Mayor and Town Council of New Market v. Armstrong

• Decision Date: 16 April 1979
• Docket Number: No. 787,787
• Citation: Mayor and Town Council of New Market v. Armstrong, 400 A.2d 425, 42 Md.App. 227 (Md. App. 1979)
• Parties: MAYOR AND TOWN COUNCIL OF NEW MARKET et al. v. William J. ARMSTRONG et ux.
• Court: Court of Special Appeals of Maryland

Page 227

42 Md.App. 227

400 A.2d 425

MAYOR AND TOWN COUNCIL OF NEW MARKET et al. v. William J. ARMSTRONG et ux.

No. 787.

Court of Special Appeals of Maryland.

April 16, 1979.

Mary E. Storm, Frederick, for appellant Mayor and Town Council of New market.

Peyton Paul Phillips, Frederick, for other appellants.

James W. Hane, Gaithersburg, and H. Warren Buckler, Baltimore, for appellees.

Argued before MOYLAN, LOWE and MASON, JJ.

LOWE, Judge.

On July 19, 1974, William J. and Jane P. Armstrong purchased a property upon which stood an old schoolhouse. The deed described the land as "consisting of Lot No. 84 and Lot No. 85 situate in Hall's Part of the Town of New Market containing one-half (1/2) acre of land, more or less." The reference to "Hall's Part of the Town" derived from Nicholas Hall who must have been among the first subdivision developers. In 1793, he laid out the proposed Town of New Market on a recorded plat, dedicating the streets and alleys thereon to the use of the public forever.

Lot No. 85 was bordered on its western boundary by Federal Street and on its eastern boundary by Lot No. 84. Both of these lots abutted North Alley as their northernmost boundaries. A substantial portion of the adjoining Federal Street and of North Alley constituted the concern of this appeal. Indeed, the old schoolhouse had been constructed over a substantial part of Federal Street, and over a portion of North Alley as well.

Upon complaint of the Armstrongs under the Maryland Uniform Declaratory Judgment Act, the Circuit Court for Frederick County declared the couple had acquired substantial portions of the described street and alley by adverse possession. In order to clarify the portion so proclaimed, the court included in its order not only a metes and bounds description but a plat clearly designating those portions so obtained. We reproduce that plat at this juncture to facilitate a clearer understanding of that which will follow:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Pursuant to Md.Rule 1028.g., the parties stipulated to a statement of undisputed facts and exhibits narratively summarizing the testimony. To ease our burden of review still further, they synopsized their summary. That synopsis is brief enough to include, yet enlightening enough to add understanding to the issues raised:

"In 1793 Nicholas Hall executed and recorded a plan and plat for a proposed town, the Town of New Market. The recorded plan specified, Inter alia, that 'I the said Nicholas Hall do hereby agree to give the Alleys as now laid out, for the use of the public forever, also the streets, and that I shall never hereafter lay any claim to the same nor my Heirs and Assigns.'

In 1878 the Town of New Market was incorporated. There appears to be no specific record whereby the Town formally accepted the Hall dedication of the streets and alleys. Recently, however, Hall's plat was used in connection with the Town's zoning regulations and master plan, the latter recommending improvement of some streets and abandonment of others.

In 1974, William J. Armstrong, et ux, purchased Lots Nos. 84 and 85 as designated on the Hall plat which were improved by a structure which was formerly a school house. Prior to the purchase, the Armstrongs knew that the structure located on the premises encroached upon the right of ways of Federal Street and North Alley. Mr. Armstrong also testified that he was familiar with the Hall plat prior to the Armstrongs' purchase of the lots.

In 1976 the Armstrongs instituted these proceedings seeking, in essence, to quiet title to their real property. The evidence produced showed that they had fee simple title to Lot 84, but that the leasehold and reversionary estates in Lot 85 never merged.

The encroachment by the school building onto the street and alley apparently occurred in 1939 when the School Board caused another school to be physically moved to the site of the old building. It was placed in front of the building by the contractor and another classroom was added, making it into a two-classroom school house.

