Fonte v. Fisher

Briscoe, J., delivered the opinion of the court. This is an appeal from a decree of the Circuit Court Ho. 2 of Baltimore City restraining and enjoining the appellants and the Mayor and City Council of Baltimore from enclosing or entering upon any part of a market stall, known as Street Stall Ho. 1157, in I^exington Market, Baltimore, and especi ⁶⁶⁴ ally that part of the stall lying under the eave of the market building. The decree was passed upon bill, answer and testimony taken in open court, and tbe appeal is taken by the defendants Joseph F'onte & Cb. The appellees are the licensees of a market stall, known as Street Stall No. 1157, in Lexington Market, Baltimore City, paying to the city the charges and fees for the use of it for one year from the first day of May, 1919, also- for the year 1920, and for many years prior thereto.

The appellants are the owners of two market stalls, Numbers 983 and 985, in Lexington Market, known and called eave stalls, which they have occupied on or about thirteen years, and these stalls adjoin the stall of the appellees in the market. It appears that, on the 12th of April, 1920, the appellants obtained from the Mayor and City Council of Baltimore a permit to enclose their stalls and to extend this enclosure to the present curb line of tbe street, and it is this permit that the court below held to- he invalid and an invasion of the rights of the appellees under the license now held by them. The real question then in the case is whether the Mayor and City Council of Baltimore had the power, in the exercise of its jurisdiction to regulate and control markets and stalls in the City of Baltimore, to- grant the permit in question, to the appellants to enclose their stall or stalls, in conformity with the other enclosures in the same market. The Mayor and City Council of Baltimore is given very broad powers as to the control and regulation of the markets and stalls in the City of Baltimore.

In State v. Burkett, 119 Md. 617 , it is said: “As early as the Act of 1796, Chapter 68, the Mayor and City Council of Baltimore was given the power 'to erect and regulate markets’ and among the powers conferred upon the city by its present charter is the power 'to erect, regulate, control and maintain markets and stalls within the City of Baltimore, and to regulate and control the sale of all goods, wares, merchandise or other articles therein. To lease, sell or dispose of any stalls ⁶⁶⁵ or stands in any market, in suck manner and upon such, terms as it may think proper.’ Act of 1898, Chapter 123.” It was further said that “in a large city a pnblie market, if not an absolute necessity, is a great public convenience, and tbe Legislature has therefore delegated to the Mayor and City Council of Baltimore the power to erect and reg;ulate markets and stalls within the city, and to lease, sell or dispose of stalls and stands in the market in such manner as it may think proper.” In Hatch v. Pendergast, 15 Md. 258 , it wasi held: “Upon the claim by possession, we may remark that title to a market stand cannot he acquired in that way. The ordinance provides' the mode of renting such stands and expressly authorized and directs the clerks ‘to remove and drive off every person using or occupying any stall, bench or stand in any of the markets contrary to the true iuteut and meaning thereof.’ Sec. 44. Every seller must be considered as holding his stand by contract with the city, subject to the market regulations, and not adversely to its authority.” In Rose v. Baltimore, 51 Md. 270 , this Court defined the title of market stalls:, and said: “The purchase of these stalls in a public market, like the purchase of a pew in a church, doe® not confer on the purchaser au absolute property, but a qualified right only.

The right acquired is in the nature of an easement in, not a title to, a