Hawley v. Mayor of Baltimore, 33 Md. 270

Hawley v. Mayor of Baltimore

33 Md. 270 | Md. | 1870

Brent, J.,

delivered the opinion of the Court.

As the appeals of Ilawley and others against the Mayor and City Council of Baltimore, and of the Mayor and City Council of Baltimore against Hiss, are included in one record and have been argued together, wo will dispose of them in the same opinion.

In the case of the Mayor and City Council against Hiss there is really but one question presented, and that is, to what extent has there been a dedication of the bed of Mosher street by the appellee Hiss ?

It is in proof that Hiss, being the owner of certain lands lying between Madison and Druid Hill avenues, offered at public auction, in 1866, certain portions of them marked out in lots upon a map or plat, which was placed by him in the hands of the auctioneer, and which was in all respects similar to the one filed in this case. Upon this map lots and streets are distinctly laid down, and among others Mosher is designated as one of the streets. It runs from Madison avenue across MeCulloh street to Druid Hill avenue. The lots advertised for sale, and described as being on Mosher street, are all between Madison avenue and MeCulloh street. As the bids at the sale were not satisfactory, the lots were withdrawn and no sale effected. Subsequently four of these lots, calling to bind on Mosher street, were disposed of at private sale. Judge Scott purchased one of them in trust for Mrs. Armstrong, and the map or plat referred to was put in his hands *280by Hiss at the time of the purchase, but there is no particular reference to it in the deed for that lot, nor is there any in either of the deeds found in the record. None of the dots South of McCulloh street have been sold or offered for sale. It is also proven, that there were fences across the designated line of Mosher street between McCulloh street and Druid Hill avenue, and so continued up to the time that the City proceeded to take the necessary steps to open it as a public street.

The law is now too well settled to admit of any doubt, that if the owner of a piece of land lays it out in lots and streets, and sells lots calling to bind on such streets, he thereby dedicates the streets so laid out to public use. This rule is founded upon the doctrine of implied covenants, and the dedication will be held to be co-extensive with the right of way acquired as an easement by the purchaser. It is upon the implied covenant in the grant to him that the dedication to public use rests, and such dedication must necessarily be measured by the limits of the right he has acquired by virtue of his grant. In the case before us the right of way or easement in Mosher street acquired by the purchasers of the lots mentioned in the proof is the precise limit of the dedication by Hiss. Over what portion of Mosher street then did their right of way extend ? We think they acquired by their several purchases the right of way from Madison avenue only to McCulloh street, as it is between those streets that their lots lie and bind on Mosher. The doctrine of implied covenants wil.1 not be held to create a right of way over all the lands of a vendor which may lie, however remote, in the bed of a street. The lands must be contiguous to the lot sold, and there must be some point of limitation. The true doctrine is, as we understand it, that the purchaser of a lot calling to bind on a street, not yet opened by the public authorities, is entitled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way. To this extent will the vendor be held by the implied covenant of his deed and no further. It is needless to review the *281several authorities cited in the argument upon this point, as we consider it settled by a decison of this Court in the case of Moale vs. The Mayor and City Council of Baltimore, 5 Md., 314. In that case the very question now before us was involved. Lots Ho. 3 and Ho. 9, both lying in the bed of Riddle street, were owned by Moale, and ho claimed substantial damages for them in the condemnation of land for the opening of that street. They were both purchased by him from the same person, who had before sold to Judge Frick lot Ho. 4. Lots Ho. 3 and Ho. 4 were between Cathedral and Decker streets, and lot Ho. 9 between Decker and Charles streets. This Court held in that case, that as lot Ho. 3 was purchased by Moale after the purchase by Judge Frick of lot Ho. 4, which called to bind on Riddle street, it was subject to the rights which Judge Frick had acquired by his previous purchase, among which was the right to the use of Riddle street as a street between Cathedral and Deelter. Only nominal damages were therefore allowed for lot Ho. 3. But lot Ho. 9, lying between Decker and Charles street, was held not to be included in the dedication, for the judgment below was reversed upon the ground expressly that the appellant, Moale, was entitled to receive substantial damages for its condemnation. Applying the doctrine of this case to the facts of the one before us, we must hold that there has been no dedication by Hiss of that part of Mosher street lying between MeCulloh street and Druid Hill avenue. We therefore think that the instructions of the Court below were correct, and that the dedication by Hiss was properly confined to that part of Mosher street which lies between Madison avenue and MeCulloh street.

In the appeal of Ilawley and others we find no error in the instructions given by the Court below. By the plain terms of the ordinance of the Mayor and City Council of Baltimore, approved the 3d of April, 1866, the Commissioners, whose duty it is to assess benefits arising from the opening of streets, are authorized in making such assessment to assess ouly the *282direct benefits. These are such as actually and substantially accrue to the property holder, and are to be made without reference to the costs and expenses of opening the street. The ordinance alluded to changed the old system of assessment, under which the benefits assessed were required to be so apportioned as to cover the whole amount of expenses incurred. Then each party assessed had an interest in the assessment of another, whether for benefits or damages. But under the present ordinance no such interest exists. Each assessment must stand upon its own merits. The benefits assessed are not required to cover the expenses of opening a street. So far as they may go they are to be appropriated to that purpose, but any deficiency in the amount is required by the express terms of the ordinance to be paid by the city. It is very clear if the assessment of another cannot increase or diminish the assessment of a party complaining, that he can have no interest to be subserved by asking an instruction from the Court submitting to a jury the question of that other’s assessment. That is precisely what was done by the prayers of the appellants, which were rejected by the Court below. Even if 'they had properly stated the law, in accordance with what we have said in the preceding part of this opinion, they could not have been properly granted. The assessment of benefits to the appellants rested entirely upon the actual and substantial benefits each one had received from the opening of the street in question, and so far as that assessment was concerned it mattered not what was the amount of damages allowed to Hiss.

(Decided 7th July, 1870.)

We are very clear, upon the construction of the ordinance alluded to, that the Court below correctly stated the law in the verbal instructions given -to the jury, and the judgment in this case, as well as in the case of The Mayor and City Council of Baltimore against Hiss, must be affirmed.

Judgments affirmed.