Lee v. Leitch

Burke, J., delivered the opinion of the Court. The controlling facts of this case, briefly stated, are these: The appellees, Jessie S. T,eiteh and Estelle Snow Wilcox, are the owners of a lot of ground on Liberty ’Heights avenue^ in Baltimore City, located 185 feet west of Carsdale avenue. 'They acquired title to this lot by a deed from the Forest "Park Company of Baltimore City, daled February 7, 1916. The deed contained a description of the property conveyed and in it the following" clause appears: “That all right, title and interest in and to the avenues, streets, roads, lanes, sidewalks, alleys or paths ³² as the same are laid out aud shown ou the plat of the company’s property filed among the Land Records of Baltimore City in Liber S. O. L. Ho. 2888, folio 608, and which may constitute one or more of the line or lines of the lot hereby intended to be conveyed, are hereby expressly reserved by the company, its successors and assigns, subject, nevertheless, to a right of' way to the said grantees, the survivor thereof, their assigns, and the heirs aud assigns of the survivor, over and upon the said avenues, streets, roads, lanes, sidewalks, alleys or paths until the same shall he condemned for public use; aud that all references to or mention of avenues, streets, roads, lanes, sidewalks, alleys or paths in this deed will he and are for the purpose of description only, and not for the purpose of dedication.” One of the alleys referred to in the deed is in the rear of the appellees’ property, and runs to Oarsdale avenue, which is a macadam street. This alley according to the understanding of Henry W. Webb, the vice-president of the Forest Park Oompany, and who had charge of the active management of the affairs of the company, was laid out to serve the houses, fronting on Liberty Heights avenue.

Liberty Heights avenue was paved by the State Roads Commission, and turned’, over to- and accepted by the city in April, 1915. Robert M. Cooksey, the Highways Engineer’ of Baltimore City, said the-pavement of Liberty Heights avenue is what is called “sheet asphalt, vitrified brick street, that is sheet asphalt on the outward portions, outside of the tracks and then vitrified brick-in the railway area, and the vitrified brick covers that' portion from outer rail to outer rail and the dummy space is vitrified' brick.” It is a high class pavement, and the avenue had been in the control of the city about 18 months before- the commencement of this suit. Section 37, Article 91 of'the Code, provides that: “Ho-opening shall he made in any such highway, nor shall any structure he placed thereon, nor shall any structure which ³³ has been placed thereon he changed or renewed, except in accordance with a permit' from the commission, which shall exercise complete control over such highways,-except as hem-in otherwise provided. Ho State highway shall he dug up for laying or placing pipes, sewers, poles, wires or railways, or for other purposes, and no trees shall he planted or removed or obstruction placed thereon without the written permit of the State Roads Commission, or its duly authorized agent, and then only in accordance with the regulations of said commission; and the work shall be done under the supervision and to the satisfaction of said commission.” An opening was made in Liberty Heights avenue in 1914-, while the avenue was under the jurisdiction of the State Roads Commission, in order to insta! water in the house of Jesse Hamburger, which adjoins the property of the appellees.

The precise circumstances under which this was permitted do not appear, but we will assume it was done with the assent of the State Roads Commission. The city water main is located in the bed of Liberty Heights avenue at a distance of about 1 feet from the curb, and at the time the appellees purchased their property they were assured by an agent of the Forest Park Company that water connection had been made with the city main to the curb line. Ho s-ueh representation to this effect was made by any official or employee of the city, and such representation made to the appellees was unknown to the city. The appellees made no investigation, or inquiry to ascertain the truth of the representation.

Its falsity could have been readily discovered by a simple inquiry of the Water Hoard. The appellees began the erection of a dwelling house upon the lot, and it was then discovered that the water connection had not been made. They applied for a permit to make the connection with the main in the bed of Liberty Heights avenue. The installation involved the- opening or cutting; of this recently laid, high class pavement, and the city authorities declined to grant the permit.

The ground of their refusal is stated in two- letters of Mayor Preston to Mr. Charles Lee ³⁴ Merriken, attorney for the appellees, dated respectively, August 19th and September 20th, 1916, and in the testimony of the Mayor and that of Mr. Cooksey, the Highways Engineer. Mayor Preston had been fully advised by Mr. Merriken as to the facts attending the application for the permit, and in his letter of August 19th said: “I have your letter of August 18th. I really am placed in a very embarrassing position about this case, and a good many other similar ones. I have to make a definite statement to the public and property owners, and am compelled to live np to it.

