Mayor and City Council of Baltimore v. Brack

• Decision Date: 11 January 1939
• Docket Number: 70.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. BRACK.
• Court: Maryland Court of Appeals

3 A.2d 471

175 Md. 615

MAYOR AND CITY COUNCIL OF BALTIMORE v. BRACK.

No. 70.

Court of Appeals of Maryland

January 11, 1939

Appeal from Circuit Court of Baltimore City; Samuel K. Dennis Judge.

Suit by William F. Brack against the Mayor and City Council of Baltimore, a body corporate, for a permanent injunction compelling defendant to remove a water main from plaintiff's premises or to be restrained from using the water main without due compensation therefor to plaintiff and to remove or discontinue the use of sewer and drain pipes. From an adverse decree, defendant appeals.

Decree affirmed, and cause remanded.

Morris A. Baker, Asst. City Sol., of Baltimore (Charles C. G. Evans City Solicitor, of Baltimore, on the brief), for appellant.

Edward J. Colgan, Jr., of Baltimore, for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

MITCHELL Judge.

The appeal in this case is from that part of a decree of the Circuit Court of Baltimore City, passed on the 4th day of April, 1938, which enjoins the appellant from further using or permitting the use of a certain 20-inch water main, and certain sewers and drains, after the period of 60 days, accounting from the date of the decree; the decree requiring the appellant to remove said water main, sewers and drains from the premises of the appellee within 120 days from the date thereof. As originally filed, the bill of complaint alleged trespasses upon the property of the appellee other than those involved in the use of the water main, sewers and drains above mentioned, in or over the lands of the appellee; which additional alleged trespasses need not be considered in this opinion, for the reason that the appellant has acquiesced in the disposition of them in said decree by the learned Chancellor below, and has not appealed therefrom.

The case was heared upon bill, answer and testimony; and the facts upon which the decree was passed; which are substantially undisputed, are as follows: William F. Brack, on September 19, 1936, acquired by purchase a tract of land containing from 40 to 42 acres, situate, lying and being in Baltimore City, and adjoining what is known as the Hillsdale Golf Course on the east and south, belonging to the City of Baltimore, the appellant; and at the time the appellee acquired title to the tract of land, there was laid across and over a part of the same a 20-inch water main feeding Dickeyville and Catonsville, suburban sections of the City; the course of said watermain being in a continuous straight line with the same general course of what is designated on the plat filed in the case as Rogers Avenue, and extending for the approximate distance of 1,045 feet to what is also designated on said plat as Alabama Avenue, the latter avenue being the south boundary of the land of the appellee. The watermain is so constructed as to be entirely below the surface of the ground, except that extending above the same there are two or three fire plugs and cover plates over valves. Following the line of what is designated on the plat as being Fendall Road, through the land of the appellee, to what is shown on the plat to be California Boulevard, which boulevard marks the northeasterly and northerly boundary of the appellee's land, for a distance of approximately 700 feet, and below the surface, there are laid a storm water drain and a sanitary sewer, which find their outlet under the bed of California Boulevard. It appears that all of the utilities above mentioned were known to the appellee at the time of his purchase of the property, and were constructed upon the premises some years prior to the transfer of the title to him, with the consent of the then owners of the property, but nevertheless, without an executed and recorded license for the purpose from the licensor to the licensee, the City of Baltimore; and that no consideration ever passed from the City to the then owner for the concessions; nor has Mr. Brack, the appellee, since his ownership of the property, received any consideration for the use of the utilities or granted the City any rights in the premises. And there is testimony in the record tending to show that at the time the utilities were placed on the property above mentioned, or subsequently thereto, negotiations were conducted between officials of the City and Mr. and Mrs. Lacey, the former owners of the property, or their representatives, designed to secure for the City a legal transfer of the easement in place of the oral license; which negotiations, as above indicated, were never finally concluded. Both Mr. and Mrs. Lacey are now deceased.

In this situation the appellee, on May 6, 1937, filed a bill of complaint alleging the use of his land as indicated, without legal authority from himself or his predecessors in title; the serious interference with his own right to use the land in line with his plans to develop the same, because of the location of said utilities upon them; and praying that a permanent injunction be issued, compelling the Mayor and City Council of Baltimore to remove the watermain from his premises, or be restrained from using the same without due compensation therefor to him, and to remove or discontinue the use of the sewer and drain pipes. The answer admits the location of the utilities, and their use by the City; and sets up, in justification of its alleged trespass, the oral license to use the property for the purposes aforesaid, accorded the City by predecessors in title of the complainant.

It will thus be observed that the questions raised by the appeal are: (a) Whether, under an admittedly oral license, the City has the right to continue the use of the utilities over the land of the appellee; and (b) if it be determined that it does not have that right, what form of decree shall be passed, in view of the undisputed fact that the appellant is a municipal corporation and that the utilities involved are used in public service? A subsidiary question arises from the contention, pressed by the appellant in its brief, that the City is entitled to compensation as a condition to the revocation of the license, in event the revocation is decreed; and in support of that contention the cases of Carter v. Harlan, 6 Md. 20; Lake Roland El. Ry. Co. v. Baltimore, 77 Md. 352, 26 A. 510, 20 L.R.A. 126; Northern Central Ry. Co. v. Canton Co., 104 Md. 682, 65 A. 337; and Brehm v. Richards, 152 Md. 126, 127, 136 A. 618, 56 A.L.R. 1103, are cited. As this question is closely related to the first question above noted, the two will be discussed together.

A careful examination of the above cited cases discloses that in each of them the question of compensation arose in a controversy between the original licensor and licensee except, however, that of Carter v. Harlan, supra, a suit at law in trespass, wherein the plaintiff's predecessor in title had accorded the defendant the right to erect mill-dam, which backed water upon the plaintiff's lands; and in which case it was decided that the sale and conveyance of the overflowed lands by the owner to the plaintiff, subsequent to the erection of the dam, was by mere operation of law a revocation of such license. In that case, it may be added, no improvements were placed on the plaintiff's land as a result of the license; and the Court affirmed the principle that the right to overflow another's land by a mill-dam was an interest in land, which could not pass by parole; citing Hays v. Richardson, 1 Gill & J. 366; Addison v. Hack, 2 Gill, 221, 222, 41 Am.Dec. 421; and Cook v. Stearns, 11 Mass. 533, 538. While it is true, as quoted in the appellant's brief from the concluding part of the opinion filed in Carter v. Harlan, supra, the following language was used: 'We of course put out of view all that class of cases where, because of a license, a party has been put to an expense and outlay on the land of the licensor'; it is our conclusion that the Court intended the reference to apply only to such cases as involved transactions between the original licensor and licensee, and in no way contemplated a subsequent bona fide purchaser of land, who, although with full knowledge of an existing parol license from the former owner, or his own grantor, takes title thereto by deed in full compliance with the registry laws of the State (Code, Art. 21), because it is definitely settled by this Article that no interest in land for a term exceeding seven years can be transferred except by deed duly executed and recorded. Hays v. Richardson, supra; Peter v. Schley, 3 Har. & J. 211; Polk v. Reynolds, 31 Md. 106; Partridge v. First Ind. Church, 39 Md. 631; Rayner v. Nugent, 60 Md. 515; Baltimore & Hanover R. R. Co. v. Algire, 63 Md. 319; Consolidated Gas Co. v. Northern C. R. R. Co., 107 Md. 671, 69 A. 518; Lake...