Philadelphia, Baltimore & Washington Railroad v. Mayor of Baltimore

Burke, J., delivered the opinion of the Court. A jury of inquisition in the Baltimore City Court found that the property of the appellant situated at the southeast comer of Boston and Patuxent streets (now called Linwood avenue) would be benefited to the amount of fifteen hundred dollars by the condemning and opening of Linwood avenue for a width of sixty feet from Boston street to the waters of the Patapseo Biver. The avenue, which is about three hundred feet long, was being opened under Ordinance TSTo. 284, approved June 9, 1913. The Canton Company of Baltimore on May 1, 1846, while owner of the land now forming the bed of linwood avenue, granted and conveyed to Alfred Munson, his heirs and assigns, the lot of ground now owned ³⁷⁰ by the appellant and against which the assessment complained of in this case was made.

The deed described the lot granted as follows: “Beginning for the same at the point formed by the intersection of the east side of Patuxent street with the south side of Elliott street, and running thence easterly bounding on Elliott street 45 15/100 perches to Canton street, as laid out upon the Canton Company’s plat; thence hounding on Canton street southwardly 35 8/10 perches to a point on Boston street, so as to intersect a line drawn north, northeastwardly up the west side of that part of Canton street laid out upon the Canton Company’s plat at right angles with Boston street; then reversing the line so drawn and hounding thereon southwestwardly 32 3/10 perches to the Port Warden’s Line; thence hounding on that line and parallel to Boston street, north 23 degrees, west 48 3/10 perches, to intersect a line drawn south, southwestwardly along the east side of that part of Patuxent street laid out upon the Canton Company’s plat at right angles to Boston street; then reversing the line so drawn, and bounding on Patuxent street north northeastwardly 32 3/10 perches to a point oh Boston street so as to intersect a line drawn southwardly along the east side of that part of Patuxent street laid out at right angles with Elliott street; then reversing the line so drawn and. hounding thereon along the east side of Patuxent street northwardly 20 3/10 perches to the place of beginning.” This lot by mesne conveyances passed from Alfred Munson to Edward Brooke, who on the 28th day of February, 1817, conveyed the lot to the Philadelphia, Wilmington and Baltimore Railroad Company, the predecessor in title of the appellant. In the Brooke deed the property is described as binding “along the east side of Patuxent street.” . Patuxent street,-now known as Linwood avenue, has never been accepted or opened by the public authorities, hut under the long established law of this State there can be no doubt that under tbe .terms of the deeds from the Canton Company to Munson and from Brooke to the appellant’s predecessors in ³⁷¹ title the grantees acquired a right of way over the bed of Patuxent street or Linwood avenue from Boston street to the waters of the Patapsco River. It was said in Hawley v. Baltimore, 33 Md. 270 , that: “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 snch 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 coextensive 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. * * * The true doctrine is, as we understand it, that the purchaser of a lot calling to bind on a street, not yet opened by the public authorities, is entitled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way. To this extent will the vendor be held by the implied covenant of his, deed and no further.” White v. Flannigan, 1 Md. 529 ; Moale v. Baltimore, 5 Md. 321 ; Tinges v. Baltimore, 51 Md. 600 ; Baltimore v. Frick, 82 Md. 77 . It was said in Flersheim v. Baltimore, 85 Md. 489 , that: “The dedication takes placo by force of the terms of the deed.

It confers on the grantee the right to the advantages of a public street binding on bis property. Of course the grantor is not under an obligation to construct the street; but the grantee has a right of way over the bed of the street described in the deed, and the right to use it as a street. This easement relieves him from the burden of paying benefits when the street is condemned and opened by public authority. It also necessarily enures to the- benefit of the public.

The right acquired is to a public street; to be used by the general public, subject to the control of the municipal authority, with the incidental advantages which it may bestow upon ³⁷² it by the expenditure of the corporate money. The dedication of the land of the grantor extends to the nearest street or public way.” “But the dedication of the street to public use by the plats and deeds does not make the street a public highway. ’Such a conveyance does not become' final and irrevocable until there has been an acceptance of it on the part of the public authorities. Baltimore v. Broumel, 86 Md. 153 ; Valentine v. Hagerstown, 86 Md. 486 ; New Windsor v. Stocksdale, 95 Md. 212 . “It is said in Kennedy v. Cumberland, 65 Md. 514 , that ‘any individual may lay out a thoroughfare through his land, but such dedication does mot impose upon the county or municipality the duty of improving it or keeping it in repair. There must be an acceptance of the dedication before this duty can arise.’ “Rot only is such an acceptance necessary, but it must be proved by the party who asserts the way to be a public way; and it may be proved when expressed by the record, or it may be implied from repairs made and ordered, or knowingly paid for by the authority which has the legal power to adopt a street or highway, or from long user by the public.” Whittington v. Commissioners of Crisfield, 121 Md. 387 .

