Ward v. Mayor and City Council of Baltimore

Murphy, C. J., delivered the opinion of the Court. On May 19, 1971 Thomas Ward filed a “Bill Of Complaint To Enforce A Trust” against the Mayor and City Council of Baltimore (the City) created by the City’s acceptance of a devise of real estate made to it under the Will of J. Wilson Leakin. By the terms of Leakin’s Will, the property devised to the City was to be sold and the proceeds “invested” by the City “in a public park.” Ward alleged in his Bill that the City, as trustee, acquired the park property which it named Leakin Park; that thereafter, by Ordinance No. 1058 approved June 26, 1967, the City proposed “to cancel the trust imposed upon Leakin Park because that Ordinance in part locates and describes an expressway (I-70-N) through that Park”; and that the expressway “when completed will use more than 130 acres of Leakin Park and the noise and air pollution caused by the traffic that this road is designed to carry will completely subvert the purpose for which this trust was created.” In his Bill, Ward sought to enjoin the City from constructing the highway through the Park or from providing any funds therefor. The City, while recognizing that the Park was a public trust, maintained that construction of the highway through the Park would not constitute a violation of the trust.

The court (Cardin, J.) agreed with the City’s position and refused to enjoin the City from constructing the proposed highway through Leakin Park. This appeal followed. The testimony and extensive exhibits introduced in evidence before the lower court detailed the history of the Park and of the proposed highway. ⁵⁷⁹ J. Wilson Leakin, by his Last Will and Testament dated October 27, 1922, made the following devise: “I leave the Mayor & City Council of Baltimore the properties 101, 103 N. Howard Street, 113, 115 W. Fayette Street. 5 years after my decease, the said properties to be sold and the proceeds invested in a public park. . . .” The City formally accepted the devise by Ordinance No. 105, approved September 20, 1927. Subsequently, it filed a Bill of Complaint seeking a construction of the devise to determine if its proposal to establish a number of separate neighborhood playgrounds conformed with Leakin’s intent that a “public park” be provided.

The lower court ruled that it would not, and its decree was affirmed on appeal. Baltimore v. Peabody Institute, 175 Md. 186 , 200 A. 375 (1938). We there recognized the City’s authority under its Charter to accept the conveyance in trust; we rejected the City’s argument that it was not restricted in its use of the funds derived from the sale of the properties devised to it under Leakin’s Will to the acquisition of a public park. We concluded “that a lot of neighborhood playgrounds is not a public park,” and said: “What the City has to decide now is whether it is going to accept the gift with the condition that it observe the donor’s wishes and intention in the purchase, improvement, and equipment of one park, [citation omitted] with the obligation thereafter to maintain it as ‘a public park.’ If the City is not willing to do these things, the devise would fail and the property go to the Peabody Institute as residuary devisee.” 175 Md. at 193 , 200 A. at 378 .

Thereafter, on June 13, 1940, the City by Ordinance No. 221 directed that “[t]he rents . . . received” and “the proceeds of the sale of . . . [the Leakin] properties, shall be turned over ... to the Mayor and City Council ⁵⁸⁰ for the purchase, acquisition, improvement and equipment of land for park purposes.” The Ordinance further authorized: “The Mayor, Comptroller and President of the Board of Park Commissioners ... to acquire out of said funds, by purchase, the property in and adjacent to Dead Run Valley, or so much thereof as the said Mayor, Comptroller and President of the Board of Park Commissioners shall deem advisable, for use as a public park. After the acquisition of said property, any balance remaining in said fund shall be used by the Board of Park Commissioners for the improvement, development and equipment thereof.” By deed dated January 15, 1941, the City purchased 243 acres of land in Dead Run Valley known as “CRIMEA” for the sum of $109,486.35. The deed recited the authority for the acquisition outlined in Ordinance No. 221 and expressly noted that the property was purchased “for use as a Public Park.” The first purchase did not deplete the fund held by the City from the sale of the Leakin properties. Apparently the Mayor considered relocating the Park in 1947.

Introduced in evidence was an opinion of then City Solicitor Simon E. Sobeloff responding to that possibility and advising that, in light of the provisions of Leakin’s Will, the City Charter, and this Court’s opinion in Baltimore v. Peabody Institute, supra, “. . . if it should be decided and ordained by the City Council that the present Leakin Park is no longer needed for public use, and the park should be sold, the proceeds, together with uninvested Leakin money, would have to be invested in a single park. Unless the present park is sold, the uninvested portion of the Leakin be ⁵⁸¹ quest can be used only to extend or improve the present park.” By deed dated March 11, 1948, the City purchased 68 acres of additional park land adjacent to its first purchase, the deed again reciting the authority outlined in Ordinance No. 221 and specifying that the property was purchased “for use as a public park.” In the late 1950’s, the federal government instituted a program of connecting all major population centers of the United States by limited access, high speed highways for the purpose of national defense and interstate commerce. See the Federal-Aid Highway Act, 23 U.S.C. §§ 101 et seq. (1966); Federal-Aid Highway Act of 1956, ch. 462, 70 Stat. 374 .

