City of Baltimore v. Broumel

• Decision Date: 23 June 1897
• Citation: 37 A. 648,86 Md. 153
• Parties: MAYOR, ETC., OF CITY OF BALTIMORE v. BROUMEL.
• Court: Maryland Court of Appeals

37 A. 648

86 Md. 153

MAYOR, ETC., OF CITY OF BALTIMORE v. BROUMEL.

Court of Appeals of Maryland

June 23, 1897

Appeal from circuit court of Baltimore city.

Suit by Louise M. Broumel against the mayor and city council of Baltimore. Decree for complainant. Defendants appeal. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, PAGE, BOYD, and FOWLER, JJ.

Tho. Ireland Elliott and Wm. S. Bryan, Jr., for appellants.

Isidor Rayner and Wm. B. Rayner, for appellee.

McSHERRY C.J.

The appeal in this case is from a decree of the circuit court of Baltimore city perpetually enjoining and restraining the mayor and city council of Baltimore from tearing down and removing the dwelling house and other buildings of the appellee. The house and buildings are situated, it is claimed, on the bed of Chestnut Avenue, which the appellant insists was dedicated to the public in 1874, while the locality formed part of Baltimore county, and before it was brought within the limits of the city by the act of 1888 (chapter 98). A considerable tract of land belonging to the Chesapeake Mutual Land & Building Association was in 1874 or thereabouts decreed to be sold at the suit of creditors of the association, and receivers were appointed to make the sale. They had an extensive plat prepared, upon which streets and avenues were drawn or projected and named, and this plat was filed in the equity case in Baltimore city, along with the report of sales. The land was suburban property lying in one body, beyond the limits of the city, without any streets lanes, or avenues actually laid out through or upon it. Adjoining this tract on the east was other arable land owned by other persons. Chestnut avenue appears from the plat to be a short cul de sac, running at right angles from what is called "Tenth Street," eastwardly, until it reaches the boundary line between the building association property and the contiguous property owned by other parties, where it abruptly terminates. Even as projected on the plat, it had but one open terminus. Two of the lots into which the whole tract had been subdivided were sold by the receivers to James Broumel in 1878, and he subsequently leased them to one Lewis Robinson, who proceeded to construct a dwelling house thereon in 1884. There were no stakes, furrows, or marks of any description to indicate where this so-called "Chestnut Avenue" and this alleged "Tenth Street" were located; nor was there anything on the ground to suggest that any streets were established or designated to be opened there at all. Mr. Robinson was entirely ignorant of the existence of these or any other contemplated streets in the vicinity of the lots leased by him. These lots, including what is now said to be the bed of Chestnut avenue, were surrounded by a fence. He selected within this inclosure a site for his house, partially built it, and then surrendered the lease to Broumel, who completed the buildings afterwards. Broumel then died, and this house and the other buildings were allotted to his widow, as her dower, and she has lived in and occupied them ever since. It now turns out, or at least it is now contended in behalf of the city, that this dwelling house and these other buildings are located in part upon the bed of this Chestnut avenue. The lots and the bed of the avenue continued to be inclosed during the whole period of time that the land formed part of Baltimore county, as well as after its annexation to the city. From 1884 down to 1896 the house has been occupied by the appellee without molestation, and it was not until August 17, 1896, that any claim was ever made that such an avenue existed, nor was it pretended till then that the appellee's house stood upon the bed of that avenue. On the day of the date just named, the city commissioner gave the appellee notice to remove her dwelling house and other buildings from the bed of Chestnut avenue "as promptly as possible, as the bed of Chestnut or Elgin avenue at this point is the property of the city." The notice informed the appellee further that, unless she promptly complied, her buildings would be taken down at her expense by the city commissioner.

There is no pretense that Baltimore county or the city of Baltimore ever acquired title to Chestnut avenue by condemnation proceedings or by purchase. If the city owns the bed of this avenue at all, it owns it by virtue of a dedication made in 1874 to Baltimore county by the receivers who sold the building association's property while that property was still within the limits of Baltimore county. If a dedication was really made in 1874, it was not a dedication to Baltimore city; and if there was no acceptance by the Baltimore county authorities, and if, before the annexation of the territory to Baltimore city, the dedication was revoked, or the dedicated street was actually abandoned, and...