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Mayor and City Council of Baltimore v. Chesapeake Marine Railway Co.

Decided: March 3, 1964.

MAYOR AND CITY COUNCIL OF BALTIMORE
v.
CHESAPEAKE MARINE RAILWAY CO., ET AL.



Appeal from the Circuit Court for Baltimore County; Turnbull, J.

The cause was argued on October 17, 1963 before Henderson, Hammond, Horney, Marbury and Sybert, JJ. The cause was reargued on February 3, 1964 before Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court.

Hammond

The Mayor and City Council of Baltimore in 1957 filed an action on the case against the Chesapeake Marine Railway Company (which before trial in 1963 had been dissolved and had its assets distributed to its four owners who were substituted as defendants) for the obstruction of a way in Baltimore and for an injunction against the maintenance of a fence across the entrance of the way and the use thereof for private purposes on the claim that it owned an easement in the way for the public benefit and, therefore, the way was a public street.

The case was tried, after removal, in the Circuit Court for Baltimore County on the issues of whether there had been an effective dedication and, if so, whether the City was estopped to claim present ownership of an easement in the street.

In 1782 various owners of land in the area abutting on and adjacent to what is now Key Highway, running along the south inner harbor basin of Baltimore, petitioned the Maryland Legislature to annex their holdings to the town of Baltimore. The Legislature responded by passing Ch. VIII of the Laws of 1782 (session beginning November 4, 1782, and ending January 15, 1783). The act set forth the names of the petitioners, and of their holdings, including Christopher Hughes (who was the owner of a tract called "Gist's Inspection" contiguous to Baltimore-town), and said that the various tracts were "well calculated for the purposes of commerce and navigation" and that it would be for the benefit and advantage of the town and its trade "in case the said tracts * * * were laid out into convenient streets, lanes and alleys" and authorized the commissioners of the town to cause the tracts by September the first next to be surveyed and laid out "into lots, streets, lanes and alleys" at the owners' cost. Section III of the act directed the

commissioners then to cause a "plot" of the lots, streets, lanes and alleys to be prepared and said that "said plot shall be recorded amongst the records of said town, as soon as conveniently may be thereafter." It then provided that said streets, lanes and alleys so laid out and plotted "shall be highways, and be so deemed and taken to all intents and purposes whatsoever" as part of Baltimore-town. Section IV of the act directed the commissioners to "cause their proceedings to be recorded amongst the records of said town, there to remain as evidence of the boundaries, situation and location of said lots, and of the streets, lanes and alleys aforesaid."*fn1

The commissioners of Baltimore-town followed the directions of the Act of 1782 and, after a survey, a plat was prepared which showed a number of streets, including Leonard Street (which thereafter became Covington Street) which ran north across what was then Hughes Street (later and now Key Highway) to the edge of the water of the harbor. The plat contained this legend over the hands and seals of a majority of the commissioners of Baltimore-town. "The platt hereto annexed examined approved and passed by us the subscribers Commissioners of Baltimore Town pursuant to the Act of Assembly in that case provided [the Act of 1782]." The plat so signed and sealed was recorded among the records of Baltimore-town and long has reposed in the Bureau of Archives in the City Hall in Baltimore, to be found in Atlas 1 as Plat 11.

We think it clear that the Legislature's directions as to how Baltimore was to accept the offers of dedication of the individual owners transmitted by the Act of 1782 were complied with and that the offer was accepted and Leonard Street (hereafter to be called Covington Street) became a public street. In Cushwa v. Williamsport, 117 Md. 306, 315, the Court said:

"It would seem that when the legislature had previously authorized a plat to be made for a town, and with that plat on record had incorporated the town, there would be still stronger ground for such contention [an acceptance of an offer of dedication], and in the absence of some positive act on the part of the municipality declining to accept the streets, alleys and public square laid out on the plat and dedicated to the public (if indeed it could do so without the consent of the legislature), it might well be presumed that it had accepted them, without any further facts being shown."

Here the express acceptance by the town in the manner directed by the Legislature is a matter of record and makes solid the presumption referred to in Cushwa. There is nothing to indicate any declination by the City of the streets shown on the plat.

We turn to consideration of the matter of estoppel. The record offers no direct showing of what occurred on and in relation to Covington Street from 1783 when it became a public street until about 1900. The title records reveal that in 1825, following the death in 1824 of Christopher Hughes, who had continued to own the bed of Covington Street, subject to the easement for public use as a street, and the land on both sides of the street, there was a partition proceedings in the High Court of Chancery by which Hughes' real property was divided among his children. One child was given a lot on the east side of Covington Street -- one hundred feet on Hughes Street with a depth northerly binding on Covington Street of two hundred twenty-eight feet -- and another child received a lot on the west side of Covington Street -- with sixty-four feet frontage on Hughes Street and a depth of two hundred sixty-five feet binding on Covington Street. Title to the bed of the street remained in the six children of Christopher Hughes as tenants in common and the street thus was recognized as a street in the judicial proceedings.*fn2 Thereafter all conveyances of the lots

on the east and west sides of Covington Street followed the partition proceeding description and called for them to bind on Covington Street until 1955, when the appellees caused to be prepared a self-serving straw deed which claimed title to the bed of the street.

