Louis Sachs & Sons v. Ward

• Decision Date: 14 December 1943
• Docket Number: 31.
• Parties: LOUIS SACHS & SONS v. WARD.
• Court: Maryland Court of Appeals

35 A.2d 161

182 Md. 385

LOUIS SACHS & SONS v. WARD.

No. 31.

Court of Appeals of Maryland

December 14, 1943

Appeal from Circuit Court No. 2 of Baltimore City; George A. Solter Judge.

Suit by Edward L. Ward against the Guilford Realty Company for mandatory injunction for removal of the first story of a structure erected in and alley adjoining the rear of plaintiff's property and for a permanent injunction against the placing of any further obstruction across the alley, wherein Louis Sachs & Sons were granted leave to intervene as parties defendant. From a decree in favor of plaintiff, the intervenors appeal.

Affirmed.

Solomon Liss, of Baltimore, for appellants.

Gordon S. Duvall, of Baltimore, for appellee.

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

MELVIN Judge.

This is a suit for mandatory injunction brought by the appellee for the removal of the first story of a structure erected in 1915 in an alley adjoining the rear of his property, Nos 410-12-14 South Hanover Street in Baltimore City. A permanent injunction is also sought against the placing of any further obstruction across said alley.

The original defendant was the Guilford Realty Company as the owner of Nos 416-428 South Hanover Street, by which Company an answer was filed stating, in substance, that this defendant 'did not erect, does not use, and has no right of any nature whatsoever in or to the first floor structure underneath a bridge extending across the alley in question known as the 'Sutton Street alley", and alleging that the property owned by said defendant, specifically the second floor of the structure across the alley, does not constitute and obstruction. Subsequently the sole users of the first floor structure, namely, Louis Sachs & Sons (hereinafter referred to as 'Sachs'), were granted leave to intervene as parties defendant and in due course filed their answer to the original bill of complaint. The issue thereupon became one between the plaintiff, Ward, and the intervenors, Sachs, who are the only parties to this appeal.

In this answer Sachs, after alleging title to the properties 106-110 West Barre Street, as shown on the plat filed in the case, further allege that they and their predecessors in title have been in actual, open, notorious and continuous possession and use of the said building for more than twenty years, and have gained thereby adverse title and possession of the land covered by the said building.

The structure involved in this suit is in the rear of properties 416-22 Hanover Street and communicates directly with the building on West Barre Street. The former property is owned by the Guilford Realty Company (hereinafter referred to as 'Guilford') and the latter by Sachs, both of which parties are successors in title to the City Baking Company. This Company, while owner of both the Barre Street and the Hanover Street properties, erected the structure in 1915 to connect the two buildings. The first floor was of light wooden construction and, according to Mr. Duane R. Rice, president of the Company, 'was originally just a platform with a very light roof over it to protect men going back and forth, and I think originally there were awnings which were rolled up and down.' Later on, the first floor became part wood and part corrugated iron, with a shed protruding from the building and a platform for loading and unloading. This was the condition during Sachs' occupancy of the Barre Street property, which they began about 1930 as tenants.

It is this first floor structure which alone is in dispute in this case, as the second floor is in a different category and entirely independent of the first floor from a structural standpoint. It is in the nature of a permanent bridge, of brick and steel construction, connecting the Barre and Hanover Streets buildings, and is fifteen feet above the bed of the alley. Under the present ownership of the respective properties, the first floor is used exclusively by Sachs and the second story bridge is used exclusively by Guilford.

Both owners acquired title from the same grantor--the Chestnut Farms-Chevy Chase Dairy Company--in 1941, but there is this significant distinction between the two conveyances in their relation to the bed of this alley, now also known as Sutton Street. The deed to Sachs not only does not grant any portion of the bed of it but reserves from said conveyance an unimproved strip of ground, eighteen inches in width, to be used as a portion of said street. Guilford's deed, on the other hand, conveys the bed of this alley (or street) as to four of the seven lots included in the deed, and as to the other three lots, calls for a depth of 120 feet to the east side of 'said twelve foot alley', and does not include the bed thereof. Moreover, at the end of the description, the deed prescribes that 'twelve feet of the first four above described lots of ground have been set apart on the west end thereof to be kept open as an alley, according to an agreement as recorded in Liber W. G. 105 folio 207, between the heirs of Conrad Smith.'

