who are plaintiffs in this case, and his son, Samuel S. Carroll, Jr. A decree was passed, in which Blair Lee and Charles W. Prettyman were appointed trustees to sell the property. On July 13th, 1893, the trustees reported to the Court that they had the portion of the land belonging to the late S-.

S. Carroll which was separated from the rest of his land by a street known as Carroll avenue,, and containing about 33% acres, divided by a competent surveyor into squares or sections with proposed streets laid down thereon, as would appear by reference to1 one of the plats therewith filed; that they offered the property for sale in sections or parcels in accordance with the plat and had sold Section 1 to George N. Beale. That sale was duly ratified. A copy of the plat was filed with the bill in this case. Carroll avenue was already in existence when the plat was made, being one of the established streets of the town.

Hancock avenue is nearly parallel with Carroll avenue, and is the only street in the subdivision running in that direction laid out on the plat. While they are not strictly so, Grant, Lee, Sherman and Sheridan avenues may be said to be at right angles with Carroll avenue. They are parallel to each ³⁰¹ other and cross Hancock avenue. There are no other streets on the plat, except Carroll, which borders on but is not a part of the tract subdivided.

On December 5th, 1894, the trustees filed another report stating that they had again offered the property at public auction, and that “The plat was shown and it was announced by said trustees that Hancock avenue as laid down on said plat would be dedicated to those purchasing lots as a right of way to and from the same, and the land included in said avenue would be deducted from the area of the parcels sold, and also that that portion of land indicated, on said plat as the east half of, twentyi-five feet in width, Grant avenue would be in like manner reserved as a right of way south from its intersection with Hancock avenue for the use of the lot purchasers.” They then reported a sale to George N. Beale of Section 3, showing1 that they had deducted the area contained in the streets. The report concluded as follows: “Your trustees also desire the assent of the Court to their dedication of the land contained in the space marked Hancock street and the east 25 feet of the width of Grant street south of Hancock street, as a right of way for those purchasing lots or parcels of the land.” That sale was ratified in the usual form, and while there was no special reference to it in the order, the ratification was an approval of the division of the property. The deed of the trustees to George N. Beale for Section 1 conveyed the land to the middle of Grant street, and the one for Section 3, after referring to1 the plat for a description, granted to him a right of way over Hancock avenue from the line of Lee avenue to the land, of H. P. R. Holt, and also a right of way over Grant avenue, lying south of Hancock avenue, and added that “the rights of way or parts of streets herein expressly set forth are the only rights of way appurtenant to the said Section 3 over the land in said cause so decreed to be sold.” ³⁰² By the will of George N. Beale, dated March 11, 1907, he left to his widow for life all of his property, and upon her death he left to his son, John W. Beale, certain properties including “the lots with the three (3) houses thereon on the south side of Grant avenue, Takoma Park, Maryland,” and to his daughter certain properties including “all of the prop*erty with the houses thereon (hack of my place called ‘Mortaumonde’) hounded by Lee, Hancock and Grant avenue, in Takoma Park, Maryland,” and to his grand-daughter his “country house in Takoma Park, Maryland, called ‘Mortaumonde,’ its contents, and the attached grounds, stable and out-houses, the said grounds being bounded by Carroll, Grant and Lee avenue, on the three sides, and on the fourth by a fence running from Grant to Lee avenues.” The trustees having sold other property left by General Carroll, the proceeds of which were sufficient to pay off his indebtedness, made no more sales in that addition. Katherine C. Beale and John W. Beale, her husband, and Samuel S. Carroll made a deed of partition, by which Mr. Carroll conveyed to Mrs. Beale, by courses and distances, a tract of land which substantially corresponds with the outlines of the addition, excluding what had been sold to George N. Beale, but none of the avenues are mentioned, excepting, Carroll.

That deed includes Section 7, upon which was the assessment against Mrs. Beale complained of. George N. Beale in his lifetime sold seven lots in Section 1. In all of the deeds the plat of the trustees is referred to, and in all except two Grant avenue is called for—the two lots not fronting on that avenue. Eive of those deeds were made in the year 1895, one in 1896 and one in 1898.

One of those lots fronting 178 feet on Grant avenue was reconveyed to said Beale in 1903, and the two lots not fronting on that avenue were also' reconveyed to him that year. In his life time the town authorities had laid down a water main on Grant avenue, extending from Carroll avenue to a point 89 feet from Hancock avenue. He built a residence on Section ³⁰³ 3, fronting' on Carroll avenue, and built on the rear of that section five houses, all of which he connected, by written pen-mission of the town authorities, with the water main, laid by the town on Grant avenue. He also built on Section 1 houses which were connected with the water main by permission of those authorities.

When he built his houses on the rear portion of ¡Section 3, he applied for and obtained a permit from the town authorities,, as required by the ordinances, in force. It will be remembered that the water mains now in controversy are an extension of the one on Grant avenue to Hancock, and then on Hancock avenue. The extension is largely for the benefit of the people to whom the Beales, sold lots and for the benefit of themselves and others to whom they may yet sell. Katharine 0.

