Sanderson v. Mayor of Baltimore

109 A. 425, 135 Md. 509, 1920 Md. LEXIS 11

• Court: Court of Appeals of Maryland
• Decided: January 13, 1920
• Status: Published

Opinion

Burke, J.,

delivered the opinion of the Court.

In 1875 the Circuit Court of Baltimore City, in a cause pending therein, entitled the Citizens National Bank of Baltimore v. The Chesapeake Mutual Land and Building Association et al., passed a decree appointing Robert D. Morrison and others receivers of about one hundred and twenty-five acres of land in fee known as Highland Park now lying in that part of Baltimore City known as Walbrook. On the 23rd of March, 1875, the Court authorized and directed the receivers to sell this land in parcels or otherwise. The rer ceivers caused an extensive plat of the property to be prepared upon which streets and avenues were drawn or projected and named, and this plat was filed in the cause.

The receivers proceeded to make sale of the lots shown on the plat. The sales made were reported to and finally ratified by the Court. In some of the deeds to the purchasers the streets and avenues laid down on the plat were mentioned in the description, and in other instances references were made to the serial numbers of the lots. A number of these lots came into the possession and ownership of Summerfield Norwood, the uncle of the appellee on this record. Among the streets and avenues shown upon the plat were two called Highland avenue and Twelfth street. Highland avenue is now known as Mondawmin avenue and Twelfth street as Dennison street, but their original names will be used in this opinion.

After the death of Summerfield Norwood a proceeding was instituted in 1895 in the Circuit Court of Baltimore City by his heirs and devisees for the sale of all the land of which he died seized, and the Court in due course appointed Coorge R. Willis, Edward C. Eichelherger and James Pollard, trustees to make the sales. They sold the property hereinafter described to Missouri N. Sanderson, the appellee in this case. The sale was reported to the Court and was finally ratified, and the purchase money paid. Thereupon the trustees conveyed. to Mrs. Sanderson, the purchaser, the following described lots:

“All those nineteen lots of ground (being a part of the aforesaid real estate) and situated in Baltimore City, in the annexed portion thereof, and State of Maryland, and thus described: Beginning for the first eleven of said lots, viz: Lots Nos. 108 to 118, inclusive, at the intersection of the east side of Twelfth street with the north side of Highland avenue, and running thence easterly bounding on the north side of highland avenue three hundred and seventeen feet to the southwest corner of Lot No. 119; thence north bounding on Lot No. 119 as laid out on the sales plat of Highland Park hereinafter referred to, one hundred and fifty feet to the south side of an alley twenty feet wide; thence westerly bounding on the south side of said twenty feet alley, with the use thereof in common, three hundred an<l seventeen feet to the east side of Twelfth street; and thence south bounding on the east side of Twelfth street one hundred and fifty feet to the north side of Highland avenue, the place of beginning. Being and comprising Lots 108 to 118, inclusive, as laid down and designated on the sales plat filed with the report of sales, filed in these proceedings in the above entitled cause, and being also so laid down and designated on the sales plat of Highland Park filed and recorded in the case of the Citizens National Bank of Baltimore vs. The Chesapeake Mutual Land and Building Association et al., in the Circuit Court of Baltimore City, in Liber J. R. B. No. 179, folio 239, etc. And beginning for the remaining eight of said lots of ground, viz: Lots Nos. 97 to 104, inclusive, on the south side of Chesapeake avenue at the distance of one hundred and seventeen feet easterly from the intersection of the south side of Chesapeake avenue with the east side of Twelfth street; and running thence easterly bounding on the south side of Chesapeake avenue two hundred feet to the northwest corner of Lot No. 105 as laid down and designated on said plat; thence south parallel with Twelfth street and bounding on Lot No. 105, as laid down and designated on said plat one hundred and fifty feet to the north side of an alley twenty feet wide; thence westerly bounding on the north side of said twenty feet alley, with the use thereof in common with others, two hundred feet to the southeast corner of Lot No. 96, as laid down on said sales plat, and thence north parallel with Twelfth street and bounding on the east side of said Lot No. 96 one hundred and fifty feet to the south side of Chesapeake avenue, the place of beginning. Being and comprising Lots 97 to 104, inclusive, as laid out and designated on the sales plat filed with trustees’ report of sales filed in these proceedings in the above entitled cause, and being also so laid out and designated on the sales plat of Highland Park above referred to.”

