Callaway v. Forest Park Highlands Co. of Baltimore City

• Decision Date: 31 March 1910
• Citation: 77 A. 141,113 Md. 1
• Parties: CALLAWAY v. FOREST PARK HIGH LANDS CO. OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

77 A. 141

113 Md. 1

CALLAWAY v. FOREST PARK HIGH LANDS CO. OF BALTIMORE CITY.

Court of Appeals of Maryland

March 31, 1910

Appeal from Superior Court of Baltimore City.

Action by Frank H. Callaway against the Forest Park Highlands Company of Baltimore City. A demurrer to the declaration was sustained, and plaintiff appeals. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.

T Rowland Slingluff, for appellant.

Richard B. Tippett and J. Royall Tippett, for appellee.

THOMAS J.

This is an action of ejectment to recover a lot of land and right of way alleged to be partly in Baltimore City and partly in Baltimore county, and the appeal is from a judgment on a demurrer to the declaration in favor of the defendant.

The deed for the property is set out in full in the declaration and is as follows:

"This deed, made this 14th day of May, in the year 1903, by and between George R. Webb and Mary C. Webb, his wife, of Baltimore City and the state of Maryland, as parties of the first part, and Frank H. Callaway, of said city and state, party of the second part, witnesseth: That in consideration of the sum of five dollars, the receipt of which is hereby acknowledged, the said George R. Webb, and Mary C. Webb, his wife, do grant and convey unto the said Frank H. Callaway, his heirs and assigns, all that right of way and parcel of ground situate partly in Baltimore City and partly in Baltimore county, and described as follows:

"Beginning for said right of way at a point on the south side of the Baltimore and Liberty turnpike road, being the intersection of the south side of said turnpike road with the center line of Granada avenue, an avenue, to be laid out, said point being 600 feet north 62~ 20' west along the Liberty road from the intersection of the south side of said turnpike road with the center line of Oakfield avenue as now existing; thence along the center of Granada avenue south 27~ 40' west 1,992 and 2-10 feet with an even width of 3 feet and a depth below the grade of Granada avenue as now established of at least 2 1/2 feet at all times during its course, until it intersects the south side of Forest avenue as existing; thence south 17~>> 13' west 1,171 1/2 feet along the center of a proposed avenue with said even width of three feet and depth of 2 1/2 feet to a point, being the intersection of said center line with the center line of another proposed avenue; thence along the center of said proposed avenue 75~ 31' west 757 1/2 feet with said even width of 3 feet and depth of 2 1/2 feet, to intersect the east side of a lot of ground sold to the improvement company and described as follows: Beginning for the same at a stone in the outline of the whole tract of land known as Oakfields where the said outline would be intersected by a line drawn southeasterly from the southeast side of Forest avenue parallel with Liberty turnpike rod and 2,940 feet southwesterly therefrom; and running thence north 17~ 13' west 115 feet to the center line of the right of way for the sewerage system heretofore granted; then still north 17~ 13' west 85 feet to a stake; thence south 75~ 31' west 200 feet to a stake; thence south 17~ 13' east 273 feet to a fence; thence along said fence north 55~ 24' east 209 1/10 feet to the place of beginning, containing one acre of land more or less. Being the same lot of ground which was described in a deed dated the 19th day of March, A. D. 1903, and recorded among the land records of Baltimore City prior hereto, from the United Land and Improvement Company of Baltimore City to George R. Webb. The mention of streets and avenues herein is for the purpose of description alone and not for dedication. Together with the buildings and improvements thereupon erected, made or being, and all and every the rights, ways, waters, privileges and appurtenances and advantages thereto belonging or in any wise appertaining.

"To have and to hold the above-granted right of way and lot of ground, together with the rights and appurtenances aforesaid, unto and to the proper use and benefit of the said Frank H. Callaway, his heirs and assigns, in fee simple forever. Subject, however, to the terms and conditions of the agreement entered into by Fielder C. Slingluff et al., trustees, and the United Land and Improvement Company of Baltimore City, a copy of which agreement is attached to the deed from the said Fielder C. Slingluff et al., trustees, to the United Land and Improvement Company of Baltimore City, dated August 15th, 1901, and recorded among the land records of Baltimore City in liber R. O., No. 1916, folio 296, etc.

"And the said George R. Webb and Mary C. Webb, his wife, do hereby covenant that they will warrant specially the lot of ground and right of way hereby intended to be conveyed, and that they will execute such further assurances of the same as may be requisite."

The agreement referred to in the deed, and filed as a part of the declaration, is between the trustees under the will of Frances Slingluff, deceased, of the first part, and the United Land & Improvement Company of Baltimore City, of the second part, and provides that "the parties of the first part agree to sell, and the party of the second part agrees to buy, the following described right of way for the purpose of laying a system of sewerage known as the 'Septic System,"' which right of way as described as in the deed, "and the following described acre of land for the purpose of constructing thereon the necessary buildings and tanks to said sewerage system," which land is described as it is in the deed. The agreement further provides as follows: "And the said party of the second part agrees to pay therefor the sum of five hundred dollars ($500) immediately upon ratification by the circuit court of Baltimore City of the trustees' report of sale of the above-described right of way and parcel of land. And the party of the second part further agrees with the parties of the first part that the parties of the first part, for themselves, their successors in said trust and assigns, shall have at all times the right to tap and enter, for purposes of drainage, and all other purposes for which said pipes may be used by the party of the second part, the pipes to be laid down in the right of way hereby sold to the party of the second part; and the right of entry into, and tapping of said pipes shall belong to the entire property of the parties of the first part, known as 'Oakfields' and situate partly in Baltimore City and partly in Baltimore county, as an easement running with the land, and shall extend as such to all persons or corporations who...