Mayor of Baltimore v. White

Irving, J., delivered the opinion of the Court. In proceedings for the condemnation of land belonging to the appellees, for the road bed of Edmondson avenue, which was to be opened under ordinance of the Mayor and City Council, the “ Commissioners for Opening ³⁶⁶ Streets” awarded the appellees nominal damages only, for their land lying in the avenue being opened, on the theory, that the same had been previously dedicated to public use as a street. From that action and award appeal was taken to the Baltimore City Court, where instructions to the jury reversing the judgment of the “ Commissioners for Opening Streets ” having been obtained, substantial damages were awarded by the jury, from which the city authorities appealed. The sole question, therefore, raised by this appeal, is, has the right of way involved in this case been dedicated to the public use, so as to disentitle the appellees to any thing more than nominal damages?

The claim of the city that dedication has been made, rests upon the construction and legal effect of certain language in two deeds made many years ago, which are in evidence and in the record. As the question of dedication vel non can only be determined by ascertaining the intent of the parties who are claimed to have made the dedication, (McCormick, et al. vs. Mayor, &c., of Baltimore, 45 Md., 527 ,) it is necessary to look into the circumstances under which the -deeds were made, as throwing light upon what they really were, and were intended to do. It appears from the proof, that, in 1851, the appellee, Charles Shipley, John H. Barnes, Charles J. Wyeth, and Miles White, (the ancestor of the appellee, Francis White,) agreed to purchase thirty-eight acres of land, which were offered for sale by Nathaniel Williams, trustee, under a decree of Court. The property was bought by Wyeth, hut White and Barnes were reported as the purchasers, and the sale was ratified.

The deed was made to White and Barnes. Wyeth, before the deed made, had sold his interest to White, and when the deed was made White had three-eighths interest, Barnes one-half interest, and Shipley one-eighth interest. His interest was an equitable one; he having paid that proportion of the purchase money, and White and Barnes holding to that ³⁶⁷ extent in trust for him. In September, eighteen hundred and fifty-five, twenty-four acres of this land was sold to Franklin Wilson for $39,755, and a deed was made therefor to him by Miles White and John H. Barnes and wife.

Shipley, who only had an equitable title to a share in the land, received his proportion of the proceeds of this sale. On the thirty-first day of January, 1857, Miles White and John H. Barnes made partition of the remaining portion of this land, namely, fourteen acres, and executed a deed of partition, upon a covenant in which the appellants rely, in support of their contention, together with a deed from Miles White to Charles Shipley, for a part of the property conveyed to him from Barnes, dated the fourth day of February, 1857. In the description of the parcels conveyed by each to the other in this deed, which expressly states that it is a deed of partition, “Payson” street and “Thompson” street are mentioned, and the property conveyed is described with reference to its location as to these streets. These streets, however, had not then, and have not now actual existence as streets opened and used as such.

They only had, and have, nominal existence upon what is known as Poppleton’s Plat, which exhibits the limits and streets of the city, in its anticipated growth and expansion. The covenant, from which dedication is claimed reads thus: “And the said Miles White and John H. Barnes, for themselves, and all others claiming under them, covenant with each other, that they, and all others claiming under them, shall have free ingress and egress through any and all of the streets and alleys laid down on Poppleton’s Plat of Baltimore, which run through the land hereby conveyed.” This is clearly a personal covenant, which was to run with the land respectively conveyed by each to the other, and was designed to benefit on the one side and hind on the other, all persons who subsequently held the land or any p,art of it by any title tracing to them. It ³⁶⁸ was only intended to benefit and bind parties and privies. Apt language is adopted to indicate tbis purpose, and to exclude tbe idea of making a public dedication.

Had tbis been designed, language would have been selected and used of a very different character. It is needless to conjecture, or to speculate as to what use they designed putting the land to, respectively, by reason whereof a right of way over these projected streets and lanes of the city, might be of advantage and necessity