Story v. Ulman

Bryan, J., delivered the opinion of the Court. The controverted question in this case is whether Tenth street in the city of Baltimore has been dedicated as a public highway. In May, eighteen hundred and ninety-one, the Mayor and City Council of Baltimore passed an ordinance for the condemnation and opening of this street, to be of the uniform width of sixty-six feet from the west side of Charles street westwardly to the east side of Maryland avenue. After the usual proceedings the Commissioners for Opening Streets made their estimate, awarding damages and assessing benefits.

Among other awards, damages were allowed to Alfred J. Ulman for a strip of thirty-three feet condemned, for the northern ²⁴⁵ half of the proposed street. The final return of the Commissioners was certified to the City Register, and the usual notice was given by publication in three daily newspapers that the books and papers would remain in his office for thirty days for examination by all persons interested; and that an appeal might be taken within that time to any Court of competent jurisdiction. The thirty days having fully expired and no appeal being prayed by any person interested, the return was in due course on the ninth day of January, eighteen hundred and ninety-three delivered to the Comptroller. According to the Baltimore City Code no money can be paid by the city except through a warrant of the Comptroller upon the Register.

The Comptroller refuses to issue his warrant in favor of Mr. Ulman unless the Examiner of Titles will certify that he is entitled to receive the money awarded to him as damages. The Examiner of Titles insists that Ulman has no right to the damages awarded to him for the portion of Tenth street which was condemned. A petition was filed by Ulman for a mandamus commanding the Examiner to certify to his title, and commanding the Comptroller to issue his warrant to the Register. After answer and hearing, the mandamus was ordered by the Court.

We learn from the record that this proceeding was adopted by the consent of the parties in order that it might be decided whether Tenth street had been dedicated to the public. We shall,, therefore, give our opinion on this question; passing by the obvious result of the condemnation .proceedings, that the award to Mr. Ulman is conclusive as to the value of the property and the damages which he will sustain by taking it. Article 47, section 10, Baltimore-City Code of 1879; Norris v. Baltimore, 44 Md. 605 . The question of dedication must be decided by what appears in the record.

In May, eighteen hundred and seventy, William Holmes conveyed a lot in fee simple tó John Sinclair on the east side of Charles street, and binding about a hundred and eighty-four feet on the south side of Holmes (now Tenth) street as laid down ²⁴⁶ on a plat annexed to the deed. This deed contained the following clause: “ Together with the buildings and improvements upon said described lot of ground, erected, made or being, and all and every the rights, alleys, ways, waters, privileges, appurtenances and advantages to the same belonging or in anywise appertaining, including the right, use and privilege of all the streets, lanes and alleys laid down on the plat heretofore annexed, so far as the same extend over the tract called Liliendale.” In October, eighteen hundred and seventy-four, Sinclair conveyed this property in fee to Ulman. In October, eighteen hundred and seventy, Holmes leased to the Peabody Heights Company for ninety-nine years, renewable forever with the privilege of redemption, a large tract of land including the tract hereinafter mentioned as conveyed by it to Ulman. This lease contained the following words: “Subject, however, to the right and privilege of the use by the said William Holmes of the beds of Holmes, Barnum :and St. Paul streets as the same are laid down on a plat .accompanying the deed from the said William Holmes to a certain John Sinclair, bearing date the 12th day of May, 1870, and recorded among the land records of Baltimore County in Liber E. H. A. No. 66, folio 343, &c., and subject also to the right, use and privilege of all the streets laid down on said plat so far as the right, use and privilege, thereof were granted to the said Sinclair by said last mentioned deed.” It is unquestionable that Sinclair acquired the right to use Holmes street from the eastern side of Charles street to