Wehr v. Roland Park Co.

Boyd, C. J., delivered the opinion of the Court. A bill in equity was filed by Bertha L. "Wehr against The Roland Park Company of Baltimore City and The Roland P'ark Roads and Maintenance Corporation. Afterwards Charles Willms, Michael F. McCormick and J. Douglas Freeman were made parties plaintiff and later, by leave of the court, .an amended and supplemented bill was filed by the four parties against The Roland Park Company and the Maintenance Corporation.

We will mean the latter in referring to the bill of complaint, unless the original one is particularly mentioned. Nearly ninety residents- of Roland Park filed petitions to be made parties defendants, but we suppose that if they were granted, as the docket entries state, those defendants simply adopted the answers, of the original defendants, as we do- not find either the orders or their answers in the record, and they do not appear to be necessary to the decision of this case. The Roland Park Company of Baltimore City was incorporated in 1891 and purchased a large number of acres of land, the most of which were then in Baltimore County. It proceeded to develop the land and it is sufficiently shown by uncontradicted evidence to permit us to say, without discussing the same, that it became an unusually attractive development which ranks amongst the highest to be found in this State and its reputation is well known far beyond its bounds.

It is only necessary to examine the restrictions in the deeds to see that the efforts of all parties concerned were to have it a development which would be peculiarly desirable for residential purposes, .and which ..offered more than most suburban places did at that time for the comfort, health and pro ³⁸⁷ teetion of their residents. A number of plats were made and filed in the records of Baltimore County, the three with which we are specially concerned being those referred to in the opinion of Lrnun Feam, who decided th© ease below, as follows.: “Tn 1892 Plat Eo. 1, involving 116 acres of land, was recorded and the land was laid out in 427 lots. In 1901 Plat Eo. 2, affecting about 52 acres, was recorded, the land being divided into some 85 lots. In 1903 Plat Eo. 3, comprising 120 aeres and sub-divided into 192 lot$, was recorded.

The present controversy involves more particularly those three plats, although the future of the remaining parts of Roland Park and of Guilford is, to some extent, involved in the outcome of this case.” After referring to Plats Eos. 4a., 5 and 6 and "of Guilford, giving the dates of record, the acreage and number of lots in each, he added: “The land embraced in all of these plats is contiguous, has: a combined area of some 752 acres, and, together, constitutes the admirable real estate development above referred to.” In a deed dated Alay 1, 1911, from The Roland Park Company of Baltimore City to Airs. Wehr, one of the plaintiffs, there was conveyed a lot on Plat Eo. S. That deed contained this: provision: “8. That the land hereby conveyed shall be liable annually for a proportionate amount of the cost of lighting and keeping in repairs the roads, lanes and paths (including sidewalks) shown on said Plat Eumber Three of Roland Park and said Addition thereto, of collecting and disposing of the garbage, ashes and rubbish on the land included in said plats, and of maintaining the sewmrage system of the land included in said plats, which said proportionate amount was by the aforesaid deed from the party of the first part to the said Maintenance Corporation, fixed at one hundred and eleven (111) thirty-three thousandths of the total annual cost thereof; said sum being payable quarterly by the said party of the second part, her heirs and assigns, to the said Maintenance Corporation, its ³⁸⁸ successors and assigns; provided that the amount to he so paid shall not exceed, in any one year, twenty cents per hundred square feet of the superficial area of the land hereby conveyed.” There was a proviso' following the above which we have not quoted, as it is not involved in this case.

Paragraph 9 of the deed contains the following: “9. It is distinctly covenanted and agreed between the parties hereto that all the covenants and agreements above expressed shall be held to run with and bind the land hereby conveyed, and all subsequent owners and occupants thereof, until the first day of January, in the year nineteen hundred and thirty,, and the acceptance of this deed shall have the same effect and binding force upon the party of the second part, her heirs and assigns, as if the same were signed and sealed by the party of the second part; provided, however, that the covenants contained in the aforegoing paragraph numbered eight (8) shall be perpetual in their operation.” The Roland Park Company of Baltimore City conveyed to Michael P. McCormick by deed dated the 19th of October, 1896, a lot on Plat No. 1, Paragraph 8, of which deed contains the following: “8. And the said party of the second part does hereby agree for himself, his heirs and assigns, that after January 1st, 1898, the land hereby conveyed shall be liable annually for a proportionate amount of the cost of lighting and keeping the said streets in repair, and of maintaining the sewerage system of the land included in said Plat No. 1 of Roland Park, which said proportionate amount shall be sixty-two and one-half (62%) twenty-two thousandths of the total annual cost thereof; provided, however, that the amount to be paid-shall not exceed twenty-five cents per front foot per annum.” ³⁸⁹ The deeds under which Charles Willms and J. W. Freeman claim are for lots also on Plat No. 1, and it is admitted that the above paragraphs 8 and 9 in the Wehr deed are in all deeds for lots in Plats Nos. 2 and 3, and that in all deeds for lots on Plat No. 1 is Paragraph 8 above quoted from the McCormick deed. The maximum annual tax in the case of each of the plaintiffs is, according to the calculation o£ Judge Frank, as follows: “Wehr, $22.28; McCormick, $15.65; Freeman, $18.75, and Willms, $58.75” — the latter including parts of two lotsi.

