Appeal from the Circuit Court for Baltimore County (BERRY, J.).
The cause originally was submitted to Henderson, Hammond, Prescott, Horney and Sybert, JJ., and subsequently argued before the entire Court.
HORNEY, J., delivered the opinion of the Court.
The question presented on this appeal is whether the conveyance of a lot with reference to a recorded plat of a proposed subdivision or development of a tract of land created an easement of way in an abutting street in favor of the purchaser and his heirs and assigns.
The plat of what is known as Harbor View was filed by Eastern Development Company (Eastern) among the plat records of Baltimore County in September 1920. Among other things, the plat shows a street designated as "Cross Street," 50 feet in width and 250 feet in length, between 46th and 47th Streets which are public highways. Other than the laying out of lots and streets, there is nothing on the plat to indicate that the owner intended to dedicate "Cross Street" to public use. The street was never graded or improved by the owner. It was never opened or used as a public way. Nor was it ever accepted by the county as a street or road. At present, the western end of the street is used by the abutting owners as a private parking lot.
In March 1926, Eastern conveyed Lots No. 809, 810, 811 and 812 in the development (without any reference to abutting streets) to Charles T. Dobrey and wife by a deed containing a provision reading:
"The party of the first part [grantor] expressly reserves unto itself, its successors and assigns, all its
right, title, interest and estate in and to the beds of all streets of Harbor View and the mention of said streets of Harbor View is not intended in anywise to be a dedication of any of them for public use or as public highways."
The four lots were subsequently acquired two at a time by John L. Pachuta and his wife (the Pachutas) in September 1947 and March 1950. Each of the lots is 25 feet in width and 125 feet in depth. All front on 46th Street and one of the side lines of Lot No. 812 binds on "Cross Street."
Twenty-five years after Eastern had conveyed the four lots to the Dobreys, it conveyed all of its right, title, interest and estate in and to "the bed of Cross Street" to Union Realty, Inc., which, in April 1961, conveyed the same property to Hillshire Development Corporation (Hillshire).
After it became the owner of the "bed of Cross Street," Hillshire erected a brick wall so as to block the "paper street" and brought an action of ejectment against the Pachutas to recover possession of the street. The Pachutas, in turn, besides filing a plea that they had not committed the wrongs alleged, filed a counter-claim to regain "a right of passage" over the street. When Hillshire, by its demand for particulars, asked whether the Pachutas meant to allege that they had "some corporeal or incorporeal interest in Cross Street other than is held by any member of the public," they answered: "None, other than rights of inheritance by heirs of the cross-plaintiffs to the use of Cross Street." Following a hearing which consisted of a colloquy between the judge and counsel for the respective parties with regard to the law and facts, the lower court rendered its decision and entered a judgment against Hillshire in favor of the Pachutas "for the recovery of their right to use Cross Street." The only holding, however, was that "a dedication was effected upon the recording of the plat." Apparently, judgment was entered on ...