Ulman v. Charles St. Ave. Co.

• Decision Date: 25 March 1896
• Citation: 34 A. 366,83 Md. 130
• Parties: ULMAN v. CHARLES ST. AVE. CO. et al.
• Court: Maryland Court of Appeals

34 A. 366

83 Md. 130

ULMAN

v. CHARLES ST. AVE. CO. et al.

Court of Appeals of Maryland.

March 25, 1896.

Appeal from circuit court of Baltimore city.

Action by Alfred J. Ulman against the Charles Street Avenue Company and another. There was a decree for defendants dismissing the bill, and complainant appeals. Affirmed.

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

M. R. Walter, for appellant.

John E. Semmes, for appellees.

ROBERTS, J. This is an appeal from a decree of the circuit court No. 2 of Baltimore city, sustaining a demurrer to a bill filed by the appellant for the purpose of enjoining the appellees from tearing up, removing, or interfering with the sidewalks, drains, and trees in front of the property of the appellant on Charles Street avenue in said city.

The material facts are as follows: (1) That appellant is a citizen and taxpayer of the city of Baltimore, and the owner in fee of two pieces of ground, formerly in Baltimore county, but now within the limits of Baltimore city, as extended by Act 1888, c. 98, beginning, for the first lot, at the northeast corner of Charles Street avenue and Twenty-Eighth street, and running therefrom northerly, bounding on the east side of Charles Street avenue 400 feet, to the south side of Twenty-Ninth street, with an even depth easterly of 184 feet and 3 inches, to Lovegrove alley; beginning, for the second, on the northeast corner of Charles Street avenue and Twenty-Ninth street, and running thence northerly, on the east side of Charles Street avenue, 200 feet, with an even depth easterly of 194 feet and 6 inches to Lovegrove alley. The first lot was acquired by the appellant from John Sinclair, by a deed dated the 2d day of October, 1884. The second lot was acquired from the Peabody Heights Company of Baltimore City, by their deeds dated, respectively, the 29th of March, 1888, the 8th of November, 1889, and the 2d of October, 1891. (2) That a certain William Holmes was formerly seised in fee of the said two parcels of land, and the land adjoining it on all sides, including the whole of the bed of Charles Street avenue, and, being so seised, conveyed the first of the said two parcels to the said Sinclair, and the second, with the other land, to the Peabody Heights Company,—describing the first as beginning at the corner formed by the intersection of the east side of Charles street, as laid down, with the north side of Barnum street (now Twenty-Seventh street), the north bounding on the east side of Charles street, 400 feet, to the south side of Holmes street (now Twenty-Eighth street), etc., and the second as beginning on the east side of Charles street, at the distance of 400 feet northerly from the northeast intersection of Barnum street and Charles street, and running thence northerly, bounding on the east side of Charles street 1,000 feet, etc.,—and thereby dedicated the said Charles Street avenue as a street, for the benefit of the property so conveyed, and now vested in the plaintiff. That the records in the office of the circuit court for Baltimore county show that a warrant, return, and inquisition as to damages sustained by William Holmes for land for the use of the Charles Street Avenue Company was returned to that court, and the inquisition confirmed by consent on October 6, 1856. (3) That both of said parcels of ground are improved by dwellings,—the one on the first-described parcel having been erected about 25 years ago, and that on the second-described in 1888,—and have since been continuously occupied as residences. That footways or pavements about 15 feet in width, and extending along the entire Charles Street avenue front of said lots, and drains or gutters for the drainage of water from said lots and pavements, have at considerable expense been made by the appellant, and have been, since their construction, in constant use. That the margin of said footways have been ornamented by the appellant with numerous shade trees, nearly all of which have upward of 20 years growth, and gas lamps have been erected thereon by the mayor and city council. (4) That the said Charles Street Avenue Company, the appellee, was incorporated by the general assembly of Maryland at its session of 1854 (chapter 204, passed March 10, 1854), with power and authority to construct a turnpike road, 66 feet wide, from the then northern boundary of Charles street, to wit, from a point between Twenty-Third and Twenty-Fourth streets to a point on the road known as "Powder Mill Road," in Baltimore county. That the said company, within a year or two thereafter, constructed a road of a width varying from 20 to 38 feet, only, in the direction indicated by said act, and nearly all of which has now remained for a period of nearly 40 years. That the width of the said road opposite the property of the appellant did not exceed 30 feet, all of which was outside and beyond the aforesaid footways, drains, and trees, which footways, drains, and trees were constructed and planted by the appellant, without any knowledge of any conflict whatever with any pretended claims, rights, or interests of any kind whatsoever on the part of said appellee company. (5) That the said Charles Street Avenue Company has acquired but a portion of the land required for its said road, and no part of that constituting the bed of Charles Street avenue, bounding on the property of the appellant, either by condemnation, purchase, agreement, or otherwise, so far as the land court or other records disclose, or so far as the appellant knows, unless the same was acquired by the condemnation referred to in paragraph 2 of the bill. (6) That the said company and Joseph W. Jenkins, Jr., its agent, now disclose their intention to widen said road opposite the property of the appellant, and in some other portions thereof, to a width of 66 feet, and to that end to tear up, remove, and destroy the said sidewalks, drains, and trees of the appellant, and are about to and will carry said intentions into effect, unless restrained. (7) That the said appellee company has, for a period of 40 years, failed to avail itself of the franchises granted by said act of assembly. That they must be held by their said action to have abandoned any right to construct a road of 66 feet width, especially when the exercise of such a right will inflict irreparable injury upon others who, in ignorance of any such right, have improved their property. (8) That all of Charles Street avenue, from the southern terminus of said road,...