Cushwa v. Burgess of Williamsport

Boyd, C. J., delivered the opinion of the Court. The Burgess and Commissioners of Williamsport sued V. Monroe Cushwa and others for trespassing on what is alleged to be a public square in thát town. There are seven bills of exception in the record — the first was waived, the second, third, fourth, fifth and sixth relate to rulings on the admissibility of evidence and the seventh presents the rulings on the prayers. The plaintiff offered three prayers, the first and third of which were granted and the second rejected, and the defendants offered five, the third and fourth of which were granted with some modifications and the others were rejected.

We will first consider the rulings on the prayers. By Chapter 11 of the Acts of 1186 the Legislature of Maryland appointed five commissioners to survey a quantity of land not exceeding 150 acres contiguous to the mouth of Conococheague Creek which empties into the Potomac River, who were directed to lay out the land into lots, streets, lanes and alleys, to be erected into a town to be called and known by the name of AVilliamsport, and to return a correct and accurate plat and certificate thereof to the Clerk of Washington County Court, who was required to record the same among the Land Records of the county and to keep the original in his office. It was provided that a copy of the original, or the record thereof, should be conclusive evidence of the bounds and lines of the lots of the said town and of the streets, lanes and alleys thereof. On May 18, 1787, the commissioners filed a plat, with explanatory notes, of eighty- ³¹⁰ two .aeres of land so laid out by them, there being 241 lots and a number of streets and alleys.

There are four streets which run east and west and are eighty feét wide, three which run north and south and are sixty-six feet wide, and one called Commerce street which runs “S. 30 degrees East, or nearly so,” and is seventy-eight feet wide. There is also mentioned in the explanatory notes what is called Water street and the notes state that it “runs N. and S. or nearly so,” and is 87 feet and 9 inches wide. That is not named on the plat, but there is a space between lots-223 and 224, running from the north boundary of the town to Potomac street, which was .probably intended as Water street. There is also a space on the plat which is 321 feet and 9 inches from east to west, and about 198 feet from north to south.

Lot No. 241 is on the west side of that space- and fronts on Potomac street, and lots Nos. 2, 3 and 4 front on the space on the east side thereof. The explanatory notes thus speak of it: “From lot No. 241 to lots Nos. 2, 3 and 4 is 231 feet and 9 inches, laid off for a public square, • bounded by. Potomac street on the north and on the south by the first line of the town and the end of Commerce street.” That public square is the subject of controversy in this case. We will request the reporter to publish with the report of the case enough of the plat to show how that square is formed by the contiguous lots and streets, as that will make our description of it more intelligible, but it is sufficient to add . here that the plat and explanatory notes on it show beyond question that at the time Williamsport was laid out as a' town a public square which was well defined was provided for.

Within one year after the plat was recorded, to wit, on April 10th, 1788, Otho Holland Williams, the owner of the land which had been so laid out, made a lease to Matthew Van Lear and William Van Lear in which he recited the Act of 1778, and that the commissioners had surveyed and laid off parts of the tracts mentioned into lots, streets, lanes and alleys, and had returned “a correct and accurate certificate and plat thereof to the Clerk of Washington County ³¹¹ Court; agreeable to the direction of the said act, as by the Land Records of the said county reference being thereto had will more fully appear.” By it he leased to them “all that lot or portion of ground in the town of Williamsport surveyed and' laid off by the commissioners aforesaid by the authority in them vested by the Act of Assembly above recited, known and distinguished on the plat of said town by number four, lying and being on the southeast corner of Potomac street and the Public Square, being a corner lot and bounding sixty-six feet on the Public Square and ninety-six feet on Potomac street.” That lease required the lessees to erect on the lot before the 1st day of May, 1192, “a house of brick or stone, frame or hewn logs at least twenty feet by twenty-six feet,” and the indications are that the house then built is still there and now known as part of the Miller property. Without deeming it necessary to cite authorities to support the statement, or now refer to other evidence on the sfibject-we can have no doubt that there was a dedication of this public square, which -was well defined and sufficiently 'described. In order that there be a dedication, it is not uec-essary that a municipal corporation be then in existence, and when it comes into existence, whether by incorporation or extending the corporate limits the right to take advantage of the dedication on behalf of the public will vest therein if the dedicate have not been previously revoked. 3 Dillon on Mun. Oor.

