Witsen v. Gutman

Bryan, J., delivered the opinion of the Court. The appellants were complainants in the Court below. They filed a bill in equity in Circuit Court !No. 2 of Baltimore City against Mrs. Bertha Gutman. It was alleged that she was engaged in erecting a permanent stone and brick wall across the southern part of Jew alley in the city of Baltimore, and that this wall will completely deprive the complainants of their right of way over a, portion of said alley.

The prayer of the bill of complaint was that the defendant should be perpetually enjoined from ob ⁴⁰⁷ structing the alley, and that she should be required to take down and remove the wall which had been erected. The defendant filed her answer, and after testimony and hearing the Court dismissed the bill, with costs. All of the parties to this suit deduce their titles from the same grantors through sundry mesne conveyances. In 1829 the trustees for the owners of a tract of land in the city of Baltimore made a plat of the property, and on said plat laid off and designated certain lots, and an alley running through said property from north to south.

Mrs. Gutman is now the owner of ten of these lots, five of them binding on the east side of the alley, and five lying directly opposite on the west side. The complainants own other lots binding on the eastern side of the alley. The first deed in point of time mentioned in the record, which conveys any of these lots, is a lease from the trustees to Skip-with H. Coale for ninety-nine years, with the usual covenants for renewal. It is dated October Blst, 1829.

It describes one of the lines as running “ to a public alley laid out by the trustees, and called Jew alley, thence binding on said Jew alley southerly,” &c., &c. All of the conveyances under and through which the complainants claim contain references to this alley as one of the boundaries of their lots. This alley runs from Marion street on the south to Lexington street on the north, and is eighteen feet wide at the southern, and twelve feet wide at the northern end. Mrs. Gutman’s lots lie at the southern end fronting seventy-three feet five inches on each side of it.

Her deeds do not appear in the record, but her title is admitted by agreement of counsel. We infer that it is leasehold, but its character is not distinctly stated, nor is it of any consequence in enabling us to decide the questions in this case. On May the third, eighteen hundred and ninety-three, the Mayor and City Council of Baltimore passed two ordinances. The first authorized and directed the condemnation and closing of that portion of Jew alley which bounds ⁴⁰⁸ each, side of the lots of Mrs. Gutman.

Proceedings for the closing of the alley have been conducted according to the regular forms required by law. And claiming authority from the ordinance and the proceedings thereunder, Mrs. Gutman has commenced to build the wall in the bed of the alley which the complainants seek to abate. She also claims the title to the bed of the alley in fee. The Mayor and City Council of Baltimore have kept this alley in repair for more than twenty years, and have exercised control over it during all that time.

The questions in the cause have been argued on both sides with remarkable ability by the respective counsel. The Court is fully mindful of their great importance, and of the delicate nature of the duty which it is required to perform. We think that the alley in question was dedicated to the public as a highway by the lease to Coale in 1829. The lot leased is described as binding on a “public alley,” designated as Jew alley.

Now, under the accepted authorities, there ought to be no question as to the meaning' of this description. It was in legal effect an implied covenant that Coale should have a right of way over the alley as a public alley. This question was decided in White vs. Flannigain, 1 Md., 525 , and in Moale vs. Mayor and City Council of Baltimore, 5 Md., 314 . In McMurray vs. Mayor &c. of Baltimore, 54 Md., 103 -112, the legitimate consequences of this ruling were stated.

The Court said: “Where an owner of land exhibits a map of it, in which a street is defined, though not yet opened, and sells building lots with front or rear on the street, and makes no express reservation, he dedicates the street for public use, and, if in a city, surrenders it for all public purposes.” And in Balto. & Ohio Railroad Co. vs. Could, Trustee, 67 Md., 60 -63, it was considered as settled that under such circumstances there was a dedication of a street to the use of the public as a street. It is thought that no one will suppose that there can be any difference between ⁴⁰⁹ the modes of dedicating a public alley and a public street. As a matter of course, whatever rights in the alley may have been conveyed subsequently to the lease to Coale, they were subordinate to the public right acquired by the dedication. The city of Baltimore accepted the dedication, and dealt with the alley as one of its highways.

The Mayor and City Council of Baltimore have the general power to close any street or alley, or any part of any street or alley, according to their discretion. They are to be governed by their own opinion of the public welfare and convenience. But they must provide for ascertaining the amount of damage to any owner or possessor of land, which will be caused by the closing, and for paying compensation to him, or investing the amount of it in city stock for his benefit, before the closing shall take place. Public Local Laws, Article 4, section 806.

It is recognized by the statute that abutting owners have interests in the street or alley which are valuable, and that these cannot be taken for the public use without compensation. It is believed that no one will contend that they can be taken for private use on any terms whatsoever. Certainly such a doctrine has never at any time found any toleration in this State. The Supreme Court of the United States in Wilkinson vs. Leland et al., 2 Peters, 657 , said: “We know of no case in which