Conway v. Board of County Commissioners

Hammond, C. J., delivered the opinion of the Court. In 1952 Benjamin Conway owned in fee a piece of property in the Vansville District of Prince George’s County, on which he and his wife lived. By agreement with Conway, certain of his neighbors petitioned the Board of County Commissioners under Code (1951), Art. 25, § 124 (now Code (1966 Repl. VoL), Art. 25, § 135), to take possession “of the road beginning 300 feet east of the Muirkirk Bridge on Muirkirk Road and running to the Old Baltimore Pike * * *” (part of the way, as a ten-foot wide dirt “cowpath,” ran along one side of the Conway property), as shown by an advertisement in the Prince George’s Post of March 13, 1952 (an advertisement which appeared for the required four weeks).

On April 15, 1952, the Board, following an applicable statute, appointed three individuals to ascertain and report on the propriety and desirability of opening the road as a public highway. On May 26, 1952, according to the testimony of Ernest Hines, the only survivor of the three road Examiners appointed to view the road in question, he talked to Mr. Conway and walked the road and then, as Chief Examiner, submitted the unanimous recommendation of the Examiners that the road be taken into the County road system. No protest was filed, no hearing held, and the County Commissioners immediately accepted the road, then widened and paved it and have since maintained it. Conway saw the bulldozers widen and straighten the “cowpath” and saw it paved.

He used it until his death in common with his neighbors and the public and knew the County had named it “Conway Road.” ⁴¹⁸ After Conway’s death in 1964 intestate, his daughter, Ellen Franklin, and his son, James Conway, sued the County in ejectment, claiming (a) that there had been a lack of jurisdiction because the Examiners did not take the oath specified by Code (1951), Art. 25, § 128 (now Code (1966 Repl. Vol.), Art. 25, § 140), and the County did not affirmatively show that all the statutory requisites had been met, (b) no damages were paid, and (c) the written consent of Conway as the owner was not given as § 132 of Art. 25 of the Code (1951) (now Code (1966 Repl. Vol.), Art. 25, § 144) requires when a public road is opened so as to pass through “gardens, yards or burial grounds, of any person * * We do not reach the regularity of the statutory proceedings by which the County acquired the road, since we find that Judge Meloy’s decision that there was sufficient regularity and no lack of due process and therefore the heirs of Conway could not prevail is to be sustained on other grounds. Judge Meloy sustained the County’s demurrer which alleged that the only proper party plaintiff in the ejectment suit was the administrator of the deceased owner.

Thereupon, there was filed an amended declaration by