Nicolai v. Mayor of Baltimore

Pearce, J., delivered the opinion of the Court. This is an action of ejectment of an unusual character. The declaration contains three counts, in the first of which the plaintiff seeks to recover “the bridge and masonry at Merry-man’s lane, located adjacent to the line of the Maryland and Pennsylvania Railroad Company, in the city of Baltimore.” In the second count, the plaintiff claims “all that lot of ground belonging to the plaintiff, lying in the city of. Baltimore, and described as follows: the land covered by the abutments of the bridge over the Maryland and Pennsylvania Railroad Company at Merryman’s lane, and the abutments resting thereon.” In the third count, the claim is for “all that lot of ground belonging to the plaintiff lying in the city of Baltimore, and described as follows: the land covered by the western abutment of the bridge over the Maryland and Pennsylvania Railroad at Merryman’s lane and the abutment resting thereon.” Issue was joined on the customary, plea denying the commission of the wrongs alleged.

The plaintiff offered in evidence the proceedings in an equity cause in the Circuit Court for Baltimore County between Charles H. Nicolai & Co. and The Baltimore and Swan Lake Railroad Company, to enforce a mechanics’ lien which Nicolai & Co. had filed against the bridge and masonry mentioned in the declaration, under sec. 22 of Art. 63 of the Code of Maryland. This proceeding resulted in a decree for the sale of “said bridge and masonry mentioned in the proceedings,” and the appointment of W. F. Mitchell and Bernard Carter as trustees to make the sale. This decree cov ⁵⁸¹ ered also other bridges embraced in the lien filed, and the trustees advertisement of sale covered all these. The bridge in question here was described simply, as “The bridge and masonry at Merryman’s lane,” and the other bridges were described in like terms, neither the decree nor the advertisement making any reference to the land on which the bridges were erected, but the advertisement stated that the bridges and masonry could be easily removed, and the material used for building purposes.

All the bridges included in the decree were sold to the present plaintiff, the sale was duly ratified, and the trustees conveyed the property sold, to the plaintiff, describing the bridge now in question, as “the bridge and masonry at Merryman’s lane, located along the line of the Baltimore and Swan Lake Railway in Baltimore County,” but it is now within the limits of Baltimore City. The plaintiff proved that the masonry consisted of two abutments on which the bridge rested, each abutment. being of stone, forty feet in heighth and the same in length, the bridge span being about one hundred feet over the Md. and Pa. R. R. and over Stony Run next to the eastern abutment. She also offered evidence tending to prove that Merryman’s lane crossed Stony Run about fifteen feet north of this bridge, before the erection of these abutments in 1873 and that neither of them stands upon any part of what was Merryman’s lane, before their erection, and that the bridge was put in place in 1880.

James H. Smith then testified that the western abutment stands upon land that belonged to David Carroll at the time the abutment was erected, and that the eastern abutment stands upon what was a part of Merryman’s lane, which at that point was the boundary of Carroll’s land, and that there was no written agreement between Carroll and the Swan Lake Railway Company for the erection of the western abutment. She also offered to prove a verbal agreement between the parties named, under which the western abutment was erected on Carroll’s land in consideration of the erection by the company of a wall on the east side of the railroad track, thereby changing the course of Stony Run which formerly ran on the west side of the railroad, ⁵⁸² but this offer was rejected by the Court upon the defendant’s objection, and the first exception was taken to this ruling. The plaintiff then put in evidence ch. 314 of 1868, and ch. 272 of 1872 of the laws of Maryland, the first being the Act incorporating the Baltimore and Swan Lake Railway Company, and the latter being an amendment of the former, and then proved that the bridge and abutments were worth about $4,000, and that she had never received anything for them from any source, and then closed her case, upon which the Court granted a prayer offered by the defendant taking th.e case from the jury, and directing the verdict for the defendant, to which ruling the second exception was taken. The Court held that under the decree to enforce the mechanics' lien, the trustees were only authorized to sell, and only sold and conveyed, the bridge and .abutments, and not the ground upon which these stood, and that the bridge and abutments could not be recovered in ejectment.

The plaintiff, however, com tends that under the description, “bridge and masonry,” the ground upon which the abutments rested passed under the trustees deed, without being expressly mentioned, in support of which he cites, 4 Enc. of Law, 2 ed., 919 and 941; 5 Cyc. 1052 and 1066; Daniel v. Athens, 55 Geo. 609; Bardswell v. Jamaica. 15 Vt. 438 ; Hawkins v. Wilson, 1 W. Va. 117 and Tolland v. Willington, 26 Conn. 583. We have carefully examined these authorities, and it does not appear that any of them were actions of ejectment. All of these, and others to like effect, are cases in which were involved only the duty of maintaining the approaches to the bridge, or the liability for injuries received in accidents occurring thereon. In some of them, expressions are used which seem to give color to the contention made, but which, when carefully considered, cannot be regarded as so intended.

Thus in Daniel v. Athens, 55 Geo., supra, the Court held that a contiguous embankment necessary to make access to a bridge, so as to pass teams and wagons over it, is a part of the bridge, and title to the bridge covers such embankment.” But this was an action for damages for injuries received from negligent ⁵⁸³ maintenance of the embankment, in which possession and control only were involved, and not legal title, and we must assume that the Court designed the language used, to refer only to such qualified title, as may be predicated of rightful possession, and not to legal title in the sense required in actions of ejectment If designed however, to be understood in the latter sense the language is obiter dictum. So also in Hawkins v. Wilson, supra, it was said, “the description in a summons of unlawful detainer of premises, as a certain house and appurtenances, imports land within the meaning of ch. 134 of the Code of i860, to the extent of the land on which the house stands, and the garden attached, but no further:” but the Court proceeded to observe that “the question of title was not involved but only possession.” In the present case there is not only no evidence of any conveyance by anyone of the land upon which either abutment stands, but the plaintiff’s witness proved that" there was no written agreement between Carroll and the Railway Company with reference to the land upon which the western abutment was built and there is an entire absence of any evidence as to any authority from any source for the erection of the eastern abutment which stands upon what was a part of Merryman’s lane. There was therefore, no more, at most, than a parol license for the erection of these abutments, creating an incorporeal hereditament for which ejectment cannot be maintained. The cases so holding are numerous.

In Moore v. Brown, 139 N. Y. 127 , the discoverer of a garnet mine upon State lands filed- a claim under a statute which entitled him as discoverer to work such mine, and provided that he, his heirs and assigns, should have the sole benefit of all products therefrom, upon payment of a certain royalty to the State, and that the Commissioners of the Land Office should execute a contract, accordingly, which they did. Moore -was the assignee of the discoverer and brought ejectment. The Court held that the statute and resolution of the Land Commissioners neither conveyed a legal title to the premises described, nor anything equivalent thereto, but was a mere license, and no interest in ⁵⁸⁴ the land, and therefore ejectment would not lie; and cited Doe v. Wood, 2 Barnwall and Alderson, 724, where plaintiff claimed in ejectment under a formal indenture granting the right to search for, dig, work, and mine minerals in the grantor’s lands described in the indenture, but this was held to operate as a license only. In the latter case, Chief Justice Abbott said, “It was contended that words importing an intention in the grantor to divest himself of the possession for a time, and vest it in another, operate in law as a lease, and that words showing such intent appear in different parts of this deed, such as ‘the land hereby granted,’ ‘the ground and premises hereby granted,’ and ‘the land or ground hereby granted,' which occur in some of the clauses and covenants of the deed, and among others in the clause of re-entry, upon which special reliance was placed. * * * But we think these words are not sufficient to vary the construction that must be