Sanderson v. City of Baltimore

• Decision Date: 13 January 1920
• Docket Number: 65.
• Citation: 109 A. 425,135 Md. 509
• Parties: SANDERSON v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

109 A. 425

135 Md. 509

SANDERSON v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 65.

Court of Appeals of Maryland

January 13, 1920

Appeal from Baltimore Court of Common Pleas; Robert F. Stanton Judge.

Action by Missouri N. Sanderson against the Mayor and City Council of Baltimore. From a judgment for plaintiff, giving her insufficient relief, she appeals.

Reversed and new trial awarded.

The following prayers were offered by plaintiff:

(1) The plaintiff prays the court to instruct the jury as follows: If the jury find that the plat offered in evidence was recorded in or about the year 1875 by the receivers named thereon, and lots sold by reference thereto, and that the object of the streets shown on said plat was to enable the purchasers from said receivers and their successors in title to have access to the lots bounding on such streets, then if the jury further find that the plaintiff and her predecessors in title have owned lots bounding on Highland (or Mondawmin) avenue and Twelfth (or Dennison) street, two of the streets shown on said plat, for more than 20 years prior to the grading complained of in this case, and that the beds of said streets in front of said lots remained grass-grown fields and were not used or maintained by the authorities of Baltimore county or (after the annexation) of Baltimore city, until the grading complained of in this suit, and that the defendant the city of Baltimore, without any legal proceedings for the condemnation and opening of said streets, proceeded to enter upon and grade said Twelfth (or Dennison) street and said Highland (now Mondawmin) avenue to a grade very much below the level of the abutting land, and if the jury further find that such grade deprives the plaintiff of reasonable access from said streets to her abutting property, then the verdict of the jury should be for the plaintiff.

(Refused.)

(1 1/2) The court instructs the jury that the recording of the plat of Highland Park by the receivers as mentioned in the evidence, and the sale of lots with reference to said plat if the jury shall find such sale, amounted to a dedication of the streets shown on said plat, including Highland avenue and Twelfth street in front of the plaintiff's property, provided the grade established for such streets be such as to afford the abutting property owners reasonable access to such streets, and said facts did not authorize the city to accept said streets by the establishment and construction of a grade which the jury may find to be destructive of such reasonable access.

(Refused.)

(2) The plaintiff prays the court to instruct the jury as follows: If the jury find that the plaintiff was the owner of the lots at the northeast corner of Mondawmin (or Highland) avenue and Dennison (or Twelfth) street, as shown on the plat of Highland Park which is in evidence, and that for more than 20 years prior to the grading complained of in this suit, the plaintiff and her predecessors in title was in possession of said lots, and that neither the city of Baltimore nor Baltimore county ever maintained said streets as public streets, and permitted the plaintiff so to use a private way in the bed of said Dennison street, and to improve and adapt her abutting property to the existing grade of the land in the bed of said street, and that the interest of right and justice require that the city should not now be permitted to accept any dedication of said streets, and so to grade them as to deprive the plaintiff of reasonable access from them to her abutting property without making just compensation, then the defendant at the time of the grading complained of in this suit was estopped to accept any dedication of said streets, and the verdict of the jury must be for the plaintiff.

(Refused.)

(3) The plaintiff prays the court to instruct the jury as follows: If the jury find that the plaintiff and her predecessors in title for more than 20 years prior to the grading complained of in this suit had held open, notorious, and undisputed possession of parts of the beds of Highland (or Mondawmin) avenue and Twelfth (or Dennison) street adverse to that of all persons whatsoever, and used and cultivated the same freely without interruption as her and their own property, and if the jury further find that Baltimore county or Baltimore city prior to the grading complained of in this case never improved, lighted, sewered, or maintained the same as streets, and that the city entered upon and tore down the surface of said parts of said streets, then the verdict of the jury must be for the plaintiff.

(Refused.)

