United Finance Corp. v. Royal Realty Corp.

Offutt, J., delivered the opinion of the Court. This proceeding for the specific enforcement of a contract under which the Royal Realty Corporation agreed to sell, to the United Finance Corporation, seven lots of ground, six on Baltimore Street, and one on Mt. Olivet Lane in Baltimore City, was instituted by the vendor against the vendee in the Circuit Court of Baltimore City. The defense was that the vendor could not convey a marketable title to the land sold because a substantial part of it was dedicated to public use as highways of the City of Baltimore.

The court rejected that defense, except as to one street not involved in this appeal, and decreed that the defendants specifically perform the contract. The appeal is from that decree. In the course of the proceedings Edward V. Coonan and Helen B. Coonan intervened as defendants, and filed an answer, in which they asserted that they own land abutting on Baltimore Street, as located in the plat referred to infra, that that street is a public highway, and that they are entitled to have it remain open and unobstructed as such. It was stipulated by the parties that no decree in this case should affect or apply to that part of Baltimore Street described in their answer.

They are not therefore parties to the appeal, and what is said in the course of the opinion has no application to their rights in that street. The appeal presents a single question: Has the municipality any right to have these ways opened, which it may assert at this time against the owners of the fee in the land over which, if opened, they would pass? That question arises out of these facts, which are not disputed: Acts 1870, ch. 99, provided that the County Commissioners of Baltimore County should appoint three persons to act as street commissioners, and directed that such street commissioners 'should have surveyed that part ¹⁴¹ of Baltimore County adjacent to the city, lying within lines drawn not less than one nor more than two miles from the city line, that they should lay out on the whole ground streets, avenues, and alleys in conformity with the streets of Baltimore City, and should return plats of such survey and locations to the county commissioners. Upon such return the county commissioners were directed to give notice by publication of such return of the plat and proceedings, informing persons interested that, in the absence of timely objection, the plat and proceedings would be ratified and confirmed.

It further provided that, if objections were filed, the county commissioners might hear them and make any changes deemed proper in the location of the ways, and then in section 2 it continued: “and when so ratified shall be public streets, avenues, alleys and squares, and shall be opened, graded and paved as hereinafter provided.” The “method” of opening the streets so platted there referred to is dealt with in section 3, which provided that, upon the application of the owners of a majority of the front feet of ground fronting on any way so located, the county commissioners should direct the street commissioners to open such way or ways, and it further provided that “the owner or owners of the ground over and through which any public street, avenue, square or alley may run, or any public square be located shall not be entitled to any damages for improvements thereon, unless such improvements shall have been made before the locating or laying out of such street, avenue, square or alley by said Street Commissioners.” Section 4 provided for the award of damages and the assessment of benefits. Other sections of the act provided for grading and paving streets, alleys, and other ways so opened. Chapter 78 of the Acts of 1872 supplemented the Act of 1870, but changed it in no particular which could affect the consideration of the question involved in this appeal. In due course street commissioners were appointed under the act, they made the survey required by it, and returned a plat showing the location of the streets, ave ¹⁴² nues, squares, and alleys laid out by them, which was duly ratified and confirmed by the county commissioners on June 10th, 1873.

Among the streets laid out on that plat were Baltimore Street, Hollins Street, Ninth Street West, and Tenth Street West. Of these streets Hollins Street, Ninth Street West and Tenth Street West were located in part on the land embraced in the seven lots described in the agreement of sale. The parties have stipulated that no decree in this case shall affect the status of Baltimore Street, so that the effect of its location need not be considered on the appeal. Daniel Carroll of Duddington, on November 16th, 1829, conveyed the land of which these lots are a part to Levi Hoffman.

Levi Hoffman devised it to his children, and they in April, 1878, conveyed to Charles Christopher Josenhans 6.05 acres of it, by a deed accompanied by a plat which was recorded. That deed called for the center of Baltimore Street and Tenth Street West. Other deeds in appellee's chain of title also called for those streets. All of the land lies within that part of Baltimore County which was annexed to and became a part of Baltimore City in 1888.

The testimony showed that, when the streets were projected over the land involved in this proceeding, it was under cultivation, and that the owners continued to farm it as late as 1926, that, while the outlines of the streets may at one time have been indicated by markers, the streets were never opened but were cultivated as farm land, that the owners of the ground within the outlines of the projected streets paid taxes on it, that when, after 1900, plats were made for the usé of the tax department of Baltimore City, they showed the land owned by the predecessors in title of the appellee, but there was nothing on such plats to indicate “any street going through at all," and that from the time of the ratification of the plat and proceedings by the County Cbmmissioners of Baltimore County in 1873, nothing has been done by either the county or the city to open and establish as ¹⁴³ public streets or highways on or over the lots described in the agreement of sale any of the streets located on the plat approved by the County Commissioners of Baltimore County, or described in the proceedings in which that plat was filed, but they remain now, as they were then, undistinguishable in use or appearance from the land adjacent. Upon these facts the appellants contend that, though they are unopened, these projected streets are nevertheless public highways, (1) because they were declared to be such by the Act of 1870 and the proceedings had thereunder; (2) because they were dedicated as such by references to them in deeds from the owners of the land on which they were located. The objects and purposes of the Act of 1870 were two; one, to plan and propose a system of streets, avenues, and alleys in that part of Baltimore County lying adjacent to the City of Baltimore, in order that, as the city grew and developed, the extension of its public ways into' adjacent territory should, irrespective of its artificial boundaries, be made so as to secure a measure of uniformity in the highway system in the entire area affected by the development, whether in the city or the county. The accomplishment of that purpose was to be secured by the provisions relating to the survey, and the plat which the street commissioners were required to make and submit to the county commissioners.

The second purpose of the act was to provide for the actual opening, paving, and grading of the ways located on the plat. The mere location of streets on the plat did not itself make them public highways, because it was beyond the power of the municipality to take from the owners thereof without their consent and without compensation the land within the boundaries of such streets. The statement in the act, therefore, that, upon the ratification of the plat, the streets, avenues, alleys, and squares located thereon should be public ways, did not mean that they would become public ways immediately upon the ratification of the plat, but that they would become public ways when ¹⁴⁴ opened as such “as hereinafter” provided in the act. The second purpose of the act was accomplished by providing a method of opening the streets which adequately protected the constitutional rights of the landowners.

The plat, and the proceedings ratified by the County Commissioners of Baltimore County in 1873, were no more than a tentative approval of a plan of street development, which should be followed if streets were opened, but which did not require that they actually be opened. Nor may it be assumed that it was intended that the plat should be beyond change or amendment, if changed conditions made such alterations expedient, nor was it so construed by either the city or the county, for changes have been made in the location of streets shown on the plat in some cases, new streets not shown thereon have been opened in others and, in still others, streets shown on the plat have never been opened or used. Until the streets were actually opened as provided by the statute, neither the city nor. the county acquired any right to use the land embraced within their limits as public ways. They never were so opened, and the city neither acquired nor possessed any such right, unless under that provision of the act which provides that, in the event the street ever is opened, the landowner shall not be entitled to any damages for improvements made on the. land over which one of the streets runs after the location of the street by the street commissioners.

That provision imposed upon the land proposed to be taken for the purposes of the street a perpetual burden, for, under it, the landowner could never improve the land on which the street was located, except at the risk of losing the value of the improvement, if the municipality should ever exercise its option of opening the street. In this case nearly sixty years have elapsed since the final ratification of the plat filed by the street commissioners of Baltimore 'County, without the