Tinges v. Mayor of Baltimore ( 1879 )

Brent, J.,

delivered the opinion of the Court.

The Mayor and City Council of Balimore passed an ordinance in May, 1877, to condemn and open St. Paul Street from John Street to North Avenue, as laid down on Poppleton’s Plat.

The Commissioners for Opening Streets in the exercise of the duties required of them by this ordinance, having ascertained that the appellant was the owner of one-half of the bed of the proposed street, from Townsend Street North 182 feet to a twenty foot alley, condemned the same and allowed therefor only nominal damages.

An appeal was taken to Baltimore City Court, where the judgment and action of the Commissioners were reviewed and affirmed.

Prom that Court the present appeal is taken, and involves the propriety of the action of the Court in granting the instruction to the jury asked for by the appellee, and in refusing the second instruction asked for by the appellant.

The facts in the case, as they appear from the record, are but few and these are undisputed.

Lot A, owned by the appellant, the twenty foot alley above referred to, and Lot B, owned by the Baltimore City Passenger Railway Company, as designated upon the plat filed in the case, and constituting about three-fourths of the square from Townsend Street to North Avenue, and from St. Paul Street to Calvert Street, were formerly owned by the Cookes. Their possessions also extended West of St. Paul Street, to what was' known as the Hanson Mill road, thereby making them the original owners of the bed of that street from Townsend to North Avenue.

In March, 1851, two of the Cookes, William P. and Warren E., being minors, Charles P. Mayer, was appointed a trustee by the decree of Baltimore County Court to lease this property. He accordingly effected a lease for 99 years to Henry Mankin of several lots, and among them was the lot now- owned by the appellant. This lease was executed in September, 1854, and the lot in question is thus described:

“ Beginning for the same at the North-East Corner of St. Paul Street and Townsend Street, and running thence -on St. Paul Street Northerly 113 feet to an alley 20 feet wide, to be laid out at the distance of 115 feet to the Northerly side of said alley from the South side of North Avenue as widened to 150 feet; thence Easterly on that alley and parallel to Townsend Street, (wherewith said alley is to be parallel) 122 feet to Hargrove Alley, then Southerly on Hargrove Alley 113 feet to Townsend Street, then Westerly on Townsend Street, 122 feet to the beginning.”

Manlrin failing to pay the rents reserved by this lease, the trustee, Mayer, brought an action of ejectment against him, and on the 1th of July, 1851, recovered a judgment which was subsequently enforced by a writ of possession.

After this lease and re-entry, and before any other disposition of the lot, now owned by Tinges, was made, the Cookes, all of whom had arrived at majority, executed a lease for 99 years to the Baltimore City Passenger Railway Company of Lot B, designated on the plat. This lease was made on the llth of July, 1861, and the lot is described as follows:

“Beginning for'the same at the corner formed by the intersection of the South side of North Avenue and the West side of Culvert Street, and running thence Westwardly bounding on the South side of North Avenue 264 feet to St. Paul Street, thence Southwardly bounding on the East side of St. Paul Street 115 feet to a 20 foot alley; thence Eastwardly bounding on the North side of said alley, with the right, use and privilege thereof, and parallel with North Avenue 264 feet to Calvert Street, and thence Northwardly bounding on the West side of Calvert Street 115 feet to the beginning.”

In May, 1877, the appellant acquired title to the lot in question, deriving the same through the Cookes by a deed to him from Hiram Woods, trustee, and others.

Upon these facts the Court instructed the jury that if they found from the evidence, the Cookes were “the owners of the property lying in the bed of St. Paul Street,” from Townsend Street to Hanson Mill road, (now North Avenue,) and that prior to the conveyance to Hiram Woods, and to the passage of the ordinance for the opening of St. Paul Street, the said Cookes had leased portions of said property between Townsend Street and the Hanson Mill road, and in the said leases had described the lots so leased as bounding on the East side of St. Paul Street, then said leasing was a dedication of the bed of St. Paul, Street so owned by them from Townsend Street to Hanson Mill road, and refused to instruct them, as prayed by the appellant, that there is no evidence to be found in the lease to the Baltimore City Passenger Railway Company of any intention to so dedicate that part of St. Paul Street.

It is well settled by the decisions of this Court that an intent on the part of the owner to dedicate his land to the particular use alleged is absolutely essential, and unless such intention is clearly proved by the facts and circumstances of the particular case no dedication exists. McCormick, et al. vs. Mayor, &c. of Baltimore, 45 Md., 524. It is not necessary to enumerate the several modes by which this intention may be established. One of them is the sale and conveyance of lots bounded upon a street, designated in the plan and plat of a city. If the vendor is the owner of the bed of such street, his lease or conveyance to the lessee or purchaser implies a grant or covenant, that the street, thus indicated and called for, shall be and remain forever open to the use of the public free from all claims or interference of the proprietor of the estate therein inconsistent with such use. 45 Md., above cited. The lessors of lot B to the City Passenger Railway Company were the owners of the bed of St. Paul Street from Townsend Street to North Avenue at the time of their lease. In binding this lot in their deed of lease on the East side of St. Paul Street it was clearly a dedication of that street as far south as Townsend Street. This is not only settled by the principle announced in the case just referred to, but comes strictly within the case of Hawley vs. Mayor, &c. of Baltimore, 33 Md., 270. There it was held that the purchaser of a lot calling to bind on a street not yet opened by the public authorities, is entitled to a right of way over it, if it is the lands of his vendor, until it reaches some other street or public way. The appellant seeks to confine this doctrine, and limit it in the present case to the 20 foot alley, which was set apart by the Cookes for the use of lots A and B, and which extends eastwardly to Calvert Street. This is not a street or public way within the meaning of the case in 33 Md. The first street or public way southwardly from North Avenue down St. Paul is Townsend Street, and to this street the dedication to the public use of St. Paul Street must be held to extend by the terms of the lease of lot B to the Railway Company.

(Decided 19th June, 1879.)

If the case rested alone upon the lease of Mayer, trustee, to Mankin, we would not hold it to be sufficient evidence of a dedication. But taken in connection with the subsequent lease of lot B, we think it is strongly corroborative of the dedication established by the terms of that lease.

Prom these views it follows, that we think there was no error in the instructions given by the City Court.

Judgment affirmed.