County Com'rs of Carroll County v. Rickell

• Decision Date: 13 November 1924
• Docket Number: 5.
• Citation: 126 A. 711,146 Md. 463
• Parties: COUNTY COM'RS OF CARROLL COUNTY v. RICKELL.
• Court: Maryland Court of Appeals

126 A. 711

146 Md. 463

COUNTY COM'RS OF CARROLL COUNTY v. RICKELL.

No. 5.

Court of Appeals of Maryland

November 13, 1924

Appeal from Circuit Court, Carroll County, in Equity; Robert Moss Judge.

"To be officially reported."

Bill by the County Commissioners of Carroll County against Thomas N Rickell. From an order sustaining a demurrer to bill plaintiff appeals. Reversed and remanded.

Argued before BOYD, C.J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, and BOND, JJ.

Guy W. Steele, of Westminster (W. L. Seabrook and Ivan L. Hoff, both of Westminster, on the brief), for appellant.

Edward O. Weant, of Westminster, for appellee.

ADKINS J.

This is a proceeding, instituted by the appellant, wherein a court of equity is asked to secure by mandatory injunction the removal of obstructions erected by appellee in an alleged public highway. The bill alleges that the Ridge road leading from Westminster to Mt. Airy, which enters Westminster on Liberty street, is a public highway under the charge and supervision of the plaintiff, the county commissioners of Carroll county the portion of said road which enters Westminster on Liberty street being called "Liberty street extended"; that in the year 1865 the land lying on the south side of Liberty street in the city of Westminster, and on Ridge road adjacent to Westminster, was owned by John T. Lynch, who laid it out into lots fronting on Liberty street and "Liberty street extended," making a plot thereof which was duly filed and recorded in the clerk's office of the circuit court for Carroll county, a certified copy of which is filed with the bill of complaint; that from that time (if not before) Liberty street was opened 50 feet wide, including the gutters and pavements on each side thereof; and the Ridge road beyond the corporate limits of Westminster, being a continuation of Liberty street, was also widened as aforesaid by the said Lynch donating sufficient land to make it 50 feet, and that he sold the lots of said "Lynch's Addition to Westminster" to bound and abut on said highway as widened, and part of the said Ridge road immediately adjacent to the corporate limits of the said city has since been commonly described and called both "Liberty street" and "Liberty street extended," and its width of 50 feet recognized by everyone, until the happening of the wrong complained of; that the late Charles E. Fink, who owned a large portion of the land along "Liberty street extended," on the opposite side of "Lynch's Addition to Westminster," divided it into lots, established building lines thereof, and sold part of them; that the said Fink also owned lots Nos. 23 to 31 of "Lynch's Addition to Westminster" lying southwest of lots Nos. 21 and 22 of said Lynch's addition owned by the defendant, Thomas N. Rickell, which lots Nos. 23 to 31 the said Fink subdivided into lots and numbered them 1 to 18; that he recognized said "Liberty street extended" as being 50 feet wide; that after his death his executors sold remaining lots on both sides of Liberty street extended then owned by them, as laid out by the said Fink, a plat of said Fink's addition to Westminster, bearing date of November, 1919, being of record in the office of the register of wills of Carroll county and a certified copy thereof being filed as an exhibit; that for at least 40 years, said "Liberty street extended" has been recognized and existed as one of the public highways of Carroll county, and has during all of said time been constantly used by the traveling public as a public highway; and during all of said time has been cared for and maintained by plaintiff, who had accepted it as laid out 50 feet in width, a copy of a portion of the plat of the town of Westminster being filed as an exhibit showing Liberty street and Liberty street extended taken from the Atlas of Carroll county published in the year 1877; that houses have been built on each side of Liberty street and Liberty street extended, said houses being supplied with water and light and other municipal conveniences, all being built in accordance with the general scheme or plan for the upkeep and use of said highway heretofore adopted by plaintiff, viz. for a driveway 30 feet wide, with a drain in each side thereof, and a curb with a pavement 10 feet wide between the drain and building line of the lots abutting thereon; that the dedication of the land from the owners sufficient to make said highway 50 feet wide, made over 50 years ago, was accepted by plaintiff, and the road was improved and kept up to that extent and width by it; that in the year 1914, at the request of the property owners along Liberty street extended, the grade for the curb and gutter and the width of the pavement was duly established by the plaintiff, who had the county surveyor establish the lines and elevations thereof from the corporate limits of the city of Westminster, it being a continuation of the curb and grade officially adopted by the city for Liberty street; and since then all property owners along Liberty street extended have built their homes and laid their pavements in accord therewith; that the defendant is an abutting owner along said highway owning lot No. 20 and part of lot No. 21 of "Lynch's Addition to Westminster," on the south side of said street, a copy of the deed for which lots dated September 16, 1919, is filed as an exhibit, the lines of said land extending only to the southern boundary of Liberty street extended; that about the year 1921 the defendant began to erect a house on the land described in said deed, the porch of which would extend into and encroach upon said highway, but before he had erected said porch he was notified by plaintiff not to do so, but in spite of said warning he did build said porch into said highway; and in the year 1922 he built another house on said land, the porch of which also extended into said highway; and in August, 1923, he laid down concrete steps to said porches extending further into said highway; that at this time notice was again served on him by plaintiff not to continue further with his encroachment and to remove those already made; that against said warnings, he, in constructing and building said porches and steps, did unlawfully dig down into said highway, and erect thereon and therein piers or pillars upon which porches were placed, said...