(4) The plaintiff prays the court to instruct the jury as follows: If the jury find that the plaintiff was in possession of the property at the northeast corner of Mondawmin (or Highland) avenue and Dennison (or Twelfth) street, and the city in grading Twelfth street and Highland avenue did not confine its operations within the lines of the streets as laid down on the plat of Highland Park which is in evidence, but in spite of her protests entered upon abutting property belonging to the plaintiff and dug up the surface thereof, then the plaintiff is entitled to recover, even though the city may have had the right to grade the beds of said streets, and the case is the same as if the city had had from the beginning no right at all to enter upon even the beds of said streets.

(Refused.)

(5) The plaintiff prays the court to instruct the jury as follows: If the jury find that the city in grading Twelfth (or Dennison) street and Highland (or Mondawmin) avenue did not confine its operations within the lines of said streets as laid down on the plat of Highland Park which is in evidence, but entered upon abutting property belonging to the plaintiff and dug up the surface of such abutting property, then the verdict of the jury should be for the plaintiff.

(Refused.)

(6) The plaintiff prays the court to instruct the jury as follows: There is no evidence legally sufficient to prove such a dedication of Highland (or Mondawmin) avenue and Twelfth (or Dennison) street as the city at the time of the grading complained of in this case could accept by grading said streets in the manner shown by the evidence, and therefore if the jury find that the plaintiff is the owner of the property at the said northeast corner of said Highland avenue and Twelfth streets. and that the defendant did such grading, their verdict must be for the plaintiff.

(Refused.)

(7) The plaintiff prays the court to instruct the jury as follows: If the jury find that the grading done by the city through Beasman in the bed of Mondawmin (or Highland) avenue, between Eleventh (or Hilton) and Twelfth (or Dennison) streets, was not for the purpose of conforming to the established grade of said Mondawmin avenue, but for the purpose of obtaining earth to use in grading another street, then such grading of said Mondawmin avenue was unlawful, and the plaintiff is entitled to recover such damages as the jury may find she has sustained therefrom.

(Refused.)

The following prayers were offered by defendant:

(1) The court instructs the jury that no evidence has been offered in this case legally sufficient, under the pleadings, to entitle the plaintiff to recover, and the verdict of the jury must therefore be for the defendant.

(Refused.)

(1 1/2a) The court instructs the jury that it appears from the uncontradicted testimony in this case that Mondawmin avenue, between Eleventh and Twelfth streets, for a width of 66 feet, and Twelfth street, between Mondawmin and Piedmont avenues, for a width of 66 feet, were dedicated to the public for its use as public highways and streets prior to the acts of the defendant complained of in the plaintiff's declaration; and the court further instructs the jury that there is no evidence in this case legally sufficient to show that the mayor and city council of Baltimore ever abandoned its right to accept the dedication of said avenue and street; and the court further instructs the jury that it appears from the uncontradicted testimony in this case that said avenue and street have been legally accepted by the mayor and city council of Baltimore as and for public highways; and if the jury believe from the evidence that, in making the excavations in the beds of Mondawmin avenue and Twelfth street, the defendant or its agents confined their operations within the limits of said avenue and street as delineated on the plat offered in evidence, then the verdict of the jury must be for the defendant, even though the jury may believe that as a consequence of such excavating portions of the plaintiff's land adjacent to the lines of the said avenue and street was deprived of its natural support and fell into the beds of said avenue and street, unless the jury believe from the evidence that the defendant or its agents in making said excavations extended their operations beyond the lines of said street and avenue as delineated on the plat offered in evidence and actually encroached upon and physically invaded the plaintiff's property, and even if the jury so find then their verdict should be for nominal damages only.

(Granted.)

(2) The court instructs the jury that no evidence has been offered in this case legally sufficient to entitle the plaintiff to recover under the first count of the declaration, and the verdict of the jury must therefore be for the defendant under the first count of the declaration.

(Granted.)

(3) The court instructs the jury that no evidence has been offered in this case legally sufficient to entitle the plaintiff to recover under the amended count of the declaration, and the verdict of the jury must therefore be for the defendant under the amended count of the declaration.

(Refused.)

Argued before BO...