Hanson v. Campbell's Lessee

Bartol, J., delivered the opinion of this Court: The subject of controversy in this case is the title to a small piece of ground forming a part of the “west half of lot No. 55,” in the town of’Frederick. There is no dispute between the parties about locations, nor about any of the facts material to the decision of the case; they both claim title from the same proprietor, and as the appellee’s deed is the elder, Ms title must prevail over that of the ²³⁰ appellant, if the land in dispute is embraced within the description contained in his deed. The whole question therefore turns upon the true construction of the deed from John Baltzell and wife to Abner •Campbell, dated the twenty-second day of September 1852, which conveyed a parcel of land described as follows: Beginning for the same on Patrick street, “at the division line between lot number fifty-five and lot number fifty-six, and running thence north with said division line one hundred and eighty-six feet six inches, thence eastwardly on a line parallel with Patrick street thirty feet, thence southward on a line parallel to the division line between lots number fifty-five and fifty-six, one hundred and eighty-six feet six inches to Patrick street, thence with Patrick street thirty feet to the beginning.” At the time the deed was made the grantors owned the whole of the west half of lot No. 55, extending from Patrick street on the south to Church street on the north. By a deed afterwards made on the 31st day of October 1854, from John Baltzell’s executors to A. B. Hanson, (the appellant,) there was conveyed to the grantee all the lot or parcel of lot owned or occupied by John Baltzell at the time of his death, marked or distinguished on the plot of the town of Frederick as No. 55.

Other contiguous lots fronting on Church street were embraced in the deed, but it is not material to refer to them. It is obvious from the descriptions in the deed, that the parcels conveyed to the appellee and the appellant respectively must touch each other somewhere between Patrick and Church streets, the northern line or boundary of the former forming the southern boundary of the latter. Where that line is properly to be located, forms the only subject of controversy in the case; and that depends upon the true point of beginning of the appellee’s lot, which must be determined by the true construction of the deed of the 22nd of September 1852. The deed fixes the beginning “on Patrick street at the ²³¹ division line between lot No. 55 and lot No. 56.” It is shewn by the locations given in evidence, and conceded by the appellants, that if the point of beginning is on the margin or north line of Patrick street, then the piece of ground in dispute will be covered by the appellee’s deed.

But the appellant contends the true place of beginning is in the middle of Patrick street, or on the line of the curb stones, and if he is correct in either of these views, then by the conceded facts in the case, the parcel of land in dispute is not included within the lines of the appellee’s lot. In support of this view the appellant has referred to a number of cases, in which it has been hold that “in a sale of land bounded by a highway, the presumption is of an intent to pass the coil to the centre of the highway, and it will so pass unless the highway be clearly excluded.” The cases on this subject have been collected by the American Editors of Smith’s Leading Gases, and will be found in their note to the case of Dovaston vs. Payne, in the 2nd volume, 216, &c. We have examined the cases and find some conflict of authority upon the very interresting question therein considered. We do not remember any case in our own State, where that particular question has been considered or decided, nor is it necessary for the purposes of this appeal that we should now express any opinion thereon.

It has been settled in Maryland, that “where a party sells property In a city hounding it by streets, such sale implies necessarily a covenant that the purchaser shall have the use of such streets. White vs. Flannigcm, 1 Md. Rep., 525 . Moale vs. Mayor & C. C. of Balto., 5 Md. Rep., 314 . But in the view taken by this court of the present appeal, these questions are not involved.

We are not called on to decide what title or estate the land forming the bed of Patrick street may have passed to the appellee under the deed from Baltzell and wife. The question for us to decide is the true location and extent of that part of lot 55, described in and conveyed by the deed. ²³² This is a question of construction, and “depends, as in