(5th ed.), sec. 1086. It becomes immaterial therefore to discuss the question whether the Act of 1186 created a municipal corporation or whether Williamsport first became such by Chapter 125 of the Acts of 1823, when the first regular charter was granted. We will presently consider the question whether there was an acceptance by the public and the appellee, but assuming for the present that there was, in order that the meaning of the prayers of the respective parties may be better understood, we will here add that the testimony shows that a stable, shed and perhaps other small buildings were erected ³¹² ¡upon the square, by parties under whom the appellants claim, jfifty or more years ago, and that they are still maintained by ,th¿ defendants, and they and those under whom they claim •have also made other uses of parts of this square for many ¡years. The Chesapeake and Ohio Canal Company has ¡occupied a small corner of it since the canal was built, there are several tracks of the Western Maryland Railroad Company which have been on it since 1873, and more recently a part of it has been occupied by the bridge of the Washington and Berkeley Bridge Co. < The first prayer of the plaintiff, which was granted, instructed the jury that if they found that the town of Williamsport was laid out under the provisions of Chapter 11 of the Acts of 1786, that a plat was made with the descriptions thereto attached, and the plat, description and certificate of commissioners were recorded, and that in said plat a piece of land was laid off as and for a public square for the ■úse óf the public, “and that the same was described and ■'the dimensions thereof set forth in the description and explanation of said plat and that the same was dedicated to the use of the public and accepted; by the same,” and further find that the defendants erected and maintained and 'continue to maintain buildings thereon, for their own private ufee, and used and continue to use a part of said public square for the storage of coal, then the plaintiff was entitled to recover, even though the jurors found that such user by the defendants continued for more than twenty years, pro'vided they further found that the plaintiff had not abandoned the same prior to, or during .the period of such user. t will be observed that that prayer submitted the questions of dedication and acceptance to the jury.

It was for ■'that reason technically erroneous. It is true that there are 'authorities which state the proposition broadly, that whether there has been a dedication or acceptance is a question for the jury, but we understand the law of this State to be that 'while the jury passes upon the facts involved in the ques- ³¹³ tioñ whether there was a dedication or acceptance, it is for the Court to determine what constitutes such dedication or acceptance. In Maenner v. Carroll, 46 Md. 225 , the Court through Judge Alvey said, “The Court was correct in rejecting the sixth prayer of the plaintiff not only for the reason just stated, but because that prayer failed to define what would constitute a legal dedication of a way to public use. The jury were not the tribunal to determine that question.

They were competent to find the existence of facts to fulfil the definition, but not to determine the definition itself.” In Kennedy v. Cumberland, 65 Md. 514 , Judge Milleb said, “The Court below in its rulings upon the prayers instructed the jury what facts it was necessary for them to find in order to entitle the plaintiffs to recover. In other words, the Court treated the question of acceptance of the street by the city as a question of law, and in this we find no error. This point has not hitherto been directly presented to this Court, but the ruling is sustained by our decisions in numerous analagous oases which it is unnecessary to cite.” Then after referring to Falsom v. Town of Underhill, 36 Vt. 580 , where it was held that if the facts were undisputed the acceptance vel non of a street by a city is a question of law, in speaking of cases where the facts are disputed the opinion went on to say, “The Court in such cases leaves the finding of the facts to the jury with appropriate instructions as to their legal effect, according as the jury may find them to be. And there is good reason why this rule should be applied in cases like the present for if the question of acceptance or adoption vel non should be left broadly to the finding of the jury, it would follow that the liability of a county or municipality would be left in uncertainty, depending upon the varying verdicts of different juries upon the same state of facts, instead of being, as it should be, settled and fixed by the law as declared by the Courts.” See also 13 Cyc., 485-6; 9 Am. & Eng.

Ency. of Law, 52-53. ³¹⁴ But while that is the law of 'this State, the' appellant cannot now complain of the error in the prayer because section 9 of Article 5 of the Code says, “No instruction actually given shall be deemed to be defective by reason of any assumption therein of any fact by the said Court, or because of a question of law having been thereby submitted to the jury, unless'it appears from the record that an objection thereto'for such defect was taken at the trial.” No objection does appear from the record to have been made because a question of law was submitted to the jury, and hence that error cannot be corrected by us, although owing to the conclusion we have reached as to the fact' of dedication and acceptance it is perhaps immaterial. There was, however, a special exception to that prayer on the ground that, there was no evidence “legally sufficient-' to show that there was any acceptance of the offer to dedicate the square ás laid out on behalf of the public,” and the defendants’ first and second prayers asked the Court to say that there was' no evidence legally' sufficient to' entitle the plaintiff to recover — the first referring to’the pleadings and the second not doing so. It becomes necessary, therefore, for us to determine whether there was legally sufficient evidence to show an 'acceptance. We have reached the conclusion that that must be determined in the affirmative.

It is true that the evidence tends to