I bave no doubt that.the water can be gotten in tbe back way of tbe ,,property of Mrs. Jessie S. Leitch, on the north side of . Liberty Heights avenue, a block and a half west of Garrison avenue, at perhaps additional cost, hut do . not see how we can cut the improved paviug there at this time. I have uniformly declined to do this in hundreds of cases. Perhaps, if you take the matter up with Mr. Lee, Water Engineer, or the Construction Division of the Water Department, some way can he found whereby the water can he gotten into the house from the rear.” On August- 29th, Mr. Merriken replied stating that it would cost. $200.00 to. introduce the water through the alley in the rear1 of the appellees’ property, and again urged the granting of the permit.

In reply to this the Mayor wrote as follows on September 20th: “I have your letter of September 19th. I have no doubt that the Water Department will permit Mrs. Leitch to tap the supply pipe of her neighbor. I can see no objection to this plan, provided she pay the usual water charges. The tunnelling suggested by you would involve opening the street at the main.

I regret to have to stand to our guns on these matters, hut I have made uo exception in any case. Of course, where there has been injury to the surface of the street, breaks in tbe mains, where sewer lines have to be opened, repairs have to he made, and in these cases water is ³⁵ allowed to be introduced, because it does not involve the independent cutting of the streets. I have not allowed any exception to be made to this rule, and if it has been done it is in violation of my orders.” On September 23, 1916, the Water Engineer, Mr. Lee, wrote to Mr. Merriken that: “The only way in which the supply can be brought into Mrs. Leiteh’s new house, without disturbing tbe improved paving in Liberty Heights avenue, is by laying a service pipe in the alley north of Liberty Heights avenue, from Carsdale to a point on the east side of her lot.” In his testimony the Mayor said: “There is always a constant resistance on our part to destroying pavements that have been newly put down, except in eases where there seems to be a necessity for it, where there has heen a break under the pavement, where thei gas mains or sewers are broken under the paving, and they have to go into them to repair them; hut we try not to do it if there is any possible remedy, any possible relief, any possible way by which it can he avoided. We found out that this could be avoided by a little additional expense on the part of the property owners; and we refused, in common with all other similar cases, that come under my direction, to.cut the improved paving.

There is a constant battle to prevent property owners from, cutting the improved paving; and if they see any improved paving g'o down in front of their property, without any regard for public interests, in practically a week or a day afterwards they come in and want to enlarge the water pipe, or put in sewer connections, or water connections, so it is a constant battle to prevent the paving from being cat; and this is one of the hundreds of cases that we have to decline. The objection is, in the first place, what it should cost, and in the second place, is getting the back fill so the pavement will stand up- after it is repaired. Sometimes we have to repair it once or twice or two or three times. The tendency is that the back fill sinks nnder the pavement, and then it goes down, and, of ³⁶ course, the other thing is that, while you may be able to repair it very well, yet, at the same time, it is not a good thing to put down a new pavement and then go and cut it up again.

On Baltimore street you would be surprised at the attitude of the community on the subject. I have letters constantly calling my attention to the fact that the new pavement has been put down on Calvert street, and a new cut was put in there. * * * Baltimore street has been repaved, a, new street put down on Baltimore street, and yet there have been fifty cuts on Baltimore street on account of the defective back fill. The structures under the street go down with the hack fill, the sewer and the water pipes, and electric conduit, for example. Now, then, you go down and cut down to repair a water pipe1, and the fill goes in as well as you can make it, as well as you can practically make it, and the hack fill goes down and carries with it the structures on the side, no matter how well you make it.

