Williams Realty Co. v. Robey

Bond, C. J., delivered the opinion of the Court. Robey and wife, owners of a lot of ground in a residential development on an estuary of the Bay, named Selbyon-the-Bay, have complained that a space fronting on the water, set apart at the time of purchase and represented to be for an exclusive community use, has been divided into lots for sale, and meanwhile rented out for a public resort; and they have secured an injunction against the new use. The owner of the area, the developer of the tract, has appealed. There is a motion to dismiss the appeal because of delay in transmission of the record beyond the limit of three months from its entry.

Code, art. 5, sec. 6. But an affidavit of the clerk of the court from which the appeal has come shows an excuse within article 5, section 44, on the ground of delay by him. Directions for preparation of the record were given the clerk in sufficient time, but, in accordance with a local custom, preparation was deferred until the cost of the transcript was paid, and waiting for payment delayed transmission beyond the limit. Preparation of a transcript cannot properly be withheld waiting for payment.

Walter v. Second National Bank, 56 Md. 138 ; Miller v. Mencken, 124 Md. 673, 677 , 93 A. 219 . The motion must be overruled. Otis L. Williams, Jr., and Alvin G. Branham, as part ⁵³⁵ ners, bought the whole tract of land, of about 206 acres, in 1930, upon a purchase money mortgage, and had it surveyed and platted in house lots and started selling at once. The plat upon which the earliest sales were made showed a section contiguous to the water, free of any plan for house lots, and marked in large type, “Community Beach and Park.” The complainants testified that in 1930, after having considered purchase of a lot back from the water, they chose, upon a view of that plat, and agreed to purchase, a lot fronting on the “Community Beach and Park,” and separated from it by a thirty foot road.

They produced from their own possession a copy of the plat then given them by the sales agent. In their deed, delivered some months later, in March, 1931, the lot was described as “beginning at the intersection of the west side of a thirty foot road now called First Avenue lying between the property hereby conveyed and Community Beach.” The granting clause contained no reference to a beach. The advantages of what amounted to a water front for their lot, they said, were urged upon them by a salesman and by Branham, and they were given explicit verbal assurances that the “Community Beach and Park” would be kept open as a provision for the lot owners of the community, as its name signified, and would eventually be given over into the ownership or control of lot owners. It was stated by the promoters and their agents that a swampy part of the open area would be cleared to make a shallow pool for children, and the whole was to have the attractions of privacy for lot owners and their friends.

These assurances, the complainants testified, induced them to buy as they did. And purchasers of a number of other lots testified that they, too, purchased on like assurances, repeatedly given prior to the year 1935. Testimony on behalf of the defendant, the appellant, and successor in title to that of the partners, was to the effect that the designation of the open space as a “Community Beach and Park,” on the first plat, was a mistake of the surveyor, that a beach free to lot owners ⁵³⁶ was intended, but the size and exact location were not determined upon, and the designation was therefore merely tentative. Exclusion of the public, it was testified, was never intended, but on the contrary possible purchasers were necessarily invited to use the beach.

About a month after the issue of the first plat, another was prepared and issued with the same open, unplatted, space shown, but no words designating its use. The first plat had not been recorded; this second plat was recorded in August, 1930. There is testimony, however, of continued selling upon a showing of the first plat, and assurances of a private, community, beach. As late as 1934 deeds for lots sold described the lots with reference to the thirty foot road lying between particular blocks of lots '“and Community Beach.” A third plat, showing for the first time a division of the open area into lots, although marked as made in 1932, was recorded in 1937, when to obtain a refinancing mortgage for the development enterprise it was found necessary to include a greater area in the security.

By that time the swampy portion of the area had been conditioned by pumping sand to fill it. On October 2nd, 1935, Williams, having purchased Branham’s interest, had all the unsold portions of the tract conveyed to a ■ corporation, the present defendant and appellant, in which Williams owns eight shares of a total of ten. A former salesman and a secretary own the other shares. It is not contended that the corporation was without knowledge of all that had been done by the partners.

The court finds a preponderance of testimony to prove that the complainants were induced to buy their lot upon assurances in the first plat, and verbally, confirmed by the reference in their deed to the “Community Beach,” lying immediately across the road in front of their lot, that they were securing rights to the enjoyment of the open space from the road to the water, in conjunction with other lot owners and such persons as they might invite. We do not understand that objection is made to ⁵³⁷ use by visiting buyers of lots originally laid out, pending the sale of all of them. The designation of “Community Beach and Park” contained in itself an assurance of restriction to the private and exclusive use contended for, and use of more than the beach on the edge of the water was indicated by that description. As seen, in fact, the descriptions in deeds measured the community beach and park from the thirty foot road to the water.

There was, too, an issue of admission tickets to lot owners which would indicate a restriction in their favor. But it is agreed that, since the summer of 1935, the open space in controversy has been rented out as a public shore resort and night club, and patrons have been solicited by advertisements in Washington. There is a club house on the site, and beer has been sold to patrons, on week ends the place is overcrowded with parked cars, and the beach is too