Hillyard v. Chevy Chase Village

Brune, C. J., delivered the opinion of the Court. This is an appeal by John F. Hillyard from the denial of his petition for a writ of mandamus to compel the appellees, Chevy Chase Village, a municipal corporation, and the members of its Board of Managers (collectively the “Village”), to improve East Kirke Street in front of the appellant’s lot in order that he might have access thereto, or in the alternative, to give him permission to improve East Kirke Street .so he might have access to his lot. The appellees demurred to the petition and the trial court sustained the demurrer without leave to amend. The petition alleges that the petitioner, John F. Hillyard, is the owner of a lot located between Western Avenue and Brooklandville Road, Chevy Chase Village, fronting on East Kirke Street, that he purchased his lot in reliance upon the ²⁴⁵ fact that East Kirke Street is shown by the Land Records of Montgomery County to be a duly dedicated street and that the dedication thereof has been accepted by the Village.

The petition also states that East Kirke Street has been improved for one half of its length, but that the part in front of Mr. Hillyard’s property “is covered by trees, underbrush, holes and trash, and is totally impassable”, that consequently his property is inaccessible and that he has no other means of access thereto. He asserts that the Village has refused either to improve the street or to permit him to do so, or to cut the curb at the intersection of Kirke Street and Western Avenue. The demurrer, of course, admits all of these allegations. The petition refers to the Charter of the Village, Acts of 1951, Chapter 251.

It is codified in the Montgomery County Code of 1955 as Secs. 66-1 to 66-17. The date of the appellant’s acquisition of his lot is not shown, and the case has proceeded on the assumption that the Act referred to is controlling. We may add that nothing in any prior law relating to Chevy Chase Village has come to our attention which would produce a different result under the “Succession Clause”, which is also a saving clause of Chapter 251 of the Acts of 1951 (Sec. 86 B of the 1947 Code of P.L.L. of Montgomery County). The pertinent Sections of the 1951 Act will be referred to by their Section numbers in the 1955 Montgomery County Code.

The relevant sections of the Village Charter which relate to the authority of the Board of Managers to construct and, maintain streets are paragraphs 6(e), 6(f), 8, 8(e) and 8(f). of Section 66 of the Montgomery County Code of 1955. Section 66-6(e) states: “All funds which shall be received', by Chevy Chase Village as its share of the County Road tax shall be used by the Board of Managers exclusively for the-maintenance and repair of roads within the boundaries of Chevy Chase.” This section is inapplicable to the case before us since it relates only to the repair and maintenance of roads already built. Section 66-6 (f) likewise applies to the rebuilding or reconstruction of roads already constructed. Section 66-8 provides: “That Chevy Chase Village, when ²⁴⁶ ever in the judgment of the Board of Managers the public health, safety or welfare requires, shall have the power to levy taxes in the form of special assessments upon property in