City of Baltimore v. Frick

• Decision Date: 06 December 1895
• Citation: 33 A. 435,82 Md. 77
• Parties: MAYOR, ETC., OF BALTIMORE v. FRICK ET AL.
• Court: Maryland Court of Appeals

33 A. 435

82 Md. 77

MAYOR, ETC., OF BALTIMORE v. FRICK ET AL.

Court of Appeals of Maryland

December 6, 1895

Appeals from Baltimore city court.

Appeals by Achsah C. Frick, the Safe-Deposit & Trust Company of Baltimore, and G. William Thompson, Achsah C. Frick, trustee James B. Newbold, Robert S. Carswell, and Riley E. Wright from the action of the commissioners in the opening of a street by the city of Baltimore. The five appeals were consolidated, and tried by the court without a jury, and from the judgment rendered therein, the respondent and all the appellants appeal. Reversed.

Argued before ROBINSON, C.J., and BRISCOE, ROBERTS, BOYD, BRYAN McSHERRY, and FOWLER, JJ.

Wm. S Bryan, for appellants.

Thomas B. Mackall, S.D. Schmucker, George Whitelock, and Henry Stockbridge, for appellees.

FOWLER J.

The questions here presented arise upon the appeals of certain landowners from the action of the Baltimore city court in awarding damages and benefits in the matter of the opening of Bayard street in that city. No objection has been made to the inquisition by reason of the amounts of damages awarded or benefits ascertained. On the contrary, it is conceded that both are properly estimated and set forth in the inquisition, unless it should be ascertained that the land to be taken had already been dedicated to public use, in which case, of course, the landowners could claim no damages. In addition to the first prayer of the property owners, which was granted, by which it was held that no part of Bayard street, as condemned, had been dedicated by the lease, which will presently be referred to, they asked the court again to declare, as law, the identical proposition which had already been adopted by granting their first prayer. After the court had declared that no part of Bayard street had been dedicated, it was asked, also, to say that the part of said street between Herkimer street and Columbia avenue had not been dedicated. The first prayer having been granted, it would seem to have been unnecessary to incumber the record with the other instructions. And, no doubt, this was the view entertained by the learned trial judge, who, as we have seen, granted the first and refused the other prayers. It is from those rulings that the six appeals now before us were taken; the city appealing from the granting of the first, and the property owners from the refusal to grant the second and third, prayers. It will thus be seen that the only question presented is that raised by the first prayer, namely, whether the lease from Carroll to Porter & Davis, of March 16, 1872, construed with reference to the facts and circumstances surrounding the transaction and given in evidence, establishes an intention on the part of the lessor to dedicate the bed of Bayard street, as proposed to be condemned, or any part thereof, to the public use, and, if any part thereof, how much was so dedicated.

The doctrine of the dedication of land as and for a highway for the use of the public has been so frequently the subject of consideration by this court that we think it needless, now to enter into any general discussion of the principles applicable to cases of this kind. Indeed, it has been found that it is very difficult to lay down any general rule applicable to all cases. It has been said "that each individual case must be decided by itself, taking into consideration all the attendant circumstances, the condition of the respective parties, and the acts, declarations, and intentions of the landowner, as manifested by his conduct; for it is largely on the ground of estoppel in pais that the principle of dedication rests." It has been held, therefore, in many cases (Dovaston v. Payne, 2 Smith, Lead. Cas. 142, where the authorities are collected), as well as in a number of cases in this state, that it is very strong evidence of dedication where lots are sold and conveyed, laid out on a map or plat with a road or street running by them, and designated as a street on such a plat ( White v. Flannigain, 1 Md. 540; Moale's Case, 5 Md. 321; Hawley's Case, 33 Md. 280; Tinges' Case, 51 Md. 600; McCormick v. Mayor, etc., 45 Md. 523; and others not necessary to cite). It does not appear, from any of these cases, that the map or plat on which the street or public way may be laid out must be made a part of, or referred to by, the deed or lease or other conveyance of the land under which the dedication is claimed to have been made; for the settled rule appears to be that, if the lot is described as fronting or bounding on a street which is designated on a public map or private plat, such description, calling for an unopened street, raises an implied covenant that such right of way exists, and the presumption of dedication becomes conclusive, unless, as in Pitts' Case, 73 Md. 326, 21 A. 52, and some others, there is language used by the grantor in his conveyance to show that no dedication to public use was intended. Applying this rule to the lease under consideration, let us examine its provisions. We find that the lot thereby conveyed, which includes all the lots owned by the appellant landowners, is described as bounding on Bayard street. It is admitted that, at the time this lease was executed, there was a private plat in existence on which Bayard street was laid out as now proposed to be opened, and as said street was laid out on the plat used in the partition case of Carroll v. Carroll. A copy of this last-named plat is also before us as part...