In 1906 Mrs. Sanderson built a comfortable and commodious dwelling house at the northeast corner of Hig;hland avenue and Twelfth street on the land first described in the above mentioned deed. Before the dwelling could be erected it was necessary to obtain a permit from the Building Inspector of Baltimore City, and to have the grade of the streets established. These requirements were complied with. Application for the permit was made on the 19th of September, 1906, and at the top of the application was printed the following in red ink: “The builder or owner must have the street lines established by the city engineer before starting work. Should the building not conform with the street lines the owner will be required to remove any and all encroachment beyond the side lines.” The permit was issued October 5, 1906.

In 1914 the city began the grading of Highland avenue', and in 1916 completed its work on this avenue, and after-wards graded Twelfth street, between Highland, avenue and Piedmont avenue. This grading inflicted serious loes upon the plaintiff’s property, and, on August 9, 1918, she sued the Mayor and City Council of Baltimore to recover compensation for this injury. The first count, which is a lengthy one, contained the following allegations as to the effect of the grading upon the plaintiff’s property:

“In August, 1917, the defendant, without any legal proceedings for the condemnation or opening of Twelfth street between Highland and Chesapeake avenues, or of Highland avenue between Twelfth and Eleventh streets, or of either of them, and without any right or color of right, save and except the supposed dedication of said Twelfth street and said Highland avenue by virtue of the recording of said plat by the receivers and the sale of lots of said SummerfLeld Nor-wood and others referring thereto, and without any prior acceptance of said supposed dedication by any competent municipal authority, proceeded to enter upon the bed of said Twelfth street, between Highland avenue and Chesapeake avenue, and upon the bed of said Highland avenue, between Twelfth street and Eleventh street, and to tear up and destroy the surface thereof, and to cut down and grade the same to a grade very much, to wit, thirty feet, below the surface of the surrounding land, and in such grading and as a consequence thereof to cause portions of the abutting land to subside and fall into the street, and leaving the plaintiff’s residence on a high and unsightly bluff or cliff, rendering her abutting land virtually inaccessible, and altogether inaccessible by carriages, horses or motor vehicles, and wholly destroying and rendering impossible the private road or way constructed and maintained by her as aforesaid through the bed of what would have been Twelfth street to Chesapeake avenue. The home on which the plaintiff has lavished her care and attention for twelve years, in which she has had a pardonable pride, and which she has come to love as the centre and symbol of her family ties, has been rendered unsightly and scarcely habitable. Said Highland avenue, now known as Mondawmin avenue, is an ugly canon or gully between two cliffs or precipices of earth and stones, thirty feet in height, and said Twelfth street, in front of the plaintiff’s said land is in the same condition. Said streets as so wrongfully constructed by the Mayor and City Council of Baltimore afford no access to the land of plaintiff or of other persons abutting on said Highland avenue, between Twelfth and Eleventh streets, and on said Twelfth street, between Highland avenue and Chesapeake_ avenue, but are wholly destructive of any reasonable access to the said property. The plaintiff’s dwelling house and residence constructed as aforesaid upon the level of the land as existing at the time of the recording of said plat cannot be reached by her except by á flight of steps which she has been obliged to construct so steep as to amount virtually to a ladder. The plaintiff is wholly without means of entering upon her said land with horse-drawn vehicles or motor vehicles, and is unable to bring supplies into her said residence except by said steep flight of steps. Said streets as so graded and constructed are wholly destructive of the objects and purposes of any dedication as offered to be made by the recording of said plat as aforesaid, and that the said streets constitute no reasonable means of access to the abutting property, but are barriers to access to the abutting property.”

