Mayor of Baltimore v. Fear, 82 Md. 246

82 Md. 246 | Md. | 1896

Roberts, J.,

delivered the opinion of the Court.

This case was tried before the Baltimore City Court on appeal from the finding of the Commissioners for Opening Streets in said city, and this appeal arises on the action of the lower Court in granting certain instructions of the appellee, and in refusing certain of those of the appellant. There is but one question in the record for us to consider, and that relates to the alleged dedication of that portion of Myrtle avenue (now Walbrook avenue), which extends from Fulton avenue to Pulaski street. The facts are few and simple. The appellee was the owner of a tract of land through which Myrtle avenue was partly opened by him and certain improvements in the matter of grading, paving and kerbing were made by him.- This work, begun in 1891, was continued to 1894, and up to within a short time of the commencement of the condemnation proceedings by the city. Some of the lots binding on said street the appellee sold and leased under certain deeds, the first of which he executed about the time that he commenced to open said street, and continued to make such conveyances to April, 1895. Before proceeding to develop his land, the appellee got from the City Commissioner the grade of Myrtle avenue that he might be enabled to get the same on a level with any street the city should bring in contact with it. The appellee has built and leased houses fronting on this street, and the Gas Company has run its pipes through the street to light the houses binding thereon, and the street has city gas lamps to light it, and milk wagons, coal carts and doctors’ carriages and other vehicles drive over it for the accommodation of the residents of the houses binding thereon. That in every deed or lease made by the appellee he has caused to be inserted the following covenant: “The mention and reference to Myrtle avenue in the above description is intended solely and only for the purpose of description of the described property, and is not intended in anywise to be a dedication of said street for the public use or as a public highway.”

The taxes for the bed of Myrtle avenue have been continuously paid by the appellee up to the date of condemnation by the appellant. Save the testimony of experts as to the value of the land, the aforegoing constitutes all the material testimony in the record. There is but one exception in the record, which is taken by the appellant to the granting of the appellee’s first prayer as amended by the Court, and the granting of the appellee’s second prayer, and to the refusal by the Court to grant the appellant’s first, second and third prayers.

The argument before the Court and upon the brief of the appellant relates solely to the refusal of the Court to grant its three prayers. But independently of this fact, we are very clearly of the opinion. that the principles of law announced in the first and second prayers of the appellee are entirely free from objection, and that the Court’s amendment to the first prayer gave to the appellant a fair and liberal construction of its rights and certainly all that it was, under the circumstances, entitled to receive.

The Court correctly refused the appellant’s first prayer and for manifest reason. This prayer asked the Court to instruct the jury that, “ from the statements of the property-holder, Boston Fear, made on the stand, which the city accepts, the bed of Myrtle avenue, here being condemned, has been dedicated to public use, and that therefore the said Boston Fear is only entitled to nominal damages therefor.” This Court has so frequently declared the principles of law which ought to prevail in cases of dedication vel non, that we do not deem it necessary at this time to enter upon any extended discussion, of the general doctrines relating to this subject.

We will, however, refer to a few of the decisions of this Court in which the question-of intention has been discussed, for the reason that the intention of the appellee, as applied to the use of the bed of Myrtle avenue, is the only matter of consequence on this appeal. The late Mr. Justice Irving, delivering the opinion of this Court in the case of Glenn v. Mayor, &c., of Baltimore, 67 Md. 400, said: “This Court has repeatedly held that whether a dedication of a street or road was effected in any case, depends entirely upon the intention of the parties in each particular case ; and that one of the methods of ascertaining the intention is by fairly considering all the circumstances surrounding the transaction and subject-matter. Mayor, &c., of Baltimore v. White & Shipley, 62 Md. 362; McCormick v. Mayor, &c., of Baltimore, 45 Md. 512; Hawley v. Mayor, &c., of Baltimore, 33 Md. 270-80.” Again in the case of Pitts v. Mayor, &c., of Baltimore, 73 Md. 332, the late Mr. Justice Miller, delivering the opinion of this Court, said: “ It has been decided by this Court in a number of cases, that in order to make out a dedication, 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.” To the same effect are the cases of the Mayor, &c., of Baltimore v. White & Shipley, 62 Md. 362; McCormick v. Mayor, &c., of Baltimore, 45 Md. 512; Hawley v. Mayor, &c., of Baltimore, 33 Md. 270, and a long line of authorities of other States.

Whilst the use of land is frequently acquired for the benefit of the public by dedication, such acquisition must not rest upon light and fragmentary proof, but must be founded upon substantial facts. Applying the aforegoing principles to the testimony of the appellee, there can nowhere be found in the record any proof to sustain the appellant’s contention as stated in its first prayer. There is no pijoof in the record which establishes the fact that Myrtle avenue was used by anyone, save such as attended upon the wants and conveniences of the persons who had bought or leased land from the appellee abutting on said avenue. It is a well-recognized principle in the law applicable to this subject, that when there is a dedication of land, it must be for the benefit of the public and not for a particular portion of it.

(Decided January 8th, 1896.)

It is contended by the appellant that the clause inserted by the appellee in the various conveyances executed by him, for the lots abutting on Myrtle avenue, did not have the effect of indicating on the part of the appellee an intention not to dedicate. The conveyances were executed and duly recorded, and each contained the clause hereinbefore stated. And whatever may have been the intention of the appellee in requiring said clause to be inserted in said conveyance, -it is very clear that he was not hiding his “ protest in his breast,” but was, so far as said conveyances could be made to accomplish his purpose, proclaiming the fact that the mention and reference to Myrtle avenue was intended solely and only for the purpose of description, and not in anywise to be a dedication of said streets for the public use.

If the testimony in the record of this appeal could be construed to mean a dedication of the bed of Myrtle avenue, there would be few cases in which the appellant would be required to pay more than nominal damages for the bed of any street; a most convenient method of acquiring property, but one not to be commended.

In what we have said in the discussion of the appellant’s first prayer we have practically and substantially disposed of the second and third prayers of the appellant, and further comment is unnecessary. We, in conclusion, think that the jury was properly instructed, and for the reasons assigned, affirm the rulings below.

Rulings affirmed with costs.