Maryland-National Capital Park and Planning Commission v. McCaw

229 A.2d 584, 246 Md. 662, 1967 Md. LEXIS 488

• Court: Court of Appeals of Maryland
• Decided: May 12, 1967
• Docket: [No. 497, September Term, 1965.]
• Status: Published

Opinions

Oppenheimer, J.,

delivered the majority opinion of the Court. Barnes, Marbury, and McWilliams, JJ., dissent. Dissenting opinion by Barnes, J., at page 677, infra.

The question presented by this appeal is whether a subdivision plat in which land is dedicated to public use can be abandoned when the land is within an area designated for public taking as a regional park, and the local law under which the abandonment is sought provides that the plat can be abandoned only if “no damage can be in any wise sustained by persons other than the petitioners.”

In November, 1908, a plat of subdivision entitled “Hast River View Subdivision” (the subdivision) was made by one Lucas and duly recorded in Prince George’s County where the land was located. The plat showed a number of small building lots, with several streets, sixty feet in width. Subsequently, a portion of the subdivision was abandoned under court order.

In May, 1963, The Maryland-National Capital Park and Planning Commission adopted a Master Plan for the Henson Creek Watershed, as part of the General Plan for the development of the Maryland-Washington Regional District in Montgomery and Prince George’s County. The Master Plan designated a portion of the land within the subdivision as a part of a large regional park.

A few months later, in July, 1963, the appellee purchased a large tract of land which included all of the land in the subdivision. On July 15, 1965, he filed a petition in the Circuit Court for Prince George’s County for leave to abandon the balance of the plat of the subdivision. The petition was brought under the Code of Public Laws of Prince George’s County, Subtitle 12 (1963) (the statute).

Section 12-26 of the statute provides for the filing and recording of plats of subdivisions in Prince George’s County. Section 12-31 provides that such plats, when filed for record, shall constitute a part of the land records of the county, and shall have the same force and effect as to notice given properly recorded deeds. Section 12-32 (the abandonment provision) reads in part as follows:

“When said plats are so recorded, those portions of said land designated on said plats as streets, roads, avenues, lanes, alleys and public parks or squares, shall be and the same are hereby declared to be forever dedicated to public use and shall not thereafter, on any pretext whatsoever, be altered or taken for private use; provided, however, that nothing herein contained shall effect fsic] the right of any person or persons owning or claiming any interest in said land derived by, from or under any persons other than the maker of said plat, or by, from or under such maker prior to such subdivision; and provided further, that the maker of any such plat or plats, his heirs or assigns, shall have the right to apply by petition to the Circuit Court for said County, for leave to abandon the subdivision of lands so made by him, and reconvert the same into one tract or parcel; * * * said Court if, convinced upon such proof, and after such notice by publication or otherwise or as it shall direct that no damage can be in any wise sustained by persons, other than the petitioners, shall have power to pass an order authorizing and empowering such petitioner to abandon such subdivision, either in whole or in part * * *”

All these sections of the statute (except the provisions in the abandonment provision as to the manner in which notice is to be given) were in effect when the plat of the subdivision was filed in 1908 by the appellee’s predecessor in ownership. Code of Public Local Laws of Maryland, Art. 17, ch. 619, sections 8SA, F, and G (1908).

The appellee’s petition for leave to abandon stated that the appellee desired to reconvert all the portions of the subdivision to which the petition pertained to one parcel or tract of land and that none of the avenues or streets the dedication of which was sought to be abandoned had ever been opened or used as such. Paragraph 6 of the petition listed “the property owners, persons and bodies corporate interested in the abandonment prayed for * * *” The public bodies listed included the County Commissioners of Prince George’s County, the appellant, and the Washington Suburban Sanitary Commission. Paragraph 7 of the petition reads as follows:

“7. That the proposed abandonment does not effect any property other than that of the Petitioner and that no damage can in any way be sustained by virtue of said abandonment by any person, corporation or public bodies other than the Petitioner and those who will be personally served herein and/or will sign the consents hereto.”

