67 Md. 60 | Md. | 1887
delivered the opinion of the Court.
This was an ejectment brought by the appellee against the appellant for the recovery of a strip of land, being the one-half of the bed of “Henry street,” between “ Winder street” and “Wells street,” as those streets are laid down on “Poppleton’s plat” of the City of Baltimore. “Henry street,” however, was never actually opened by the city as a street, or used as such, and had been in fact closed by order of the City Council and rejected as a street before the institution of this suit. The land on both sides of Henry street, as laid dowm on Poppleton’s plat, (where the land sued for lies,) belonged to Alexander Gould, Senior. By his will he gave it to trustees, with power to sell in whole, or in lots, as they thought best, and to open such streets as they thought proper. The plaintiff in this action, (the appellee) is, by decree of the Circuit Court of Baltimore City, the legitimate successor to the trustees named in the will, who have either died or resigned. The originally appointed trustees sold to J. Alexander Pres
By the well established law as laid down in White vs. Flannigain, 1 Md., 525, and Moale vs. Mayor, &c., of Balto., 5 Md., 314, and Hull vs. Mayor, &c., of Balto., 56 Md., 188, the deed to Preston, by calling on the street, operated as a covenant that the grantee should have a permanent right to use the street as such. In fact, by so calling on a street laid out on the public plat of the city made by due authority, there is a dedication by its owner of the. use of such street by the public as a street. The owner may retain the fee by a description which does not cover the street, and does not convey it to the grantee; but such fee is burdened with the easement which the deed gives, by necessary implication, in calling for the street; and the easement is confined to a use of the street for the purposes of a street. When that is abandoned entirely, as and for a street, by the public and the grantee, if the road-bed has not been conveyed, the unrestricted rights of the grantor will revive; and the implication spoken of will interpose no obstacle to a recovery of possession by the grantor of the abutting lots, from the grantee thereof, if he has appropriated the road-bed to his individual use as his property. As we have already seen, the street which was mentioned in Preston’s deed has been abandoned by the city with the acquiescence of the appellant who has been paid for the injury he was supposed to sustain by the closing of the street between his lots.
If therefore, the deed to Preston does not convey the street-bed, to the center thereof, the Court committed no
The ordinary presumption is, that a conveyance of land bordering on a highway, carries the fee to the centre of the highway, so that the question always is, whether the description of the deed is such as to repel this presumption, and exclude the road-bed from the operation of the conveyance. Mr. Angell, in his work on Highways, sec. 314, says, “ whether the soil passes or not, is purely a question of intention, to be ascertained in each case from the description contained in the deed, explained and.illustrated by all the other parts of the conveyance, and by the localities and subject-matter to which it applies.”
The same author in section 315, (3rd Edition,) says it may he stated “as a fair conclusion from the authorities, that a grant of land described as.bounded generally ‘by ’ or ‘on’ or ‘along’ a highway,carries the fee to the centre of the highway, if the grantor owns so far; and on the other hand, when the descriptive words are ‘ by the side of,’ or ‘by the margin of,’ or ‘by the line of,’ or expressions equivalent thereto, the soil of the highway is excluded.” Chancellor Kent states the law in the same way; and this Court, in Peabody Heights Co. vs. Sadtler, 63 Md., 533, laid down the law in accordance with the view of those distinguished authors. This rule of construction, however, and of determining the question of intention on the part of the grantor, has not uniformly obtained; but in some of the States, stronger language, indicative of intention, is required to rebut the presumption of intent to grant the way as a part of the fee sold. But this Court having emphatically adopted the view of Chancellor Kent and Mr. Angelí as a fair deduction from the weight of authority, it will not he necessary, or profitable, to review the cases cited from other States by the counsel for appellant, and relied on as containing the better law.' We see no- reason to depart from the view
The argument of appellant’s counsel was in reality against the soundness of the policy adopted in the decision in Sadtler’s Oase, and a contention that sound public policy did not justify adherence to the doctrine of Chancellor Kent and Mr. Angelí adopted in Sádtler’s Case. Public policy, it was contended, had induced a contrary view to prevail in many other places, and it was submitted that serious inconvenience and most unexpected results would follow in the City of Baltimore from adherence to the principles settled in Sadller’s Case. Such results may occur in some cases, but it will be because the parties to deeds have not taken the precaution to protect themselves, as was done by the appellant when it took its second deed direct from the trustees. AVe have been able to see no good ground for retracing our steps, as being contrary to sound public policy. We have been
No objection was made to the plaintiff’s prayer granted by the Court below, other than to the principles of law which it declared. From what we have said, it is apparent that we think there was no error, and the judgment of the Court below must be affirmed.
Judgment affirmed.