Dinneen v. Corporation for Relief of Widows and Children of Clergy of Protestant Episcopal Church of Diocese of Maryland
| Decision Date | 11 January 1911 |
| Parties | DINNEEN v. CORPORATION FOR RELIEF OF WIDOWS AND CHILDREN OF CLERGY OF PROTESTANT EPISCOPAL CHURCH OF DIOCESE OF MARYLAND et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; Henry Stockbridge Judge.
Bill by Mary G. Dinneen against the Corporation for the Relief of the Widows and Children of the Clergy of the Protestant Episcopal Church of the Diocese of Maryland and others. From a decree in favor of plaintiff for less than the relief demanded, she appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE PATTISON, and URNER, JJ.
Henry H. Dinneen, for appellant.
Clarence A. Tucker and Leigh Bonsal, for appellees.
The appellant is the owner of certain land in the suburbs of Baltimore city under a deed whose descriptive lines extend along the center of an existing road which was mentioned in the deed and shown on the plat to which it referred. Whether the appellant has the right to close the road, under the circumstances indicated in the record, is the question to be determined on this appeal.
The case originated in a bill in equity, filed by the appellant to restrain the removal of a fence which she had constructed along the center of the road. It was alleged in the bill that the complainant, on or about June 10, 1904, purchased from the defendants two lots of ground in fee described in their deed to her of that date duly exhibited; that the first line of the land so conveyed is located in the center of a private road leading from the intersection of Holly avenue and Seventeenth street, both of which are public thoroughfares, to an adjoining fouracre tract upon which is located Mt. Holly Inn; that at the time of the complainant's purchase the adjacent tract was also owned by the defendants; that her part of the private road is subject to no easement in the defendant or the public generally; that in order not to be barred as to her right to the portion of the road included within the lines of her deed by the provisions of the act of 1908, c. 583, approved April 8, 1908, declaring a conclusive presumption of dedication in reference to roads situated like the one in question, in Baltimore city, if left open for more than one year after the passage of the act, the complainant, on April 1, 1909, "fenced in her portion of said road herein before referred to with a post and wire fence; secured signs thereon stating that said road was closed pursuant to law, and strung lanterns on said fence at night to warn drivers and pedestrians of such fact." The bill further averred that on or about April 6, 1909, the defendants removed a portion of the fence and announced their intention to remove it as often as it might be reconstructed; and that the acts of the defendants, with the consequent liability to loss of her rights under the act of 1908, subject the complainant to irreparable injury for which she has no adequate remedy at law.
By way of answer and cross-bill the defendants, after certain admissions and denials, not necessary to be noticed, alleged that the road referred to in the complainant's deed and shown on the plat, which is exhibited with the answer, was laid out in 1901, by the owner of all the property embraced in the plat, and has since been freely used by the patrons and owners of the Mt. Holly Inn, and also by the owners of all the other property which the plat indicates; that at the time of the execution and delivery of the complainant's deed, the defendants were the owners of all the land served by the road, except the Inn tract, a 99-year leasehold estate in which they had previously contracted to sell, and shortly afterwards conveyed, to James L. Filon, taking a mortgage for part of the purchase money; that the road was then clearly defined, open, macadamized, and much used; that the complainant purchased the property described in her deed, subject to this known and visible condition and use of the road; that it is in fact a way of necessity for the Inn tract, and also for a larger tract to the west belonging to the defendants; and that neither of these tracts have any other available means of entrance or exit. The defendant prayed for a mandatory injunction requiring the plaintiff to remove the obstruction placed by her in the road. To the cross-bill the plaintiff filed an answer denying its sufficiency to entitle the defendants to the relief prayed. The answer alleges that at the time the plaintiff acquired her title the road in controversy was rough and ill-kept, and had been but recently opened. It denies that it was and is a way of necessity for the Inn tract or any other land, because as it avers there is a road, other than the one fenced by the plaintiff, which leads from the Windsor Mill road, a public thoroughfare, to the Mt. Holly Inn, and affords access to all the land shown on the plat; it further denies that the erection of the fence was in violation of any of the rights of the defendants, or their grantee Filon, and relies upon the omission of any express reservation to the grantors in the plaintiff's deed of an easement in the part of the road included within its description.
At the time of the filing of the bill of complaint, Mr. Filon, the grantee of the Mt. Holly Inn property, was dead, and letters of administration had been granted to his widow, Mary L Filon, by the orphans' court of Baltimore city. Subsequently the defendants sold and conveyed to Mrs. Filon the remainder of the land abutting on the road in question, subject to a mortgage for a portion of the purchase price, and as the title to the leasehold estate conveyed to her husband in the Inn tract passed to her as administration, she was, upon due application, made a party defendant in both her individual and representative capacities. Her answer adopts that of the original defendants, and avers that when...
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