The contentions of the appellant are: first, that it is entitled, under the deeds above referred to, to an easement or right of way over the bed of Linwood avenue, and, therefore, under the decision in Flerslieim’s case, supra, it is relieved from the burden of paying benefits when the avenue is condemned and opened by the City; secondly, that under ordinance Ro-. 284, under which the proceedings for opening the avenue were taken, it could not be assessed benefits which would accrue to the lot from the grading or paving of the avenue, because the ordinance did not authorize the Commissioners for opening streets to grade or pave the avenue, but limited their power to “the condemnation and opening of said avenue.” The position taken by the City is that there was evidence in the case legally sufficient to show that the easement of way claimed by the appellánt had been lost by aban ³⁷³ donment or adverse user by the Canton Company and its tenants, and, therefore, the appellant was liable to assessment for benefits. There are no exceptions to testimony, and the contentions of the parties are presented by the action of the trial Court upon the prayers and "special exceptions. The City submitted sixteen prayers. The Court granted the second, sixth, seventh and fourteenth prayers and refused the others.

The granted prayers are here inserted: Defndts.’ 2nd Prayer.—“The jury are instructed that the burden of proving' that any benefit will accrue to the property of the Philadelphia, Baltimore and AYashington Railroad Company by the opening and grading of. Linwood avenue is upon the City of Baltimore, but that such benefit and the amount thereof need be established only by the preponderance of the testimony. They are not to be governed by the findings of the Commissioners for Opening Streets.” Defndts.’ 6th Prayer.—“The jury are instructed that, if they believe from the evidence that, during any period of twenty years subsequent to the date of the deed from the Canton Company to Munson in 184G, the property lying in the proposed bed of Linwood avenue south of Boston street was held and used by the Canton Company and its tenants and agents openly in such a way as to prevent the actual physical use thereof * as a street, then all rights of the Philadelphia, Baltimore and AYashington Railroad Company in and to the said land for purposes of a public street have been lost and the property of the said railroad company adjacent to and abutting thereon is subject- to assessment in this proceeding for whatever amount of benefits the jury may find will directly accrue to it for the opening of said street.” Defndts.’ 7th Prayer.-—“The jury are instructed that, if they shall find from the evidence that the property in the proposed bed of Linwood avenue south of Boston street has been used since the date of the deed from the Canton Company to Munson by the Canton Company, its agents and tenants, with the acquiescence of the said railroad company or its predecessors in title, in such a way as to preclude the use ³⁷⁴ of the said property for a public street, then all rights of the said railroad company to the said street have been lost and the property of the railroad company adjacent to and abutting thereon is subject to assessment in this proceeding for whatever amount of benefits the jury may find will directly accrue to it for the opening, of said street.” Defdnts/ IJf-ih Prayer.—“The Court instructs the jury that, although the Canton Company, by its deed to Munson in 1846, conveyed to the predecessors of the appellee, the Philadelphia, Baltimore and Washington Railroad Company, and through them to the appellee, a right of way or right to a street over the property covering the proposed bed of Linwood avenue south of Boston street, but that the said Canton Company subsequently let to its tenants, for any consecutive period of twenty years subsequent thereto, the said property for private business purposes, restricting its use to such purpose and permitted the said property to be enclosed and fenced off from the public and all persons not using the said property with the assent of -the said tenants, and that the said appellee, recognized and assented to the use and occupation of the said premises, for' said private business purposes, by leasing a portion of its own property in aid and' furtherance of the business conducted in and about said property by the tenants of the Canton Company, then all rights of the appellee in and to the said property have been lost to the appellee.” The appellant submitted eleven prayers for instructions to the jury. The Court granted its one and onedialf, fourth, fifth, seventh, eighth, ninth and tenth prayers and refused the others.

