Tinges v. City of Baltimore

• Decision Date: 19 June 1879
• Parties: GEORGE W. TINGES v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

51 Md. 600

GEORGE W. TINGES v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

June 19, 1879

APPEAL from the Baltimore City Court.

The case is stated in the opinion of the Court.

Exception.--At the trial the Mayor and City Council of Baltimore asked the Court to instruct the jury as follows:

If the jury shall find from the evidence that the appellant, George W. Tinges, acquired title to the property owned by him on the east side of St. Paul Street, between Townsend Street and North Avenue, referred to in the proceedings, by the deed from Hiram Woods, in evidence in this case, and that said Woods acquired title to the same by deed or deeds from William F. Cooke and wife, Warren E. Cooke and wife, and Euphrasia F. Cooke, and that the said Cookes were the owners of the property lying in the bed of St. Paul Street, marked "Lot G," on the plat in this case, and on both sides of said street, between Townsend Street and the Hanson Mill road, and that prior to said conveyance to Hiram Woods and to the passage of the ordinance for opening St. Paul Street, under which the present proceedings were taken, the said Cookes had leased portions of said property between Townsend Street and the Hanson Mill road, and in the said lease described the lots so leased as bounding on the east side of St. Paul Street, then said leasing was a dedication by said Cookes of the portion of the bed of St. Paul Street between Townsend Street and the Hanson Mill road, so owned by them, and marked "G," on the said plat, to the use of the public, and the said Tinges is entitled to nominal damages only, for the portion of the bed of St. Paul Street claimed by him, and taken by the Mayor and City Council for the purpose of opening said street, and that the verdict of the jury must be for the appellees.

The appellant asked the Court to instruct the jury as follows:

1. The appellant prays the Court to instruct the jury, that it is absolutely essential that an intent on the part of the lessors of the Baltimore City Passenger Railway Company, to dedicate that part of the bed of St. Paul Street, which lies to the south of the 20 foot alley referred to in the lease to that company, should be proved.

2. That there is no evidence to be found in the lease from the lessors of the Baltimore City Passenger Railway Company of the square of ground included between the boundaries of Calvert and St. Paul Streets, and North Avenue, and the 20 foot alley in the rear, as described in the lease offered in evidence, of an intention on the part of said lessors to dedicate any other streets or alleys, or parts of streets and alleys, than those which surrounded and bounded upon the said square.

The Court (PINKNEY, J.,) granted the instruction asked for by the Mayor and City Council of Baltimore, and rejected those asked for by the appellant. Tinges excepted; and the allowance to him by the Commissioners for Opening Streets, of nominal damages, having been affirmed by the Court below, he appealed.

The cause was argued before BARTOL, C.J., BRENT, MILLER, GRASON and ROBINSON, J.

William F. Frick, for the appellant.

The main question in the case is simply, as to the construction of the lease from the Cookes to the Baltimore City Passenger Railway Company. The case of Hawley vs. M. & C. C. of Balto., 33 Md., 280, announces the modern doctrine as found in the New York and other cases to be that the "dedication" imputed by law to the owner of vacant ground, who sells lots bounding upon streets laid out upon a city plan, is founded upon the covenant implied from the terms of his grant, that his grantee is to have the use of such streets when open, free of charge. Therefore as the dedication arises from this implied covenant, it must necessarily be "co-extensive with the right of way acquired as an easement by the purchaser." "It must necessarily be measured by the limits of the right he has acquired by virtue of his grant."

It is quite clear then, that the extent of the imputed dedication in this case is to be determined and limited by the rights acquired by the lessee under its deed; and those are to be ascertained from the terms of the deed and the situation of the property at the time. Whatever easements were fairly intended to be granted, the lessor is under an implied covenant to allow--or as it is sometimes said, is estopped from disputing; the effect being the same, under either view of the case. And it is also clear, that as the extent of the implied covenant, or estoppel, depends upon the presumed intention of the party who is to be held bound by it, that intention is to be ascertained, like any other fact. It is not to be imputed to a party, upon any arbitrary legal rule of construction of his grant. McCormick vs. Mayor, &c., 45 Md., 524.

What was the intention of the lessors, in respect to the use of St. Paul Street, by their lessee, which "is clearly proved by the facts and circumstances of this particular case?" North Avenue was at the time a wide and open thoroughfare. Neither St. Paul, nor Calvert Street, nor any streets crossing them between North Avenue and the Falls, were then opened or used. The whole territory was an uninclosed common. The Railway Company wanted a lot at its terminus on North Avenue for the use of its business. It leased a square of ground fronting 264 feet on North Avenue, lying between St. Paul and Calvert Streets, and running back 175 feet to a 20 foot alley. The lessors in describing the property bounded it on these four streets or ways and granted especially, the use of the 20 foot alley. It is a reasonable presumption of fact that they intended the company to have the use of all the streets and ways surrounding the square, so as to give a free outlet all around it, to and from North Avenue, which was then the only open highway. But where in the terms of the grant, or in the facts of the case, is there any clear proof, (it may be said, any proof at all) of any intention to grant further and remote easements, either on St. Paul or Calvert Streets, or of the necessity or even expectation of any such, on the part of the lessee?

The contention on the part of the City, seems to proceed upon the theory, that the law will presume an intention of the grantor, in these cases, to grant always an easement through his property from one "street" to another ""street," so called. But this Court has not laid down any such rule. ""Until it reaches some other street, or public way and no further," is the language of the Court in 33 Md., 280. Now if the idea of the appellee be, that the ""street or public way," here meant, must necessarily be one of wide dimensions, then the language would not reach the case of some "streets" at all. There are ""streets" in Baltimore City, so-called, of the width of 20, 30, 40, 66, 100, and even 150 feet. There are streets, so-called, 20 feet wide, built up on both sides with dwelling houses, small indeed; but nevertheless they are "streets." Now the public way in this case, 20 feet wide, happens to be called an alley; but it is nevertheless clearly a " public way," laid down on Poppleton's plat to be opened as such, and quite as wide as some ways that are called "streets." We are to understand by the generic term "street," any public city-way, without reference to its width or extent of public user.

James L. McLane, for the appellee.

The appellee maintains, that there has been a complete and irrevocable dedication of the bed of St. Paul Street, between Townsend Street and North Avenue, so far as the same is included in the lot of the appellant. 1. By the lease made to Mankin in 1851, of lots binding on the said St. Paul Street, as laid out and designated on the plat prepared at the time, and in connection with such disposition of the property; and 2. By the lease of lot B, to the City Passenger Railway Company, calling to bind on the same street.

The trustee was appointed, in a proceeding in which all parties in interest were properly represented, for the express purpose of selling or leasing, to the best advantage, a tract of several acres of unimproved land, extending from Jones' Falls to North Avenue. He divided the property into lots and streets, and exhibited the same on a plat prepared for the purpose, and afterwards filed in the cause in the Baltimore County Court. He put the property on the market, and actually leased a portion of it binding on the east side of St. Paul Street, as shown on his plat, and as it is now proposed to be opened by the appellee. In like manner the Cookes themselves, being all of full age, and owning the entire block of ground between Townsend Street and North Avenue, and having full knowledge of the plat previously prepared by the trustee, and then on file in the equity proceedings already mentioned, made the lease of July, 1867, to the City Passenger Railway Company, calling to bind on the same St. Paul Street.

The law is now well settled in this State, that the owner who lays out his land into lots and streets, and sells lots calling to bind on such streets, although the same remain, at the time unopened under the...