The second or amended count is a connt in trespass quare clausum fregit, and is based upon the contention, which the plaintiff offered evidence to support, that the city in grading the streets did not confine its work within their proper limits. The trial resulted in a verdict and judgment for the plaintiff for five hundred dollars, although she offered evidence tending to prove that the damagp to her property amounted to ten thousand dollars. The appeal before us was taken by the plaintiff from that judgment.

The uncontradioted evidence tends to support the allegations of the narr. with respect to the destruction of the plaintiff’s ingress and egress to and from her property. Howard B. Tffstin, a surveyor and civil engineer, testified that, “a.t the intersection of the building line of Dennison street and Mondawmin avenue othe cut is 15.7 feet from the surface. Going east on Mondawmin avenue at the next, point I have-marked, the cut is 23.8 feet from the surface; and at the east end of Mrs. Sanderson’s frontage on Mondawmin avenue, it is 30.2 feet; on Dennison street, beginning at the northernmost outline of the property, the cut is 14.1 feet and the next place I have made the measurement it is 17 feet.”

. Mrs. Sanderson testified that immediately after the cut was made on Twelfth street she had to- construct a ladder to get into the property. That that was the only means of getting in or out; that her husband was obliged to carry the coal up in boxes; that before the grading was done there was a stable on the property at the corner of an alley and Twelfth street, with access to the stable through the alley; that the stable was undermined at one corner and had to be- taken do-wn; that the alley is, now inaccessible at either end, — at one end the cut is 15 or 16 feet, and at the other perhaps 30 or 33 feet.

The legal effect of the deeds from the receivers worked a dedication of the avenue and streets laid down or projected upon the plat filed in the receivership case to which reference has keen made. Indeed, we do not understand that this is seriously disputed, hut it is contended that the nonuser of the public of the streets and avenues united with the adversary possession of Summerfield Norwood of Highland avenue and Twelfth street fronting his property extinguished the public easement before the streets were accepted by the city. It is true that there is found in the record evidence of such adverse possession by Norwood, but, assuming that the public use was thus extinguished before the city accepted the streets and that the city cannot now rely npon the dedication created by the acts and deeds of the receivers, it would seem, to be quite certain that Highland avenue and Twelfth street were dedicated to public use by the deed of the trustees to Mrs. Sanderson above referred to. We have set out the descriptions of the lots conveyed by that deed, and it appears that the property conveyed is said to bind on Highland avenue and Twelfth street. That deed was executed on the 18th of September, 1897, and the plaintiff, after the grades had been established, erected her dwelling house on a portion of the land conveyed. She cannot now be heard to question the dedication or the right of the city to accept the streets, and thus convert the public easement into public streets or highways of the city. The questions involved have been settled by a long line of decisions in this Court. White v. Flannigain, 1 Md. 525 ; Flersheim v. Baltimore, 85 Md. 489 ; Baltimore v. Browmel, 86 Md. 153; Baltimore v. Frick, 82 Md. 77; Richardson v. Davis, 91 Md. 390; McCormick v. Baltimore, 45 Md. 512; Canton Co. v. Baltimore, 106 Md. 69.

In the last cited case Judge Schmuckeb, speaking for the Court, announced the doctrine as follows: “It is now universally held that an intention to dedicate land lying in the beds of streets to public use will be presumed where its owner makes a plat of the land on which the streets are laid down and then conveys it in lots described as bounding on the streets or by reference to their numbers on the plat from which it appears that they do in fact bound on the street. In such cases there is, in the absence of language showing that no dedication was intended, an implied covenant that the purchaser shall have the use of the streets on which his lots bound, from which a dedication of the streets to public use is held to arise. White v. Flannigain, 1 Md. 540; Moale v. Baltimore, 5 Md. 321; Hawley’s case, 33 Md. 280; McCormick’s case, 45 Md. 523; Tinges’ case, 51 Md. 600; Pitts’ case, 73 Md. 326; Baltimore v. Frick, 82 Md. 83. But the dedication of such streets to public use resulting from their conveyance in the manner mentioned does not become final and irrevocable until there has been an acceptance of it on the part of the public authorities.”

