Mayor of New Market v. Armstrong

Lowe, J., delivered the opinion of the Court. On July 19, 1974, William J. and Jane P. Armstrong purchased a property upon which stood an old schoolhouse. The deed described the land as “consisting of Lot No. 84 and Lot No. 85 situate in Hall’s Part of the Town of New Market containing one-half (%) acre of land, more or less.” The reference to “Hall’s Part of the Town” derived from Nicholas Hall who must have been among the first subdivision developers. In 1793, he laid out the proposed Town of New Market on a recorded plat, dedicating the streets and alleys thereon to the use of the public forever.

Lot No. 85 was bordered on its western boundary by Federal Street and on its eastern boundary by Lot No. 84. Both of these lots abutted North Alley as their northernmost boundaries. A substantial portion of the adjoining Federal Street and of North Alley constituted the concern of this appeal. Indeed, the old schoolhouse had been constructed over a substantial part of Federal Street, and over a portion of North Alley as well.

Upon complaint of the Armstrongs under the Maryland Uniform Declaratory Judgment Act, the Circuit Court for ²²⁹ Frederick County declared the couple had acquired substantial portions of the described street and alley by adverse possession. In order to clarify the portion so proclaimed, the court included in its order not only a metes and bounds description but a plat clearly designating those portions so obtained. We reproduce that plat at this juncture to facilitate a clearer understanding of that which will follow: ²³⁰ Pursuant to Md. Rule 1028.g., the parties stipulated to a statement of undisputed facts and exhibits narratively summarizing the testimony. To ease our burden of revjew still further, they synopsized their summary.

That synopsis is brief enough to include, yet enlightening enough to add understanding to the issues raised: “In 1793 Nicholas Hall executed and recorded a plan and plat for a proposed town, the Town of New Market. The recorded plan specified, inter alia, that 1 the said Nicholas Hall do hereby agree to give the Alleys as now laid out, for the use of the public forever, also the streets, and that I shall never hereafter lay any claim to the same nor my Heirs and Assigns.’ In 1878 the Town of New Market was incorporated. There appears to be no specific record whereby the Town formally accepted the Hall dedication of the streets and alleys. Recently, however, Hall’s plat was used in connection with the Town’s zoning regulations and master plan, the latter recommending improvement of some streets and abandonment of others.

In 1974, William J. Armstrong, et ux, purchased Lots Nos. 84 and 85 as designated on the Hall plat which were improved by a structure which was formerly a school house. Prior to the purchase, the Armstrongs knew that the structure located on the premises encroached upon the right of ways of Federal Street and North Alley. Mr. Armstrong also testified that he was familiar with the Hall plat prior to the Armstrongs’ purchase of the lots. In 1976 the Armstrongs instituted these proceedings seeking, in essence, to quiet title to their real property.

The evidence produced showed that they had fee simple title to Lot 84, but that the leasehold and reversionary estates in Lot 85 never merged. ²³¹ The encroachment by the school building onto the street and alley apparently occurred in 1939 when the School Board caused another school to be physically moved to the site of the old building. It was placed in front of the building by the contractor and another classroom was added, making it into a two-classroom school house. The Armstrongs, apparently to establish their ownership of one-half of the bed of North Alley and one-half of the bed of Federal Street, presented evidence to show the nature and extent of the use of the premises as a school facility. Such evidence indicated that a flower bed was planted at the front of the school house; that children walked upon Federal Street and North Alley to get to the school; that a parking place was established in front of the school for the buses to use when unloading the children; that the school children played on Federal Street and North Alley; that North Alley east of Federal Street is not constructed and that in the area where the alley should be there are large trees and natural growth as well as a farm fence, owned by the Brinkleys, running east-west which partly encroaches into the North Alley right of way.

The farm fence which partly encroaches in North Alley has been in the same location for at least 60 years. The testimony of life long residents clearly showed Federal Street and North Alley have been considered as alleys until the present day. The Town and the Brinkleys, to establish the pre-1939, as well as post-1939 acceptance of the Nicholas Hall dedication of the streets and alleys by public use over a long period of time, presented similar evidence, viz. the testimony of New Market residents showed that parts of the streets and alleys were generally travelled and used by the public. Such evidence indicated that parts of Federal Street and North Alley were used in delivering newspapers to residents of that area in the 1920’s; that flat ²³² stones were placed on the west side of Federal Street for the pedestrians; that at one time horse stables were maintained on North Alley east of Lots 84 and 85 and that users of the stables travelled upon Federal Street and North Alley.

