Hawley v. Mayor of Baltimore

Brent, J., delivered the opinion of the Court. As the appeals of Ilawley and others against the Mayor and City Council of Baltimore, and of the Mayor and City Council of Baltimore against Hiss, are included in one record and have been argued together, wo will dispose of them in the same opinion. In the case of the Mayor and City Council against Hiss there is really but one question presented, and that is, to what extent has there been a dedication of the bed of Mosher street by the appellee Hiss ? It is in proof that Hiss, being the owner of certain lands lying between Madison and Druid Hill avenues, offered at public auction, in 1866, certain portions of them marked out in lots upon a map or plat, which was placed by him in the hands of the auctioneer, and which was in all respects similar to the one filed in this case.

Upon this map lots and streets are distinctly laid down, and among others Mosher is designated as one of the streets. It runs from Madison avenue across MeCulloh street to Druid Hill avenue. The lots advertised for sale, and described as being on Mosher street, are all between Madison avenue and MeCulloh street. As the bids at the sale were not satisfactory, the lots were withdrawn and no sale effected.

Subsequently four of these lots, calling to bind on Mosher street, were disposed of at private sale. Judge Scott purchased one of them in trust for Mrs. Armstrong, and the map or plat referred to was put in his hands ²⁸⁰ by Hiss at the time of the purchase, but there is no particular reference to it in the deed for that lot, nor is there any in either of the deeds found in the record. None of the dots South of McCulloh street have been sold or offered for sale. It is also proven, that there were fences across the designated line of Mosher street between McCulloh street and Druid Hill avenue, and so continued up to the time that the City proceeded to take the necessary steps to open it as a public street.

The law is now too well settled to admit of any doubt, that if the owner of a piece of land lays it out in lots and streets, and sells lots calling to bind on such streets, he thereby dedicates the streets so laid out to public use. This rule is founded upon the doctrine of implied covenants, and the dedication will be held to be co-extensive with the right of way acquired as an easement by the purchaser. It is upon the implied covenant in the grant to him that the dedication to public use rests, and such dedication must necessarily be measured by the limits of the right he has acquired by virtue of his grant. In the case before us the right of way or easement in Mosher street acquired by the purchasers of the lots mentioned in the proof is the precise limit of the dedication by Hiss.

Over what portion of Mosher street then did their right of way extend ? We think they acquired by their several purchases the right of way from Madison avenue only to McCulloh street, as it is between those streets that their lots lie and bind on Mosher. The doctrine of implied covenants wil.1 not be held to create a right of way over all the lands of a vendor which may lie, however remote, in the bed of a street. The lands must be contiguous to the lot sold, and there must be some point of limitation.

The true doctrine is, as we understand it, that the purchaser of a lot calling to bind on a street, not yet opened by the public authorities, is entitled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way. To this extent will the vendor be held by the implied covenant of his deed and no further. It is needless to review the ²⁸¹ several authorities cited in the argument upon this point, as we consider it settled by a decison of this Court in the case of Moale vs. The Mayor and City Council of Baltimore, 5 Md.,