The abutting property owners and the County Commissioners consented to the abandonment. Washington Suburban Sanitary Commission filed a conditional consent. The appellant, Maryland-National Capital Park and Planning Commission (the Commission), without formal entry of its appearance as a party, consented, in writing, to the abandonment of that portion of the subdivision which lies outside the boundaries of the proposed park, but asked the court to disapprove the abandonment of that portion of the subdivision which lies within the duly adopted park boundaries. With its pleading, the Commission filed as an exhibit the similar recommendation of the Prince George’s County Planning Board and a copy of the duly adopted Master Plan of Land Use for the Henson Creek Watershed which shows the proposed Henson Creek Regional Park.

The street area in the part of the proposed abandonment to which the Commission objects consists of about ten acres, which is a small proportion of the land dedicated to the public use in the 1908 subdivision plat and a small proportion of the remainder of the appellee’s land. The land owned by the appellee containing dedicated streets in the portion of the subdivision to whose abandonment the Commission does not object, like other portions of the appellee’s property purchased from the original subdivision owner, is contiguous to the proposed park. The Commission owns no land abutting that of the property here involved, but it was agreed by counsel, in oral argument, that the Commission has acquired other parcels within the area of the designated park.

A hearing was held by the court below, at which no testimony was taken. At its conclusion, on November 16, 1965, the court entered a Final Order for Abandonment, based on the pleadings, exhibits and argument of counsel. On December 16, the court granted leave to the Commission to intervene as a party for the purpose of appeal.

I

The threshold question, raised by the appellee’s motion to dismiss, is whether the Commission has standing to appeal. The appellee contends that the Commission is not a party, within the requirement of Code (1957) Article 5, section 6, because it has not shown a direct interest in the subject matter of the litigation. That section of the Code provides that any party may appeal from any final decree entered by a court of equity. Under it, appeals are permitted by parties of record and also persons who were directly interested in the subject matter of the suit. See First Union Savings & Loan v. Bottom, 232 Md. 292, 295, 193 A. 2d 49 (1963), and cases therein cited. The test of standing here involved is broader than that involved in zoning cases, w'here ordinarily an appeal from a decision of the administrative agency can only be taken by an aggrieved party who not only has a specific interest or property right affected but is personally and specially affected in a way different from the effect upon the public generally. Jahnigen v. Staley, 245 Md. 130, 225 A. 2d 277 (1967) ; Alvey v. Hedin, 243 Md. 334, 339, 221 A. 2d 62 (1966) ; Dubay v. Crane, 240 Md. 180, 185, 213 A. 2d 487 (1965), and cases therein cited. Here, the abandonment provision of the statute emphasizes the public interest involved. The dedicated open spaces are declared to be forever dedicated to public use and are not thereafter to be altered or taken for private use “on any pretext whatsoever” unless it is shown that no damage can be in any wise sustained by persons other than the petitioners.

Under explicit statutory provisions, the Commission is a representative of the public in matters such as are here involved. It is empowered to make general plans for the physical development of the District and in doing so, is expressly made the representative of the State. Code of Public Local Laws of Prince George’s County, sections 59-68, 59-69 (1963). It is given the power of condemnation and lands acquired by it are held for the benefit of citizens of the State and especially for the benefit of citizens of Montgomery and Prince George’s Counties. Sections 59-31, 59-37. Under section 59-75, no plat of any subdivision of land shall be admitted to the land records of either county without the Commission’s approval, and the Commission has the power to require dedications of streets and roads in such subdivisions.

The vital role played by planning bodies such as the Commission in the protection of the interest of the public was recognized in Krieger v. Planning Comm'n of Howard County, 224 Md. 320, 167 A. 2d 885 (1961). That case upheld the authority of the Planning Commission to deny approval of a subdivision plan submitted to it by a developer. The Commission had duly adopted a major street plan and subdivision regulations with which the proposed plan did not comply. Judge Henderson, for the Court, said: “If the Planning Commission were powerless to> require compliance, the whole purpose of planning and zoning, which looks to the future, would be frustrated.” 224 Md. at 323.