In other cities they drill, or make a small hole in the middle of the pavement, and drill in. Well, we have not been able to do that very successfully, for the reason that our streets are so full of pipes that have been put down under various grants of the Legislature, gas pipes generally, and then bought out by the Consolidated, and such things, so we can not drill very well, I mean drill from the side, horizontally, hut we have one constant battle. The applications for cuts in improved pavements come over my desk with what is known as a red flag, with a red piece of paper attached, showing that they are cuts in improved pavings, so that we can examine those cuts promptly and classify them as far as we can. Where we have old pavements, we are not so careful about it, macadam, old macadam paving, or old cobble, that does not come up at all; it is the improved, expensive pavement that has been put down by the property owners where we resist the cutting process wherever we can and exercise the best discretion we have in the public interests. “I receive a great many applications for installing pipes to the curb line and I constantly refuse to grant these permits. ³⁷ “Sometimes the circumstances or equities in the case seem to direct a different discretion.

For instance, if the pavement is five or six or seven years old, if the pavement is already cut at that point for any purpose; suppose, for instance^ there is a broken main there, and the property owner wants to go down into the same cut, we let them go. It is already there. There are a g'ood many parallel cases that control the exercise of discretion. Mr. Hubert passed on some of them, in order to take the volume of business, and I do generally.

For the first four years I think I took charge, and now Mr. Hubert is passing on them very largely in my office in my absence. “I have never, so far as I can recall, none that I know of, granted any permits for opening improved paving where the circumstances were such as are present in this case. Other than the reasons which T have stated, T can only say:1 I am down there at the City Hall trying to protect the city’s property as best I can and exercising the best discretion T can in the matter.” Mr. Oooksev said: “The reasons which operate would cause me to1 believe that it was proper to refuse this application. They are that, I was under the impression that when the application was first presented the lot had just been sold by tbe company or parties developing that part of the city, and I knew, or thought I knew, they were well acquainted with our regulations regarding the tearing up of pavements, and I thought they should have made it their business to see that all their vacant, lots which they proposed to improve were properly connected up before the new paving was laid. There has been a good deal of new paving laid in that territory.

The, company I am speaking of is the Forest Park Company, which sold to Mrs. Leitch. I also considered the reasons that apply to all permits for cutting new pavements, the fact, that you can not very well at any reasonable cost repair a pavement so that it will be as good as before it was cut. It, is practically impossible to join the asphalt around the edges of the cut. Every effoi’t is made to make a bond, but it does ³⁸ not actually bond.

The concrete does not bond to' the old concrete base, and I think we all know that it is pretty hard to ram any trench so that there will be m> settlement. It may stand up a year and it may stand up a year and a half, but' it generally settles some, which means a depression, and which means going hack and spending the city’s money again to hring that cut up- to grade. Then, of course, we can not always get a plant to handle the cut immediately, and therefore we have got a hole which must he taken care of temporarily; in other words, it is temporary; and that permits moisture to enter and often makes it dangerous. * * * In other words, there is always a line in there between the old and new paving; a line between the material that goes in to malee the patch in the original paving. This permits moisture -to get in under the patch.

There are times, of course, when that will seal over, hut when the seal on the top is broken there is no bond all the way down, and if moisture gets in there in cold weather it immediately begins to lift the edge of the patch and it starts to disintegrate; the result of • which is more work on that patch and unsatisfactory results in the end. That is, you can not- make a patch as good as the original paving and you have holes or depressions. Considering these things led to the general policy that we should make as few cuts in the paving, as possible and this is the general policy of the Highways Engineer’s office; so much so that I continually advise other departments to explain the necessity before we will grant them permits for their own eixtension and repair work.” The witness further testified that his department turns down probably three to five hundred applications a year for tearing up the new pavements, and the applications of the city departments are turned down for the same reason. “Some of the applications for tearing up improved paving are granted, hut the applications which are granted are under some of the following classes-: Water leaks are granted, of course. Generally an emergency is given and an emergency break is given prompt attention, because if the water leak is ³⁹ not repaired it will damage a greater and larger area of the street and the quicker it can be repaired the less damage will te dono.

A gas leak will always affect the asphalt in the same manner*. Tt seeps np and the paving will disintegrate from escaping gas. The extension or enlarging of a water service in the downtown sections where sprinkler service is instaFod for fire protection. This is granted for fire protection.

The extension of the water system, that is, a. main connection, or an extension of the main of the water department for better service, but they are looked into quite well before they are granted. “Q. How, for merely curb line connections, that is, connections from the main line- to the curb line, do you or not grant those? A. We- do- not, unless it is a case of the- connection becoming worn out or