Mullan v. Hochman

Digges, J., delivered the opinion of the Court. The question presented by this record is whether or not that portion of a street in Baltimore City variously designated as Ellicótt Street, Poole’s Lane, and Thirty-seventh Street, which lies between Cairnes Lane and Falls Turnpike Boad, has been dedicated to the full width of sixty feet, so as to require the opening of said street to the full width of sixty feet, thereby necessitating the removal of buildings ²¹⁵ located on the northern thirty feet thereof, which northern 30-foot portion has been built upon, enclosed and occupied by the appellee and his predecessors in title for forty-five or fifty years prior to the institution of these proceedings. This street, which we will hereafter call Ellicott Street, runs approximately east and west. The land on the south side of this street, extending from Falls Turnpike Road (hereafter called Falls Road) to Cairnes Lane, is the property of Charles E. Litzinger and wife and was acquired by mesne conveyances from Henry Mankin, who in 1855 conveyed all of his property to trustees for the benefit of his creditors.

The various deeds by which Litzinger acquired title describe his property as binding on Ellicott Street, and show that it binds on the west side of FalLs Road, the east side of Cairnes Lane, and south side of Ellicott Street. On the north side of Ellicott Street, between Falls Road and Cairnes Lane, it appears that there is a lot fifty feet wide, wdiich did not belong to Henry Mankin at the time he conveyed his property to the trustees. In 1857 the trustees conveyed to the widow and children of Nathaniel Parsons a lot fronting on Falls Road, but not bordering on Ellicott Street, the beginning point in this description being, “in |.he center of the Falls Turnpike Road, as laid out sixty feet wide, fifty feet northerly from a line drawn north 79 degrees east along the north side of Ellicott Street and also sixty feet wide.” About nine years later, in 1866, Isaac Orowther, Sr., administrator d. b. n. c. t. a,, of Nathaniel Parsons, deceased, conveyed to Beunain Forsyth a lot of land described in part as follows: “Beginning for the same at a point in the center of the Falls Turnpike Road as laid out sixty feet wide, being the northeast corner of the whole lot of ground of which the piece now being described forms a part and it also being the beginning of the said whole lot, piece or parcel of ground and running thence along the center of an avenue or street sixty feet wide; to be lain out when required in a legal manner by the property owners, along the route of such proposed street or avenue.” The description in the deed dated June 23, 1919, by which the ²¹⁶ appellee acquired title, is: “Beginning for the same at a point in the center of the Falls Turnpike Road as laid out 60 feet wide and the intersection of the center of an avenue or street 60 feet wide to be laid out when required in a legal manner by the property owners along the route of such proposed street or avenue; and running thence westerly and binding on the center of said avenue, 190 feet to the center ■of an alley to be laid out 20 feet wide, thence binding along the center of said alley parallel to the Falls Turnpike Road 90 feet; thence easterly, 190 feet parallel to the center of said avenue to be laid out as aforesaid to the center of the Falls Turnpike Road; and thence binding on the center of the Falls Turnpike Road to the place of beginning.” The last description is contained in the three dfeeds which intervened between the deed from Crowther, administrator, and the deed to the appellee. It will be noted that the appellee obtained by his deed, of the land conveyed by Crowther, administrator, to Forsyth, only a 10-foot strip on the north side of his lot running, from Falls Road to Oairnes' Lane.

Therefore it appears that at the present time the appellee owns a lot fronting 90 feet on the center of Falls Road, and of that width running to the center of Cairnes Lane. This 90-foot frontage is made up, first, of 30 feet of what is claimed to be Ellicott Street; second, 50 feet being the lot which was disposed of before the deed from Mankin to the trustees; and 10 feet of the land embraced in the deed from the trustees to Parsons. There is no record title of this 50-foot lot prior to the deed from Crowther, administrator, to Forsyth; and all that this record discloses in reference thereto is that it was not owned by Mankin at the time of his conveyance to the trustees. However, it having been conveyed to Forsyth by the administrator d. b. n. c. i. a,, of Nathaniel Parsons, there is a reasonable presumption that Nathaniel Parsons was the owner théreof at the time of his death, and became so before Man-kin conveyed his property to the trustees.