Karr v. Shirk, 142 Md. 118, 120 Atl. 248 (1923), relied upon by the appellee, held only that attorneys appointed to represent a trustee in a sale of mortgaged premises had no standing to appeal from an order in the foreclosure proceedings disallowing their fee. The predecessor of Article 5, section 6, then in effect, allowed an appeal from a final equity order by one or more of the persons “parties to the suit.” The Court held that the attorney-appellants’ services were to the trustee, so that their claim for compensation was against him and not the fund. Judge Offutt, for the Court, said, however, that the word “parties” was not to be given a narrow or technical construetion, and that the right of appeal was not to be denied to “persons who, while not technical parties to the record, are directly interested in the subject matter of the suit * * *” 142 Md. at 121. The appellants, it was held, fell in neither category. In re Buckler Trusts, 144 Md. 424, 125 Atl. 177 (1924), is no more apposite. There, it was held that a tenant of property for which the appointment of successor trustees was prayed under a deed of trust had no standing to appeal from a decree appointing successor trustees. The appellant was not a party and, the Court held, had no interest in the subject matter of the suit; there was nothing in the order appealed from, the opinion noted, precluding the appellant from enforcing whatever rights it had in respect of the property.

The appellee contends further that the Commission was not a formal party to the abandonment proceedings before the order of the lower court permitting the Commission to intervene as a party for the purpose of appeal, which order was passed after the order for abandonment. The argument ignores both the substance of the proceedings and the appellee’s own position therein. In his petition for abandonment, the appellee listed the Commission as one of the bodies corporate interested in the proposed abandonment. Pursuant to the prayer of the petitioner, the show cause order was duly served upon representatives of the Commission. The Commission filed its partial approval and partial disapproval of the proposed abandonment in the proceedings and, through counsel, presented its arguments to the court before the passage of the Order for Abandonment. For all essential purposes, the Commission had been made a party to the proceedings by the appellee, and acted as a party. “Where there is compliance with the substance of the requirements of statutes or rules and the other parties have not been prejudiced, technical irregularities cannot be made the basis for depriving persons of the opportunity to assert their legal rights.” Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 61, 225 A. 2d 294 (1966), and cases therein cited. A party, on appeal, may not object to an alleged improper joinder of a party when the joinder was made by the complaining party in his original action. Sieling v. State Roads Comm’n, 160 Md. 407, 414-15, 153 Atl. 614 (1931). Under the circumstances, the order of the court below in granting the Commission leave to intervene may well have been superfluous. In any case, however, we hold that the Commission has a direct interest in the subject matter of the litigation and has standing to appeal.

II

The order of the lower court granting the abandonment for which the appellee prayed necessarily rested on the legal conclusion that no damage can be in any wise sustained by persons other than the petitioner by reason of the abandonment. The power of the court to pass the order, by the express provision of the abandonment provision, depended upon the correctness of that legal finding. In reviewing that conclusion, we deal, not with a common-law dedication and abandonment, but with the application of the explicit terms of the statute involved.

The statute was before the Court in Whittington v. Good Shepherd Evangelical Lutheran Church, 236 Md. 185, 202 A. 2d 751 (1964). Whittington involved an attempted abandonment of an alleged street which had been shown on a subdivision plat duly approved by the Commission and recorded in Prince George’s County. One of the questions involved was whether, under what is now section 12-32 (then section 308), the dedication became effective, without more, when the plat was recorded. The Court said:

“Section 308 clearly sets out that upon the recording of a plat the area designated in said plats as streets, roads, avenues, lanes, alleys and public parks shall be and the same are hereby declared to be forever dedicated to public use, meaning that upon approval of a subdivision plat for recording by the appropriate public officials such approval and subsequent recording of the plat constitutes a dedication and acceptance of the areas on the plat shown as streets, roads, avenues, etc.” 236 Md. at 192.

In answer to the appellants’ argument that a dedication even under statute is in the nature of a gift, and the intention to give and acceptance of the gift must be clearly shown, the Court said:

“We are unable to agree with this construction of the statute. Section 308, as repealed and reenacted by Ch. 693, Laws of Maryland (1957), states in unequivocal language that when a plat is recorded in compliance with those sections relating to recordation of plats, these portions of the land designated thereon as streets, roads, avenues, etc., shall be and the same are forever dedicated to public use and shall not thereafter be altered or taken for private use.” 236 Md. at 193.

