Toney Schloss Properties Corp. v. Berenholtz

• Citation: 220 A.2d 910,243 Md. 195
• Decision Date: 22 June 1966
• Docket Number: No. 352,352
• Parties: TONEY SCHLOSS PROPERTIES CORPORATION v. Sol C. BERENHOLTZ et ux., et al. Fred SILBERT et ux. v. TONEY SCHLOSS PROPERTIES CORPORATION.
• Court: Court of Appeals of Maryland

Page 195

243 Md. 195

220 A.2d 910

TONEY SCHLOSS PROPERTIES CORPORATION v. Sol C. BERENHOLTZ et ux., et al.

Fred SILBERT et ux. v. TONEY SCHLOSS PROPERTIES CORPORATION.

No. 352.

Court of Appeals of Maryland.

June 22, 1966.

M. Peter Moser, Baltimore (Ronald P. Fish and Nyburg, Goldman & Walter, Baltimore, on the brief), for Toney Schloss Properties Corp. Solomon Kaplan, Baltimore, and R. Taylor McLean, Towson (Royston, Mueller, Thomas & McLean, Towson, on the brief), for Sol C. Berenholtz, Fred Silvert, and others.

Before PRESCOTT, C. J., HAMMOND, HORNEY, MARBURY and McWILLIAMS, JJ.

McWILLIAMS, Judge.

This dispute concerns the ownership of a small triangle of land (2262 sq. ft.) and the extent to which its owner may be limited in using the same. On one side we have Fred Silbert and his wife, Lucille (Silbert). On the opposite side is Toney Schloss Properties Corporation (Schloss Corp.). Judge Raine's decree satisfied neither side so both have appealed.

Since a proper understanding of the contentions of the parties is virtually impossible without reference to plats, we have provided three, which are appended hereto. The first is a segment of the 'preliminary subdivision plat' dated 15 January 1957. Next is part of the plat of Section 2, dated 23 January 1958. The third is part of the plat of Section 4, dated 25 November 1958. To the last mentioned two plats we have made obvious additions which, it is hoped, will make them more easily understood.

In the early Fifties Dan and Jerry Schloss (D & J) acquired 97 acres in the Third District of Baltimore County just north of what was to become (ten years later) the Baltimore Beltway. Plans for the utilization of the tract were crystallized during 1956 and by the end of the year the preliminary subdivision plat had been completed. It will be observed that this is a topographical survey upon which have been superimposed streets, building lots, easements for utilities and the location of drainage structures. The project was graced with the name 'Stevenson Ridge.'

In February 1957 D & J sold most of the tract to a developer known as Sherwood Acres, Inc. (Sherwood). The contract (as particularized by the purchase money mortgage dated 1 May 1957) required the buyer, among other things, to prepare subdivision plats 'in substantial conformity' with the 15 January 1957 plat. The mortgage was assigned forthwith to Schloss Corp., of which D & J are the principal owners.

During the balance of 1957 and all of 1958 Sherwood and Marcie Homes, Inc. (Marcie) (related companies) prepared the subdivision plats and concluded the customary negotiations with Baltimore County. One of the requirements of the county government was the fee simple conveyance to it of an area which, on the plats, is designated 'Flood Control Reservation.' The deed (16 February 1959) to the county, in which Schloss Corp. joined, conveys 'two parcels of land which are shown indicated, 'Flood Control Reservation' on the Subdivision Plat of Section 4 Stevenson Ridge.' (Emphasis supplied.) It should be remembered, and we shall have more to say about its significance, that there is only one parcel so designated on the plat of Section 4.

Silbert acquired his property in August 1959. Eugene K. Lewis bought his in March 1960. Sol C. Berenholtz became their neighbor in August 1960. Lewis and Berenholtz were parties in the trial court. They did not appeal.

In May 1962 Schloss Corp. foreclosed its mortgage. The assignee's public notice announced that he would sell, on 11 June 1962, a tract containing 16.8726 acres, 10 samll parcels and the beds of certain roads and streets. The 16 acre tract lies to the south of the properties of Silbert, Lewis and Berenholtz. The samll triangle, the ownership and use of which is our present concern, is one of the 10 smaller parcels described in the advertisement of sale. The assignee sold the property (including the 16 acre tract and the triangle) to Schloss Corp. and in due course the sale was retified. The assignee's deed to Schloss Corp. was recorded 22 August 1962.

