Capron v. Greenway

McSherry, J., delivered the opinion of the Court. By the will of Mrs. Elizabeth A. McCormick a tract of land containing twenty-four acres lying in Baltimore County was devised to F. W. Bruñe and Steuart Brown, in trust for certain purposes, with power to sell, and upon further trust, if unsold before Thomas P. McCormick, a grand nephew of the testatrix, attained the age of twenty-one years, to convey the same to him. In February, 1812, the trustees sold and conveyed to the appellee, Greenway, about four acres lying at the southeast corner of the whole - tract. The southern line of this four acre parcel bounded on a public road called “ Merry-man's Lane," and the western line ran northwardly a ²⁹¹ distance of five hundred and twenty-five feet, leaving between it and the western outline of the whole twenty-four acres a lot of several acres which was subsequently acquired by the appellee.

In the deed of February, 1872, from the trustees to the appellee, a private right of way, sixty-six feet in width was reserved, “running north from the above mentioned county road [now Merry-man’s lane] and extending along the western line of said lot” conveyed to Greenway; and it was expressly covenanted that upon the request of the trustees or those claiming under them, or of Greenway or those claiming under him, the right of way “extending as above mentioned” (that is from Merryman’s lane along the western line of Greenway’s lot) should be opened one-half in width — Sr thirty-three feet — on Greenway’s lot, and the other half on the lot held by the trustees; and, when opened, that it should “be for the use and benefit of the lots bounding thereon, and of said respective parties ” to the deed, their heirs, successors or assigns. Shortly afterwards McCormick attained his majority, and the trustees conveyed to him the whole of the twenty-four acres, less the four previously conveyed by them to Greenwav. Two projected streets pass through the twenty-four acres from east to west, between Merry-man’s lane on ¿the] south of the whole tract and Cold Spring lane on the north thereof. These projected' streets are designated twentj^-second and twenty-third streets, but are not laid out, condemned or opened.

A plat on file in the office of the County Commissioners shows where they will be located, if ever opened. In November, 1875, McCormick conveyed in fee-simple to the appellee another lot, containing about one acre, immediately adjoining on the north the one purchased from Brown and Bruñe in 1872. The western line of the deed of November, 1875, is a prolongation for one hundred and thirty;-nine feet, to the centre of the pro ²⁹² jected twenty-second street, of the western line of the deed of 1872. In the deed of 1875, there is no reservation whatever of a right of way over any portion of the lot conveyed by that deed.

In June, 1876, McCormick leased to Col. McIntosh, for ninety-nine years, so much of the twenty-four acre tract as was located south of the centre of the projected twenty-second street, north of Merryman’s lane, west of Greenway’s western line, and east of a lane on the west margin of the whole tract. In this lease,