In Broumel’s case, supra, it is said: “It is perfectly well settled in this State that a mere dedication is not, of itself, sufficient to establish a highway which the local authorities are bound to deal with as a thoroughfare. The owner of land cannot- by merely making a plat of it and designating streets thereon, force the public authorities to assume control over it as a, highway. If he could do so he might subject the county or the city to intolerable burdens and compel the construction and maintenance of expensive roads which the public convenience did not require. In. addition to a dedication there must be an acceptance by competent authority, and such an acceptance may ordinarily be evidenced in one of three ways, viz: by deed or other record; by acts in pais, such as opening, grading or keeping the road in repair at the public expense; or by long continued user on the part of thei public. * * * It is perfectly true as decided in Frick’s case, 82 Md. 83, that a dedication may be complete without acceptance, and that in the absence of any condition there need be no user within a particular period; but however complete the dedication may be as against the party making it, the road or street so dedicated does not become a public thoroughfare over* which the public authorities may exert ownership or control, or which they can he compelled to keep in repair until they have seen fit to accept it. Ror will mere lapse of time, without more, he sufficient evidence of abandonment. A street once dedicated may he abandoned or it may never he accepted.”

Seventeen years after Mrs.. Sanderson acquired title to the land the city accepted the streets, and, so far as Mrs. Sanderson is concerned, there are no facts or circumstances in the case to prevent the acceptance. The city was not obliged to accept in a limited time. McCormick's case and Broumel's case, supra. It is true, as stated in Baldwin v. Trimble, 85 Md. 396, and in Whittington v. Crisfield, 121 Md. 387, that facts and circumstances may exist in a particular case sufficient to work an equitable estoppel against a municipality, hut none such are found in this case.

At the conclusion of the whole case the Court instructed the jury that no legally sufficient evidence had been offered to entitle the plaintiff to recover under the first count of the declaration, and directed the jury to find for the defendant under that count. The granting of this prayer raises the most important question in the case. The Court, evidently took the view that there was no taking of the plaintiff’s property, and that under the familiar doctrine declared in a long lihe of decisions in this State.“that as against a municipal corporation in the careful exercise of its right and power to grade and improve public streets or roads, and where there is no taking or actual physical invasion of property, there can he no cause of action for an unavoidable injury done” (De Lauder v. Baltimore County, 94 Md. 1), it denied a recovery under the first count of the declaration. It is declared by Section 40, Article 3 of the Constitution that: “The General Assembly shall enact no law authorizing private property to he taken for public use, without just compensation as agreed upon between the parties., or awarded by a jury, being first paid or tendered to tbe party entitled to such compensation.” This section of tbe Constitution quoted does not define property, nor does it declare what shall be a talcing. It leaves those questions to the determination of the courts upon the facts of each particular ease. Garrett v. Lake Roland R. R. Co., 79 Md. 277; Baltimore v. Bregenzer, 125 Md. 78.

We have stated above the nature and extent of the injury caused to the plaintiff’s property. It has resulted in the practical destruction of access to her property, and we are of opinion that, under the principles declared in De Lauder’s case, supra, and in Walters v. B. & O. R. R., 120 Md. 644, the injury amounts to or is equivalent to the talcing of private property without making just compensation therefor to the owner. It follows from the views expressed that it was error to have granted the defendant’s 1% and second prayers. There was no error in refusing the plaintiff’s first, one and a half, second, third, fourth, sixth and seventh prayers. We do not understand why, upon the theory upon which the case was tried, the plaintiff’s fifth prayer was refused or the defendant’s t-hird prayer was granted, hut we would not regard the rulings upon those prayers as reversible error as tbe right of recovery predicated upon the facts stated in the plaintiff’s fifth prayer was preserved in the defendant’s one and a half prayer. We do not find it necessary to.discuss the prayers, hut the Reporter will set them out in the report of the case. An examination of them in the light of the views we have taken of the case will show the grounds upon which we have disposed of them.

Judgment reversed with costs, and new trial awarded.