Miller v. Stuart

• Decision Date: 06 December 1907
• Parties: MILLER et al. v. STUART et al.
• Court: Maryland Court of Appeals

68 A. 273

107 Md. 23

MILLER et al. v. STUART et al.

Court of Appeals of Maryland

December 6, 1907

Appeal from Circuit Court No. 2 of Baltimore City; Pere L. Wickes Judge.

Suit by Samuel E. D. Stuart and another against Willianna P. Miller and others. From a decree for plaintiffs, defendants appeal. Affirmed in part, and reversed in part.

Argued before BOYD, C.J., and PEARCE, SCHMUCKER, and BURKE, JJ.

Randolph Barton, Jr., and Randolph Barton, for appellants.

Carroll T. Bond and Frank Gosnell, for appellees.

SCHMUCKER J.

This appeal is from a decree of circuit court No. 2 of Baltimore city enjoining the appellants from the further prosecution of an action of trespass which they had instituted against the appellees for injuring one of the walls of a building.

It appears from the record that in the year 1904 the appellants owned the lot of ground lying at the northeast corner of Baltimore and Holliday streets, in Baltimore city, and the appellees owned the adjoining lot on the east. On October 26 1904, the appellants, being about to erect a building on their lot, made inquiry of the appellees if they desired to buy the right of using the easternmost wall of the proposed building, which was to stand entirely upon the appellants' lot. This inquiry set in motion a series of negotiations between the parties, which resulted in the execution by the appellants on November 26, 1904, of the following instrument, which, although called an agreement appears upon inspection to be a grant to the appellees of the right to use the wall in question for certain specified uses. This grant, which was signed, sealed, and acknowledged by all of the parties thereto, both grantors and grantee, and duly recorded among the land records of the city, reads as follows: "This agreement, made this twenty-fifth day of November, 1904, by Willianna P. Miller, Almira P. Linthicum and Charles W. Linthicum, her husband, Ida B. Thomson and Clarence J. Thomson, her husband, and Catherine F. Miller, parties of the first part, and Samuel E. D. Stuart, party of the second part, witnesseth: That the said parties of the first part, in consideration of one thousand dollars ($1,000.00) the receipt of which is hereby acknowledged, do hereby grant unto the said Samuel E. D. Stuart, his heirs, executors, administrators and assigns, for all time hereafter, the use of the easternmost wall (which said wall is now in course of erection) of the house on the northeast corner of Baltimore and Holliday Streets, in the City of Baltimore and State of Maryland, for the purpose of inserting in said wall the ends of beams or girders, for the depth approximately of four inches and for the length measured vertically, of twelve inches approximately; said beams or girders are to rest on pillars built upon the property immediately adjoining said wall on the east. And the said parties of the first part do grant unto said Stuart the right to use said wall now in course of construction as aforesaid, when completed, as the westernmost enclosure of his said building. The said wall stands on a line thirty feet or thereabout, east from Holliday Street, and two feet west of the beginning point of the whole lot described in a lease from William F. Frick and Warfield T. Browning to John T. Ford, dated the 13th of February, 1867, and recorded among the Land Records of Baltimore City in Liber A. M. No. 329, folio 64, &c., as witness the hands and seals of the parties hereto." The appellants then completed their building, which was three stories high, and in so doing carried its easternmost wall about three feet above the roof for the purposes of a fire wall, and covered it with an appropriate coping. The appellees followed with the construction of a four-story building on their lot. In erecting this building they inserted the girders of its several floors into the easternmost wall of the appellants' house until they reached the top of that wall, when they, without any notice to the appellants, removed the coping from the top of the wall, and built the wall about seven feet higher throughout its entire length, and used this addition to the wall as part of their own house, and connected it with the front and rear walls of their building in such manner as to give it the appearance from the street of being part of their building. When the appellants discovered the use which had thus been made of their wall, they demanded that the appellees should remove the wall which they had built on top of it, and restore it to its former condition, or, as an alternative, should pay the appellants an annual rent for its use, and agree to remove it whenever requested by them to do so. The appellees refused to comply with this demand, claiming that they had acquired from the appellants the right to build the wall as many stories higher as they desired. The appellants thereupon brought the suit in trespass against the appellees, the further prosecution of which was enjoined by the decree appealed from.

After they had been thus sued at law, the appellees filed the bill in the present case which prays (1) that certain of the parties to the so-called agreement of November 25, 1904, who executed in their own right may be required to also execute it in their capacity of trustee for certain others of its signers, and the Hopkins Savings Bank, which holds a mortgage on the property, may also unite in it, and that the name of Emma R. Stuart, the wife of Samuel E. D. Stuart, may be inserted in it as a grantee; (2) that the agreement itself may be so reformed as to clearly express the alleged intention of the parties to give the appellees the right to use the wall to the extent to which they have in fact used it; (3) that the appellants may be enjoined from the further prosecution of their action of trespass, and for general relief. The bill alleges, in substance, the making of the agreement of November 25, 1904, and that before it was made the appellees (plaintiffs) had from time to time fully explained to the appellants (defendants) their purpose to erect a four-story building on their lot, and had exhibited to them the drawings of the architect employed by them for the erection of such four-story building, and further alleged that it was the intention of all parties to the agreement that the appellants should thereby grant, and the appellees should acquire, the unincumbered right to the joint use of the wall, so as to constitute the same the easternmost wall of the appellants' building, and the westernmost wall of the appellees' building, the plans of which were fully known to the appellants, who were well aware that the appellees intended to purchase the right to use the wall as the western inclosure of their four-story building; that the appellees paid the $1,000 consideration in the agreement mentioned, and proceeded to erect their four-story building openly and in public view, according to the plans which had been shown to the appellants, and in so doing used the wall for the westernmost inclosure thereof, building the wall about one story higher as was necessary in order to so use it; and that no objection thereto was made by the appellants until nearly two years afterwards. The bill further alleges that, by the mistake of the parties and the attorney who drew the agreement of November 25, 1904, it fails to correctly express the intention of the parties thereto in failing to grant to the appellees the absolute and unincumbered use of the wall to inclose their building as aforesaid, and also in admitting to unite in it as grantors the said trustees and mortgagee and to unite as a grantee Emma R. Stuart, the wife of Samuel E. D. Stuart. The appellants all answered the bill. They by their answer flatly deny that they...