Canton Co. v. Mayor of Baltimore

The appeal in this case is from a judgment in ejectment rendered *Page 83 by the Superior Court of Baltimore City in favor of that city against the Canton Company. The land described in the declaration is a lot or square of ground in Baltimore City forming a part of what is known as the Canton Co's. land and bounded by Canton avenue, Lancaster, Patuxent and Canton streets. The judgment is not for the property described in the declaration but is "for an easement in the property described in the declaration with exclusive right to the possession of the same for use as a public park." The city does not claim title to the square under any conveyance. It sues for the protection of an alleged incorporeal right or easement of the public to use the square as a park, upon the theory that there had been a dedication of it by the Canton Company to public use for that purpose.

Two bills of exception appear in the record, one to rulings on the admissibilily of evidence and the other to the Court's action on the prayers. The two cardinal questions presented by the appeal are, first, whether there was an unrevoked dedication of or offer to dedicate the square to public use as a park at the time the city undertook to accept it, and, secondly, whether the present action of ejectment, will lie at the suit of the city to secure to the public the enjoyment of the square as a park. We have come to the conclusion that the case must be reversed upon both of these propositions, and, as important public interests are involved in the issue and the question of dedication was fully and ably discussed upon the briefs and in the argument before us, we will express our views upon both propositions in the order in which we have stated them. The dedication of land to any public use is essentially a matter of intention.

Certain dealings with property by its owner have been held to afford conclusive evidence of his purpose to make the dedication but it is essential to establish the intention in every case. The principle of dedication rests largely upon the doctrine of estoppel in pais and, while there are general rules applicable to certain lines of conduct on the part of the owner of the land, each individual case must after *Page 84 all be decided upon its own facts and circumstances. Baltimore v. Frick, 82 Md. 83 . All of the facts in each case tending to show the intentions of the owner must receive due consideration, for as was said in McCormick v. Baltimore, 45 Md. 524 , "The evidence of such intention is furnished in various ways but, as dedication will be presumed where the facts and circumstances of the case clearly warrant it, so that presumption may be rebutted and altogether prevented from arising by circumstances incompatible with the supposition that any dedication was intended." It is now universally held that an intention to dedicate land lying in the beds of streets to public use will be presumed where its owner makes a plat of the land on which the streets are laid down and then conveys it in lots described as bounding on the streets or by reference to their numbers on the plat from which it appears that they do in fact bound on the street.

In such cases there is, in the absence of language showing that no dedication was intended, an implied covenant that the purchaser shall have the use of the streets on which his lots bound, from which a dedication of the streets to public use is held to arise. White v. Flannigan, 1 Md. 540 ; Moale v. Baltimore, 5 Md. 321 ; Hawley's case, 33 Md. 280 ; McCormick's case; 45 Md. 523 ; Tinges case, 51 Md. 600 ; Pitts case, 73 Md.; 326; Baltimore v. Frick, 82 Md. 83 . But the dedication of such streets to public use resulting from their conveyance in the manner mentioned does not become final and irrevocable until there has been an acceptance of it on the part of the public authorities. Baltimore v. Broumel, 86 Md. 153 ; Valentine v. Hagerstown, 86 Md. 486 ; New Windsor v. Stocksdale, 95 Md. 212 .

In the last mentioned case we said that the acceptance of a dedication "may be evidenced in one of three ways viz; by deed or other record, by acts in pais such as opening, grading or keeping the road in repair, or by long continued user on the part of the public." While the authorities are agreed that streets or highways may be thus dedicated by their owners to public use they do not agree as to the physical limits of the dedication. Some *Page 85 authorities hold that the streets mentioned in the deed or laid out on the plat are embraced in the dedication to the full extent that they are owned by the grantor. Other cases, among which are the decisions of this Court, confine the dedication to a limited and restricted area. In Hawley v. Baltimore, 33 Md. 270 , which may be regarded as the leading case upon that subject it is said: "The law is now too well settled to admit of any doubt that if the owner of a piece of land lays it out in lots and streets and sells lots calling to bind on such streets he thereby dedicates the streets so laid out to public use.

The rule is founded on the doctrine of implied covenants and the dedication will be held to be co-extensive with the right of way acquired as an easement by the purchaser. It is upon the implied covenant in the grant to him that the dedication to public use rests and such dedication must necessarily be measured by the limits of the right he has acquired by virtue of his grant. In the case before us the right of way or easement in Mosher street acquired by the purchasers of the lots mentioned in the proof is the precise limit of the dedication by Hiss. Over what portion of Mosher street then did their right of way exist?