The maintenance tax, as it is spoken of in this case, and will he referred to as such, was payable to and declared by The Roland Park Company of Baltimore City until 1909, at which time the Roland Park Roads and Maintenance Corporation was formed and the former conveyed to' the latter all its rights in the beds of the highways on the various plats, the sewerage system and the right to collect and distribute the several maintenance funds. In 1912 The Roland Park Company succeeded to the rights of The Roland Park Company of Baltimore City, and we will use that name unless we have occasion to distinguish between the two companies. Judge Frank said in his opinion : “While in the early days of each plat a certain portion of the maintenance tax had been devoted to the lighting of the streets, Baltimore County, prior to the annexation, and since annexation, Baltimore City, has borne the entire cost of this lighting and no part of the maintenance fund for a number of years has been applied to this purpose. On October 1st, 1921, Baltimore City took over the operation of the sewerage system of Roland Park and, although prior to> that date this system had been maintained out of the maintenance tax, since that date no portion of the maintenance tax has been expended upon the sewerage system.” On, the 8th of June, 1922, the Roland Park Roads and Maintenance Corporation and The Roland Park Company conveyed to the Mayor and City Council of Baltimore (1) all of the rights of those companies in and to all of the streets, ³⁹⁰ roads, avenues and Park Lane on Plats Ros. 1, 2, 3 and 6 of the properties of the Roland Park Company, reserving and excepting any lanes or paths as laid out thereon (except P'ark Lane) and excepting certain portions of roads referred to which had been previously vacated, and subject to certain rights of other companies] mentioned; (2) all of the sewers, both storm and water drains and sanitary sewers, etc.; (3) the sewerage disposal field used in connection therewith.

The deed also reserves to the Maintenance Corporation the right to collect the maintenance charges and expressly states that it does, not convey any rights or interests in the paths or lanes of Roland Park (except Park Lane), “which paths and lanes, are separate and distinct from the streets,, road® and avenues herein referred to; and which lanes in Roland Park correspond generally to what are known as alleys in the older part of Baltimore City, and the Mayor and City Council of Baltimore, by the acceptance of this deed, does not undertake or assume any obligation with regard to the upkeep' and repair of said paths and lanes, which duty Was assumed by The Roland Park Road's and Maintenance Corporation.” It is further provided 'that by the acceptance of the deed, the Mayor and City Council “does not assume the duties of repair, upkeep and attention to the sidewalks and sidewalk lawns in Plats 1, 2, 3 and 6 of Roland Park, which duty was imposed upon The Roland Park Roads and Maintenance Corporation by the deeds from The Roland Park Company immediately above referred to; and nothing in this deed .shall be construed to impair or affect the duty of The Roland Park Roads and Maintenance Corporation to repair and maintain and care for tire said sidewalks and sidewalk lawns, and trees and shrubbery planted therein, or related thereto.” The Mayor and City Council also agreed that the Maintenance Corporation “shall and does subject to all city ordinances; reserve the right to repair, maintain and upkeep said sidewalks, sidewalk lawns and trees and shrubbery and1 to maintain any necessary control over1 the same ³⁹¹ for said purpose1 as, fully as if this deed had not been executed.” The theory of the hill is that inasmuch as the city furnishes the lights, has taken over the streets and roads,, and the sewerage, the plaintiffs are no longer under obligation to pay the maintenance tax, and the appellants also contend that The Roland Park Company or the Maintenance, Corporation never did do all that they or either of them undertook to do in consideration of the payment of the tax. The evidence is to the effect that before Roland Park was annexed to the city, Baltimore County paid or contributed to the payment of the lights and repairs of the roads and streets, and it is contended that as The Roland Park Company had failed to do what it is claimed it contracted to do, it had no right to recover the maintenance tax, regardless of other reasons which may he advanced. It is perfectly clear that the .restrictions,, provisions and covenants in the deeds, in so far as they affect the question with which we are now concerned, were not intended alone for The Roland Park Company, or the Maintenance Corporation, but were for the common advantage and benefit of all persons purchasing lots on these plats. As the,.original hill was filed by Mrs. Wehr alone, and Plaintiffs’ Exhibit Ho. 1 is a copy of the> deed to her, we will first consider it with reference to the provisions in 8 and 9 of that deed, which are also in the; other deeds for lots on Plats Aos. 2 and 3.

As we have, seen, the property was conveyed subject, to the covenants and agreements of the grantee set out in the, deed. It was agreed that the land conveyed “shall be liable annually for a proportionate amount of the cost of lighting and keeping in repair the roads, lanes and paths (including sidewalks)” shown on Plat Ho. 3 and the addition thereto, of collecting and disposing of the garbage, ashes and rubbish on the land included in said plats, and of maintaining the sewerage system in said plats. Al ³⁹² though, the land was then in Baltimore Oounty, it must he remembered that the local laws of that county provided for many things in connection with the roads, streets, garbage, sewerage;, etc., in a way that was exceptional in the counties, as will he seen by a reference to> Article 3 of the Code of Public Local Laws of 1888. For example, sections 243-249 of that article gave the County Commissioners poAver and authority to grade, regulate and keep. in repair the footways or sidewalks on all open .and traveled streets, avenues and alleys in the county, according to and in conformity with such rules and regulations as were recognized in and provided for in article 4 of Code of Public Local Laws, title, City of Baltimore, and the ordinance® of the Mayor and City Council passed in conformity therewith.

Provision was made for ascertaining the costs and expenses and .assessing pro rata on the ground binding and fronting on said footways and sidewalks, making them a lien