The Court said further:

“We hold, therefore, that there was a statutory dedication and acceptance of the area in question known as 82nd Place at the time of the recordation of the plat.” 236 Md. at 194.

In Whittington, the lower court denied the petition to abandon, and, on appeal, that order was affirmed. The portion of the street there sought to be abandoned had not been paved, but the area involved had been used by the members of the appellee church as a way of access to the church property. Whittington, therefore, establishes the rule, which we affirm, that under the statute, the dedication to the public is complete and the interest of the public has vested when the subdivision plat is filed.¹ However, that case did not involve the question of whether there can be damage which prevents abandonment under a situation such as is here presented.

The possible damage here involved is not to any member of the public by reason of his use of the dedicated street, but is damage to the members of the public of the two-county District in their collective position as taxpayers. The first question presented, therefore, is whether the damage referred to in the abandonment provision pertains to taxpayers as such.

In Maryland, taxpayers have standing to bring suit to challenge the validity of a statute when the statute as applied increases their taxes. Murray v. Comptroller, 241 Md. 383, 391, 216 A. 2d 897, cert. denied, 17 L. Ed. 2d 55 (1966) ; McKaig v. Mayor and City Council of Cumberland, 208 Md. 95, 102-03, 116 A. 2d 384 (1955), and cases therein cited. The same principle which gives taxpayers the right to invoke the aid of a court to construe the statutory enactment which tbej attack as unconstitutional or otherwise invalid is applicable to the situation in the present case. It is immaterial that, in this case,, the alleged damage would be brought about by the action of a private party through his proposed abandonment of dedicated streets, rather than through the public enforcement of legislation. The streets were dedicated to the public, and if the public affected may have to pay increased taxes because of the abandonment, the abandonment must be disapproved.

The Commission contends that if the portions of the subdivision dedicated to public use were permitted to be taken by the appellee for private use, the Commission and the taxpayers of the Maryland-Washington Metropolitan District will sustain damage when the land is acquired for public use by the Commission for the proposed regional park.² The appellee argues that the word “damage” as used in the abandonment provision means actual or direct damage and that there is no such damage in this case.

The wording of the statute clearly evidences the legislative intent. Abandonment can only be ordered if "no damage can be in any wise sustained” (emphasis supplied). The test is not whether damage will be sustained, but whether it can be. That it is the possibility of damage which prevents the approval of a petition for abandonment is emphasized by the addition of the phrase “in any wise.” Under the strict, unequivocal test of the abandonment provision, if the abandonment could increase the amount which the Commission might have to pay for the land in which the dedicated streets are located, the taxpayers of the District would be damaged and the proposed abandonment must be disapproved.

When a parcel of land is dedicated as a street or for other public use, the owner of the land retains his fee simple interest, subject to an easement for the public. See Perellis v. Mayor and City Council of Baltimore, 190 Md. 86, 57 A. 2d 341 (1948) ; Slear v. Jankiewicz, 189 Md. 18, 26, 54 A. 2d 137 (1947), cert. denied, 333 U. S. 827 (1948), and cases therein cited. See also 50 Opinions of Attorney General 94 (1965). Here, the public easement effected by the recording of the subdivision plat is for the public use of streets. Section 12-32 conjoins land dedicated by such plats for streets and roads with land similarly dedicated for public parks or squares. However, we assume, arguendo, that the dedicated portions of the land here involved can only be used for streets. The streets have never been paved or opened, and the land on which they are located is to be acquired and used for a public park, so that any future use of the streets, as such, is at best conjectural. Nevertheless, the existence of the easements cannot be ignored.