By virtue of these respective conveyances to Sachs and Guilford by their common grantor, there was a severance of the whole ownership, which left Sachs without any title, or color of title, to any portion of the bed of Sutton Street.

After full consideration of the case the Chancellor decreed that the first floor structure, occupied and used by Sachs, constitutes an unlawful obstruction, and directed its removal within thirty days. The mandatory injunction that was granted does not apply to the second story bridge, or permanent structure across said alley, owned by Guilford, as that is not held to be an obstruction to the free use thereof. From this decree Sachs have appealed and Guilford has not.

Of the several questions presented on this appeal, that raised directly by Sachs' answer becomes the controlling issue. Their whole defense, as therein stated, is adverse possession, and as to this the burden of proof is upon them and not upon the plaintiff. It was incumbent upon the latter to prove, in the first instance, that Sachs were trespassers in the alley in question, but the burden shifted when this particular defense was raised. Stuart v. Johnson, 181 Md. 145, 28 A.2d 837; Hansel v. Collins, 180 Md. 209, 23 A.2d 686; Oliver v. Hook, 47 Md. 301, 311.

That the original placing of this first floor structure across the alley was a trespass is free from doubt, and this is so whether the way now known as Sutton Street was, at that time (1915), a private or a public way. Every fact and circumstance relating to this alley, from the time of its creation, point to its rightful status as an open way and one never to be obstructed. The intention to thus establish it permanently was first expressed when it was laid out in 1809 by Articles of Agreement recorded among the Land Records of Baltimore City in Liber W. G. 105 folio 207, between the devisees of Conrad Smith. This is the same instrument referred to in Guilford's deed of 1941 conveying the identical property, and in both the public character of this alley is indicated by stating that it shall be 'forever kept open.'

This basic agreement of 1809 provides: 'and for equality of division and to give equal advantages to the middle portions it is agreed between the parties that an alley of the width of twelve feet to run from Barre Street the full extent of said lots till it intersects M. Samuel Yoner's lot (agreeably to the plat) shall be laid off and forever kept open for the mutual accommodation of said parties and those who may hereafter hold said portions of ground aforesaid which alley none shall obstruct.' The Yoner lot is the one now designated as No. 414 S. Hanover Street, owned by appellee.

In February, 1839, the width of this alley was increased from 12 feet to 13 1/2 feet by virtue of an agreement executed between the then owners of the properties on Hanover Street and Barre Street. The language of that agreement likewise clearly emphasizes the intention to have this alley open and unobstructed always. The agreement states 'that eighteen inches in front and running back the whole depth of the ground in said Bond described and adjoining the alley above mentioned should forever thereafter remain open and unobstructed and be and constitute a portion of said alley, * * *. And we do hereby for ourselves and our representatives covenant with the said Hooper, Conway and Armstrong and their representatives, that the alley hereinbefore first mentioned shall forever hereafter remain open as a public alley and highway between the parties.'

While the alley, as originally laid out, went no farther than the Yoner lot (414 S. Hanover Street), it is shown by the record that as far back as 1875 it had been extended to the rear of the properties now owned by appellee. In that year the deed to appellee's grantor, Bernhardt Meyer, called for a depth of '120 feet to the east side of an alley 12 feet wide newly laid out and communicating wide Barre Street.' Appellee's deeds to the adjoining lots, nos. 412 and 410, likewise refer specifically to this 12 foot alley communicating with Barre Street.

It is evident, therefore, that the respective original owners of lots 410 to 428, inclusive, South Hanover Street, created an alley which extended from Barre Street to, and including, the rear of lot 410. Of this entire alley 168 feet 11 inches came from the original agreement of 1809, confirmed and enlarged in width by the 1839 agreement. The extension of the alley to the rear of lot 410 came in later years, but prior to 1875, through grants by the owner or owners of the original Yoner lot.

As to the Barre Street property (106-8-10), now owned by Sachs, no...