McCormick v. Mayor of Baltimore

45 Md. 512, 1877 Md. LEXIS 9

• Court: Court of Appeals of Maryland
• Decided: January 24, 1877
• Status: Published

Opinion

Alvby, J.,

delivered the opinion of the Court.

These cases arise as between, the city, proceeding to condemn the way for opening Washington street, and the lot owners on the sides thereof, owning to the centre of such street, from Monument street north to a point near Eager street.

It is claimed by the city, and has been so adjudged by the Court below, that the bed of the street thus proposed to be opened, between the points mentioned, has been heretofore dedicated to public use as a street, and therefore the lot owners are not entitled to more than nominal damages on the condemnations taken.. Whether this be so or not is the only question presented, or, at any rate, is the only question that need be decided on these appeals.

As the city makes the claim to exemption from real or substantial compensation for the land taken for the street, by reason of the alleged previous dedication to that purpose, it is incumbent upon it to establish clearly and beyond doubt, that such dedication has been made, and that too to the extent claimed.

The principles of the law of dedication would seem now to be pretty well defined, though not so until within comparatively recent times. It is now settled that it is not essential to a complete dedication that the legal title should pass from the owner, nor that there should be any grantee of' the easement in esse to take the fee ; nor is it necessary that there should be a deed or writing in order to evidence the dedication ; hut if the owner of the land has done such acts in pais as amount to a dedication, he is thereby estopped from denying that the public have a right to enjoy what is thus dedicated to its use, or from revoking what he has declared by his acts. City of Cincinnati vs. White, 6 Pet., 431. And in the case of a clear act of dedication, as for a street, it is not essential to the validity of such act, that the space thus dedicated should, at once, be used by the public for that purpose, or that it should he so used within any limited time, in the absence of any condition to that effect. Barclay vs. Howell, 6 Pet., 504-5 ; Washb. on Eas., (3rd ed.) 195. Whether there has been an acceptance of the dedication on the part of the public, or such long adverse user as to give rise to the presumption that the public have abandoned the right, are different questions, and which do not arise in this case.

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. 2 Hill. Munc. Corp., sec. 499, and cases there cited. The evidence of such intention is furnished in various ways; but as dedication will be presumed where the facts and circumstances of the case clearly warrant it, so that presumption may be rebutted, and altogether prevented from arising, by circumstances incompatible with the supposition that any dedication was intended. 2 Sm. L. Cas., 95. As one of the modes by which dedication may be evidenced, if a street be designated on a plat made by authority, or by the party hiiñself, as passing over certain lands, and the owner subsequently conveys lots fronting or binding on such street, he remaining the owner of the fee in the bed of the street, this is held to be a dedication of the land, over which the street passes, to the public use, and on opening the street, the owner of the fee will be entitled to nominal damages only as compensation. Wyman vs. Mayor, &c., 11 Wend., 486; Livingston vs. Mayor, &c., 8 Wend., 85 ; Matter of Lewis St., N. Y., 2 Wend., 472; United States vs. Chicago, 1 How., 196; Irwin vs. Dixon, 9 How., 30, 31; Washb. on Eas., (3rd ed.) 202. In such case, the sale and conveyance of lots, so bounded upon the street, in the plan of the town or city, imply a grant or covenant to the purchaser, that the street thus indicated and called for shall be and remain forever open to the nse of the public, free from all claim or interference of the proprietor of the estate therein, inconsistent with such use. It is supposed that the existence of the street, either present or prospective, entered into the consideration of the purchase, and thus the grantor of the lot or lots sold has been compensated for the public use of the street; and is, therefore, estopped to make further claim for such use as against- the public. Rowan vs. Town of Portland, 8 B. Monroe, 282, 237; White vs. Flannigan, 1 Md., 540, 542; Moale vs. Mayor, &c., 5 Md., 321; Hawley vs. Mayor, &c. of Baltimore, 33 Md., 270. It is upon this principle that the city claims in this case.