One test of whether the public might be injured through the proposed abandonment is whether, in the subsequent condemnation proceedings, the Commission would be entitled to an instruction that in assessing the damages for the taking of the portion of the appellee’s land on which the dedicated streets •are located, the jury may consider in their evaluation the fact that the public easement exists. Such an instruction, in our opinion, would be proper. See Moale v. Mayor and City Council of Baltimore, 5 Md. 314, 322-23 (1854). The instruction could properly include a reference to the fact that the streets had never been paved or used, but this factor goes to the value •of the easement, not to its existence. Under such an instruction, the jury in its inquisition, might consider the easement to be of little if any value, but we cannot say that no value would be given it. The possibility, at least, exists that without the abandonment the amount of the inquisition would be less than if the abandonment had been previously effected. If the abandonment is granted, therefore, the amount of the inquisition may he higher, resulting in a greater burden on the taxpayers. That possibility, under the strict provision of the statute, is sufficient to prohibit the approval of the abandonment.

The original owner of the subdivision dedicated the streets for public use as a proper step for the enhancement o.f the value ■of his property. The appellee acquired the land a few months after the adoption of the Master Plan, which designates the •proposed park. The creation of the park may well enhance the ■value of the appellee’s remaining land,³ and the abandonment which he asks, to which the Commission objects, may be an advisable step, from his point of view, in the development of the portion of his property which will not be condemned. These considerations are immaterial. It is to the protection of the public interest acquired by the original dedication to which the legslative enactment looks, and when, as here, it cannot be said that the proposed abandonment cannot damage that interest, through the payment of increased money for the acquisition of the land for the park, the abandonment cannot be approved.

Motion to dismiss appeal denied; judgment reversed; costs to be paid by appellee.

1 . In Pope v. Clark, 122 Md. 1, 89 Atl. 387 (1913), the appellant, Pope, had purchased two lots in the subdivision of Otterbourne in Montgomery County. A plat of the subdivision had been duly recorded by the owner of the subdivision under a provision of the Montgomery County Public Local Laws similar to Section 12-32 of the statute before us in the present case. Pope improved his lots and filed a bill for an injunction against the appellees who were the owners of all the other lots in the subdivision. The appellees had installed a sewer system in the subdivision, at their expense, below the surface of streets shown as dedicated in the recorded subdivision plat. The sewers were not laid in the half of the streets upon which Pope’s lots directly abutted, and none of the sewers was laid within the line of his deeds. The Circuit Court for Montgomery County sustained the appellees’ demurrer and dismissed the bill, on the ground that the bill did not show there was such impending damage to Pope’s property rights as to authorize the granting of the relief prayed. This Court affirmed the order on the ground stated by the court below. It was said in the opinion that the mere recording of the plat did not make the streets public highways and that the record did not show any acceptance of the streets by the county. The decision rested on the ground that Pope had shown no impending damage, and we regard the statement as to the necessity of acceptance as only dictum. Pope v. Clark was not referred to in the Whittington case. To the extent that the statement in Pope may be regarded as in any way inconsistent with the holding in Whittington, that statement was impliedly overruled by the later decision. The cases relied on for the statement in Pope dealt with common-law dedication, whereas, as Whittington makes clear, the dedication effected by the filing of the plat was under "the express provisions of the statute.

Moreover, in the present case, the appellee did not contend in his pleading that the dedication of the streets effected by the filing of the plat was ineffective. On the contrary, he filed suit for •abandonment under the same provision of the statute as provides ■that the dedication to the public is complete upon the filing of the plat, and, in his petition, asked leave of the court to abandon the streets as well as the other portions of the subdivision plat. In the brief on appeal, the appellee concedes that subsequent to condemnation, the Commission would have to abandon the streets of record in order to use the property as a park. If the dedication had not become effective upon filing of the plat, no such abandonment would be necessary.

2 . In the oral argument, it was stated, without contradiction, that after the order appealed from condemnation proceedings for the land involved had been instituted by the Commission.

3 . In condemnation proceedings, the general rule is that the jury should not consider either increase or diminution in value because of the public project for which the condemned property is acquired. Big Pool Holstein Farms, Inc. v. State Roads Comm’n, 245 Md. 108, 117, 225 A. 2d 283, 288 (1967), and authorities therein cited.