Beale and John W. Beale, her husband, were not only parties to the suit in which Carroll’s Addition to Takoma Park was laid out, but the .testimony shows that Mrs,. Beale superintended the drafting and printing of the plat. The tract of land was originally in woods, and before the trustees made any sale, Mr. and Mrs. Beale laid off the avenues and cut out the trees from all of them so laid out on the plat. From 1908 to 1915 they made fifteen deeds to various parties, for lots on parts of Sections 4, 5, 6, 7, 8, 9 and 10, and in 1907 a deed of trust covering a lot in Section 7.

The subdivision is referred to in every deed, and with possibly one or two exceptions the plat, of the trustees is specifically referred to. Every avenue on the plat is re¡ferred to in the deeds, and Hancock avenue is, referred to in most of them. Four deeds are for lots on the opposite side of Hancock avenue from Section 7—the one against which the assessment was made. It would be impossible for the occupants of most of the lots- sold by Mr. and Mrs. Beale to reach Carroll avenue, or any other street connected with Takoma Park, or for the public to get to them, without using a part of Hancock avenue, and one of the other avenues laid out on the plat, and all of the deeds, with one exception, are for lots ³⁰⁴ which can only be reached by going over one or more of the avenues in this subdivision.

Mrs-. Beale built on Section 2, which fronts on Grant and Hancock avenues, five houses, laid water pipes back of them, and connected them with the water main built on Grant avenue by the municipal authorities and has since paid water rents for them. In a letter dated June 8, 190Y, signed by John W. Beale, he stated that in consideration of the privilege granted him by the Mayor and Council of Takoma Park to supply water to his four new houses on Grant avenue by the extension of one supply pipe, he agreed that the water rent should be promptly paid according to the regulations of the town, granted access to the proper official of the town to inspect or cut off the water when necessary, and concluded by agreeing: “That if at any time the water main is extended on Grant avenue I agree to pay my assessed cost thereof and to connect each of the aforesaid four houses with said main by separate service pipes.” Those may have been four of the houses owned by Mrs. Beale, but, if so, we do not understand her to repudiate his action, and at any rate it was a dear recognition by him of the right of the town to have the water main on Grant street, and inferentially at least to extend it on Grant street. The evidence of the Superintendent of Public Works of Takoma Park, taken in September’, 1915, was to the effect that about two years before that time the town had spent $150 on Grant avenue, from O'arroll avenue to the lower part of Grant; that, about fifteen years before, water mains had been put on Grant avenue to within about 80 feet of Hancock avenue, that about 1Y or 18 years before three oil lamps were installed on Grant avenue by the town, and about two years before three electric lights were installed on Grant avenue and three on Hancock avenue, that between O'arroll avenue and Hancock avenue, Grant avenue has been used continually during the last fifteen years by people who live there, by grocery wagons and bread wagons; that $150 had been appropriated for work on Hancock avenue between Grant and ³⁰⁵ Sheridan about two years before he testified; that for the past five or ten years Hancock avenue between Grant and Sherman had been used by people living on Hancock avenue and some of them went out Sherman avenue to Carroll; that Grant avenue between Carroll and Hancock had been used by the public for about 21 years at least as far as King’s house; that Hancock avenue had been passable for vehicles between Grant and Sheridan avenues for probably four years.

The water mains on Grant avenue were paid for by the town, out of a fund for construction of the water and sewer systems raised by a general bond issue. From what we have said there is ample to show iho dedication and acceptance of the streets involved in this ease. As the trustees had laid out this addition “into squares or sections with proposed streets laid down thereon” as appeared by reference to one of the plats filed, and at the sale offered the property in sections in accordance with the plat and advertisement, it might be questioned whether they had the right to convey to George N. Beale the one-half of Grant avenue with Section 1, as their deed of October 10th, 1894, purported to do, unless the Act of 1892, Chapter 684 (now Sec. 96 of Art. 21 of Bagby s Code) gave them such authority, but passing that by without further comment, we find that on December 5th, 1894, they filed the second report referred to above. The plat was recorded in the judgment records of the county and was referred to by George N. Beale and Mr. and Mrs. John W. Beale in making deeds.

If it be conceded that there was any question about the dedication of Grant avenue by the trustees, by reason of the fact that they had conveyed one-half of it to Mr. Beale by the first sale, can there be any doubt that it was dedicated by the sales Mr. Beale made of lots on Section 1 fronting on that avenue, when taken in connection with what the trustees did ? By his deeds he conveyed to one party 118 feet fronting on Grant avenue, and to three other parties 50 feet each, calling to run with the lines of that avenue. When such ³⁰⁶ acts are considered in connection -with his action in connecting with the water main laid by the town on Grant avenne at the public expense, and other matters we have stated, the representatives of his estate should not be permitted to question the right to extend that main to Hancock avenue. We have had many decisions in this State on dedications since the case of White v. Flannigain, 1 Md. 525 , but the reasons there given by Chief Judge