At the time of the conveyance from Mankin to the trustees this property was located in Baltimore County, and upon an examination of ²¹⁷ the records there it was found that there had been filed for record in 1909 a lithograph plat showing a subdivision of Henry Mankin’s property, upon which there are delineated certain streets and alleys, among which is Ellicott Street, 60 feet. This plat on its face is designated as “Plat No. I” and states: “Map of Hampden property belonging to Henry Mankin. The lots are measured to the middle of the streets. Scale 200' in an inch. 1856.

Wm. Dawson, surveyor. Lith. by A. Holm & Co., Balto.” There is nothing in the record to show by whom or why this plat was recorded in 1909, but because of its appearance and date, and upon the suggestion of the clerk that it must have been filed in an old equity proceeding, counsel for the appellant examined the equity records and found an equity case instituted about 1856, entitled Esbach v. Talbot and Taggart, trustees. Upon an examination of these proceedings it was found that the trustees’ reports showed that lots had been sold with reference to “Henry Mankin’s Plat No. 1.” These lots were designated by numbers but not described by metes and bounds, and upon a comparison with the plat the numbers indicating the lots sold were found to correspond with similar numbers on the plat.

All of the conveyances made by the trustees which are embraced in the record, with the exception of Litsiuger’s, described the property conveyed as running to the center of the streets, and the plat states, “the lots are measured to the middle of the streets.” The Mankin plat shows several streets running east and west through the subdivision and ending in Falls Hoad on the east. The record discloses that the Poole family, from whom the appellant acquired his title, at one time owned about twenty-eight acres of contiguous land, the title to which came down from Mankin, and which was occupied by them as a country estate, the streets and alleys as shown on the Mankin plat never having been laid out or opened on the ground. This Poole property was located west of Cairnes Lane and embraced the entire bed of Ellicott Street as shown on the plat lying west of Cairnes Lane. For more than 45 years there had been a street or roadway over the south 30 feet ²¹⁸ of Ellicott Street between Ealls Eoad and Gairnes Lane, but, as stated, the north 30 feet of said street between those points for the same length of time had been enclosed, occupied, and built upon by the appellee and his predecessors in title.

In 1927, at the time the appellant purchased the Poole property, that property was and had been for a number of years occupied as a country estate, with a large dwelling house thereon and numerous outbuildings, the land being entirely enclosed by a fence and divided into fields for pasturage, etc. At that time there was a 30-foot roadway over the south side of Ellicott Street, extending from Ealls Eoad to a gate in the Poole fence either on the west side of or in Gairnes Lane, about 170 feet from the west side of Ealls Eoad. Upon passing through the gate the roadway continued to the Poole dwelling house. There were no streets, alleys, or roads within the enclosure of Poole’s property, corresponding in any way with those laid down on Mankin’s plat, with the exception of this driveway from the gate mentioned to the dwelling house, which was upon what would have been Ellicott Street if laid out; so that the physical appearance in respect to the entrance to the Poole property over Ellicott Street, at the time the appellant bought it, was that of an unimproved 30-foot roadway leading from Ealls Eoad to the gate, and on to the dwelling house. This roadway was 30 feet wide, about 15 feet of which was a cinder drive; on the north side of this 30-foot strip was a hedge which bounded the appellee’s property, and on the south side was the property of Litsinger.

It is further shown by plats, unofficial, but made for tax and assessment purposes by the city, that this roadway was designated as a “private road.” After the appellant purchased from Poole, he removed the fence and gate, subdivided his property, and built a number of houses thereon. On that part of Ellicott Street which lies west of Gairnes Lane the appellant opened to the width of 60 feet, and immediately west of Gairnes Lane and on the north side of Ellicott Street as thus opened by him he erected 18 houses. The situation then existing was that that portion of Ellicott Street lying within the appellant’s property was ²¹⁹ 60 feet wide, while from Cairn.es Lane to Falls Road it was. 30 feet wide. The object of the bill filed by the appellant is. to compel the widening of Ellicott Street between Oairnes Lane and Falls Road to 60 feet, and the removal of the appellee’s bnildings and hedges.

