Libertini v. Schroeder

• Decision Date: 14 January 1926
• Docket Number: 74.
• Parties: LIBERTINI ET AL. v. SCHROEDER.
• Court: Maryland Court of Appeals

132 A. 64

149 Md. 484

LIBERTINI ET AL. v. SCHROEDER.

No. 74.

Court of Appeals of Maryland

January 14, 1926

Appeal from Circuit Court, Baltimore County; Walter W. Preston Judge.

"To be officially reported."

Bill by Louis Libertini and others against Augustus R. Schroeder, Jr. From a decree of dismissal, complainants appeal. Affirmed.

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

Charles Ruzicka and Horace T. Smith, both of Baltimore (Smith & Smith, of Baltimore, on the brief), for appellants.

John B Gontrum and Edward J. Colgan, Jr., both of Baltimore, for appellee.

PARKE J.

An amended bill in equity was filed by the appellants Louis Libertini and Rose Libertini, his wife, and Catherine Elizabeth Reichert and Philip Reichert, her husband, against the appellee, Augustus R. Schroeder, Jr., alleging that an ancient road extending from the south end of the Belair Road bridge over the Gunpowder river in a southerly direction across the land of Louis Libertini, thence over the adjoining land of Catherine Elizabeth Reichert, and thence through the adjacent land of Augustus R. Schroeder, Jr., and thence continuing through the successive lands of other owners, was the right of way of the appellants Louis Libertini and Catherine E. Reichert by adverse user, and that the appellee had obstructed the way so as to prevent the appellants from traveling over the same, to their irreparable injury. The particular relief prayed for was a mandatory injunction to require the appellee forthwith to remove the obstructions and to restore the way to its former condition, and an injunction to compel the defendant, his agents and servants, from any further obstruction of the way or interference with its use by the appellants. The court passed an order nisi, and the defendant answered, admitting the obstruction of the way claimed by the bill of complaint, but denying that the appellants had any right to the way which was asserted to be an abandoned public highway, whose bed had reverted to the respective owners in fee of the soil. On the issues thus made testimony was taken by the litigants before the court, which passed a decree dismissing the bill of complaint.

The present controversy carries us back to conditions which existed many years ago, and which are now difficult to re-establish through the imperfect medium of the recollection of aged witnesses as to what were exact conditions in the days of their youth. The incorporation of the Baltimore & Jerusalem Turnpike Company on March 18, 1867, will serve as a convenient point at which to begin our statement of the facts necessary to the presentation of the case.

By chapter 143 of the Acts of 1867, the General Assembly of Maryland incorporated the Baltimore & Jerusalem Turnpike Company for the purpose, and with the power, to grade and make a turnpike road "beginning for the same at the limits of the city of Baltimore on the Belair road and running upon and occupying the said Belair road from the said city to the old stage or Camp Chapel road, and from thence on said Belair road to the Little Gunpowder Falls, with power to diverge from the bed of said road when and where it may be desirable to said company, to use and occupy a width of thirty feet on each side from the center." The company was granted the franchise to collect toll and the privilege of eminent domain, which should "vest the title and interest of the owners thereof in the property condemned in the said company." Sections 3, 11, 13. See Douglass v. Boonsborough Turnpike Co., 22 Md. 219, 236, 237, 85 Am. Dec. 647.

The Turnpike company built the turnpike for eight miles from Baltimore on the roadbed of the Belair road and there stopped. The terminus of this paved surface was about one mile south of the property now owned by the appellee, and at the northwest corner of this property the Belair dirt highway forked. The continuation of the road in a straight line, over a hill through the present Schroeder, Reichert, and Libertini properties, and a fourth tract to the bridge, carrying the Belair road over the Gunpowder Falls, formed the right or eastern branch of the fork; and its left or western branch was the route around the hill and along the northwestern boundary lines of the three tracts of land now owned by the appellants and appellee, whence it turned sharply to the east and united with the right branch of the fork at the public bridge. These branches separated at an acute angle, and, at their point of greatest divergence, were never more than approximately 350 feet apart. This was the situation when the turnpike company was incorporated, but the record does not disclose how long it had previously subsisted.

