South Baltimore Harbor & Improvement Co. v. Smith

Fowler, J., delivered the opinion of the Court. The Patapsco Company was incorporated by the Legislature of Maryland in the year 1853. It was authorized by its charter to buy, sell and improve land in Anne Arundel County. In the exercise of the power thus conferred it became the owner and entered into the possession of a large tract of land in said county, opposite the city of Baltimore.

Part of this land was laid out in town lots and a plat thereof was made showing thereon certain streets and avenues and a public square, which square contained about fifteen acres, which the plaintiffs claim was dedicated to public use, and especially for the use of themselves as owners of lots and their successors in title. The name of the proposed town, as appears by the map, was to be “ Brooklyn.” It was also spoken of as the “ City of Brooklynbut except in name, it never became either a town or city, and the project of the Patapsco Company appears to have utterly ⁵³⁹ failed. The map in question, however, was recorded among the Land Records of Anne Arundel County by the secretary of the Patapsco Company some time after the recording of the agreement presently to be mentioned. The bill alleges that in the deeds from time to time executed by said company reference is made to said map, and the lots described as thereon laid out.

It is also alleged that among the inducements held out by the Patapsco Company to purchasers of lots was the fact that they would be entitled to the use of the streets and public square as laid out on said map, and their contention is that by the acts of the said company in so laying out and locating said town and the said lots, streets and public square, and by making and recording the said map, and the sale of said lots with reference to it in the deeds therefor, together with the “inducements ” (>efore mentioned, such streets and square “ became dedicated to the perpetual use and enjoyment of the purchasers and successive owners and occupants of said lots.” It is also alleged in the bill that the defendant, “ The South Baltimore Harbor and Improvement Company of Anne Arundel County,” which-for convenience we will call “the defendant company,” by virtue of. a pretended purchase from the Patapsco Company claims to be the owner of the land constituting the public square, and that said defendant company had taken possession of said square and was about to cut down the trees thereon and to cultivate the land embraced therein. They- (the plaintiffs) asked for and obtained from the Circuit Court of Anne Arundel County an order for a preliminary injunction restraining the defendant company from exercising any acts of ownership over the said square. This order is dated the 28th January, 1886. On the 24th March, 1887, the joint and several answer of the defendant company and other defendants was filed.

Nothing further appears to have been done by either party, with the exception of the partial examination of one witness on' the part of the plaintiff, until the 23rd January, 1896, when the plaintiffs filed a petition for leave to take additional testi ⁵⁴⁰ mony. The testimony was filed 21st July last — and on the 16th November following a pro forma decree was passed making the injunction perpetual. From this decree all the defendants have appealed. It will be seen from the foregoing statement that there is but one question involved — whether the land which is designated as a public square has been dedicated to public use.

We have already set forth with sufficient fullness-the facts on which the plaintiffs rely in their bill to establish a dedication, and we will now state those on which the defendants rely to show there never was any such dedication of the square either by the Patapsco Company, its predecessor in title or by itself. The first and most important fact relied on by the defendants is that on the 14th July, 1858, the Patapsco Company, which it is conceded then owned the square in question, unless theretofore dedicated, made a contract with a corporation known as “The Brooklyn Company,” by which the former agreed to lay out on a part of its land a town to be called “ Brooklyn,” and prepare a plat thereof from a lithographed plat then existing, divided into lots of certain sizes and to grant to the Brooklyn Company the privilege of purchasing a certain number of- said, lots on terms therein set forth. That agreement contained the following provision : “ The Brooklyn Company may fence in the public square to be located on the proposed plat, as now shown on the lithographed plat, and may plant and embellish the same with walks, trees, &c., and may erect thereon any temporary improvements at its own expense, and such improvements to belong to the Brooklyn Company, and may be removed at any time before July 1st, 1866, at which date all exclusive rights of the Brooklyn Company as to said square shall cease, and the square be vested jointly in the contracting parties hereto for such uses and purposes as they shall agre'e.” This agreement was duly acknowledged and recorded on the 6th October, 1858, among the Land Records of Anne Arundel County. As we have already seen, the ⁵⁴¹ map or plat relied on by the plaintiffs was filed for record in the same county by the secretary of the Patapsco Company sometime subsequent to the recording of the agreement.

By conveyances subsequent to the recording of the agreement the defendant company became the successor in title to the two corporations therein named, and its contention is that it has now vested in it all the. title and estate of both of said companies, and is therefore the absolute owner in fee of the ground designated as a square. We do not understand that there is any question made as to the fact of these conveyances, although they are not before us in this record, but the difference arises as to their legal effect — the plaintiffs contending that they could not operate to recall or destroy a dedication made before they were executed, and the defendants claiming that neither before nor after the execution of the agreement between it and the Brooklyn Company was any dedication made, and bases its claim of absolute ownership on the true construction of that agreement, as well as on the subsequent conveyances above mentioned. The law involved in this.case is well-settled. It has been always held in this State and elsewhere that whether a dedication to the public has been made depends in every case upon the intention of the parties, and. this, whether dedication is claimed by acts in pais, by.solemn conveyances of record, or by judicial proceedings.

And it is also as well settled that such intention to dedicate must be established by clear, satisfactory and unequivocal testimony. Thus it has been held that, although a presumption arises that a dedication was intended by reason of the conveyance of land binding on the sides of a street, yet this presumption will be rebutted by the execution of a subsequent deed by the same grantor to the same grantee of the bed of the street. And, therefore, when the street was actually opened by the city of Baltimore, it was compelled to pay substantial damages. Hall v. M. & C. C. of Balt, 56 Md. 187 .

And so in Pitts' case, 73 Md. 326 , it is said that the inten ⁵⁴² tion to dedicate by a sale and conveyance of lots binding upon a street “ may be rebutted in many ways, as by other express covenants or agreements between the parties, or by the fact that the call for the street was made merely for the purpose of convenient description of boundaries * * * or by any other circumstances showing the absence of an intention to dedicate to public use.” The rule that the strongest, clearest and most convincing proof of intention will be required to establish a dedication has been announced again and again by this Court. It is claimed by the plaintiffs that the alleged dedication was effected by the laying of the square on the map, by the sale of lots in accordance with and with reference to said map and by representations made by the agents of the Patapsco Company that the streets and square, as they appeared on the map, should be enjoyed by the purchasers of lots. Now, it may be conceded that if there were any owners of lots who purchased under such circumstances and without notice of the contents of the agreement between the Patapsco and Brooklyn Companies, they would have a standing in a Court of Equity. But what is the evidence ?

We have already seen that on the 6th of October, 1858, the agreement just mentioned, under which the defendant company claims it was impossible there could be any presumption of an intention to dedicate, was placed upon record. It seems to us that, in the face of the language of that agreement, the