As originally planned, access from the public roads to the 16 acre tract was to be obtained through the property of Gordon Sugar which adjoins Stevenson Ridge on the west. The preliminary subdivision plat clearly indicates that the only access from the public roads to the lots there shown is by way of Split Rock Court which, after leaving Stevenson Ridge, must necessarily run through the Sugar proerty in order to get to the highways. Since Schloss Corp. was anxious to dispose of these lots, the obvious, and perhaps only, customer was Mr. Sugar. To make the lots more attractive to him, Schloss Corp. sought to have the zoning classification changed from R. 40 (1 acre lots) to R.20 (1/2 acre lots), which was the classification which applied to Sugar's property. The details of the attempt which was unsuccessful, are fully set forth in Greenblatt v. Toney Schloss, 235 Md. 9, 200 A.2d 70 (1964).

Shortly after our decision in Greenblatt, supra, Schloss Corp., being unwilling to await the development of Sugar's land, conceived the notion of obtaining access to the 16 acre tract (which had by this time been augmented by about 8 landlocked acres just south of the 16 acre tract and abutting the Beltway) by building a road which would extend southwesterly from Marcie Drive in the vicinity of Silbert's lot. 'In the summer of 1964' Dan Schloss went to see Silbert. As related by Silbert 'he (Schloss) * * * told me that he owns a certain small triangle, which I thought was on my lot. * * * he wanted to buy my land or pay me for the privilege of using part of my land to get a road back into his land * * * and he said the triangle that he owned was not sufficient * * *. (He also said) he would give me a $5,000 profit for the purchase of my entire home.'

Silbert said he was 'amazed.' He told Schloss he 'thought it (the triangle) belonged to (him) * * *.' After talking it over with his wife, Silbert declined the offer.

Shortly therafter Schloss Corp. asked the county authorities to approve revised plans for the area (now totaling 23 acres). The plans indicated that access would be obtained by a road to be built from Marcie Drive over the triangle and continuing over a portion of the 'Flood Control Reservation.' Upon hearing of this Silbert, Lewis and Berenholtz objected and on 23 October 1964 they filed a bill of complaint seeking a declaration that Silbert owned the triangle and an order enjoining Schloss Corp. and the county from processing or approving any plan making use of the triangle or the Flood Control Reservation to provide access to the 23 acres. Later counsel for the parties filed a stipulation 'that the County and Mr. Gavrelis (Director, Office of Planning and Zoning) may, without prejudice to any rights of the Complainants, process the proposed plan for the development of the subject property, even to the point of tentative approval of such plans, upon the express understanding that no final approval shall be granted until the proceedings in this case are terminated.' The hearing before Judge Raine took place on 28 April 1965. Some additional evidence was produced on 15 June 1965 immediately after which the court's decision was announced.

Judge Raine, in his decree, held that the triangle is a part of the Flood Control Reservation and that the legal title thereto is in Schloss Corp. Also he enjoined Schloss Corp. from building a road thereon or using it for any purpose other than as a Flood Control Reservation. Schloss Corp. appealed from the whole decree. Silbert appealed from that portion of the decree declaring Schloss Corp. to be vested with legal title to the triangle.

Schloss Corp. has no quarrel with Judge Raine's finding that it has legal title to the triangle. It contends, however, that the triangle is not a part of the Flood Control Reservation. It contends, also, that the trial court's injunction against any use of the triangle, except as a Flood Control Reservation, is erroneous. Silbert contends the triangle belongs to him and that unless the injunction against Schloss Corp. is sustained, the value of his property will be diminished. The latter contention was made by Lewis and Berenholtz also in the trial below.

I.

Silbert contends there is an ambiguity in the plat of Section 2 which creates doubt as to whether the triangle is a part of Lot 5. This being so, he argues, it becomes necessary, in order to construe the conveyance, to determine the intention of the parties. If their intention cannot be resolved, he continues, then the conveyance must be construed against the grantor.

We are not aware of any ambiguity in the plat of Section 2. The S 29 40 30 E 90.52 line (the SW side of the triangle) is obviously one of the boundaries of Lot 5 (and as well a boundary of the triangle). If that were not so, there would be no reason for putting it there and much less for indicating its direction and length. Moreover, William J. Sell, whose qualifications as a surveying expert wer not challenged, testified that the line (S 29 40 30 E 90.52 ) was a block boundary as well as a lot boundary. He explained that all changes in direction in block boundaries 'are indicated and shown with a bubble (very small circle).' An inspection of the plat of Section 2 reveals a 'bubble' at each end of the 90.52 foot line. There is no doubt, he said, that the triangle is not a part of Lot 5. No. attempt was made to rebut his testimony.

Nevertheless, acknowledging, for the sake of argument, some ambiguity in the plat, we see no evidence of an intention on the part of Schloss Corp., Sherwood or Marcie to convey the triangle as a part of Lot 5. If the preliminary subdivision plat is examined with care, it will be seen that the southeastern boundary of Lot 5 (as there shown) runs from Split Rock Court in a northeasterly direction 245 feet to the southwesterly side of the Flood Control Reservation and that it is also the...