Fralinger v. Cooke

Henry, J., delivered the opinion of the Court. The appellant who was the plaintiff below, is the owner of a lot abutting on what was formerly Myers Street, a public highway of Baltimore City, and the appellee is the . owner of a lot abutting on the opposite side of the same street. The principal thoroughfare in that section of the city is Fort\Avenue, which runs parallel with Myers Street and only about thirty feet distant therefrom. Myers Street was formerly about forty feet wide, but extended only a short distance, connecting Covington Street with Jackson Street, and it was deemed advantageous to the property owners on both sides thereof that it should be narrowed, leaving open only a ten-foot alley way. in pursuance of this plan, the following agreement was made: ⁶⁸⁴ “In consideration of the sum of one dollar in lieu of damages and provided the bed of Myers street reverts to me, I hereby agree to grant and assign to the signers of the annexed petition, owners of property binding on Myers street from Covington to Jackson street, according to and in proportion to their respective interest in said property, whether fee simple or leasehold, all my right and interest in a strip of land of the width of their respective lots and with a depth Southerly of seven feet to a ten-foot alley, there situate, for the use of the property binding thereon; and I further agree to move all fences of all the signers of the annexed petition, pave the balance of their yards and pave the said ten-foot alley opposite their said lots.

And I further agree to indemnify and save harmless the said signers of the annexed petition from any loss or damage arising from any assessments for benefit or any other charges whatever. Witness my hand and seal this-day of Se-, Nineteen hundred and three. Theodore Cooke. (Seal).” And the following petition, or recommendation, signed by all the owners of property abutting on the aforesaid street, about twenty in number, including the appellant, was presented to the Mayor and City Council of Baltimore City: “We, the undersigned, owners of property on Myers street, hereby recommend that the Mayor and City Council of Baltimore City close said Myers street, upon the following conditions: ist.

That an alley ten-feet wide, located 7 feet South of the Southern outline of our property, be left open for the use of our said property. 2nd. That if the bed of said Myers street, after closing the said street, should revert to Theo. Cooke, the said Theo. Cooke will grant the respective signers the said lots, in lieu of said damages, a strip of land of the width of their respective lots and with a depth of seven feet to the said ten-foot alley, and that the said Theo.

Cooke shall move our fences, pave the balance of our yards and pave the said ten-foot alley, and further agree to indemnify and save harmless the undersigned from any loss or damage arising from any assessments for benefits, or any other charges whatever.” Acting upon the recommendation, Myers street was closed ⁶⁸⁵ by the City Council, leaving open an alley way ten feet wide as aforesaid. The appellee fulfilled all the terms of the agreement, on his part to be performed, but it is charged in the Bill of Complaint, hereinafter referred to, that he “has lately commenced the erection of a store and dwelling at the Southeast corner of Covington street and the ten-foot alley laid out in accordance with the agreement, and has encroached on said alley in no less than seven different places, namely: Bay window at corner, one foot on said alley, base of side bay window, six and one-half inches in the alley, and the total projection above ground, three feet three inches; One doorway with step in alley. Three cellar areaways, each one foot one inch on alley and running three feet three inches. Fence from one and one-half to three inches in alley.” The appellant filed her bill of complaint in the Circuit Court ■for Baltimore City, seeking to enjoin the completion of said building, with the encroachments in the alley as aforesaid.

The Court directed the injunction to issue, and the appellee, the defendant below, after answering the bill, moved for the dissolution of the injunction. Testimony was taken, and at the hearing the Court dissolved the injunction, and from such order of dissolution an appeal has been taken to this Court. The testimony shows that the appelleee obtained permits, executed in the usual form, from the Board of Estimates for the erection of all the alleged encroachments on the alley, except the fence, paying therefor the amounts charged by the city for such privileges, but that no copy of the application was served upon the appellant before the filing of the same with the Board of Estimates, though after the granting of the permits, the appellant’s attorney appeared before the said board and urged the revocation of the same, and that notwithstanding such protest the board declined to revoke them. By the Charter of Baltimore City, the Mayor and City Council are given ample power over the streets, bridges, lanes, alleys and thoroughfares of the city, and the Board of Estimates, by section 37 of said Charter, is given power to> ⁶⁸⁶ grant upon application permits for the erection on said streets and alleys of “bay windows, hitching posts, areaways, steps, storm-doors,” &c., all of which are denominated as minor privileges, “provided, however, that copies of said application be served upon the adjoining property owners by said applicant before filing said application before said board.’ It is obvious that when Myers street, originally forty feet wide, was narrowed to a ten-foot alley, in pursuance of the agreement and recommendation above set forth, the alley became subject to municipal control in