Gontrum v. Mayor and City Council of Baltimore

• Decision Date: 14 December 1943
• Docket Number: 33.
• Citation: 35 A.2d 128,182 Md. 370
• Parties: GONTRUM et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

35 A.2d 128

182 Md. 370

GONTRUM et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 33.

Court of Appeals of Maryland

December 14, 1943

Appeal from Circuit Court No. 2 of Baltimore City; Samuel K. Dennis Judge.

Bill by Thomas M. Gontrum and others against the Mayor and City Council of Baltimore, a municipal corporation, to set aside an agreement executed by named complainant granting an easement for sewers and to require removal of sewerage pipes and drains, or payment to complainants of fair compensation for land in such easement. From a decree dismissing their amended bill of complaint, complainants appeal.

Decree affirmed.

Louis J. Jira, Of Baltimore (John B. Gontrum, of Baltimore, on the brief), for appellants.

Morris A. Baker, Deputy City Sol., of Baltimore (F Murray Benson, City Sol., of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY GRASON, MELVIN, ADAMS, and BAILEY, JJ.

BAILEY, Judge.

This is an appeal from a decree dismissing the amended bill of complaint filed by the appellants against the Mayor and City Council of Baltimore. The relief prayed for in the bill was that an agreement dated February 19, 1931, executed by Thomas M. Gontrum, one of the appellants, be annulled and set aside and that the Mayor and City Council of Baltimore at once begin the removal of its sewerage pipes and drains from the right-of-way and easement for sewers over the land of the appellants granted by said agreement, or pay to the appellants such damages as would be fair compensation for the land in the said right-of-way. The City answered the bill and thereafter testimony was taken in open court.

Thomas M. Gontrum, on July 26, 1926, acquired title to two tracts of unimproved land in Baltimore City containing in the aggregate approximately sixty acres. On February 23, 1933, Thomas M Gontrum conveyed all his real estate in Baltimore City, including the sixty acres, to John B. Gontrum and Mary von W. Gontrum, his wife. The record is vague as to who has the beneficial interest in the land, but this is immaterial for the decision of the case.

Ordinance No. 939, of the Mayor and City Council of Baltimore, approved on March 20, 1930, provided for the condemning, opening, widening and grading of Cedonia Avenue from Belair Road to Bowley's Lane. Cedonia Avenue, as proposed by this ordinance, would cross the Gontrum property, taking a strip of land sixty feet in width and approximately three hundred and thirty-four feet in length.

Sometime in January, 1931, one Glover, who was employed by the City as an engineering aide in the Sewer Department, whose official title was Land Surveyor and whose duties were to secure rights-of-way for sewers, approached Thomas M. Gontrum and requested from him a twenty foot right-of-way for a sewer, within the limits of the proposed sixty foot street to be known as Cedonia Avenue. Gontrum discussed the matter with his brothers, John B. Gontrum and Edwin K. Gontrum, both of whom were lawyers. Glover stated to them that the City would not compensate Thomas M. Gontrum for the sewer right-of-way, but that he would suffer no abatement of compensation when the street was finally condemned and damages awarded, by reason of the conveyance of the twenty foot sewer right-of-way. The matter was also discussed by the Gontrums with Mr. von Wyszecki, an assistant city solicitor, who was the father-in-law of John B. Gontrum. Glover disclosed to the Gontrums that the City contemplated the opening of Cedonia Avenue and gave them the ordinance number. There is some difference in the testimony of the Bontrums and the testimony of Glover as to what Glover said as to the time when Cedonia Avenue would be opened by the City, but, as we see the case, this is unimportant. The Gontrums made an independent investigation at the City Hall and, having satisfied themselves that the opening ordinance had been passed and that the City contemplated the opening of Cedonia Avenue, Thomas M. Gontrum then executed the right-of-way agreement. The consideration named in said agreement is $1, and nowhere in the agreement is there any mention of the opening of Cedonia Avenue and the opening thereof is not made a part of the consideration of the grant. The plat attached to the same, however, shows the sewer right-of-way in the bed of Cedonia Avenue. The City promptly laid the sewer in the right-of-way so granted. It is clear from the evidence in this case that Glover and von Wyszecki, as well as the Gontrums, believed that the rights-of-way for Cedonia Avenue would be promptly acquired and the street promptly opened. However, the City has acquired only one piece of property for the opening of Cedonia Avenue under said ordinance, but it is admitted that the ordinance cannot now be repealed and that the City will eventually open the said street through the property of the appellants. No effort has been made by the City to condemn the sixty foot right-of-way through the property of the appellants or to agree with them on proper compensation therefor. After waiting almost nine years, this suit was instituted on January 27, 1940.

It is contended by the appellants that Glover represented to them that Cedonia Avenue would be opened by the City within a very short time, that this representation was confirmed by von Wyszecki, and that it was in reliance upon these representations that the sewer right-of-way agreement was signed. The bill does not charge actual fraud on the part of the City or its representatives, but relief is sought on the ground that these representations amount to constructive fraud. But with this contention we cannot agree. It is the general rule that statements as to future events, as to expectations and probabilities, as to what will be or is intended to be done in the future, or mere expressions of opinion about what will occur in the future, do not constitute fraud even though they turn out to be false, at least where they are not made with intent to deceive, and where the parties have equal means of knowledge or the subject is equally open to the investigation of both, and an examination has not been fraudulently prevented. They are generally regarded as mere expressions of opinion or mere promises or conjectures which must have been understood by the other party to be such and on which he has no right to rely. 23 Am.Jur. pp. 794-796; Boulden v. Stilwell, 100 Md. 543, 60 A. 609, 1 L.R.A.,N.S., 258; McAleer v. Horsey, 35 Md. 439; Johnson v. Maryland Trust Co., 176 Md. 557, 6 A.2d 383.

Both Glover and von Wyszecki are subordinate city officials, one in the Sewer Department and the other in the Law Department, and neither of these departments is charged with the duty of opening streets. Any statements made by them relative to the opening of Cedonia Avenue could only have been expressions of opinion on their part, and, under the above authorities, could not amount to fraud.

But there is another and more cogent reason why the appellants are not entitled to relief in this case. It is a fundamental principle of law that all persons dealing with the agent of a municipal corporation are bound to ascertain the nature and extent of his authority. Dillon's Municipal Corporations 5th Ed., § 777. A municipal corporation is not bound by a contract made is its name by one of its officers or by a person in its employ, although within the scope of its corporate powers, if the officer or employee had no authority to...