Canton Co. of Baltimore v. Mayor

• Decision Date: 19 December 1906
• Citation: Canton Co. of Baltimore v. Mayor, 65 A. 324, 104 Md. 582 (Md. 1906)
• Parties: CANTON CO. OF BALTIMORE v. MAYOR, ETC., OF BALTIMORE.
• Court: Maryland Court of Appeals

65 A. 324

104 Md. 582

CANTON CO. OF BALTIMORE

v. MAYOR, ETC., OF BALTIMORE.

Court of Appeals of Maryland.

Dec. 19, 1906.

Appeal from Circuit Court of Baltimore City; Henry D. Harlan, Judge.

Suit by the Canton Company of Baltimore against the mayor and city council of Baltimore.From a decree in favor of defendants, complainant appeals.Affirmed.

Argued before McSHERRY, C. J., and BOYD, PEARCE, SCHMUCKER, JONES, and BURKE, JJ.

R. E. L. Marshall and Arthur Geo. Brown, for appellant.Charles F. Stein and Joseph S. Goldsmith, for appellee.

JONES, J.This case involves the question as to the use and control of a lot of ground of which the appellant corporation claims the private ownership, and which the appellee, the city of Baltimore claims to be a part of one of its public streets, and, as such, dedicated to the use of the public.

The question was raised in the case by the application of the appellant for an injunction to restrain the appellee from removing a fence which the appellant, in assertion of its ownership of the lot of land in question, had erected thereon, so as to cause an obstruction to its use as a public highway.In its bill for an injunction, the appellant alleged that it was the owner in fee of a tract of land in the city of Baltimore, lying between a public highway known as "Alice Anna street" on the north and the Patapsco river on the south, and of all water rights and privileges appurtenant thereto; that for the more convenient use of said land it had laid out and opened upon and over said property a certain road or street, "beginning at and intersecting the south side of Alice Anna street, and running thence southerly at right angles to Alice Anna street with an even width of 45 feet through and over said land a distance of 272 feet, more or less, to said Patapsco river; said road or way forming a continuation through the land of the appellant south of Alice Anna street, of a certain street, known as 'Chester street,' which runs into and intersects the north side of Alice Anna street"; and that the said street or road was laid out wholly through the premises of the appellant"and solely for its own convenience" and used and "was graded, paved, and curbed" by it, "and has always been repaired and maintained at its own cost and expense."The bill then alleges the erection by the appellant of the fence already referred to, which it claims to be wholly on its own land and across the bed of the street in controversy, at the point of its intersection with the south side of Alice Anna street, and which was erected for the purpose of preventing public ingress and egress to and through its land; and that the authorities of the appellee had given it written notice to remove said fence, and had threatened in case of refusal to cause the same to be removed by the employés of the appellee at the expense of the appellant.It is charged the appellant's premises "will be seriously and permanently injured by the removal of said fence and the consequent opening" of appellant's property as threatened.Upon this bill a preliminary injunction was granted.The appellee answered the bill, admitting the notice to the appellant to remove the fence erected, as stated in appellant's bill, and avers that it was the duty of the appellee to cause the said fence to be removed because the street upon which it was erected, and which was described in appellant's bill, existed as a public street, and had so existed for more than 20 years, having been created and dedicated to public use considerably more than 20 years before, and had been accepted as such by the appellee.This, in substance, constitutes the appellee's defense to the appellant's bill.After replication to the answer, there was leave to take testimony, and quite a mass of evidence was submitted by the parties in support of their respective contentions.The question made upon the pleadings, as will be seen, is whether the land embraced in that part of what is known as "Chester street" in the city of Baltimore, which lies between Alice Anna street and the Patapsco river, as described in the appellant's bill, is the private property of the appellant and in its use as a road or otherwise, subject to the control of the appellant; or whether it exists as a public street or highway, and, as such, is subject to the control of the appellee.

This is the sole question which the parties to the controversy have made for the court other than those arising on exceptions to some of the evidence, and its decision depends entirely on the evidence properly in the cause.The appellee rests its claim to control over the road or street in question, first, upon an express dedication of the use of the same to the public as a highway; and, secondly, upon such dedication of the same arising from use by the public for more than 20 years, in such way as to establish it as a public street.It appears, as alleged in appellant's bill, that the street in question is a continuation of what is known as "Chester street," which runs north and south, and with this continuation crosses Alice Anna street, referred to in the bill, and runs to the waters of Patapsco river.That part of Chester street lying to the north of Alice Anna street, it is admitted, was long since dedicated as a public street; but the question of the express dedication of that part of the said street lying to the south of Alice Anna street is embarrassed by the physical conditions that appear to have existed in the locality thereof after the northern part of the street was in use as a highway.We...