Appeal
from Circuit Court, Anne Arundel County; James Clark, Judge.
Suit
for specific performance by the Real Estate & Improvement
Company of Baltimore City against Frances B. Dalton and
another. From order overruling defendants' demurrer to
amended bill of complaint, the defendants appeal.
Order
reversed and bill dismissed.
Before
MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and
MARKELL, JJ.
MARBURY
Chief Judge.
This is
a bill for specific performance, filed by the appellee (the
real estate holding subsidary of the Baltimore & Ohio
Railroad)
against the appellants in the Circuit Court for Anne Arundel
County. The contract of which performance is asked, is an
alleged agreement for the construction of roads and fences.
The amended bill of complaint alleges that the appellee and
the appellants own contiguous tracts of land which border on
Curtis Creek. Both tracts also border on Pennington Avenue
but where they meet Curtis Creek the appellee's tract is
between Pennington Avenue and the land of appellants. On each
tract of land are wooden bungalows or shacks along the shores
of the Creek, and on appellants' tract there is a farm
house. The tenants of appellants have been accustomed to use
two dirt roads which run over the land of the appellee in
order to get access to Pennington Avenue, the main highway to
Baltimore. Their use of these roads has been based upon a
claim of right by virtue of a deed of partition and by
prescription. The appellee denied the right of appellants and
their tenants to use these roads, but claimed that if there
was any right in appellants by virtue of the deed of
partition, then for the same reason and to the same extent,
the appellee and its tenants had the right to use part of one
of these dirt roads which ran over the land of the
appellants. These conflicting claims resulted in negotiations
between the parties and their attorneys. Finally an agreement
was drawn up and approved by the attorneys acting on behalf
of their respective clients.
This agreement was then submitted to the appellants
by their attorney. The appellants declined to execute it, but
decided to do something themselves to settle the controversy.
As a result, their attorney wrote a letter to the attorney
for the appellee which was as follows:
'December 11, 1944
'Mr. Heyward Hamilton
'1604 First National Bank Building
'Baltimore, Maryland
'Dear Heyward:
'Mr. and Mrs. Dalton and I have again been discussing the
proposed agreements with the B. & O. Railroad in connection
with the two crossings over you right-of-way and also the
situation with respect to the roads.
'After considerable thought, we have arrived at a
solution which I think should be entirely satisfactory to all
concerned, and will not necessitate the signing of any
agreements:
'1. No change from the present status with respect to the
crossing is contemplated.
'2. With respect to the road shown in yellow on the
aerial map coming in from Hawkins Point Road, and which is
now used by Mr. and Mrs. Dalton's tenant, Mr. Fender, Mr.
and Mrs. Dalton will as soon as possible give Mr. Fender exit
to their present driveway and replace the gate through which
Mr. Fender is now passing with a solid fence, thereby
effectively closing the use of the road in question.
'3. Mr. and Mrs. Dalton will project their present fence
across the road shown in green on the aerial map down to the
edge of the bank and will construct a new road on their
property from where the present road shown in green reaches
the projected fence, along side of the now existing fence and
connect up with the new road they are making for Mr. Fender.
'The effect of this well be that Mr. and Mrs.
Dalton's tenants will have ingress and egress to the
Hawkins
Point Road entirely over the Dalton property and will not be
compelled to cross over any of the property owned by the B. & O. Railroad, or the Real Estate and Improvement Company of
Baltimore City. By so doing, I think we effectively dispose
of the question as to the rights of either party over the
others property.
'Very truly yours,
'Robert France.'
To this
letter appellee's attorney replied as follows:
'December 14, 1944
'Honorable Robert France,
'501 Union Trust Building,
'Charles & Fayette Streets,
'Baltimore 1, Maryland.
'Dear Bob:
'I have your letter of the 11th inst. concerning the
proposed agreements between Mr. and Mrs. Joseph C. Dalton and
The Baltimore and Ohio Railroad Company and The Real Estate
and Improvement Company.
As I understand it, Mr. and Mrs. Dalton do not claim any
right of way or right of any other kind in or over the
tract of land owned by The Real Estate and Improvement
Company and lying immediately to the north and west of
their property on the east side of Curtis Creek south of
Pennington Avenue. This being the case, the action
suggested in your letter is satisfactory to the two
Companies; and I agree with you that it should effectively
dispose of the questions that have arisen so far as the use
of the various roads is concerned.
'You told me that Mr. Dalton expects to begin to build
the new road at once and that he estimates that both the road
and extension of the fence can be completed by the first of
next year. At all events, I suppose that the work should be
finished not later than the end of next February and, in
order to accommodate the Fenders and the other tenants of Mr.
and Mrs. Dalton in the meantime, I assure you that The Real
Estate and Improvement Company is willing to permit these
tenants
to continue to use the roads outlined in green and yellow on
the aerial map which is attached to the proposed agreement I
sent you. I understand, however, that the parties agree that
until the road is built and the fence completed, the use of
these roads will be entirely permissive, as it has been in
the past.
'Trusting that you will find the above satisfactory and
with my best wishes, I am
'Sincerely yours,
(Signed) D. Heyward Hamilton
'DHH:JCK
'P. S. Will you be good enough to advise me when the new
road is entirely completed?
'D.H.H.'
No
reply was received by Mr. Hamilton to his letter. He
communicated with Mr. France at various times to find out
what was being done, and was informed that the weather in
December, January and February had...
