85 Md. 537 | Md. | 1897
delivered the opinion of the Court.
The Patapsco Company was incorporated by the Legislature of Maryland in the year 1853. It was authorized by its charter to buy, sell and improve land in Anne Arundel County. In the exercise of the power thus conferred it became the owner and entered into the possession of a large tract of land in said county, opposite the city of Baltimore. Part of this land was laid out in town lots and a plat thereof was made showing thereon certain streets and avenues and a public square, which square contained about fifteen acres, which the plaintiffs claim was dedicated to public use, and especially for the use of themselves as owners of lots and their successors in title. The name of the proposed town, as appears by the map, was to be “ Brooklyn.” It was also spoken of as the “ City of Brooklynbut except in name, it never became either a town or city, and the project of the Patapsco Company appears to have utterly
It will be seen from the foregoing statement that there is but one question involved — whether the land which is designated as a public square has been dedicated to public use. We have already set forth with sufficient fullness-the facts on which the plaintiffs rely in their bill to establish a dedication, and we will now state those on which the defendants rely to show there never was any such dedication of the square either by the Patapsco Company, its predecessor in title or by itself.
The first and most important fact relied on by the defendants is that on the 14th July, 1858, the Patapsco Company, which it is conceded then owned the square in question, unless theretofore dedicated, made a contract with a corporation known as “The Brooklyn Company,” by which the former agreed to lay out on a part of its land a town to be called “ Brooklyn,” and prepare a plat thereof from a lithographed plat then existing, divided into lots of certain sizes and to grant to the Brooklyn Company the privilege of purchasing a certain number of- said, lots on terms therein set forth. That agreement contained the following provision : “ The Brooklyn Company may fence in the public square to be located on the proposed plat, as now shown on the lithographed plat, and may plant and embellish the same with walks, trees, &c., and may erect thereon any temporary improvements at its own expense, and such improvements to belong to the Brooklyn Company, and may be removed at any time before July 1st, 1866, at which date all exclusive rights of the Brooklyn Company as to said square shall cease, and the square be vested jointly in the contracting parties hereto for such uses and purposes as they shall agre'e.” This agreement was duly acknowledged and recorded on the 6th October, 1858, among the Land Records of Anne Arundel County. As we have already seen, the
We do not understand that there is any question made as to the fact of these conveyances, although they are not before us in this record, but the difference arises as to their legal effect — the plaintiffs contending that they could not operate to recall or destroy a dedication made before they were executed, and the defendants claiming that neither before nor after the execution of the agreement between it and the Brooklyn Company was any dedication made, and bases its claim of absolute ownership on the true construction of that agreement, as well as on the subsequent conveyances above mentioned.
The law involved in this.case is well-settled. It has been always held in this State and elsewhere that whether a dedication to the public has been made depends in every case upon the intention of the parties, and. this, whether dedication is claimed by acts in pais, by.solemn conveyances of record, or by judicial proceedings. And it is also as well settled that such intention to dedicate must be established by clear, satisfactory and unequivocal testimony. Thus it has been held that, although a presumption arises that a dedication was intended by reason of the conveyance of land binding on the sides of a street, yet this presumption will be rebutted by the execution of a subsequent deed by the same grantor to the same grantee of the bed of the street. And, therefore, when the street was actually opened by the city of Baltimore, it was compelled to pay substantial damages. Hall v. M. & C. C. of Balt, 56 Md. 187. And so in Pitts' case, 73 Md. 326, it is said that the inten
It is claimed by the plaintiffs that the alleged dedication was effected by the laying of the square on the map, by the sale of lots in accordance with and with reference to said map and by representations made by the agents of the Patapsco Company that the streets and square, as they appeared on the map, should be enjoyed by the purchasers of lots. Now, it may be conceded that if there were any owners of lots who purchased under such circumstances and without notice of the contents of the agreement between the Patapsco and Brooklyn Companies, they would have a standing in a Court of Equity. But what is the evidence ? We have already seen that on the 6th of October, 1858, the agreement just mentioned, under which the defendant company claims it was impossible there could be any presumption of an intention to dedicate, was placed upon record. It seems to us that, in the face of the language of that agreement, the strength of the defendants’ position cannot be denied. From its date, 14th July, 1858, the Brooklyn Company was to have exclusive control of the square, with the privilege of planting trees, making walks and. erecting at its own expense any temporary improvements, which could be removed before July 1st, 1866, when the ground called “ The Square ” vested jointly in the two companies, for such uses as they should mutually agree. If this be a valid contract, as it undoubtedly is, then from the time it was placed upon record it was constructive notice to all the world that, so far from the square
Some effort was made to prove sales of. lots within the time — that is before October, 1858, and the direct question was asked Mr. Templeman, the most intelligent and best informed witness who was examined, if he had any memo
The so-called “ Prospectus and Diagram ” which was issued by Mr. Templeman was also relied on as evidence to show a dedication in 1878. It stated that a public square of fifteen acres had been reserved for settlers. It is without date, and it does not appear when it was issued, but it was stated in argument that it was first circulated in 1878 or 1880 after the bridge was made free. But, as we have already said, no act of the Patapsco Company alone could, after the recording of the agreement, result in a dedication. The testimony shows that this circular was an effort of Mr. Templeman, who was then and still is the secretary of the Patapsco Company. It is true he says that both companies were cognizant of his action to the best of his knowledge. But there is no evidence that either company authorized him to print or distribute the paper in question. Under these circumstances this evidence cannot be accepted as satisfactory and conclusive proof. Who and where are the settlers — settlers after 1878 — who are claiming to have
There is some other testimony as to dedication and as to inducements, but none of it is so cogent, persuasive and full as to destroy all reasonable doubt of the intentions of the owners to dedicate.
While some of the acts of the parties would tend to show an intention to dedicate, yet in view of all the circumstances of the case, and especially in view of the recorded agreement, we think the parties never intended to relinquish their claim to the land in dispute, and at the most they intended only a conditional dedication, an instance of which it was said in White v. Flannigain, 1 Md. 543, will be found in Howard v. Rogers, 4 H. & J. 278, where the ground was given for a public square upon the implied condition that the seat of government would be moved from Annapolis to Baltimore— and the condition not having been fulfilled it was held there was no dedication. Doubtless if the city or town of Brooklyn had ever existed anywhere except on the map, the dedication here claimed would have become complete, and the owners of the ground would have been glad to waive all their claims in favor of the public. Dedication by user was disclaimed at the hearing, although some reliance is based upon this view in appellee’s brief. The evidence, however, in regard to user is very unsatisfactory, and we think the position was properly abandoned.
It follows that the decree appealed froni must be reversed.
Decree reversed and bill dismissed.