Hackerman v. Mayor of Baltimore

Prescott, J., delivered the opinion of the Court. This is an appeal from a final decree in favor of the Mayor ⁶²¹ and City Council of Baltimore and Paul A. Cohen, (former) Building Inspection Engineer (Defendants below) entered by the Baltimore City Court in a suit, an action of trespass on the case, brought under the authority of Code, Article 75, Secs. 135-140, by Esther T. Hackerman, appellant. The purpose of the suit is to compel the Building Inspection Engineer of the City of Baltimore to issue the appellant (plaintiff below) a permit for the use of the land in the bed of Falls Street for purposes permitted by law and for an injunction forbidding and restraining the City of Baltimore from the use thereof as a public street. The case was heard upon the merits by the Baltimore City Court and a final judgment in favor of the Mayor and City Council of Baltimore, which also denied the prayer for injunction against the City’s using Falls Street, and the writ of mandamus that would have required the defendant, the Building Inspection Engineer, to issue a permit for the use of Falls Street.

In entering the judgment in favor of the Mayor and City Council of Baltimore and the Building Inspection Engineer, the Court below found that Falls Street was dedicated to the City for public highway use and thereafter the City of Baltimore duly accepted the dedication thereof. The evidence in the case shows that prior to the year 1851 a tract of land which includes the street in question was owned by the Mary Catón Estate. In a partition of the property and estate of Mary Catón, in the High Court of Chancery of Maryland, a copy of the proceedings being on file in the Circuit Court of Baltimore City, a plat of the tract of land, Plaintiffs’ Exhibit 1, shows the subdivision of the land into 21 lots, 16 of which border on a street known as Holkham Street. The part of Holkham Street on said plat running at right angles to Washington Boulevard and along the northeast line of lot A1 is now known as Falls Street and is 50 feet wide; and the said plat is a part of the Court records in the partition case. ^{622 623} According to the evidence in the case, 5 lots known as B3, C4, D5, D6 and C7 were sold off by the common owner by deeds to various grantees during the years 1863, 1873, 1882, 1887 and 1903, and also according to the evidence in the case, these lots were all described in said deeds as bounding or abutting on the said Holkham Street, without any reservations, reserving the street from dedication.

The evidence further shows that the title to the aforementioned 5 lots did not at any time become vested in Christian F. Kurrle, the immediate predecessor in title to Esther T. Hackerman, the appellant. The testimony also shows that by deed dated April 3, 1907, Christian F. Kurrle acquired title to lot Al, as well as several others, and in addition to the lots granted thereby, there was a grant of all the interest of the grantors in and to the beds of Holkham and Falls Streets as laid down on said plat. (The grantor in this deed is a trustee and his source of title is not described with certainty. However, as both sides treat this grantor as the common owner or a successor in title, we shall consider him as such.) Christian F. Kurrle and wife, by deed, dated December 18, 1917, and recorded among the Land Records of Baltimore County in Liber W.P.C. No. 492, folio 272, conveyed unto Eli J. Hackerman lot Al, including the bed of Falls Street; Eli J. Hackerman thereafter deeded the property to a straw party, who then deeded it back to him and the appellant as tenants by the entireties.

Eli J. Hackerman died in 1954. The Mayor and City Council of Baltimore, acting through the Bureau of Sewers, between May 10, 1930, and July 26, 1931, constructed and has since maintained in the bed of Falls and Holkham Streets a sanitary sewer to service this general area without permission of Eli J. Hackerman or Esther T. Hackerman, his wife, the alleged owners of the land within the beds of Falls and Holkham Streets. The questions to be decided are: 1. Was Falls Street dedicated to public use; 2.

If so, are the Mayor and City Council of Baltimore estopped from asserting said dedication, or ⁶²⁴ was such dedication abandoned by the Mayor and City Council or lawfully revoked by the original grantor or said grantor’s successor in title; and 3. If Falls Street were dedicated, was such dedication accepted by the Mayor and City Council, so that said street is now a public highway of the City of Baltimore? I In dealing with the question of dedication, the adjudicated decisions and the text writers cause some confusion by their use of the term “dedication”. They frequently use this term as meaning both the “offer to dedicate” and the “offer to dedicate and the acceptance thereof”, i. e., the completed dedication.

Cf. Taussig v. Van Deusen, 183 Md. 436, 440 , 37 A. 2d 915 . In order to effectuate a common law dedication, it is indispensable that there be an intention on the part of the grantor to dedicate to public use. It frequently has been held by this Court that where, in a City, the owner makes a plat of land on which the streets are laid down and then conveys it in lots described as bounding on the streets or by reference to their numbers on the plat from which it appears that they do in fact bound on the streets, an intention to dedicate the land lying in the street beds to public use will be presumed, in the absence of language showing that no dedication was intended.

Among the many cases so holding, see White v. Flannigain, 1 Md. 525