We think they acquired by their several purchases the right of way only from Madison avenue to McCulloh street, as it is between those streets that their lots lie and bind on Mosher. The doctrine of implied covenants will not be held to create a right of way over all of the lands of a vendor which may lie, however remote, in the bed of a street. The lands must be contiguous to the lot sold and there must be some point of limitation. The true doctrine is, as we understand it, 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 of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way.

To this extent will the vendor be held by the implied covenant of his deed and no further." In Hawley's case the owner of the lot sold exhibited to the purchaser at the time of the sale a plat of his land on which the streets were laid down, but the plat was not called for in the deed of the lot to the purchaser. *Page 86 In Baltimore v. Frick, 82 Md. 85 , we cited and followed Hawley's case as to the extent of the dedication of a street by the grant of a lot bounding thereon and still more accurately defined the limits of the dedication by saying: "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 to but very remote from the lot sold." It may therefore be said that under the decisions of this Court the sale of a lot of land calling to bind on an unopened street works a dedication to public use of that street, if it is of the land of the grantor, only until it reaches the next open or unopened street. Although the law relating to the dedication to public use of streets has been settled by numerous decisions of this Court we have seldom been called upon to consider the nature and extent of the dedication of a park to such use when it is so designated on a plat of the grantor's land and reference is made to the plat in deeds conveying portions of the land. Most of the text books and many cases assert broadly that the rules and principles controlling the dedication of streets to public use by the use of or reference to plats in the manner mentioned by us apply with equal force to the dedication of parks and other public places designated on such plats. 2 Dillon on Mun.

Corp., sec. 644; 13 Cyc., 448; 9 Am. Eng. Ency. of Law, p. 25. Other cases plainly distinguish between the principles applicable to the dedication of "streets affording easements directly profitable and necessary to the use of lots" and parks which are intended for public recreation and enjoyment and are only indirectly beneficial to the lots.

Baker v. Johnson, 21 Mich. 319 ; Coolidge v. Dexter, 129 Mass. 167 ; Light v. Goddard, 11 Allen, 5 , where it is said by BIGELOW, *Page 87 C.J.: "An attempt is made in the present case to extend this rule of interpretation much further than is warranted by any of the adjudicated cases. The plaintiff claims under a deed which describes the lots conveyed as laid down on a plan to which reference is made. Upon inspection of this plan, it appears that these lots are carved out of a large tract of land, the whole of which is divided into numerous lots or parcels, and is fully laid down on said plan. It also appears that certain other land, which at the time of the grant in question also belonged to the grantors, and which is not immediately adjacent to the lots conveyed, but is separated therefrom by a contemplated street which forms one of the boundary lines of the lots conveyed, is designated on the plan as `Ornamental Grounds' and as `Play Grounds.' The contention of the plaintiff is that such designation on the plan referred to in the deed of lands lying in the vicinity of, but not adjacent thereto, the land granted amounts to a covenant that those grounds shall forever continue to be appropriated and used for the uses and purposes so designated." "We are by no means prepared to adopt as a sound rule of exposition the general proposition on which the argument for the plaintiff rests.

We do not think that a mere reference to a plan in the descriptive part of a deed carries with it by necessary implication an agreement or stipulation that the condition of land, not adjacent to, but lying in the vicinity of, that granted, as shown on the plan, or the use to which it is represented on the plan to be appropriated, shall forever continue the same so far as it may be indirectly beneficial to the land included in the deed, and was within the power or control of the grantor at the time of the grant." We will now consider the facts of the case before us in the light of principles to which we have referred. The Canton Company is a well-known owner of a large tract of land in the eastern section of Baltimore, which it acquired many years ago and from which it has from time to time sold lots. These lots were described in the deeds conveying them as bounding upon various streets and in many of the deeds made *Page 88 between the years 1846 and 1882 the lots conveyed were further described as being "numbers ____, ____, ____, on the Canton Company's plat." A number of the lots thus conveyed were situated upon the streets facing the square in question, but in none of the deeds for any of the lots was any public park mentioned or referred to or was there even any allusion to this square. From the references in these deeds to the Canton Company's plat it is apparent that the company had a plat of its property, but there is no evidence in the case that the company every recorded its plat or in any form made any issue or publication of it to the community at large or made any representations in reference to it other than those contained in the deeds, appearing in the record.

Portions of several different plats were offered in evidence by the city and were admitted over the objection of the Canton Company and the Court's action in that respect forms the subject of bills of exception. These plats agree in the location upon them of the respective streets. Two of them, which are alleged to be copies of Canton Company plats of about the years 1845 and 1853 respectively, and one, which is