Mayor of Baltimore v. Canton Co.

Briscoe, J., delivered the opinion of the Court. The questions in this ease arc presented on an appeal by the Mayor and City Council of Baltimore from an award and a judgment of inquisition rendered by the Baltimore City Court in favor of the Canton Company of Baltimore, the appellee here, in the matter of the condemning* and opening of Linwood avenue from Boston street to the waters of the Patapsco Fiver1, in Baltimore City. The strip of land in controversy, is about sixty feet wide by three hundred feet long, and was condemned by the Commissioners for Opening* Streets under and by authority of Ordinance ISio. 284, of the Mayor and City Council of Baltimore, approved June 9th, 1913, which provided for its taking* and condemnation, for use as a public street. The amount of damages awarded to the appellee, on appeal from the action of the Commissioners for Opening Streets to tho Batlimore City Court was increased from the nominal sum of five dollars to the sum of fifteen thousand dollars, and from this award and judgment, this appeal has been taken.

It is conceded, in the appellant’s brief, that the amount of the award of damages made by the inquisition, in the Court below, is correct and free from objection, if it be held under the hrw and the lads oi the ease that the appellee is entitled to more than nominal damages as ascertained by the Commissioners for Opening Streets. The record is a voluminous one and contains a large amount of testimony bearing upon the various questions raised in the Court below. There are twenty-nine bills of exceptions, embracing the rulings of the Court in the course of the trial. The main and controlling questions presented on the record, are: First, whether the land in question was ever dedicated or offered for dedication as and for a public street; second, assuming there was a dedication of the street to the public, by the Munson deed in 1846, was there ever an ⁶³⁰ acceptance of it by the municipality, and, third, whether the appellee is now or ever was the owner of the land in question.

It may be conceded, under the facts of this case, that the land in controversy was dedicated, as and for a public street by reason of the description contained in the map and deed from the Canton Company to Alfred Munson dated May 1st, 1846, as contended for by the appellant, but this alone would not constitute it a public highway. In the recent case of Whittington v. Commissioners of Crisfield, 121 Md. 392 , this Court said, following the rule established by a long line of decisions upon this subject, that a dedication of a public street to public use by the plats and deeds does not make the street a public highway. Such a deed does not become final and irrevocable until there has been an acceptance of it on the part of the public authorities. McCormick v. Baltimore, 45 Md. 524 ; Kennedy v. Cumberland, 65 Md. 514 ; Valentine v. City of Hagerstown, 86 Md. 488 .

The evidence fails in this case 'to disclose any such acceptance by the municipality, the appellant here, of the land in question, as the law requires, and the Court below, we think, was entirely right, in finding upon the facts, that the appellee was entitled to recover substantial damages for the condemnation of the land for public purposes. The Court’s instruction, in connection with the granted prayers, we think, stated the law, applicable to the case, as recognized by the authorities in this State. It is as follows: “The Court declares the law, that notwithstanding the Court finds there was a dedication of the property in controversy by the deed from the Canton Company to Munson in 1846 and the plat of 1845, still if the Court, sitting as a jury, shall find from the evidence, that taxes were assessed upon and against the property in controversy, and were paid by the petitioner during the times mentioned in the evidence, viz: from 1876 to the present time, and shall further find that ⁶³¹ from the year 1874 to the year 1896, the premises in controversy were occupied by a tenant of the petitioner, in the manner testified to by the witness AicCosker, and shall further find that from 1896 to 1901, the said premises were in the possession of the petitioner as owner thereof, and shall further find that from the year 1901 to the year 1912 the said premises were occupied by a tenant, of the petitioner, in the manner testified by tbe witness Bolide, and shall further find that in or about the year 1883, the premises were enclosed by a fence along Boston Street, having gates in it, and that said premises from the time of the erection of said fence to the present time, have been occupied by tenants or agents of the petitioner, and the said gates have been until recently opened by the permission of the petitioner or its tenants or agents, respectively, or for the prosecution of its or their business, and that said occupation by the petitioner and its tenants has been open, notorious, exclusive and adverse from 1874 to the commencement of the proceedings in this case against the defendant and every other person, and if’ the Court, sitting as a jury, finds that the purposes of right and justice require, then the defendant is estopped from asserting any right to said property, and the petitioner is entitled to substantial damages.” The Court below, it will he seen, properly ruled for its own guidance as a jury, in its action upon the prayers, what facts it was necessary to' find in order 1o entitle the petitioner to recover in the case. In Kennedy v. Cumberland, 65 Md. 514 , it is said, this is quite in accord with the practice in this State, in similar cases where the facts are controverted or in dispute.

The Court in such cases leaves the finding of the facts to the jury with appropriate instructions as to their legal effect, according as the jury may find them to he. And there is good reason why this