Briscoe, J.,
delivered the opinion of the Court.
The questions in this ease arc presented on an appeal by the Mayor and City Council of Baltimore from an award and a judgment of inquisition rendered by the Baltimore City Court in favor of the Canton Company of Baltimore, the appellee here, in the matter of the condemning* and opening of Linwood avenue from Boston street to the waters of the Patapsco Fiver1, in Baltimore City.
The strip of land in controversy, is about sixty feet wide by three hundred feet long, and was condemned by the Commissioners for Opening* Streets under and by authority of Ordinance ISio. 284, of the Mayor and City Council of Baltimore, approved June 9th, 1913, which provided for its taking* and condemnation, for use as a public street.
The amount of damages awarded to the appellee, on appeal from the action of the Commissioners for Opening Streets to tho Batlimore City Court was increased from the nominal sum of five dollars to the sum of fifteen thousand dollars, and from this award and judgment, this appeal has been taken.
It is conceded, in the appellant’s brief, that the amount of the award of damages made by the inquisition, in the Court below, is correct and free from objection, if it be held under the hrw and the lads oi the ease that the appellee is entitled to more than nominal damages as ascertained by the Commissioners for Opening Streets.
The record is a voluminous one and contains a large amount of testimony bearing upon the various questions raised in the Court below. There are twenty-nine bills of exceptions, embracing the rulings of the Court in the course of the trial.
The main and controlling questions presented on the record, are: First, whether the land in question was ever dedicated or offered for dedication as and for a public street; second, assuming there was a dedication of the street to the public, by the Munson deed in 1846, was there ever an
acceptance of it by the municipality, and, third, whether the appellee is now or ever was the owner of the land in question.
It may be conceded, under the facts of this case, that the land in controversy was dedicated, as and for a public street by reason of the description contained in the map and deed from the Canton Company to Alfred Munson dated May 1st, 1846, as contended for by the appellant, but this alone would not constitute it a public highway.
In the recent case of
Whittington
v.
Commissioners of
Crisfield, 121 Md. 392, this Court said, following the rule established by a long line of decisions upon this subject, that a dedication of a public street to public use by the plats and deeds does not make the street a public highway. Such a deed does not become final and irrevocable until there has been an acceptance of it on the part of the public authorities.
McCormick
v. Baltimore, 45 Md. 524;
Kennedy
v.
Cumberland,
65 Md. 514;
Valentine
v.
City of Hagerstown,
86 Md. 488.
The evidence fails in this case 'to disclose any such acceptance by the municipality, the appellant here, of the land in question, as the law requires, and the Court below, we think, was entirely right, in finding upon the facts, that the appellee was entitled to recover substantial damages for the condemnation of the land for public purposes.
The Court’s instruction, in connection with the granted prayers, we think, stated the law, applicable to the case, as recognized by the authorities in this State. It is as follows:
“The Court declares the law, that notwithstanding the Court finds there was a dedication of the property in controversy by the deed from the Canton Company to Munson in 1846 and the plat of 1845, still if the Court, sitting as a jury, shall find from the evidence, that taxes were assessed upon and against the property in controversy, and were paid by the petitioner during the times mentioned in the evidence, viz: from 1876 to the present time, and shall further find that
from the year 1874 to the year 1896, the premises in controversy were occupied by a tenant of the petitioner, in the manner testified to by the witness AicCosker, and shall further find that from 1896 to 1901, the said premises were in the possession of the petitioner as owner thereof, and shall further find that from the year 1901 to the year 1912 the said premises were occupied by a tenant, of the petitioner, in the manner testified by tbe witness Bolide, and shall further find that in or about the year 1883, the premises were enclosed by a fence along Boston Street, having gates in it, and that said premises from the time of the erection of said fence to the present time, have been occupied by tenants or agents of the petitioner, and the said gates have been until recently opened by the permission of the petitioner or its tenants or agents, respectively, or for the prosecution of its or their business, and that said occupation by the petitioner and its tenants has been open, notorious, exclusive and adverse from 1874 to the commencement of the proceedings in this case against the defendant and every other person, and if’ the Court, sitting as a jury, finds that the purposes of right and justice require, then the defendant is estopped from asserting any right to said property, and the petitioner is entitled to substantial damages.”
The Court below, it will he seen, properly ruled for its own guidance as a jury, in its action upon the prayers, what facts it was necessary to' find in order 1o entitle the petitioner to recover in the case.
In
Kennedy
v.
Cumberland,
65 Md. 514, it is said, this is quite in accord with the practice in this State, in similar cases where the facts are controverted or in dispute. The Court in such cases leaves the finding of the facts to the jury with appropriate instructions as to their legal effect, according as the jury may find them to he. And there is good reason why this rule should be applied in cases like the present.
for if the question of acceptance or adoption
vel non
should be left broadly to the finding of the jury, it would follow' that the liability of a county or municipality would be left in uncertainty, depending upon the varying verdicts of different juries upon the same state of facts, instead of being, as it would be, settled and fixed by the law as described by the Courts.