Other evidence showed that originally the streets and alleys of New Market, including Federal Street and North Alley, were dirt, then tar and chips, then gravel and finally paved in part of the width. Such improvements and the general maintenance and snow removal of such streets was undertaken and performed by the Town. The paving of Federal Street and North Alley is approximately 12 feet wide and occurred in the 1950’s. In the 1960’s, the Frederick County Metropolitan Commission constructed sewer lines in the bed of the right of ways of Federal Street and North Alley, partly beneath the paved roadways.” The issues raised on appeal assign error to the judgment for at least five reasons which include: 1. the Nicholas Hall restrictive covenant, running with the land, not to lay claim to streets or alleys, was known to appellees; 2. relief granted by adverse possession was contrary to the theory of relief prayed; 3. propriety of the finding of adverse possession against a municipality; 4. clear factual error (sufficiency) in finding adverse possession; and 5. improper tacking to carry the adverse possessory right to appellees.

To the extent appellants attack the factual findings of the court we are not impressed. Our review of the record indicates that there was sufficient evidence from which the court could have found that appellees’ predecessors in interest (to which we will generally refer as the Board of ²³³ Education) 1 had fulfilled the requisites of adverse possession. Md. Rule 1086; Rogers v. Burnopp, 263 Md. 357, 360 (1971). This factual attack was the primary focus of an intervening party below, G. Ross Brinkley, et ux., who also appealed.

The Brinkleys contend as well that the court erred in overruling their motion for summary judgment. Because we have found sufficient facts upon which the court could have reached its result, it follows necessarily that there were sufficient facts in dispute to have justified denying summary judgment. 2 See Broadfording Ch. v. Western Md. Ry., 262 Md. 84, 88-89 (1971). — remedy contrary to relief prayed — Responding first to the procedural assault that neither the specific relief of adverse possession, nor a general relief prayer sufficient to encompass it were prayed, it has been held that when there is a justiciable issue presented by a bill of complaint or declaration seeking declaratory relief, “a declaration should be given even if it is not the declaration sought by the plaintiff and, indeed, is entirely or partially contrary to the theory of the plaintiff on which declaratory relief is sought.” Woodland Beach Ass’n v. Worley, 253 Md. 442, 448 (1969). That is precisely what occurred here. Pursuant to the Maryland Uniform Declaratory Judgment Act, the appellees asserted their ownership of the street and alley under and by virtue of Md. Real Prop.

Code Ann. § 2-114 (1974): ²³⁴ “Unless a contrary intention appears in the deed, will, or other instrument, if any deed, will, or other instrument grants or bequeaths land binding on any street or highway, or if any street or highway is one or more of the lines of the land, the deed, will, or other instrument passes to the legatee, donee, or grantee, all the right, title, and interest of the testator, donor or grantor in the street or highway. Except that to the extent the testator, donor, or grantor owns other land on the opposite side of the street or highway, the deed, will, or other instrument passes the right, title, and interest of the testator, donor, or grantor only to the center of that portion of the street or highway on which the two or more tracts coextensively bind.” They then contended that since their property abutted the street and alley which were dedicated but never accepted, their title ran to the center of the street and alley. The court did not agree with that premise. It held that the statute was not in being at the time of dedication and the theory of appellees fell with that finding. “I cannot rule — I don’t think it is the law — that the plaintiffs own one-half (V2) of the bed of Federal Street bordering lot 85 subject only to a 5 foot public easement therein.

In the first place, the public easement in front of Federal Street is wider than that by the very paving. In addition, I don’t find it to be the law prior to the statute that when you convey lots with reference to a plat, this automatically carries ownership to the center of a bordering street that isn’t even mentioned in the deed.” But the court further found that there was no formal acceptance of the dedication at the time of the encroachment by the Board of Education (and its predecessor) in 1939, nor during the prescriptive period. The court set forth its general factual findings (see n.2, supra) and, subsequently, its more ²³⁵ defined determination of precisely what was acquired by the adverse possession. These findings culminated in the final decree.

As can be seen from the plat which the court appended to that decree, the portions for the acquired roadbeds include over half of the ways on both Federal Street and North Alley. — sufficiency of adverse possession evidence — The court’s defined area finding was predicated upon that which it determined had been used by appellees’ predecessors in title, the Board of Education (and its predecessor in purpose), for the prescribed adverse possessory period. The deed describes simply Lots No. 84 and 85 as depicted on the Hall plat and alludes not in the slightest to the additional land in the street beds which was found to be acquired by the Board through adverse possession. (Lot 85) Addressing the question of evidentiary sufficiency, appellants claim that the Board did not fulfill the elements of adverse possession to Lot 85, stating that appellees failed to show that the Board held the land in a hostile, nonpermissive posture. With respect to Lot 85, appellants submit that appellees needed to show nonpayment of “ground rent” for the requisite period in order to claim ownership.