The claim that the bed of Washington street, between the points heretofore mentioned, has been dedicated to public use, has its foundation in the proceedings for the partition of the real estate of the late James McCormick, Jr. who was the father of James M. McCormick and Mrs. Webster, the present appellants. James McCormick, Jr. died seized of a considerable parcel of real estate, which was bought of the City Bank of Baltimore in the year 1823, and located within the limits of the city; and as the streets were mapped out on the plat of the city, this parcel of real estate extended from Wolf street on the west to Gist street on the east, and from a line near Eager street on the north to a line beyond Monument street on the south. The partition was made by Commissioners in 1843, and the report of the Commissioners was finally ratified by the Court in 1846. This report was accompanied by a plat of the land divided, showing the lines of division, and that the division had been made with reference to the streets as delineated on the map of the city. According to the division thus made, the land on both sides of Washington street, as then designated on the map, was divided into squares or lots, which were made to run to and bind upon the centre of the street; the designated street being seventy feet wide. At the time of this partition, none of the streets mapped out on the plat of the city, and running through this land, had been opened or used north of Monument street; and in order to provide ways for the use of the lot owners, the Commissioners laid out roads ten feet wide, to run along the centre of the unopened streets. In their report they say, “We do award and allot to the lots and lot owners in this division, on that part of the land before mentioned and conveyed by the City Bank of Baltimore to James McCormick, Jr. and lying north of Monument street, the right of way along the centre of any of the streets not yet opened, by a road or way ten feet wide along the centre thereof, within the whole property, so as to communicate with east Monument street, until other ways or roads are opened.”- By the original partition, lots Nos. 4 and 6 on the west, between Monument and Chew streets, and binding with the centre of Washington street, were allotted to William L. McCormick, one of the heirs of the deceased, and lot No. 7, also on the west, and binding with the centre of Washington street, between Chew and Eager streets, was allotted to John P. McCormick, another of the heirs ; and lots Nos. 9 and 10 on the east, between Madison and Eager streets, and binding with the centre of Washington street, were allotted to James M. McCormick; and lot No. 11, also on the east, between Monument and Madison streets, and binding with the centre of Washington street, was allotted to Mrs. Webster. Since the partition, James M. McCormick has purchased from his brothers, William L. and John P. McCormick, lots Nos. 4, 6, and 7, so that he is now owner of the west half of the bed of Washington street from Monument to Madison, and of the entire bed of that street from Madison to a line near Eager street. The deeds for lots Nos. 4, 6 and 7, the one dated in 1845, and the other in 1847, define and describe the lots by reference to the plat filed in the proceedings for partition, and call to run northerly with the centre of Washington street. The bed of the street, between the points before mentioned, has been enclosed and cultivated for the last thirty years, and has never been used as a public street or way.

In such state of case, has there been a dedication of the bed of Washington street to public use, in such manner as to preclude the owners thereof from claiming and receiving full compensation therefor upon condemnation by the city? In view of the principles heretofore stated, we think clearly not. A party should not be deprived of his property without compensation, unless there has been some clear and decisive act of dedication.

Here, the mere partition gave rise to no such result. The streets, though unopened and unused, were delineated on the public plat of the city, and were therefore convenient and proper land-marks in the division of the land among the heirs of the deceased. There was no part of the land assigned to the use of the street, and there is nothing to indicate an intention either on the part of the Commissioners making the partition, or the proprietors of the land, before or after partition, that the land, within the bed of the street, should be treated and regarded as dedicated to public use. There was no covenant or agreement, either express or implied, among the heirs, that such should be the case ; but, on the contrary, the provision in the report of the Commissioners, for the temporary use of ways along the centre of the streets, until other ways were opened, clearly negatives the idea of dedication. Why such a provision, if the entire street was dedicated to the public use? Why limit the lot oioners to the use of ways ten feet wide, along the centre of the streets, if the entire street as designated on the city plat was intended to be a public way or thoroughfare, without compensation to the owners of the land? The reference to the streets, and the rights intended to be enjoyed therein, and by whom, are fully explained by the Commissioners in their report of partition; and where such is the case, no presumption of dedication will arise. Barraclough vs. Johnson, 8 Adol. & Ell., 104.

(Decided 24th January, 1877.)

And as to the operation of the deeds from William L. and John P. McCormick to James M. McCormick, it is very clear, we think, that they did not effect a dedication of the street to public use. They conveyed the right of the grantors in the bed of the street, and whatever that right was the grantee is entitled to insist upon it. We have said that the proceedings in partition did not effect a dedication as against the grantors ; and as there is nothing in the deeds to show that the parties designed to do more than simply refer to the boundaries of the lots as laid down on the plat of partition, subject to the right of way as provided in the Commissioners’ report, it follows that the grantee in these deeds stands precisely as his grantors stood before the deeds were made. Indeed, his position, in respect to the property conveyed by the deeds, is not distinguishable, in point of principle, from that of Moale in respect to lot No. 9, in the case of Moale vs. Mayor, &c. of Baltimore,.5 Md., 314, 323. In that case, inasmuch as Moale had acquired a complete title to lot No. 9, though it was described in the deed under which he claimed as forming a part of the bed of east Biddle street, the Court said that he was just as much entitled to he compensated for it, when taken for the use of the street, as would have been the original proprietors of it, in the absence of all previous dedication. And it was there held, that the true rule for assessing compensation to the owner of a lot lying on the bed of an unopened street, was to value the land taken for the street, precisely as if no such street was to he opened over it. And thinking the appellants here so entitled for their land in the bed of Washington street, proposed to he taken, we shall reverse the judgments appealed from, and remand the causes for new trials.

Judgments reversed, and new trials awarded.