In
Pope
v.
Clark,
122 Md. 9, it is said, “Hot only is an acceptance necessary, but it must be proved when express, by the .records, or it may be implied from repairs made and ordered or knowingly paid for by the authority which has the legal power to adopt the street or highway, or from long user by the public.”
State
v.
Kent Co.,
83 Md. 377;
Canton Co.
v.
Baltimore,
106 Md. 69;
Story
v.
Ulman,
88 Md. 246.
In the late case of
Baugh
v. Arnold, 123 Md. 7, it is sáid: “The law as established in this State,
Canton Company
v.
Baltimore City,
106 Md.
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Briscoe, J.,
delivered the opinion of the Court.
The questions in this ease arc presented on an appeal by the Mayor and City Council of Baltimore from an award and a judgment of inquisition rendered by the Baltimore City Court in favor of the Canton Company of Baltimore, the appellee here, in the matter of the condemning* and opening of Linwood avenue from Boston street to the waters of the Patapsco Fiver1, in Baltimore City.
The strip of land in controversy, is about sixty feet wide by three hundred feet long, and was condemned by the Commissioners for Opening* Streets under and by authority of Ordinance ISio. 284, of the Mayor and City Council of Baltimore, approved June 9th, 1913, which provided for its taking* and condemnation, for use as a public street.
The amount of damages awarded to the appellee, on appeal from the action of the Commissioners for Opening Streets to tho Batlimore City Court was increased from the nominal sum of five dollars to the sum of fifteen thousand dollars, and from this award and judgment, this appeal has been taken.
It is conceded, in the appellant’s brief, that the amount of the award of damages made by the inquisition, in the Court below, is correct and free from objection, if it be held under the hrw and the lads oi the ease that the appellee is entitled to more than nominal damages as ascertained by the Commissioners for Opening Streets.
The record is a voluminous one and contains a large amount of testimony bearing upon the various questions raised in the Court below. There are twenty-nine bills of exceptions, embracing the rulings of the Court in the course of the trial.
The main and controlling questions presented on the record, are: First, whether the land in question was ever dedicated or offered for dedication as and for a public street; second, assuming there was a dedication of the street to the public, by the Munson deed in 1846, was there ever an
acceptance of it by the municipality, and, third, whether the appellee is now or ever was the owner of the land in question.
It may be conceded, under the facts of this case, that the land in controversy was dedicated, as and for a public street by reason of the description contained in the map and deed from the Canton Company to Alfred Munson dated May 1st, 1846, as contended for by the appellant, but this alone would not constitute it a public highway.
In the recent case of
Whittington
v.
Commissioners of
Crisfield, 121 Md. 392, this Court said, following the rule established by a long line of decisions upon this subject, that a dedication of a public street to public use by the plats and deeds does not make the street a public highway. Such a deed does not become final and irrevocable until there has been an acceptance of it on the part of the public authorities.
McCormick
v. Baltimore, 45 Md. 524;
Kennedy
v.
Cumberland,
65 Md. 514;
Valentine
v.
City of Hagerstown,
86 Md. 488.
The evidence fails in this case 'to disclose any such acceptance by the municipality, the appellant here, of the land in question, as the law requires, and the Court below, we think, was entirely right, in finding upon the facts, that the appellee was entitled to recover substantial damages for the condemnation of the land for public purposes.
The Court’s instruction, in connection with the granted prayers, we think, stated the law, applicable to the case, as recognized by the authorities in this State. It is as follows:
“The Court declares the law, that notwithstanding the Court finds there was a dedication of the property in controversy by the deed from the Canton Company to Munson in 1846 and the plat of 1845, still if the Court, sitting as a jury, shall find from the evidence, that taxes were assessed upon and against the property in controversy, and were paid by the petitioner during the times mentioned in the evidence, viz: from 1876 to the present time, and shall further find that
from the year 1874 to the year 1896, the premises in controversy were occupied by a tenant of the petitioner, in the manner testified to by the witness AicCosker, and shall further find that from 1896 to 1901, the said premises were in the possession of the petitioner as owner thereof, and shall further find that from the year 1901 to the year 1912 the said premises were occupied by a tenant, of the petitioner, in the manner testified by tbe witness Bolide, and shall further find that in or about the year 1883, the premises were enclosed by a fence along Boston Street, having gates in it, and that said premises from the time of the erection of said fence to the present time, have been occupied by tenants or agents of the petitioner, and the said gates have been until recently opened by the permission of the petitioner or its tenants or agents, respectively, or for the prosecution of its or their business, and that said occupation by the petitioner and its tenants has been open, notorious, exclusive and adverse from 1874 to the commencement of the proceedings in this case against the defendant and every other person, and if’ the Court, sitting as a jury, finds that the purposes of right and justice require, then the defendant is estopped from asserting any right to said property, and the petitioner is entitled to substantial damages.”
The Court below, it will he seen, properly ruled for its own guidance as a jury, in its action upon the prayers, what facts it was necessary to' find in order 1o entitle the petitioner to recover in the case.
In
Kennedy
v.
