Armiger v. Lewin
| Decision Date | 29 April 1958 |
| Docket Number | No. 227,227 |
| Citation | 141 A.2d 151,216 Md. 470 |
| Parties | , 69 A.L.R.2d 1230 John Warfield ARMIGER et al. v. John Henry LEWIN and Baltimore County, Maryland. |
| Court | Maryland Court of Appeals |
John B. Garvey, Jr., Baltimore, for appellants.
Edmund P. Dandridge, Jr., Baltimore, for John Henry Lewin.
William E. Hammond, Reisterstown (Francis T. Peach, Walter R. Haile, and Richard C. Murray, Towson, on the brief), for Baltimore County.
Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ., and JAMES MACGILL, Special Judge.
John Henry Lewin (Lewin) is the owner of an eight acre tract of land fronting on Malvern Avenue in Ruxton. John Warfield Armiger and Jean Stark Armiger, his wife (the Armigers), own a one acre lot bordering on Lewin's eastern boundary. The titles to both properties were derived from the same source, Grace Ward Levering (the common grantor), who had formerly owned both parcels of land. The common grantor conveyed the larger tract to Lewin in 1942. In 1948 the Armigers acquired the smaller lot from other parties who had received a deed therefor from the common grantor. When Lewin acquired title to his land, there was a driveway along the eastern boundary thereof running from his residence to Malvern Avenue. This driveway has always been used by the occupants of the house on the Armiger lot. The use was formally created by the terms of a reservation in the deed from the common grantor to Lewin, which provides, in part, that:
'The party of the first part [Grace Ward Levering] hereby reserves for herself, and for her heirs and assigns of a parcel of land * * * wholly covered by a brick building, which parcel of land [now owned by the Armigers] is located adjacent to the easternmost side of the premises hereby conveyed [now owned by Lewin] and is part of a larger parcel of land designated as Lot No. 6 on the * * * plat made a part hereof * * *, for so long as a period as * * * [the] brick building, or any dwelling replacing the same, shall be continued to be used only as a single family dwelling, right of way, for the purpose of affording ingress and egress to and from * * * [the] brick building * * *, over that portion of a driveway located on the premises hereby conveyed * * * and which extends from said Malvern Avenue to a place where a branch of said drive-way * * * enters * * * Lot No. 6 immediately opposite the * * * brick building.' (Emphasis added).
The deed also contained a covenant for joint maintenance of the driveway referred to therein. A plat showing the complete subdivision of all the land of the common grantor in the vicinity was recorded simultaneously with the deed. The plat clearly outlined the private way in controversy.
Lewin had made plans which have been approved by the proper authorities of Baltimore County for a small development of his land which would subdivide his entire tract into seven lots, two of which constitute his residence, adjacent gardens, and lawn, and five of which are lots he contemplates selling for home building purposes. The approved plans call for a three-foot widening of that portion of the existing driveway nearest Malvern Avenue and its use by the purchasers of the five lots to be sold. The plans, necessarily, contemplate the continued use by the Armigers of the whole of their right of way for ingress and egress to and from their lot to Malvern Avenue, although that portion of the right of way which is to be widened will become a public street by virtue of a dedication thereof to Baltimore County.
The Armigers filed a bill against Lewin and Baltimore County for a declaratory decree construing their rights, status, and other legal relations with respect to the right of way, and for an injunction to enjoin its contemplated dedication. Subsequently, they moved for summary judgment on the ground that there was no genuine dispute as to any material fact. Both Lewin and the County filed demurrers, which were sustained by the chancellor. The Armigers appealed from a final decree dismissing the bill of complaint after the motion for summary judgment had been denied and the demurrers had been sustained.
The sole question presented is whether the owner of a servient estate may dedicate to public use that portion of his land over which the owners of a dominant tenement have a right of way. The Armigers insist that their easement will be destroyed by the proposed dedication, but Lewin and the County contend that the dedication will be subject to the Armigers' rights of ingress and egress. The Armigers assert that only an owner with an 'unencumbered' fee simple title can dedicate his land, but Lewin urges that he can make any use of his land which will not unreasonably interfere with the right of passage of the Armigers to and from their land.
The authorities are all but silent on the question which confronts us in this case. In the sections on dedication in 11 McQuillin, Municipal Corporations (3d ed. 1950), Secs. 33.12-33.21, and 1 Elliott, Roads and Streets (4th ed. 1926), Secs. 158-161, there are discussions of 'who may dedicate,' but there is no mention of the issue in this case. Tribble v. Dallas Ry. & Terminal Co., Tex.Civ.App.1929 13 S.W.2d 933, is cited in 26 C.J.S. Dedication § 7, as authority for permitting the owner of a servient tenement to dedicate his land, but no other cases are cited. And the effect of the Tribble case is somewhat mitigated, for one reason, by the fact that the plaintiffs were estopped from enjoining the construction of a street car line on the street since they had permitted the public to use it for many years.
The Armigers rely primarily on City of Sarcoxie v. Wild, 1896, 64 Mo.App. 403, as authority to reverse the decree of the chancellor. In that case, in which the servient owner had dedicated an easement to the municipality as a public way, the dominant owner refused to countenance the dedication, and deliberately obstructed the way to prevent public use. He was indicted, tried, and convicted. On appeal the intermediate court of appeals held that the deed from the dominant owner reserving an easement vested it in him, and that the owner of the fee held the same subject to the encumbrance.
The Wild case was a criminal proceeding, and we are not persuaded that the law therein enunciated is applicable to the facts presented in the instant case. Moreover, it is clear that the four cases relied on by the court in the Wild case are not authority for holding that the owner of a servient tenement cannot dedicate his land to the public. In Kyle v. Town of Logan, 1877, 87 Ill. 64, the owner of the land had blocked off a road. He was prosecuted on the theory that the road had been dedicated to public use by prior owners. It was held that there had been in fact no prior dedication, and therefore the road was not a public one. In Ward v. Davis, 1850, 5 N.Y.Super. 502, 3 Sandf. 502, the owners of land formed an association and appointed directors to manage, improve, and dispose of it. Subsequently, they conveyed the land in fee to trustees. It was held that since the whole title was held by the trustees, the directors could not dedicate the land to public use without the consent of the trustees. City of Hannibal v. Draper's Heirs & Admrs., 1865, 36 Mo. 332, involved merely the question of whether a proposed dedication had been accepted by the city. The last case cited in the Wild case, McShane v. City of Moberly, 1883, 79 Mo. 41 involved an attempted dedication of a mortgagor of the land conveyed to a mortgagee by a mortgage. Although each of those cases stated that only an owner of an absolute fee can dedicate property, none of them involved a situation where the owner of a fee subject to an easement dedicated his property subject to the rights of the holder of the easement.
The case of McLean v. Thurman, 1954, 273 S.W.2d 825, also relied on by the Armigers, is not material....
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...when the offer is accepted by the donee, the dedication is limited by those conditions and restrictions. Armiger v. Lewin, 216 Md. 470, 477, 141 A.2d 151, 69 A.L.R.2d 1230 (1958). When the owner of land makes and records a plat in which streets are laid out and thereafter sells lots as boun......
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Table of Cases
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