Russell v. Zimmerman

Pattison, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Baltimore County enjoining and restraining the appellants, defendants below, from obstructing that part of a strip of land thirty feet in width, lying on the northwest side of Belvedere avenue, which abuts upon the lands of the appellee, T. Irvin Zimmerman, by the erection of a building or buildings thereon. Belvedere avenue, of the width of sixty feet, was opened by the authorities of Baltimore County as public highway of said county about the year 1879, and after it had been opened the Baltimore Traction Company, a passenger railway, laid its two tracks on the northern portion of it between Park Heights avenue and Beisterstown turnpike. In the year 1898 the Palis Bo ad Electric Bailway Company condemned for the construction, use and occupation of its railway a strip of ground thirty feet wide lying immediately northward of Belvedere avenue, extending from Park Heights avenue to Beisterstown turnpike, and upon this condemned strip of land laid its two tracks extending westwardly from Park Heights avenue to a point within a few feet of said turnpike.

At the time this land was condemned it formed a part of a tract or parcel of land situated northward of Belvedere avenue and eastward of Beisterstown turnpike that was Gwned by Mary J. Wamsley, wife of John S. Wamsley. ³³¹ The aforesaid railway companies separately operated their lines until about the year 1898, when they consolidated under the name of the United Railways and Electric Company, at which time the extreme ends of the two tracks of the Falls Road and Electric Railway Company, near the turnpike, were deflected southward, running into the tracks on Belvedere avenue which were formerly owned by the Baltimore Traction Company and which thereafter crossed the turnpike. The removal of these tracks, resulting from the deflection mentioned, left the extreme westward end of the right of way, for a distance of probably fifty feet or more, eastward from the turnpike, without any tracks upon it, and this portion of the right of way was not thereafter used by the railway company, except occasionally it would temporarily place thereon cross-ties or other material to be used in the repair of the road. It is this part of the right of way that the defendants are restrained and enjoined from obstructing by erecting thereon a building fronting on the turnpike, to be used as a bank building, as disclosed by their testimony. All of the Wamsley tract or parcel of land not disposed of prior to the fifth day of September, 1906, became at such time the property of one Charles A. Hook, Jr., who, with his wife, on the lYth day of December, 1906, conveyed the same to James E. Ingram, Sr. By this conveyance to Ingram the reversionary interest formerly held by Mary J. Wamsley in the aforesaid strip of land, as well as in the northern half of Belvedere avenue as opened, passed from Hook to Ingram.

On the 6th day of March, 1901, James E. Ingram, Sr., and wife conveyed unto the appellee, T. Irvin Zimmerman, a part of the land so conveyed to Ingram by Hook. In this deed to Zimmerman the land is described as follows: “Beginning for the same at the intersection of the northeast side of Reisterstown road and the northwestern boundary or outr line of the strip of ground thirty feet wide lying along and parallel with the northwest side of Belvedere avenue (sixty ³³² feet wide) condemned by tbe Rails Road Electric Railway Company, and running tbence with and binding along the northwest outline of said strip, north thirty-six degrees forty minutes east, and .parallel with Belvedere avenue, one hundred and twenty-nine feet; thence north fifty-three degrees twenty minutes west and at right angles with Belvedere avenue, sixty-two feet and seven inches; thence thirty degrees forty minutes west and parallel with Belvedere avenue, one hundred and twenty-one feet to the northeast side of Reisterstown road; thence binding on and along with the northeast side of said road sixty-three feet to the place of beginning.” In tire habendum clause of the deed is found the following reservation: “The right is hereby reserved unto said grantor, his heirs and assigns, to use as a sidewalk or footway all that portion of said lot or parcel of ground ten feet wide next adjacent to and binding on and along said Belvedere avenue and extending the full frontage of said lot or parcel of ground on said Belvedere avenue.” In a very short time after the purchase of the lot from Ingram, Zimmerman started the erection of his building thereon, which was completed in the summer or fall of 1901. The building, on the turnpike, extended across the entire width of the lot — that is, from the sidewalk to its northern limit, and upon the sidewalk it extended a much greater distance. Upon the first floor of the building was a storeroom occupied by the plaintiff, with entrances thereto from both the turnpike and sidewalk, and the postoffice, with its entrance upon the sidewalk.

The second floor was used as a pool room and howling alley, and the entrance to the stairway leading to it is from the sidewalk. The main entrance to the storeroom is what may be termed a corner entrance, and is at the corner of the sidewalk and the turnpike. It is contended by the plaintiff that this building fronts on the sidewalk facing Belvedere avenue, while the defendants contend that the front of the building is on the Reisterstown turnpike, and much evidence, including photographs of the building, was offered in support of their respective ³³³ contentions. Erom the evidence, we are of the opinion that it was erected so as to front on both the Reisterstown turnpike and the sidewalk on Belvedere avenue, and that such was the intention of the owner in building it.