Cumberland,
65 Md. 514, it is said, this is quite in accord with the practice in this State, in similar cases where the facts are controverted or in dispute. The Court in such cases leaves the finding of the facts to the jury with appropriate instructions as to their legal effect, according as the jury may find them to he. And there is good reason why this rule should be applied in cases like the present.
for if the question of acceptance or adoption
vel non
should be left broadly to the finding of the jury, it would follow' that the liability of a county or municipality would be left in uncertainty, depending upon the varying verdicts of different juries upon the same state of facts, instead of being, as it would be, settled and fixed by the law as described by the Courts.
In
Pope
v.
Clark,
122 Md. 9, it is said, “Hot only is an acceptance necessary, but it must be proved when express, by the .records, or it may be implied from repairs made and ordered or knowingly paid for by the authority which has the legal power to adopt the street or highway, or from long user by the public.”
State
v.
Kent Co.,
83 Md. 377;
Canton Co.
v.
Baltimore,
106 Md. 69;
Story
v.
Ulman,
88 Md. 246.
In the late case of
Baugh
v. Arnold, 123 Md. 7, it is sáid: “The law as established in this State,
Canton Company
v.
Baltimore City,
106 Md. 69, and elsewhere, is that the mere non-user of an easement even for more than twenty years will not afford a conclusive evidence of abandonment, but such non-user for a prescriptive period, united with an adverse use of the servient estate, inconsistent with the existence of the easement, will extinguish it.”
The record in the case not only fails to disclose any evidence legally sufficient to show any acceptance by the City of the street, but the assumed easement has never been used as a street from 1846, the date .of the Munson deed, to the present time, covering a period of over 67 years.
.The
locus in quo
Avas rented by the appellee, in 1874 to one McCosker, at an annual rental of $200, and from that time to 1896, a period of 22 years, the premises was used and occupied by the tenant as a shipbuilding yard, and the rent paid therefor.
The tenant McCosker, in 1883, built a fence along the line between the property in question and the south side of Boston street, and this fence was maintained by the appellee as the owner of the land from 1896, when McCosker moved away,
until 1901, when the premises were again rented as a shipbuilding yard to- one Rhode and occupied as such by him until 1913.
It is stated in the appellee’s brief, and supported by the proof, that from 1884 to- the present day the property in controversy has been enclosed on all three sides by fences, from Boston street to- the water front; and, in addition the owners and occupants on both sides of the property have recognized and assented to the use and occupation of the strip in controversy for private business purposes, by themselves leasing .a portion of their own properties in aid and furtherance of the prosecution of the business conducted in and about said .strip by the tenants of the Canton Company.
There has been no such user of the street by the public for the length of time required as would constitute it a public highway by prescription. On the contrary there has been a complete non-use of the easement either by the co-vantee or .any one else.
In
Vogler
v.
Geiss,
51 Md. 407, this Co-urt said: “A cesser -of the use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as an express release of the easement without any reference to time.”
Barnett
v. Dickinson, 93 Md. 267.
But apart from this, it appears from the records and plats of the Appeal Tax Court, that the City has assessed this property and collected taxes upon it since 1870, a period of more than thirty-eight years. The
locus in quo
was included in the land belonging to the Canton Company and assessed for taxation from 1876 to- the re-assessment of 1896, and that In 1896 the premises were assessed to the Canton Company as a separate lo-t, and taxes paid thereon upon an assessed valuation of $14,117 until 1913. In 1913, at or about the same time that the Commissioners for Opening Streets condemned the premises, for five dollars, the Appeal Tax Court re-assessed the
locus in quo,
and notified the Canton Company of their purpose to increase the assessment from :$14,117 to $25,308.
There is also evidence tending to show that the City, never at anytime or in any manner attempted to exercise control over the property. The premises were never paved or repaired, or that they were lighted or patrolled.
Apart from any other consideration, we think, the City,, under the facts and circumstances of this case, is estopped from now asserting any right to the property here in question, and from now accepting the assumed dedication.
Whittington v. Commrs. of Crisfield,
121 Md. 392;
Dillon, Municipal Corporations,
4th Ed., sec. 675.
There is no evidence to support the appellant’s contention, of want of title to the property, in the appellee, and as its title is sufficiently established by the evidence, we need not discuss this objection.
From the views we have expressed it follows there was no-reversible 'error in the rulings of the Court upon the prayers.
There were twenty-eight exceptions taken by the City, in the course of the trial, to the rulings of the Court, upon various motions and upon the admissibility of evidence. It is stated in the appellant’s brief that the disposition of the-questions raised by these exceptions will follow the ascertainment of a correct conclusion on the two main and controlling-questions in the case, and that the City’s case will be presented from that point of view rather than in detail with regard to each of the particular bills of exception.
We have examined these exceptions and do not consider it necessary to comment upon them, particularly or in detail. We find no reversible error on these rulings and what we-have said on the main questions presented by the record, is sufficient to dispose of them. The order and judgment of inquisition will be affirmed.
Ridings affirmed, with costs.