During the nineteenth century various plats and maps showed Covington Street as extending north to the water's edge. These included the Warner and Hanna Map of 1801, the Samuel Green Survey of 1807, and Sanhorn's Atlas of 1887 (this also showed a pipe under the street). McCreary's Street Index, described as an authoritative index covering the opening, closing, widening and naming of streets from 1732 to 1900 and which was used by the Bureau of Surveys in renaming streets in 1927, showed Covington Street as continuing north to the water and gave as one of its authorities a reference to Atlas 1, Plat 11, where the 1783 Plat was recorded in the Bureau of Archives of Baltimore. City Directories, up to 1900, described Covington Street as going to the water's edge. Newspapers referred to the shipyard at the foot of Covington Street.

In 1911 the ordinance (No. 682) for the condemnation of a right of way for Key Highway recognized the part of Covington Street in dispute.

In 1914 when one of the Reeders sold the property on the east side of the part of Covington Street now in dispute, the grantor and her attorney wanted to incorporate a statement or agreement that Covington Street was a private street and was not intended to be dedicated by the deed, and the City would not agree or accept a deed so stating.

When the City leased a pier adjoining Covington Street to

a man in the junk business named Jording (by lease which ran from 1920 to 1934), the calls recognized Covington Street as a public highway. The street was recognized as such in 1938 by a tax assessment plat of the City and in 1941 by a storm drain plat. The property disposition records of the Commission on Efficiency and Economy from 1927 to 1955 showed Covington Street as extending to the harbor.

The testimony of C. Howard Reeder was that property on both sides of Covington Street had been owned by his grandfather and his father since the early nineteenth century. The street was never paved or curbed (although when Key Highway was built turn-in curbs at its intersection with Covington Street were installed). Mr. Reeder's personal knowledge of the street began in 1903. It was used by his family's marine railway business (which later became the Chesapeake Marine Railway Company) for the storage of lumber and the construction of barges and one tugboat. Mr. Reeder said that it was his understanding that the City had never accepted the offer of dedication of the street by Christopher Hughes but that his family had never claimed legal title to the street until 1955. A Mr. Luber, who worked for the marine railway company from 1909 to 1926, testified that six or seven barges had been built in the part of the street near the water in that period. Mr. Reeder's father raised a bulkhead at the water line two feet and filled in land to that extent.

The evidence of use of Covington Street in the twentieth century by others than the Reeders was that schooners from Maine unloaded ice there, which was transported over the street to the ice company to which it was consigned (The Main Lake Ice Company, later the Knickerbocker Ice Company, the address of which in the City Directories of the period was Hughes & Covington Streets), and children visited the waterfront, using the street, as did adult spectators who would walk down the street to view the harbor. Jording caused heavy junk to be hauled over the street to his yard. A small ferry, which took passengers to the other side of the harbor, operated from a nearby dock and substantial numbers of passengers regularly walked down the street to get to the ferry.

City records, made in the ordinary course of business, show that for some thirty years prior to 1952 (beginning in 1921) Chesapeake had paid the City a monthly rental of $25.00 for, according to the notation on the City record card, "rental of City Property" (which was described on the card as the bulkhead at the foot of Covington Street). The appellees claim that the rent was for use of the pier which the City had leased to Jording in 1920 (the year before the rental began) for fourteen years, and the trial court so found. The pier was destroyed by a storm in 1933. It is difficult to accept the finding below with its necessary implication that the City leased to Chesapeake and it accepted a pier already leased to another, and that Chesapeake was so inadvertent, as it claims, as to have continued to pay $25.00 a month from 1933 to 1952 for a nonexistent pier.

Further doubt is cast on the appellees' claim that the monthly rental was for the neighboring pier by testimony that in 1941, about the time of that year when the City had determined, according to its records, that it was necessary that a storm drain "be rebuilt in Key Highway and Covington Street," Mr. Harry Gilbert, a well known real estate owner, dealer and appraiser and a lawyer, had approached the City on behalf of Chesapeake in an effort to have Covington Street closed and transferred to Chesapeake. The appellees claim that Mr. Gilbert's agency was not established because Mr. Craig, a substituted defendant below and an appellee here, who was an officer of Chesapeake, said that he thought Gilbert had never represented Chesapeake because his father, who was then its president, would have told him if he had. He said also, however, that his father and Gilbert were intimate friends who regularly attended the same small church and saw each other frequently. The appellees themselves adduced testimony from one Simmons (who was in 1941 and at the time of the trial on the staff of the Director of Public Works of Baltimore assigned to the handling of special legal and engineering problems in order to make recommendations to the director) that he was a member of the Bar, that he knew Gilbert to be a member of the Bar, and that Gilbert came to talk to him about Covington Street in 1941 and said he was representing the Chesapeake Marine Railway Company

in his capacity as attorney and his client wished to have Covington Street closed and transferred to it. Thereafter, Mr. Gilbert wrote a letter on April 4, 1941, on his stationery as attorney at law to the City Engineer, saying that Chesapeake "would like to purchase the bed of Covington Street which lies between the Key Highway and the water of the Patapsco River." The letter continued that Chesapeake owned the adjoining property to the west "and for a number of years past has been renting from the City the bed of this street which has never been either graded or paved."

Mr. Simmons testified that upon receipt of Gilbert's letter his department, as was the custom, checked to see if there were any utilities in the bed of the street and then, as the municipal law directs, submitted the proposal to the Commission on City Plan for approval or disapproval. The Commission wrote the Chief Engineer that the proposal for closing Covington Street had been considered at a regular meeting of the Commission and that "the Commission on City Plan disapproves the proposal to close this portion of Covington Street, or any part thereof, from the north building line of Key Highway to the pierhead line of the Harbor, because it is the opinion of the Commission that this street bed is essential to the City for ...


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