Canton Co. of Baltimore v. City of Baltimore

• Decision Date: 04 April 1907
• Citation: 66 A. 679,106 Md. 69
• Parties: CANTON CO. OF BALTIMORE v. MAYOR, ETC., OF CITY OF BALTIMORE.
• Court: Maryland Court of Appeals

66 A. 679

106 Md. 69

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

Court of Appeals of Maryland

April 4, 1907

Appeal from Superior Court of Baltimore City; George M. Sharp Judge.

Action by the mayor and city council of the city of Baltimore against the Canton Company of Baltimore. From a judgment in favor of plaintiffs, defendant appeals. Reversed, without new trial.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS JJ.

Edgar H. Gans and Arthur George Brown, for appellant.

Joseph S. Goldsmith and Albert C. Ritchie, for appellee.

SCHMUCKER J.

The appeal in this case is from a judgment in ejectment rendered by the superior court of Baltimore City in favor of that city against the Canton Company. The land described in the declaration is a lot or square of ground in Baltimore City forming a part of what is known as the "Canton Company's" land, and bounded by Canton avenue Lancaster, Patuxent, and Canton streets. The judgment is not for the property described in the declaration, but is "for an easement in the property described in the declaration, with exclusive right to the possession of the same for use as a public park." The city does not claim title to the square under any conveyance. It sues for the protection of an alleged incorporeal right or easement of the public to use the square as a park, upon the theory that there had been a dedication of it by the Canton Company to public use for that purpose.

Two bills of exception appear in the record; one to rulings on the admissibility of evidence, and the other to the court's action on the prayers. The two cardinal questions presented by the appeal are: First, whether there was an unrevoked dedication of or offer to dedicate the square to public use as a park at the time the city undertook to accept it; and, secondly, whether the present action of ejectment will lie at the suit of the city to secure to the public the enjoyment of the square as a park. We have come to the conclusion that the case must be reversed upon both of these propositions, and, as important public interests are involved in the issue, and the question of dedication was fully and ably discussed upon the briefs and in the argument before us, we will express our views upon both propositions in the order in which we have stated them.

The dedication of land to any public use is essentially a matter of intention. Certain dealings with property by its owner have been held to afford conclusive evidence of his purpose to make the dedication, but it is essential to establish the intention in every case. The principle of dedication rests largely upon the doctrine of estoppel in pais, and, while there are general rules applicable to certain lines of conduct on the part of the owner of the land, each individual case must, after all, be decided upon its own facts and circumstances. Baltimore v. Frick, 82 Md. 83, 33 A. 435. All of the facts in each case tending to show the intentions of the owner must receive due consideration, for, as was said in McCormick v. Baltimore, 45 Md. 524: "The evidence of such intention is furnished in various ways, but, as dedication will be presumed where the facts and circumstances of the case clearly warrant it, so that presumption may be rebutted and altogether prevented from arising by circumstances incompatible with the supposition that any dedication was intended." It is now universally held that an intention to dedicate land lying in the beds of streets to public use will be presumed, where its owner makes a plat of the land on which the streets are laid down, and then conveys it in lots described as bounding on the streets or by reference to their numbers on the plat, from which it appears that they do in fact bound on the street. In such cases there is, in the absence of language showing that no dedication was intended, an implied covenant that the purchaser shall have the use of the streets on which his lots bound, from which a dedication of the streets to public use is held to arise. White v. Flannigan, 1 Md. 540, 54 Am. Dec. 668; Moale v. Baltimore, 5 Md. 321, 61 Am. Dec. 276; Hawley's Case, 33 Md. 280; McCormick's Case, 45 Md. 523; Tinge's Case, 51 Md. 600; Pitts' Case, 73 Md. 326, 21 A. 52; Baltimore v. Frick, 82 Md. 83, 33 A. 435. But the dedication of such streets to public use resulting from their conveyance in the manner mentioned does not become final and irrevocable until there has been an acceptance of it on the part of the public authorities. Baltimore v. Broumel, 86 Md. 153, 37 A. 648; Valentine v. Hagerstown, 86 Md. 486, 38 A. 931; New Windsor v. Stocksdale, 95 Md. 212, 52 A. 596. In the last-mentioned case, we said that the acceptance of a dedication "may be evidenced in one of three ways, viz., by deed or other record, by acts in pais, such as opening, grading, or keeping the road in repair, or by long continued user on the part of the public."