The Armstrongs, apparently to establish their ownership of one-half of the bed of North Alley and one-half of the bed of Federal Street, presented evidence to show the nature and extent of the use of the premises as a school facility. Such evidence indicated that a flower bed was plated at the front of the school house; that children walked upon Federal Street and North Alley to get to the school; that a parking place was established in front of the school for the buses to use when unloading the children; that the school children played on Federal Street and North Alley; that North Alley east of Federal Street is not constructed and that in the area where the alley should be there are large trees and natural growth as well as a farm fence, owned by the Brinkleys, running east-west which partly encroaches into the North Alley right of way. The farm fence which partly encroaches in North Alley has been in the same location for at least 60 years. The testimony of life long residents clearly showed Federal Street and North Alley have been considered as alleys until the present day.

The Town and the Brinkleys, to establish the pre-1939, as well as post-1939 acceptance of the Nicholas Hall dedication of the streets and alleys by public use over a long period of time, presented similar evidence, viz. the testimony of New Market residents showed that parts of the streets and alleys were generally travelled and used by the public. Such evidence indicated that parts of Federal Street and North Alley were used in delivering newspapers to residents of that area in the 1920's; that flat stones were placed on the west side of Federal Street for the pedestrians; that at one time horse stables were maintained on North Alley east of Lots 84 and 85 and that users of the stables travelled upon Federal Street and North Alley.

Other evidence showed that originally the streets and alleys of New Market, including Federal Street and North Alley, were dirt, then tar and chips, then gravel and finally paved in part of the width. Such improvements and the general maintenance and snow removal of such streets was undertaken and performed by the Town. The paving of Federal Street and North Alley is approximately 12 feet wide and occurred in the 1950's. In the 1960's, the Frederick County Metropolitan Commission constructed sewer lines in the bed of the right of ways of Federal Street and North Alley, partly beneath the paved roadways."

The issues raised on appeal assign error to the judgment for at least five reasons which include:

1. the Nicholas Hall restrictive covenant, running with the land, not to lay claim to streets or alleys, was known to appellees;

2. relief granted by adverse possession was contrary to the theory of relief prayed;

3. propriety of the finding of adverse possession against a municipality;

4. clear factual error (sufficiency) in finding adverse possession; and

5. improper tacking to carry the adverse possessory right to appellees.

To the extent appellants attack the factual findings of the court we are not impressed. Our review of the record indicates that there was sufficient evidence from which the court could have found that appellees' predecessors in interest (to which we will generally refer as the Board of Education) ¹ had fulfilled the requisites of adverse possession. Md.Rule 1086; Rogers v. Burnopp, 263 Md. 357, 360, 283 A.2d 367 (1971). This factual attack was the primary focus of an intervening party below, G. Ross Brinkley, et ux, who also appealed. The Brinkleys contend as well that the court erred in overruling their motion for summary judgment. Because we have found sufficient facts upon which the court could have reached its result, it follows necessarily that there were sufficient facts in dispute to have justified denying summary judgment. ² See Broadfording Ch. v. Western Md. Ry., 262 Md. 84, 88-89, 277 A.2d 276 (1971).

remedy contrary to relief prayed

Responding first to the procedural assault that neither the specific relief of adverse possession, nor a general relief prayer sufficient to encompass it were prayed, it has been held that when there is a justiciable issue presented by a bill of complaint or declaration seeking declaratory relief,

"a declaration should be given even if it is not the declaration sought by the plaintiff and, indeed, is entirely or partially contrary to the theory of the plaintiff on which declaratory relief is sought." Woodland Beach Ass'n v. Worley, 253 Md. 442, 448, 252 A.2d 827, 830 (1969).

That is precisely what occurred here. Pursuant to the Maryland Uniform Declaratory Judgment Act, the appellees asserted their ownership of the street and alley under and by virtue of Md.Real Prop.Code Ann. § 2-114 (1974) "Unless a contrary intention appears in the deed, will, or other instrument, if any deed, will, or other instrument grants or bequeaths land binding on any street or highway, or if any street or highway is one or more of the lines of the land, the deed, will, or other instrument passes to the legatee, donee, or grantee, all the right, title, and interest of the testator, donor or grantor in the street or highway. Except that to the extent the testator, donor, or grantor owns other land on the opposite side of the street or highway, the deed, will, or other instrument passes the right, title, and interest of the testator, donor, or grantor only to the center of that portion of the street or highway on which the two or more tracts coextensively bind."

They then contended that since their property abutted the street and alley which were dedicated but never accepted, their title ran to the center of the street and alley. The court did not agree with that premise. It held that the statute was not in being at the time of dedication and the theory of appellees fell with that finding.

"I cannot rule I don't think it is the law that ...