Their argument follows from a showing that Christian Harding, a predecessor of the Board, had acquired both the leasehold and reversionary interests to Lot 84 (which could then merge by operation of law to vest fee simple ownership in the holder), but only held the leasehold interest for Lot 85. In 1839, however, Harding quitclaimed “all of his interest” in Lots 84 and 85 to the Primary School for District No. 62 (forerunners of the Board of Education of Frederick County). The Board conveyed the land in the 1960’s in fee simple to Messrs. Frenkil and Palmer, who subsequently conveyed to the Armstrongs the same fee simple title.

Since the chancellor held that the Board had acquired a fee simple title to both lots, the question of title to Lot 85 which ²³⁶ is tangentially raised by the Town, is (if to be answered at all) one to be decided under the clearly erroneous rule. Md. Rule 1086. Despite the fact that Harding conveyed title to both lots by quitclaim deed, and only one lot appeared to be held by him in fee, the chancellor empirically concluded that the Board accepted the title to both lots as being in fee simple. “It is inconceivable ... that the commissioners of those days would have bought lots with the intention of putting up a primary school on those lots had there been ground rents outstanding.” That the Board had so assumed is supported by its transfer of the property to Frenkil, et al (and they to Armstrong) in fee simple. Those deeds alone were prima facie evidence of what they purported to convey, cf. Harmon v. State Roads Comm., 242 Md. 24, 32-34 (1966); Siemiesz v. Amend, 237 Md. 438, 440 (1965), and all of this was supported by the opinion of Armstrongs' title examiner as set forth in the stipulated facts: “that the Armstrongs had good fee simple title to both lots 84 and 85.” 3 Since neither the Town nor the intervenor had any claim or interest in Lot 85 but for its proximity to the adjacent roadbeds, neither is a proper party to attack the validity of the ruling as related to Lot 85; see Taussig v. Van Deusen, 183 Md. 436, 441-442 (1944), nor may they complain at this late date that a possible proper party, or even necessary party is not before the court to do so.

To the extent that the intent to possess adversely the adjacent roadbeds claimed by the Town is interwoven through the need to ascertain the state of mind of the possessors and conveyors of the lots, the Town has a valid concern; but it does not go beyond those states of mind. (the adjoining land possessed) The court’s boundary lines indicating the land that was ²³⁷ adversely possessed, extended beyond Lots 84 and 85, and included parts of Federal Street and North Alley. The judge found that the Board also acquired ownership of those additional areas by adverse use. Although the street and the alley had been dedicated to the public use by Nicholas Hall, the judge found that no acceptance had been effected.

In Mauck v. Bailey, 247 Md. 434 (1967), the Court of Appeals stated that dedication “presents no impediment ... to the acquisition of property by adverse possession where the public has never accepted the offer of dedication.” Id. at 443 . — dedication — At the heart of the court’s rulings was its factual findings as to what part, if any, of Nicholas Hall’s street and alley, dedication had been accepted by the public. Clearly a dedication to public use is no more than an offer until it is accepted. Hackerman v. City of Baltimore, 212 Md. 618, 624 (1957); Harlan v. Bel Air, 178 Md. 260, 265 (1940). This prevents subdividers from forcing road maintenance upon the public against its will.

Kennedy v. Mayor, & C., of Cumberland, 65 Md. 514 (1886). Obviously, there being no municipality at the time of Nicholas Hall’s dedication in 1793, no formal acceptance was effected, and the absence thereof, even after New Market assumed that status, was conceded. The Town argues, however, that an acceptance was effected by public users. The court found otherwise.

Regarding North Alley, only that portion east of Federal Street is involved here. The agreed statement of facts indicates that the only use thereof was by those involved in the educative purpose to which the owner of the adjoining lots, the Board of Education, had devoted the abutting property — with but a single exception. “One man had stables that faced East North Alley east of Lots 84 and 85. He and his visitors regularly used East North Alley to come and go from his stables.” ²³⁸ A single adjacent property owner’s use is a far cry from a public user sufficient to warrant public acceptance. And so it was that the court found: “Now there is no indication whatsoever in the evidence before me that North Alley from its intersection with Federal Street to the east was ever used in any way by the public.

There is certainly no indication that the Town of New Market or Frederick County prior to the chartering of the Town of New Market ever formally accepted that portion of North Alley into the public system. So that I would clearly hold also, at the present time, that the Board of Education and its predecessors had a valid fee simple title by adverse possession in North Alley which they did convey to the plaintiffs by virtue of the conveyance of being the same property conveyed to them by so and so in reference to the lots. So I have no problem with that part of North Alley at all. That has clearly been blocked in use and there has never been anything done in that area except use by the Board of Education and the students and predecessors of the Board.” We cannot declare the finding to have been clearly erroneous.

Md. Rule 1086. The court then turned its attention to the pertinent Federal Street portion under contention. “Now, I come to a further problem and that is with Federal Street. It is very obvious that there has been more of a use of Federal Street by others than there was in that portion of North Alley that I have just referred to. I find as a fact that at least from the time of the purchase by the school commissioners in 1839 that there was certainly a