The evidence discloses that before the plaintiff built upon the lot, a drain, or what some of the witnesses called a ditch, extended along the eastward side of the turnpike from the location of the plaintiff’s store to Belvedere avenue, and that after the erection of his building, the plaintiff placed tiling in the ditch and covered it over, and removed some stones that were the remnants of a fence that at one time ran parallel with the ditch and to the eastward of it. He also leveled the ground which formed the end of the right of way by hauling dirt and cinders thereon, and the letter carriers and others having business at the store of the plaintiff could and did thereafter pass over said land on foot and in vehicles in reaching the postoffice and store, and there was some testimony that vehicles were used in delivering material and other things to persons occupying buildings fronting on the sidewalk to the eastward of plaintiff’s property, and that others reached the store and postoffice from Belvedere avenue by a crossing placed by the railway company over its tracks, at the request of the plaintiff, in front of the postoffice. This crossing at first, it seems, was used as a footway, but later some of the letter carriers, if not others, crossed with their vehicles. The rails upon the right of way, as well as those upon Belvedere avenue, are what are called “T” rails.

Much evidence was offered, including photographs, as to the physical appearance and condition of the ground extending from the southern limits of Belvedere avenue to the sidewalk above mentioned, including both Belvedere avenue and the right of way, and whether or not to the ordinary observer there was anything to indicate the location of the division line between Belvedere avenue and the right of way. In our opinion, the fact is established by a preponderance of evidence that there was nothing to indicate to the ordinary ob ³³⁴ server any difference in the physical condition or appearance of the avenne and the right of way, or to indicate the location of the division line between them. We here insert the plat, Plaintiff’s Exhibit A, which shows the location of the lot conveyed to Zimmerman and the outlines of the building and the entrances thereto, both from the turnpike and the sidewalk, and the relative position of said lot to the Reisterstown turnpike, Belvedere avenue, the ten-foot sidewalk, the thirty-foot strip or right of way, the tracks as now laid upon Belvedere avenue and said right of way, and the lot of land upon which defendant was restrained or enjoined from erecting a building. Plat, Plaintiff’s Exhibit A, showing’loeation of the lot conveyed to Zimmerman, the building thereon, and the strip of land adjacent thereto, abandoned by the railway, and upon which, by injunction, the defendant was enjoined from erecting a building. ³³⁵ The plat, however, does not show the original position of the tracks upon the right of way near the turnpike before they were deflected, but by the use of the plat the position then occupied by them may be easily understood.

They extended in a straight line over and near to the eastward end of the lot upon which the bank building is sought to be erected. Nor does the plat show the buildings, stores and dwellings, etc., and there are many of them, which are upon the ten-foot sidewalk to the easteward of plaintiff’s lot and which face Belvedere avenue. With the facts as we have stated them and with the conditions existing as we have described them, the defendants, who had for a number of years resided in the immediate vicinity of the land here involved, and who were well acquainted with said facts and conditions, purchased from James E. Ingram, Sr., and wife all the lands conveyed to him by Hook and wife, except such parts of it as had been sold and conveyed to Zimmerman and others, and on the 25th day of June, 1909, Ingram and wife conveyed unto the defendants all their right, title and interest in the lands so purchased by them, and in the deed to the defendants the land thereby conveyed is described as beginning at the intersection of the northeast side of Reisterstown turnpike with the center line of Belvedere avenue, sixty feet wide, and the land described therein constituted all of the Wamsley land at the time owned by Ingram lying northward of the center line of Belvedere avenue, and therefore including the thirtvfoot strip or right of way. After acquiring the reversionary interest of Ingram in the right of way mentioned, the defendants conveyed unto the Title Guarantee and Trust Company the interest so acquired by them in all of said right of way, except in that part thereof which is described in the deed to them from the Title Guarantee and Trust Company hereafter mentioned.

On the 15th day of September, 1909, the railway company released and conveyed unto the Title Guarantee and Trust Company all its ³³⁶ title and interest in and to that part of said right of way which is described as beginning for the same at a point where the northeast side of Beisterstown turnpike intersects the northwest right of way line of a thirty-foot strip of land lying along the northwest side of Belvedere avenue, and running thence north thirty-six degrees forty minutes east along said right of way line, a distance of seventy feet; thence south fifty-three degrees twenty minutes east, thirteen feet four inches; thence south twenty-eight degrees twenty-four minutes west, seventy-three feet three inches to the northeast side of the Beisterstown turnpike, and thence north forty-seven degrees twenty-one minutes west along the side of said turnpike, twenty-five feet to the place of beginning, the outlines of which are clearly shown upon the above mentioned plat. The consideration named in the last mentioned deed was one thousand dollars and the conveyance to the grantor of the reversionary interest of the grantee in that part of said right of way which was conveyed to the grantor by the defendants. On the 23rd day of Bovember, 1909, the Title Guarantee and Trust Company conveyed unto the defendants the interest it had acquired from the United Bailways Company in the land described in the aforesaid deed of September 15th, 1909, at and for the sum of five dollars and other good and valuable consideration. Why the Title Guarantee and Trust Company was used by the defendants in these proceedings as a medium of conveyance is not shown or explained.

The defendant Bussell in his testimony