Flersheim v. Mayor of Baltimore

Bryan, J., delivered the opinion of the Court. The question in this case is whether there has been a dedication to the public of a portion of a street. On and prior to December ninth, eighteen hundred and seventy-three, Samuel Ellinger was seized in fee-simple of a tract of land in the city of Baltimore which was described as bounding seven hundred and seven feet and six inches on the centre line of Hampstead street. On that day he conveyed to Solomon Straus in trust for an infant grandson of the grantor a small portion of this tract, which was described in the deed as beginning on the north side of Hampstead street, at the distance of seventy-five feet easterly from the northeast corner of Hampstead street and Grove alley, and running thence easterly binding on the north side of Hampstead street fourteen feet.

Hampstead street (now ⁴⁹² Fairmount avenue) is laid down on Poppleton’s plat as one of the public streets of Baltimore. In December, eighteen hundred and seventy-four, for the benefit of another grandson he conveyed another portion of this tract of the same extent, and similarly described as binding on 'the north side of Hampstead street. These deeds are described in the testimony as presents to-the infants. They are not set out in full in the transcript of the record, and we suppose that we are to understand that the considerations are nominal. “ When a lot of ground is sold within the limits of a city, and bounded by streets designated as such, in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies necessarily a covenant that the purchaser shall have the use of such streets.” We have quoted the words of the Court in White v. Flannigain, 1 Md. 540 .

The covenant is implied solely for the reason that the parties are held to have intended that there should be a street. If the grantor intended that the grantee should have the benefit of a street, and the grantee intended to acquire that benefit, it would be very unjust and unreasonable if the law should refuse to permit a covenant to be implied to that effect. It is implied because that is the meaning of' the deed. But would not the words of the deed mean the same thing whether the consideration was valuable or merely nominal?

Does the signification of the language depend in any degree on the nature of the consideration ? It is not the covenant for valuable consideration which gives a construction to the words of the deéd; but the meaning of the words which gives rise to the covenant. These remarks have been suggested by the ingenious-argument by the learned counsel for the appellant, in which he maintained that the doctrine stated in White v. Flannigain does not apply to mere donations of real estate. We wish to consider this question without referring to the technical rules relating to covenants, but we do not forget that covenants are contracts under seal, and that they may be made without the actual payment of a valuable consideration, inasmuch as the seal imports a consideration.

When Ellinger made the ⁴⁹³ deed bounding the lot on the north side of Hampstead street, owning as he did the land to the centre line of the street, if he did not mean to convey a right to the street so far as he could give it over his own land, he would leave the grantee unprovided with any means of access to the land granted to him. To obtain the benefit of the street, he would be obliged to incur considerable expense. When the street was condemned and opened by the city he would be charged with the benefits conferred on the lot by the existence of the street. Can we suppose that Ellinger said to himself at the time: “ I will give this lot to my grandchild ; I will