As a part of the program, a superhighway-designated Interstate-70 (1-70) was to be constructed, a segment of which was to pass through Baltimore City at a cost of approximately one billion dollars, ninety percent thereof to be paid by the federal government. The Interstate Division for Baltimore City, organized to manage the construction and completion of the interstate system within the City, and staffed jointly by personnel of the State Roads Commission and the Baltimore City Department of Public Works, proposed that as part of the interstate system an eight-lane, limited access expressway be located through the northern portion of Leakin Park. 1 The decision was based on an exhaustive study and recommendation of an “Urban Design Concept Team” comprised of consulting experts in all facets of urban highway routing. The Concept Team’s recommendation detailed a plan by which to minimize the harm to the remaining sectors of the park; under the plan all compensation received by the City from acquisition of the right of way through the park would be used to ⁵⁸² make improvements to the park. In July 1970, the City’s Board of Recreation and Parks unanimously adopted a resolution approving the proposal of the Design Concept Team and requesting the Interstate Division for Baltimore City to pursue funding of the intended transfer of land.

The City then held a so-called Design Hearing and submitted an Environmental Impact statement, both prerequisites to federal funding of the project, on May 25 and August 9, 1971, respectively. Introduced in evidence was a letter from the United States Department of Transportation, dated April 26, 1971, to the State Roads Commission, noting that the “4F submission” had been approved, and that “The implementation of the 4F approval conditions will require that compensation for all right-of-way required through the park be devoted exclusively to carrying out the park development plan.” 2 ⁵⁸³ By decree dated March 16, 1972 the court below dismissed Ward’s Bill of Complaint, concluding therein that “the routing of Interstate 70N through Leakin Park does not constitute a breach of the trust established by the Leakin Will. . . .” The decree was supported by the opinion of the court filed March 14, 1972 in which Judge Cardin held that while the proceeds from the sale of the Leakin properties were held in trust by the City for the park use specified in the Will, the City’s plan to exchange a part of the park land so acquired for funds to improve the remaining park land was not a violation of the trust. Two apparently independent grounds were advanced by the court in support of its decision: (1) that since the park land was subject to the City’s power of eminent domain, “[t]he Court in exercising its equitable jurisdiction over trusts must conclude that it is more beneficial to the trust if the City is allowed to transfer this property in exchange for valuable and extensive improvements to the park rather than subject it to condemnation” ; and (2) that the proposed plan “does not constitute a breach of trust, and is in keeping with the donor’s intentions” because all of the original trust res, the proceeds, would still be invested in the Park and improvements to the Park consistent with our construction of the donor’s intent in Baltimore v. Peabody Institute, supra. Ward claims on appeal that the construction of an expressway through the Park would violate Leakin’s intent that his gift to the City be used for a public park.

A “park,” Ward contends, by typical definition (citing Black’s Law Dictionary, Revised Fourth Edition, at page 1271) is “an enclosed pleasure ground in or near a City, set apart for the recreation of the public.” He urges that by no stretch of the imagination could a park include, as proposed by the City, an eight-lane expressway designed to daily carry 70,400 vehicles at sixty miles per hour through a 600 foot tunnel and over a 900 foot bridge. Ward argues that Leakin never intended that the ⁵⁸⁴ City, after acquiring the Park with his money, would be permitted to “exchange” a part of it for money to improve the remainder. If the chancellor’s decision is upheld, Ward suggests that the City will then be authorized to “ ‘exchange’ part of the Park land for a garbage dump, another part for an incinerator, another part for a morgue and so on until the Park is ‘exchanged’ to practical extinction.” We consider these contentions in light of the allegations set forth in the Bill of Complaint and in view of the evidence adduced at the trial before Judge Cardin. As heretofore indicated the thrust of Ward’s complaint was that use of a part of the park property to construct a highway would be inconsistent with Leakin’s intent in that “the noise and air pollution caused by the traffic that this road is designed to carry will completely subvert the purpose for which this trust was created.” As shown by the evidence at trial, Leakin Park is relatively primitive and its recreational facilities largely undeveloped except for a few areas.

It was Ward’s testimony that the area to be acquired for the highway is unique because “so completely rugged and untrammeled.” Commenting on the recreational facilities available ift this area he testified: “It is not the kind of recreation you find like tennis playing, golfing, that sort of thing. It is a quiet