The granted prayers are as follows: Pltff.’s 1 y2 Prayer.—“The Philadelphia, Baltimore & Washington R. R Co., the appellee in this case, prays the Court to instruct the jury, as matter of law, that if the jury find the agreement between the parties to this case offered and read in evidence, and the deed dated May 1, 1846, from Canton Company of Baltimore to Alfred Munson, offered and read in evidence, and the deed dated February 28, 1877, ³⁷⁵ from Edward Brooke to The Philadelphia, Wilmington & Baltimore Railroad Company, then the true legal effect and construction of said deeds and said agreement in conjunction with Chapter 178 of the Acts of the General Assembly of Maryland of the year 1902, is that the Philadelphia, Baltimore and Washington Railroad Company, the appellee herein, is the owner of the leasehold interest for 99 years renewable forever in the lot of land on the southeast corner of Boston street and Linwood avenue (formerly Patuxent street) binding on the east side of Linwood avenue for its whole length from Boston street to the waters of the Patapsco River, and by virtue of such ownership in said lot of land is now entitled to a right of way or easement of passage over all or any part of Linwood avenue (formerly Patuxent street) from the waters of the Patapsco River to Boston street, unless the said railroad company or one of its predecessors in title has abandoned, released or otherwise lost said right of way or easement.” PUff/s fth Prayer.—"The Court instructs the jury, as a matter of law, that nothing shall be considered a benefit which does not enhance the value of the property of the railroad company on the east side of Linwood avenue.” PUff/s 5th Prayer.—"The Court instructs the jury that increased facilities for travel enjoyed by the party whose property is assessed, in common with the.community in general, is not an element to be considered in estimating benefits.” PUff/s 7th Prayer.—"The Court instructs the jury that before they can find that the railroad company in this case, or any of its predecessors in title, has or have lost the right of way over Linwood avenue appurtenant to its property bounding on the east side of Linwood avenue from Boston street to the waters of tho Patapsco River by adverse possession of the Canton Company, they must find that the possession of the Canton Company of the bed of Linwood avenue has been adverse, exclusive and continuous for twenty years.” ³⁷⁶ Pltff/s 8th Prayer.—“The Court instructs the jury, as matter of law, that no right of way or easement can he lost to the owner thereof by' adverse possession, unless the person claiming adverse possession thereof has had a possession of the land over which the easement exists for 20 years, and such possession, must be adverse, that is, hostile, continuous and exclusive for the period of 20 years.” Pltf.’s 9th Prayer.—'“The Philadelphia, Baltimore & Washington Railroad Company prays the Court to instruct the jury, that in assessing benefits in this case, the jury can not indulge in vague speculation or conjectures, but must find from the evidence, or the jury’s view of the property, that there has been or will be, an increase in the market value of said company’s property by the opening of Linwood avenue as the result of said opening, and such increase in the market value must result from some benefit, other than the general benefit to the community at large; and nothing can be considered a benefit that does not enhance the value of the property.” Pltff.’s 10th Prayer.—-“The Philadelphia, Baltimore & Washington Railroad Company prays the Court to instruct the jury, that if the jury find from the evidence that in order to make reasonable use -of Linwood avenue at the established grade mentioned in the evidence, the said company will have to fill in its property to bring the same to the established grade of Linwood avenue to have reasonable use thereof, then in assessing benefits against said property the jury may deduct from the amount of the benefits found by them, if any, the amount of the cost to the company of such filling in as the jury shall find the company will sustain.” The appellant filed special exceptions to the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth and fourteenth prayers of the City, but as all the players to which special exceptions were filed were refused, except the sixth, seventh and fourtenth, we need only consider the special exceptions to those granted prayers. The exceptions to ³⁷⁷ the sixth prayer were that “there is no evidence legally sufficient in this case from which the jury can find the following: That during any period of twenty years subsequent to the date of the deed from the Canton Company to Munson in 1846, the property lying in the proposed bed of Linwood avenue south of Boston street was held and used by the Canton Company and its tenants and agents openly in such a way as to prevent the actual physical use thereof as a street, or from which a jury can find benefits to the property of the Philadelphia, Baltimore & Washington Eailroad Company directly accruing to it from the opening of said street.” To the seventh prayer, “because there is no evidence in this case legally sufficient from which the jury can find the