It does appear that the right branch was the original line of the Belair highway, but when its surfaceway became so bad as to cause a deflection of public travel to the left branch cannot be determined from the record. The testimony of all the witnesses was that, since 1859 to 1886, or the year in which the right branch was improved by the turnpike company, there had been no public travel on the right branch, but that as early as the year 1859 the public use was by the left branch around the hill. Only the appellant Philip Reichert can go so far back. In that year he was a youth of 10 years, and it was at this tender age that four other witnesses, Catherine Elizabeth Reichert, who is an appellant, John C. Halbert, John Furnkase, and John Dunty, speak as to like conditions of public travel from 1861, 1864, 1865, and 1866 respectively to about 1886. How long before these years the public had traveled the left branch of the fork because of the condition of the way on the right branch there is no satisfactory proof.

It is over this unused portion of the original Belair public highway, which we have for convenience named the right branch, that the appellants Louis Libertini and Catherine Elizabeth Reichert claim a private right of way. In support of their position they go back as far as 1859 to show acts of user by their predecessors in title. Any such proof prior to the second half of the year 1866 must be the result of an imperfect memory, because all the land in controversy was but a single tract which was owned until February 6, 1850, by Harry D. G. Carroll, and from that year until 1866 by Robert G. Purviance and others. Mitchell v. Seipel, 53 Md. 263, 36 Am. Rep. 404; Stewart v. May, 119 Md. 18, 19, 85 A. 957; Capron v. Greenway, 74 Md. 293, 22 A. 269.

1. The first severance of this tract was under the deed of Robert G. Purviance and others to John Schroeder for 60 acres, 3 roods, and 29 perches of land, more or less. The deed is dated June 22, 1866, but the acknowledgment of Purviance was not until August 15, 1866. The next deed was by Robert G. Purviance and others to Benjamin Marple, dated June 28, 1866. As the deed to John Schroeder embraced the appellee's parcel and that owned by the appellant Catherine Elizabeth Reichert, and the deed to Benjamin Marple included the farm of the appellant Louis Libertini, it is a necessary conclusion that all evidence of an adverse user by John Schroeder and Benjamin Marple and their successors in title must relate, at the earliest, to the period beginning after June 25, 1866, when there was a division in the ownership of the land which then included both the asserted dominant and servient estates.

2. After June 25, 1866, and until the year 1886, the evidence must be considered to have established that the right branch of the road was not used by the public, but by the owners of all the properties through which the right branch passed to the public bridge over the Gunpowder Falls. This user was for access and egress to and from their farms and public ways and places, and was in no respect inconsistent with the continued existence of a public highway. Canton Co. v. Baltimore, 106 Md. 100, 66 A. 679, 67 A. 274, 11 L. R. A. (N. S.) 129; Baugh v. Arnold, 123 Md. 7, 91 A. 151. Moreover, prescription does not run against the public to defeat its claim to a public road. Brady v. Baltimore, 130 Md. 513, 101 A. 142; Cushwa v. Williamsport, 117 Md. 318, 319, 83 A. 389; Ulman's Case, 83 Md. 144, 145, 34 A. 366; Sapp v. Northern Central Railway Co., 51 Md. 115; Patapsco Co. v. Baltimore City, 110 Md. 311, 72 A. 1039; Baldwin v. Trimble, 85 Md. 402, 37 A. 176, 36 L. R. A. 489. Let us assume, however, that the public had abandoned the right branch of the fork so that the soil had reverted to the owners, and was therefore subject to the operation of adverse possession. On this assumption, the proof is that the right branch was cleared for a width of 60 feet, graded, improved, and opened to public travel as a part of the turnpike road sometime in 1886. Hence it cannot be said that the requisite period of 20 clear years of adverse user has been established by the appellants, who bear the burden of proof.

3. However, the appellant Catherine Elizabeth Reichert, who acquired her tract of land from her brother, Augustus Schroeder, Sr., on June 16, 1875, when the land she purchased was unimproved, set up towards the close of the case a right to use the road over the remaining land of Augustus Schroeder, Sr., by reason of these circumstances. The appellant's husband, Philip Reichert, was in the course of the negotiations with Augustus Schroeder, Sr., for the purchase of the land, which, as we have stated, bounded on the left branch of the fork of the Belair road, and was traversed by the right branch, when the husband inquired about an outlet, and he swore, in effect, that the vendor showed him a plat of the farm with the roadway in question and told him that he could use the right branch of the fork to the Belair road "my lifetime and forever." ...