Weyler v. Gibson

• Decision Date: 01 June 1909
• Citation: 73 A. 261,110 Md. 636
• Parties: WEYLER, WARDEN v. GIBSON et al.
• Court: Maryland Court of Appeals

73 A. 261

110 Md. 636

WEYLER, WARDEN

v. GIBSON et al.

Court of Appeals of Maryland.

June 1, 1909.

Appeal from Superior Court of Baltimore City; Alfred S. Niles, Judge.

Action by Frank T. Gibson and others against John F. Weyler, Warden of the State Penitentiary. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and THOMAS, JJ.

William S. Bryan, Jr., and Isaac Lobe Straus, for appellant.

Randolph Barton, Jr., and Frederick H. Fletcher, for appellees.

BURKE, J. The appellees on this record, as the heirs at law of Thomas King Carroll and wife, are the owners in fee of the land sued for in this case. It comprises the bed of what was formerly Constitution street in the city of Baltimore. This street was dedicated to public use by Mr. Carroll and his wife in 1831 by certain grants of lots abutting thereon, but by the terms of the conveyances the title to the street itself remained in the grantors, and that title is now vested in the appellees. The state, finding it necessary to enlarge and extend the Maryland Penitentiary, provided by Act 1890, p. 217, c. 200, that the directors of the Maryland Penitentiary should have power to contract for, purchase, and hold in fee simple or for a term of years, all the several lots of ground and their improvements in Baltimore city lying between Eager street on the north, Concord street on the west, Truxton street on the south, and Forrest street on the east. The land described in the declaration lies within these bounds. In case the said directors could not agree with the owner, or owners, of any of the land, or of any interest in the same, they were given power to condemn. In pursuance of the power conferred by the act the directors acquired title to all the lots abutting on Constitution street, but did not acquire from the appellees, or either of them, title to the bed of that street. They secured the passage by the mayor and city council in October, 1892, of an ordinance providing for the closing of Constitution street, but nothing further was done, and the street was never legally closed. It became necessary in the enlargement of the penitentiary to occupy the bed of Constitution street. The directors, without authority of law, simply took possession of the street and erected a part of the buildings of the Maryland Penitentiary across it.

What was done is thus described by Mr. Weyler: "The bed of Constitution street is covered by the west wing of the main building; the Eager street wing. This was begun after the appropriation of 1896, and as near as I can remember in the year 1896. The buildings were completed and moved into—we occupied them on December 10, 1899. After the beginning of this wing in 1896 Constitution street was not at any time open or used as a street. When the construction of this wing began, we had to commence with the foundations of the west wing. That involved building across Constitution street, and after that Constitution street could not be used for purposes of public travel by the public. As near as I can remember, this may have been in 1895, but I am almost positive it was in 1896, because we could not do anything to the property until after we had got the $500,000 appropriation. The exterior part of the walls of the Eager street wing are of granite and the interior of brick. It goes right across the bed of Constitution street. No part of the bed of Constitution street is open between Eager and Truxton street. It is not entirely covered by the building. Part of it is vacant ground inside of the institution. The outer walls are on Eager street, crossing Constitution street. The building on this wing is about 50 or 55 feet high. The wing is used for cells for housing the prisoners. These walls at the base are 3 feet wide, running up to about 2 feet. The entire buildings, including steel cells, equipment of buildings, cost in the neighborhood of $913,000, without the ground; that is, the wing on Forrest street, the Administration Building, the wing on Eager street, the power house, and the long building for the dining room and kitchen. The administration part of the building fronts on Forrest and Eager streets, and is 80 feet square. The part of the building over the bed of Constitution street is absolutely essential to the rest of the building. There was paid for property taken for the penitentiary on both sides of Constitution street less than $30,000." On the 24th of March, 1904, the appellees brought an action of ejectment in the superior court of Baltimore city against the directors of the Maryland Penitentiary and John F. Weyler, its warden, for the recovery of the bed of Constitution street described in the declaration, and on the 26th of March, 1907, an amended narr. was filed. The defendants appeared, and pleaded they did not commit the wrong alleged, and also two pleas of limitation. An additional plea was subsequently filed, in which it was averred that the premises in controversy are covered in part by the Maryland Penitentiary building. The plaintiffs joined issue upon the first plea, and the court held the rest bad on demurrer. In disposing of the demurrer the court held that the directors of the Maryland Penitentiary being a quasi corporation or governmental agency upon which liability to suit had not been imposed by statute, the suit against it could not be maintained.

Mr. Weyler, the warden, then filed four additional pleas: (1) That the land described in the declaration in this case is covered by a portion of the building of the Maryland Penitentiary, a prison of the state of Maryland, and that this defendant is warden of the said penitentiary, with the duties prescribed by law and by the by-laws of the said penitentiary, a copy of which by-laws is herewith filed, marked "Exhibit Warden," and prayed to be taken as part of this plea; and this defendant further says that other than performing his duties as warden of the said Maryland Penitentiary, this defendant has not title to, or interest in, or connection with, the land described in the declaration. (2) And for a second additional plea—leave of court to file the same having been first had and obtained—the said John F. Weyler says that the land as described in the declaration is a part of the bed of Constitution street, one of the public highways of Baltimore city, and that an ordinance was duly and regularly passed by the mayor and city council of Baltimore providing for closing said Constitution street, but that the proceedings for closing said street had not been completed by the commissioners for opening streets and filed in the office of the city registrar up to the time of filing this plea. (3) And, for a third additional plea to the declaration in said cause, says that he is an employs of the directors of the penitentiary, and holds his employment under and at the will of said directors, and subject to the rules and regulations adopted by said directors. (4) And, for a fourth additional plea, he says that he is an employé of the directors of the Maryland Penitentiary, and hold his...