Mayor of Baltimore v. Fear

Roberts, J., delivered the opinion of the Court. This case was tried before the Baltimore City Court on appeal from the finding of the Commissioners for Opening Streets in said city, and this appeal arises on the action of the lower Court in granting certain instructions of the appellee, and in refusing certain of those of the appellant. There is but one question in the record for us to consider, and that relates to the alleged dedication of that portion of Myrtle avenue (now Walbrook avenue), which extends from Fulton avenue to Pulaski street. The facts are few and simple.

The appellee was the owner of a tract of land through which Myrtle avenue was partly opened by him and certain improvements in the matter of grading, paving and kerbing were made by him.- This work, begun in 1891, was continued to 1894, and up to within a short time of the commencement of the condemnation proceedings by the city. Some of the lots binding on said street the appellee sold and leased under certain deeds, the first of which he executed about the time that he commenced to open said street, and continued to make such conveyances to April, 1895. Before proceeding to develop his land, the appellee got from the City Commissioner the grade of Myrtle avenue that he might be enabled to get the same on a level with any street the city should bring in contact with it. The appellee has built and leased houses fronting on this street, and the Gas Company has run its pipes through the street to light the houses binding thereon, and the street has city gas lamps to light it, and milk wagons, coal carts and doctors’ carriages and other vehicles drive over it for the accommodation of the residents of the houses binding thereon.

That in every deed or lease made by the appellee he has caused to be inserted the following covenant: “The mention and reference to Myrtle avenue in the above description is intended solely ²⁵⁵ and only for the purpose of description of the described property, and is not intended in anywise to be a dedication of said street for the public use or as a public highway.” The taxes for the bed of Myrtle avenue have been continuously paid by the appellee up to the date of condemnation by the appellant. Save the testimony of experts as to the value of the land, the aforegoing constitutes all the material testimony in the record. There is but one exception in the record, which is taken by the appellant to the granting of the appellee’s first prayer as amended by the Court, and the granting of the appellee’s second prayer, and to the refusal by the Court to grant the appellant’s first, second and third prayers. The argument before the Court and upon the brief of the appellant relates solely to the refusal of the Court to grant its three prayers.

But independently of this fact, we are very clearly of the opinion. that the principles of law announced in the first and second prayers of the appellee are entirely free from objection, and that the Court’s amendment to the first prayer gave to the appellant a fair and liberal construction of its rights and certainly all that it was, under the circumstances, entitled to receive. The Court correctly refused the appellant’s first prayer and for manifest reason. This prayer asked the Court to instruct the jury that, “ from the statements of the property-holder, Boston Fear, made on the stand, which the city accepts, the bed of Myrtle avenue, here being condemned, has been dedicated to public use, and that therefore the said Boston Fear is only entitled to nominal damages therefor.” This Court has so frequently declared the principles of law which ought to prevail in cases of dedication vel non, that we do not deem it necessary at this time to enter upon any extended discussion, of the general doctrines relating to this subject. We will, however, refer to a few of the decisions of this Court in which the question-of intention