Story v. Ulman

• Citation: 88 Md. 244,41 A. 120
• Parties: STORY, Examiner of Titles, et al. v. ULMAN.
• Decision Date: 30 June 1898
• Court: Court of Appeals of Maryland

41 A. 120

88 Md. 244

STORY, Examiner of Titles, et al.

v. ULMAN.

Court of Appeals of Maryland.

June 30, 1898.

Appeal from Baltimore city court.

Petition for mandamus by Alfred J. Ulman against Frederick W. Story, examiner of titles, and Charles D. Fenhagen, comptroller, to compel defendant Story to certify to petitioner's title to certain property, and defendant Fenhagen, on receipt of said certificate, to certify to the correctness of petitioner's claim for damages allowed in condemnation proceedings. From an order issuing the writ, defendants appeal. Affirmed.

Argued before McSHERRY, C. J., and BRYAN, FOWLER, BRISCOE, PAGE, and BOYD, JJ.

John E. Semmes and John V. L. Findlay, for appellants.

M. R. Walter, for appellee.

BRYAN, J. The controverted question in this case is whether Tenth street, in the city of Baltimore, has been dedicated as a public highway. In May, 1891, the mayor and city council of Baltimore passed an ordinance for the condemnation and opening of this street, to be of the uniform width of 66 feet, from the west side of Charles street, westwardly to the east side of Maryland avenue. After the usual proceedings, the commissioners for opening streets made their estimate, awarding damages and assessing benefits. Among other awards, damages were allowed to Alfred J. Ulman for a strip of 30 feet condemned for the northern half of the proposed street. The final return of the commissioners was certified to the city register, and the usual notice was given by publication in three daily newspapers that the books and papers would remain in his office for 30 days for examination by all persons interested, and that an appeal might be taken within that time to any court of competent Jurisdiction. The 30 days having fully expired, and no appeal being prayed by any person interested, the return was in due course, on the 9th day of January, 1893, delivered to the comptroller. According to the Baltimore City Code, no money can be paid by the city except through a warrant of the comptroller upon the register. The comptroller refuses to issue his warrant in favor of Mr. Ulman unless the examiner of titles will certify that he is entitled to receive the money awarded to him as damages. The examiner of titles insists that Ulman has no right to the damages awarded to him for the portion of Tenth street which was condemned. A petition was filed by Ulman for a mandamus commanding the examiner to certify to his title, and commanding the comptroller to issue his warrant to the register. After answer and hearing, the mandamus was ordered by the court. We learn from the record that this proceeding was adopted by the consent of the parties, in order that it might be decided whether Tenth street had been dedicated to the public. We shall therefore give our opinion on this question, passing by the obvious result of the condemnation proceedings that the award to Mr. Ulman is conclusive as to the value of the property and the damages which he will sustain by taking It Baltimore City Code 1879, art. 47, § 10; Norris v. Mayor, etc., 44 Md. 605.

The question of dedication must be decided by what appears in the record. In May, 1870, William Holmes conveyed a lot in fee simple to John Sinclair on the east side of Charles street, and binding about 184 feet on the south side of Holmes (now Tenth) street, as laid down on a plat annexed to the deed. This deed contained the following clause: "Together with the buildings and improvements upon said described lot of ground, erected, made, or being, and all and every the rights, alleys, ways, waters, privileges, appurtenances, and advantages to the same belonging or in any wise appertaining, including the right, use, and privilege of all the streets, lanes, and alleys laid down on the plat heretofore annexed, so far as the same extend over the tract called Llliendale." In October, 1874, Sinclair conveyed this property in fee to Ulman. In October, 1870, Holmes leased to the Peabody Heights Company for 99 years, renewable forever, with the privilege of redemption, a...