A photograph filed as an exhibit in the case shows Ellicott Street between Oairnes Lane and Falls Road, 30 feet; also shows a tall hedge enclosing the appellee’s property, the buildings thereon, and a concrete sidewalk along the west side of Falls Road in front of the appellee’s property and extending over the 30 feet now claimed by the appellant to be a portion of Ellicott Street. In addition to the open, notorious and uninterrupted actual possession and enclosure of the property, the record further discloses that the appellee and those under whom he claims have paid taxes on the property now enclosed and occupied by him to Baltimore City since 1888, at which time this section was annexed to the city. There is also in the record what is called ai deed, dated December 6th, 1911, signed by a number of people, among whom are some of the immediate predecessors in title of the appellant, wherein it is recited that the grantors, desire and have requested that the city shall construct and maintain, in the beds of Ellicott Street (formerly called Poole’s Lane) from Falls Road to Oairnes Lane, and Oairnes Lane from 36th Street to Ellicott Street (formerly called Poole’s Lane), water mains or supply pipes, for the usual purposes for which such pipes are constructed and maintained, and the city is willing to comply with the said request upon the execution and delivery of said deed. It then grants and conveys to the city the right and privilege- of constructing, laying and maintaining water mains or supply pipes in the. said beds of the above mentioned streets; and provides that the said Mayor and City Council of Baltimore shall have all the rights a<nd privileges in the aforesaid beds of the above named streets which it would have if it were- the owner thereof in fee simple; “it being understood, nevertheless, that neither the execution hereof nor anything herein contained shall be- regarded as a dedication of the beds of the aforesaid streets ²²⁰ to public use, except for the purposes hereinbefore set forth, nor shall the delivery of this deed and the acceptance thereof be regarded as the acceptance of any dedication of the beds of said streets heretofore made, except for the purposes herein set forth, it being the intention of the parties hereto that, except in so far as necessarily altered for the purposes herein expressly provided for, the rights of 'all persons and corporations in the beds of said streets shall after the delivery hereof continue the same as though this instrument had never been executed.” This instrument was also signed by the appellee.

Subsequent to the appellant’s acquisition of his property, application was made by him to the Bureau of Highways of Baltimore City, setting forth that he is the owner of at least 70 per cent, of the front feet of ground binding on 37th Street (Ellicott Street) from Falls Koad to Sycamore Street, and asking that the same be graded, curbed and paved under the authority of a certain ordinance set forth in the application. This application was referred to the legal department of the city, and the city solicitor reported that it could not be granted until title to the land covered by the application was acquired by the city, it being his opinion that it was then a private road. We refer t» this for the purpose of showing the city’s attitude in respect to the title to this property, and negativing any acceptance of an alleged dedication. There is no dispute as to the material facts, and the solution of the question presented depends upon the legal consequences flowing from these facts.

In our view of the case, in order to entitle the appellant to obtain the relief sought, it is essential for him to show that there had been a dedication and acceptance thereof by the city. The rule is firmly established in this state, and supported by the overwhelming weight of authority elsewhere, that when a person subdivides property in a city and lays down on a plat thereof, made or adopted by him, lots shown as bordering streets and alleys delineated upon the plat, and then sells any of the lots with reference to the plat, he thereby dedicates the streets upon which the sold lots bind to the public. The theory of this rule is that there is an implied ²²¹ ■covenant on the part of the grantor in favor of the grantee of the lot so sold, to the use of the street upon which the lot is described as binding. In other words, by such act there passes from the grantor to the grantee an implied easement of way over the streets contiguous 1» the property sold.

White v. Flannigain, 1 Md. 525 ; Moale v. Baltimore, 5 Md. 314 ; Hawley v. Baltimore, 33 Md. 270 ; Baltimore v. Frick, 82 Md. 79 ; Beale v. Takoma Park, 130 Md. 297 ; 19 C. J. 928, see. 127. It is also settled that this implied covenant of a right of way is limited to that portion of an unopened street over which it would be necessary for the grantee to pass to a public highway; it does not extend beyond such point. The rule is clearly and forcibly stated by this court, speaking through Judge Brent, in Hawley v. Baltimore, supra, where it is said: “The law is now too well settled to admit of any doubt that if the owner of a piece of land lays it out in lots ■and streets, and sells lots calling to bind on such streets, he thereby dedicates the streets so laid out to public use. This rule is founded upon the doctrine of implied covenants, and the dedication will be held to be co-extensive with the right ■of way acquired as an easement by the purchaser.

It is upon the implied covenant in the grant to him that the dedication to public use rests, and such dedication must necessarily be measured by the limits of the right he has acquired by virtue of his grant. In the case before us, the right of way or easement of Mosher Street acquired by the purchasers of the lots mentioned in the proof is the precise