Sanderson v. Mayor of Baltimore

Burke, J., delivered the opinion of the Court. In 1875 the Circuit Court of Baltimore City, in a cause pending therein, entitled the Citizens National Bank of Baltimore v. The Chesapeake Mutual Land and Building Association et al., passed a decree appointing Robert D. Morrison and others receivers of about one hundred and twenty-five acres of land in fee known as Highland Park now lying in that part of Baltimore City known as Walbrook. On the 23rd of March, 1875, the Court authorized and directed the receivers to sell this land in parcels or otherwise. The rer ceivers caused an extensive plat of the property to be prepared upon which streets and avenues were drawn or projected and named, and this plat was filed in the cause. ⁵¹⁵ The receivers proceeded to make sale of the lots shown on the plat.

The sales made were reported to and finally ratified by the Court. In some of the deeds to the purchasers the streets and avenues laid down on the plat were mentioned in the description, and in other instances references were made to the serial numbers of the lots. A number of these lots came into the possession and ownership of Summerfield Norwood, the uncle of the appellee on this record. Among the streets and avenues shown upon the plat were two called Highland avenue and Twelfth street.

Highland avenue is now known as Mondawmin avenue and Twelfth street as Dennison street, but their original names will be used in this opinion. After the death of Summerfield Norwood a proceeding was instituted in 1895 in the Circuit Court of Baltimore City by his heirs and devisees for the sale of all the land of which he died seized, and the Court in due course appointed Coorge R. Willis, Edward C. Eichelherger and James Pollard, trustees to make the sales. They sold the property hereinafter described to Missouri N. Sanderson, the appellee in this case. The sale was reported to the Court and was finally ratified, and the purchase money paid.

Thereupon the trustees conveyed. to Mrs. Sanderson, the purchaser, the following described lots: “All those nineteen lots of ground (being a part of the aforesaid real estate) and situated in Baltimore City, in the annexed portion thereof, and State of Maryland, and thus described: Beginning for the first eleven of said lots, viz: Lots Nos. 108 to 118, inclusive, at the intersection of the east side of Twelfth street with the north side of Highland avenue, and running thence easterly bounding on the north side of highland avenue three hundred and seventeen feet to the southwest corner of Lot No. 119; thence north bounding on Lot No. 119 as laid out on the sales plat of Highland Park hereinafter referred to, one hundred and fifty feet to the south side of an alley twenty feet wide; thence westerly bounding on the south side of ⁵¹⁶ said twenty feet alley, with the use thereof in common, three hundred an<l seventeen feet to the east side of Twelfth street; and thence south bounding on the east side of Twelfth street one hundred and fifty feet to the north side of Highland avenue, the place of beginning. Being and comprising Lots 108 to 118, inclusive, as laid down and designated on the sales plat filed with the report of sales, filed in these proceedings in the above entitled cause, and being also so laid down and designated on the sales plat of Highland Park filed and recorded in the case of the Citizens National Bank of Baltimore vs. The Chesapeake Mutual Land and Building Association et al., in the Circuit Court of Baltimore City, in Liber J. R. B. No. 179, folio 239, etc. And beginning for the remaining eight of said lots of ground, viz: Lots Nos. 97 to 104, inclusive, on the south side of Chesapeake avenue at the distance of one hundred and seventeen feet easterly from the intersection of the south side of Chesapeake avenue with the east side of Twelfth street; and running thence easterly bounding on the south side of Chesapeake avenue two hundred feet to the northwest corner of Lot No. 105 as laid down and designated on said plat; thence south parallel with Twelfth street and bounding on Lot No. 105, as laid down and designated on said plat one hundred and fifty feet to the north side of an alley twenty feet wide; thence westerly bounding on the north side of said twenty feet alley, with the use thereof in common with others, two hundred feet to the southeast corner of Lot No. 96, as laid down on said sales plat, and thence north parallel with Twelfth street and bounding on the east side of said Lot No. 96 one hundred and fifty feet to the south side of Chesapeake avenue, the place of beginning. Being and comprising Lots 97 to 104, inclusive, as laid out and designated on the sales plat filed with trustees’ report of sales filed in these proceedings in the above entitled cause, and being also so laid out and designated on the sales plat of Highland Park above referred to.” ⁵¹⁷ In 1906 Mrs. Sanderson built a comfortable and commodious dwelling house at the northeast corner of Hig;hland avenue and Twelfth street on the land first described in the above mentioned deed. Before the dwelling could be erected it was necessary to obtain a permit from the Building Inspector of Baltimore City, and to have the grade of the streets established.

