Town of Glenarden v. Lewis

³ Digges, J., delivered the opinion of the Court. This controversy originates with the attempted withdrawal of an offer to dedicate an unused part of Polk Avenue. Polk Avenue is a “paper street” in the Prince George’s County town of Glenarden which has never actually been utilized as a public way. It has undergone no construction or improvements and has never been maintained or repaired.

The road, in fact, is overgrown with trees and underbrush. The appellees, owners of the land surrounding Polk Avenue, sought to procure the abandonment of this land in order to resubdivide the area. All interested governmental authorities have agreed to this action, with the exception of appellant, the town of Glenarden. It is conceded by the parties that Polk Avenue was planned in 1922 on a plat that was never recorded and as such, it had been validly offered for dedication, though only under the common law. 1 A completed common law dedication has two essential elements: offer and acceptance.

Mauck v. Bailey, 247 Md. 434, 442-44 , 231 A. 2d 685 (1967) ; Hillshire Cory. v. Pachuta, 235 Md. 178, 181-82 , 201 A. 2d 1 (1964) ; Chapman v. Rogan, 222 Md. 12, 17 , 158 A. 2d 626 (1960) ; Shapiro v. County Comm., 219 Md. 298, 302 , 149 A. 2d 396 (1959) ; Hackerman v. City of Baltimore, 212 Md. 618, 624-25 , 130 A. 2d 732 (1957) ; Blank v. Park Lane Center, Inc., 209 Md. 568, 574-75 , 121 A. 2d 846 (1956). The parties completely agree as to the first element, but this concert of thought abruptly terminates as to the second. The appellees contend, and the trial court (DeBlasis, J.) agreed in granting their petition for abandonment, that the offer to dedicate was never accepted. Not surprisingly, the appellant argues to the contrary. ⁴ From 1922 until 1961, the Prince George's Board of County Commissioners, who have now consented to the abandonment, could have accepted this offer, but failed to do so.

After that date and until these proceedings commenced, the town of Glenarden, created by charter in 1961, obtained the right to accept the dedication of Polk Avenue, since it was within its corporate boundaries. However, if acceptance was not in fact made prior to these proceedings, then the offer could be revoked. As we said in Mauck v. Bailey, supra at 443-44: “And until an acceptance makes the common law dedication complete, the original dedicator or his successors in interest may revoke or modify the offer to dedicate, in whole or in part.” (Citations omitted.) The petition to abandon obviously constitutes such a revocation. The only issue in this case therefore is whether the town of Glenarden accepted the offer to dedicate Polk Avenue prior to the revocation.

There are three ways in which acceptance could have been effected. These have been discussed on several occasions by this Court, but never more succinctly than in City of Baltimore v. Broumel, 86 Md. 153, 158 , 37 A. 648 (1897), in which Chief Judge McSherry for the Court stated: “In addition to a dedication there must be an acceptance by competent authority, and such an acceptance may ordinarily be evidenced in one of three ways, viz., by deed or other record; by acts in pais, such as opening, grading or keeping the road in repair at the public expense ; or by long continued user on the part of the public.” Chapman v. Rogan, supra; Cox v. Anne Arundel County, 181 Md. 428, 432 , 31 A. 2d 179 (1943) ; Harlan v. Bel Air, 178 Md. 260 , 13 A. 2d 370 (1940), III Dillon, Municipal Corporations, § 1087 (5th ed. 1911). In the case before us, none of these possible methods was utilized by Glenarden. The town concedes in its brief that there were no acts in pais, and therefore this possibility need not be considered.

Another means of acceptance can be by express statu ⁵ tory provision or other similar official action. On this point the appellant offers some resistance. It contends that enactment of its town charter by the state legislature constituted acceptance of the offer. It cites section 66 on Control of Public Ways as supportive of this.

However, a careful reading of this section does not leave us with the same impression. Section 66 provides: “The Town has control of all public ways in the Town except such as may be under the jurisdiction of the Maryland State Roads Commission. Subject to the laws of the State of Maryland and this charter, the Town may do whatever it deems necessary to establish, operate, and maintain in good condition the public ways of the Town.” This language does not express nor imply that previous offers to dedicate are now accepted, and the town of Glenarden did not establish, operate or maintain this part of Polk Avenue as a public way. In substantially the same circumstance, our predecessors in City of Baltimore v. Broumel, supra at 159 said: “If these Acts of Assembly do not amount to or constitute legislative acceptances