Canton Co. of Baltimore v. City of Baltimore

• Decision Date: 26 June 1907
• Citation: 67 A. 274,106 Md. 69
• Parties: CANTON CO. OF BALTIMORE v. MAYOR, ETC., OF BALTIMORE.
• Court: Maryland Court of Appeals

67 A. 274

106 Md. 69

CANTON CO. OF BALTIMORE v. MAYOR, ETC., OF BALTIMORE.

Court of Appeals of Maryland

June 26, 1907

On motion for reargument. Application refused.

For former opinion, see 66 A. 679.

SCHMUCKER J.

Since the handing down of the opinion in this case the appellee Baltimore City, has made a motion for a reargument, and has filed a carefully prepared brief in support of the motion. The reasons advanced by the brief for a reargument may be conveniently grouped under three heads, which are: (1) That some important matters which transpired at the trial below tending to prove a dedication of the square of ground in question to public use as a park by acts in pais or admissions, were not shown by the record; (2) that we did not correctly apprehend or give due weight to the evidence which appeared in the record tending to prove the dedication by implied covenants arising from deeds made by the Canton Company to sundry purchasers of lots from it; (3) that we erred in the conclusions of law at which we arrived.

We held in our opinion already filed that, under the plain decisions of this court from which we saw no reason to depart, the city was not entitled to maintain the present action of ejectment because it had no legal title to the land in controversy. Because of the importance of the case, and the thoroughness with which it had been discussed, we also expressed our views upon the legal sufficiency of the evidence to establish a dedication of the lot and the effect of the ripened adverse possession of the lot by the Canton Company long before any attempt at an acceptance of the alleged dedication had been made on the part of the public. After a careful consideration of the brief on the motion we see no reason to change our views on the want of right in the city to maintain the suit but in view of the labor and care bestowed by counsel upon the brief we will examine its leading propositions upon the other features of the case.

This appeal, like all others, must be determined by us upon the contents of the record. We are not at liberty to consider the alleged testimony of Bernard N. Baker touching acts in pais of the Canton Company tending to prove a dedication, said by the brief to have been introduced by the city at the trial below and stricken out by the trial judge on motion of the Canton Company, because neither that evidence nor any statement of its substance appears in the record, nor was there any application for a writ of diminution to supply it. The same observation applies to the other statements in the brief of what occurred or was said at the trial below which is not shown by the record. In deciding only the case put before us by the record, we furnish a precedent for such cases only as are sufficiently similar in facts to the one before us to justify a like application to them of the principles upon which we base our conclusions.

Turning our attention to the suggestion in the city's brief on the motion, that we were misled as to the true character and effect of the plats offered in evidence by it as tending, when taken together with certain deeds, to establish the alleged dedication of the square to public use, we will briefly review the contents of the record in that respect. Sundry deeds appear in record from the Canton Company of portions of its land which recite that the lots thereby conveyed are lots laid down on the Canton Company's plat. Copies of three plats were put in evidence by the city subject to exception on which the lands of the company are laid out in lots, and the square in question is shown as a public square. The deeds themselves make no mention of or reference to the square, nor do they contain a description of or identify the plat to which they refer, nor does the record contain any direct testimony connecting the plats or any of them with the deeds. The record shows a notice from the city to the Canton Company to produce at the trial below the plat known as "Sales Plat No. 1" of the company published about 1845, and said in the notice to have been referred to in numerous conveyances of the company after that date, and also the sales plat of the company published in 1853, and said in the notice to have been referred to in numerous conveyances of the company after that date. It does not appear by the record that any plats were produced by the Canton Company in response to that notice. Following the notice there appears in the record an agreement of counsel that the city might produce and use on its behalf, subject to all exception and objection that might be interposed to the use of the original as evidence, a blue print of the plat known as "Sales Plat No.

1," made about 1845, and also a copy of the plat of the Canton Company's property prepared in 1853 by William Dawson Jr. This agreement contains no admission at all that either of these plats was the one referred to in the deeds, relied on for the alleged dedication, nor are those deeds mentioned or in any manner referred to in the agreement. The trial judge asked the counsel whether it was admitted that the deeds referred to either of the two plats, and the counsel for the Canton Company replied: "We do not admit that they do, and we do not think that they do," and, after further colloquy, reiterated their refusal to admit that either of the plats was the one referred to by the deeds, although they admitted that they were Canton Company plats. The copies, mentioned in the agreement, of the two plats, were introduced by the city, subject to the exception above stated, but no evidence was offered to show that the company had published either of the plats, or recorded them in the public records, or exhibited them to the...