While the authorities are agreed that streets or highways may be thus dedicated by their owners to public use, they do not agree as to the physical limits of the dedication. Some authorities hold that the streets mentioned in the deed or laid out on the plat are embraced in the dedication to the full extent that they are owned by the grantor. Other cases, among which are the decisions of this court, confine the dedication to a limited and restricted area. In Hawley v. Baltimore, 33 Md. 270, which may be regarded as the leading case upon that subject, it is said: "The law is now too well settled to admit of any doubt that, if the owner of a piece of land lays it out in lots and streets and sells lots calling to bind on such streets, he thereby dedicates the streets so laid out to public use. The rule is founded on the doctrine of implied covenants, and the dedication will be held to be coextensive with the right of way acquired as an easement by the purchaser. It is upon the implied covenant in the grant to him that the dedication to public use rests, and such dedication must necessarily be measured by the limits of the right he has acquired by virtue of his grant. In the case before us, the right of way or easement in Mosher street acquired by the purchasers of the lots mentioned in the proof is the precise limit of the dedication by Hiss. Over what portion of Mosher street, then, did their right of way exist? We think they acquired by their several purchasers the right of way only from Madison avenue to McCulloh street, as it is between those streets that their lots lie and bind on Mosher. The doctrine of implied covenants will not be held to create a right of way over all of the lands of a vendor which may lie, however remote, in the bed of a street. The lands must be contiguous to the lot sold, and there must be some point of limitation. The true doctrine is, as we understand it, that the purchaser of a lot calling to bind on a street not yet opened by the public authorities is entitled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way. To this extent will the vendor be held by the implied covenant of his deed, and no further." In Hawley's Case the owner of the lot sold exhibited to the purchaser at the time of the sale a plat of his land, on which the streets were laid down, but the plat was not called for in the deed of the lot to the purchaser. In Baltimore v. Frick, 82 Md. 85, 33 A. 435, we cited and followed Hawley's Case as to the extent of the dedication of a street by the grant of a lot bounding thereon, and still more accurately defined the limits of the dedication by saying: "The contention that the street which limits the extent of the dedication must be an open public street is not supported by the cases heretofore decided by this court. In Hawley's Case, supra, the land over which the right of way is given it is said must not be remote, but contiguous to the lot sold; but if the contention of the city that in all cases we must presume a dedication of a right of way over the grantor's land, until the next or nearest open street is reached, be correct, such right of way would in many cases extend over land not only not contiguous to but very remote from the lot sold." It may therefore be said that under the decisions of this court the sale of a lot of land calling to bind on an unopened street works a dedication to public use of that street, if it is of the land of the grantor, only until it reaches the next open or unopened street.

Although the law relating to the dedication to public use of streets has been settled by numerous decisions of this court, we have seldom been called upon to consider the nature and extent of the dedication of a park to such use when it is so designated on a plat of the grantor's land, and reference is made to the plat in deeds conveying portions of the land. Most of the text-books and many cases assert broadly that the rules and principles controlling the dedication of streets to public use by the use of or reference to plats in the manner mentioned by us apply with equal force to the dedication of parks and other public places designated on such plats. 2 Dillon on Mun. Corps. § 644; 13 Cyc. p. 448; 9 Am. & Eng Encyc. of Law, p. 25. Other cases plainly distinguish between the principles applicable to the dedication of "streets affording easements directly profitable and necessary to the use of lots" and parks which are intended for public recreation and enjoyment, and are only indirectly beneficial to the lots. Baker v. Johnston, 21 Mich. 319; Coolidge v. Dexter, 129 Mass. 167; Light v. Goddard, 11 Allen (Mass.) 5, where it is said, by Bigelow, C.J.: "An attempt is made in the present case to extend this rule of interpretation much...