Kennedy v. Mayor

• Decision Date: 23 June 1886
• Citation: 65 Md. 514,9 A. 234
• Parties: KENNEDY and Wife v. MAYOR, ETC., OF CUMBERLAND.
• Court: Maryland Court of Appeals

9 A. 234

65 Md. 514

KENNEDY and Wife

v. MAYOR, ETC., OF CUMBERLAND.

Court of Appeals of Maryland.

June 23, 1886.

Appeal from circuit court, Allegany county. In equity.

Wm. Brace and B. A. Richmond, for appellants.

Wm. I. Read, for appellee.

MILLER, J. Mrs. Margaret Kennedy was injured on the fourteenth of September, 1885, by the falling of a bridge over which she was walking. This bridge was a portion of the deck of a canal boat thrown over a gully which ran across an alleged street in the city of Cumberland, called Lee street. The accident was caused by the unsafe condition of the bridge, and she and her husband brought this suit against the city to recover damages for the injury. The declaration alleges that this was a public street or highway which it was the duty of the city to keep in repair, and the action was defended upon the ground of a denial of this allegation. It is plain that to sustain the action it was incumbent upon the plaintiffs to establish the fact that this street or bridge was, at the time of the accident, a highway or bridge which the city was bound to repair, and the sole question in the case is, has this been shown by any proof legally sufficient to support that conclusion?

The facts, all of which are undisputed, and which were received by the court subject to exception, are substantially as follows: In 1871 Henry Shriver, being the owner of vacant land within the city limits, laid it off into a number of town lots by a plat upon which three or four streets and lanes were designated, and one of them was called "Lee street," and the whole was called "Shriver's Addition to Cumberland." Between 1871 and 1873 he sold some of these lots, and the deeds called for these streets, including Lee street. This street was opened up for public travel in 1873 by the owners of the adjacent lots, and by them dedicated to the public, and has ever since been used by the public as a common highway, though the travel thereon was principally by foot passengers, because the gully abovementioned made it difficult for wagons to cross over. Several houses were built along this street in 1873, or prior thereto. The lots, including those on Lee street, were assessed to their several owners in the assessment books of the city as lots in "Shriver's Addition." Other streets in this addition, laid out and opened at the same time, were repaired from time to time by the city for several years past. At a meeting of the city council held on the seventh of September, 1885, an order was offered by one of the members, instructing the superintendent of streets to repair Lee street at a cost not exceeding $75, but it was not passed, because it did not receive the requisite number of votes. At the next meeting, which was held on the fifth of October following, the same order was again offered, and it was then passed, and was approved by the mayor on the tenth of October, which was nearly a month after the accident. Very soon after this the street was repaired by the city out of the money so appropriated, and these repairs included the removal of the bridge on which Mrs. Kennedy was hurt, and the building of a new one. The bridge on which the accident happened was placed over the gully by one Chase, a volunteer, for his own accommodation, about eight years ago, and was since used by the public as a footway over the gully when using the street. This gully was a natural water-way or drain for surface water from adjacent lands and hills, and was about two or three feet wide and fourteen inches deep. Since the street was laid out and opened, there had been no change in the condition of its surface, except that both sides of it had been fenced, one the whole length, and the other the greater part thereof. There was no evidence of any repairs by the city made on this street prior to the accident, nor of any formal resolution, order, or ordinance accepting the same.

From these facts a dedication of the bed of this street to the public by Shriver and his grantees is no doubt established; but it requires something more to create the privileges and duties belonging to a public highway. Any individual may lay out a thoroughfare through his lands, but such dedication does not impose upon the county or municipality the duty of improving or keeping it in repair. There must be an acceptance of the dedication before this duty can arise. The law on this subject is thus stated by Judge Dillon: "As against the proprietor, a dedication of land for streets and highway may be complete without any act or acceptance on the part of the public; but, in order to charge the municipality or local district with the duty to repair, or to make it liable for injuries for suffering the street or highway to be or remain defective, there must be an acceptance of the dedication, and this acceptance must be by the proper or authorized local public authorities. It may be express, and appear of record, or it may be implied from repairs made and ordered, or knowingly paid for, by the authority which has the legal power to adopt the street or highway, or from long user by the public." 2 Dill. Mun. Corp. § 642. The doctrine that such acceptance is necessary in such cases was recognized by this court in McCormiek v. Mayor, etc., of Baltimore, 45 Md. 524.

The question then is, do the facts above stated show such an acceptance by the city authorities, before the happening of the injury sued for, of the dedication by the proprietors of the bed of the street, or is there anything in them upon which a jury could be instructed or allowed to infer such acceptance?

The user of the public set out in this statement of facts is wholly insufficient to make this street a public highway, for it has been repeatedly decided by this court, as the law of this state, that, where a user or prescription is relied on to establish a public highway, there must be an uninterrupted user by the public for at least 20 years, and such user for any less period of time will not suffice. Bay v. Allender, 22 Md. 511; Browne v. Trustees M. E. Church, 37 Md. 108; Thomas v. Ford, 63 Md. 352.

The facts that the lots were assessed in the assessment books of the city as lots in "Shriver's Addition" is, in our opinion, entitled to no weight whatever in determining this question of acceptance. This was simply the recording of the description of the lots for the purpose of taxation, as the owners themselves had chosen to describe them in their deeds, and in order to distinguish and identify the property...