These requirements were complied with. Application for the permit was made on the 19th of September, 1906, and at the top of the application was printed the following in red ink: “The builder or owner must have the street lines established by the city engineer before starting work. Should the building not conform with the street lines the owner will be required to remove any and all encroachment beyond the side lines.” The permit was issued October 5, 1906. In 1914 the city began the grading of Highland avenue', and in 1916 completed its work on this avenue, and after-wards graded Twelfth street, between Highland, avenue and Piedmont avenue.

This grading inflicted serious loes upon the plaintiff’s property, and, on August 9, 1918, she sued the Mayor and City Council of Baltimore to recover compensation for this injury. The first count, which is a lengthy one, contained the following allegations as to the effect of the grading upon the plaintiff’s property: “In August, 1917, the defendant, without any legal proceedings for the condemnation or opening of Twelfth street between Highland and Chesapeake avenues, or of Highland avenue between Twelfth and Eleventh streets, or of either of them, and without any right or color of right, save and except the supposed dedication of said Twelfth street and said Highland avenue by virtue of the recording of said plat by the receivers and the sale of lots of said SummerfLeld Nor-wood and others referring thereto, and without any prior acceptance of said supposed dedication by any competent municipal authority, proceeded to enter upon the bed of said Twelfth street, between Highland avenue and Chesapeake avenue, and upon the bed of ⁵¹⁸ said Highland avenue, between Twelfth street and Eleventh street, and to tear up and destroy the surface thereof, and to cut down and grade the same to a grade very much, to wit, thirty feet, below the surface of the surrounding land, and in such grading and as a consequence thereof to cause portions of the abutting land to subside and fall into the street, and leaving the plaintiff’s residence on a high and unsightly bluff or cliff, rendering her abutting land virtually inaccessible, and altogether inaccessible by carriages, horses or motor vehicles, and wholly destroying and rendering impossible the private road or way constructed and maintained by her as aforesaid through the bed of what would have been Twelfth street to Chesapeake avenue. The home on which the plaintiff has lavished her care and attention for twelve years, in which she has had a pardonable pride, and which she has come to love as the centre and symbol of her family ties, has been rendered unsightly and scarcely habitable. Said Highland avenue, now known as Mondawmin avenue, is an ugly canon or gully between two cliffs or precipices of earth and stones, thirty feet in height, and said Twelfth street, in front of the plaintiff’s said land is in the same condition.

Said streets as so wrongfully constructed by the Mayor and City Council of Baltimore afford no access to the land of plaintiff or of other persons abutting on said Highland avenue, between Twelfth and Eleventh streets, and on said Twelfth street, between Highland avenue and Chesapeake_ avenue, but are wholly destructive of any reasonable access to the said property. The plaintiff’s dwelling house and residence constructed as aforesaid upon the level of the land as existing at the time of the recording of said plat cannot be reached by her except by á flight of steps which she has been obliged to construct so steep as to amount virtually to a ladder. The plaintiff is wholly without means of entering upon her said land with horse-drawn vehicles or motor vehicles, and is unable to bring supplies into her said residence except by said steep flight of steps. ⁵¹⁹ Said streets as so graded and constructed are wholly destructive of the objects and purposes of any dedication as offered to be made by the recording of said plat as aforesaid, and that the said streets constitute no reasonable means of access to the abutting property, but are barriers to access to the abutting property.” The second or amended count is a connt in trespass quare clausum fregit, and is based upon the contention, which the plaintiff offered evidence to support, that the city in grading the streets did not confine its work within their