Adams v. Peninsula Produce Exchange

Thomas, J., delivered the -opinion of the court. In 1916, Mary O. Quinn owned a, farm or large parcel of land in Worcester County, Maryland, containing about one hundred acres, a part of which was located within the corporate limits of Pocomoke City. In July of that year she caused about twenty acres of said land lying between Clark Avenue and Pocomoke River, to be surveyed and laid off into streets and building lots, and a plat made of the same showing the location of the streets and lots, and giving' the number and courses and distances of each lot, with the: view of selling the lots at an auction sale. After the completion of the survey and plat the streets and lots- were staked off accordingly, and the streets Were ploughed and levelled and the lots numbered. The sale was advertised as a “grand auction sale” *658 of building lots, to1 take place on the property on the 28th of October, 1916, at which a brass band would “be in attendance” and valuable prizes would be given away. On the day of sale the lots were offered for sale according to the plat, but after the sale of lots Ros. 2, 3, 15 and 16 to William A. Powell, lots Ros. 5 and 18 to James C. Lang, and lots Ros. 6, 7, 19 and 20 to Carrie M. Phillips, the sale was stopped as the result of a disagreement between the parties representing Mrs. Quinn. In the deed to William A. Powell, dated Rovember 3rd, 1916, the lots sold to' him were described with reference to' the streets shown on the pla,t mentioned, and as “being lots Ros. 2 and 3 fronting on dark Avenue, and Ros. 15 and 16 fronting on Qqinn Avenue” on said plat, “filed herewith, to be recorded herewith, as a part of this deed and all subsequent deeds of the lots represented thereon, * f * together with the right of way to the said William A. Powell, his heirs and assigns, as an appurtenant to the said land hereby conveyed, over all the private roads and streets laid down on said plat, in common with the owners of the other lots laid down on said plat, their heirs and assigns.” In the deed to James C. Lang for lots Ros. 5 and 18 sold to him they were described as “being lots Ros. 5 and 18, Ro. 5 fronting fifty feet on dark Avenue and Ro. 18 fronting fifty feet on Quinn Avenue, on said plat,” which whs referred to as having been filed and recorded with .said deed to Powell, and Lang’s deed also contained the grant to him, his heirs and assigns, of a right of way “over all the private roads .and streets laid down on said plat” as “an appurtenant” to his said lots. All of the lots sold at said sale, except the two sold to- James O. Lang, were subsequently acquired in the fall of 1916 by the P'eninsula Produce Exchange, a corporation, and the appellee in this case, and lots Ros. 5 and 18 were, in December, 1916, conveyed by James O. Lang and his wife to the appellant, Annie M. Adams, and in the deeds to the appellee and appellant the rights of way or easements conveyed in the orig *659 inal deeds from Mrs. Quinn were referred to and expressly granted. Mrs. Quinn died in May, 1917, leaving a last will and testament, by which she devised all her real estate, consisting in part o-f the balance of the land that had been divided into streets and lots, to her four children, one of whom was Annie M. Adams, and in July, 1917, a bill was filed in the Circuit Court for Worcester County by Mrs. Q'uinn’s son, and his wife, and one of her daughters, and her husband, against Mrs. Adams, and her husband, and the children of a. deceased daughter, for a sale of said real estate and a division of the proceeds, on the ground that the property was not susceptible of p.artition. A decree was passed, and the property was offered for sale at public sale by the trustee appointed by the court and was withdrawn because of his failure to get a satisfactory hid. The property was afterwards sold at private sale to the appellee, and the sale was finally ratified by the court. After the. sale and conveyance of the property by tbe trustee to the appellee, the appellee, against the protest of the appellant, proceeded to plough the land included in the beds of the streets referred to in said plat and in the deeds given by Mrs. Quinn, with the view of cultivating the same, whereupon Mrs. Adams, the appellant, brought this suit in the Circuit Court for Worcester County to. enjoin the appellee from such interference with and destruction of her right of way over said streets, and this appeal is from the decree of the court below denying the relief prayed and dismissing her bill. The ap-pellee contends (1) that an easement will not pass as an appurtenance unless, it.is necessary for the full enjoyment of the property granted, (2) that the deeds under which the appellant claims do not contain a sufficient description of the right of way demanded by her, (3) that the reference to the streetsi in the deed does not. amount to a dedication of the streets, and that even if it did the appellant would only he entitled to access to Clark Avenue, which is. the nearest public street, and (4) that the appellant is estopped from claim *660 ing a right of way over the other streets described in the plat and deeds, because Mrs. Quinn in her lifetime abandoned the plan to sell the property surveyed in lots, and used the balance not sold by her as a part of her farm, and also by the equity proceedings in which all of Mrs. Quinn’s real estate was sold without any reservation.' In reference to the second contention of the appellee, it is only necessary to say that the plat referred to shows the exact location and contains a full description of the streets mentioned, and the plat, which was duly recorded, is referred to in and made a part of1 the deeds to Lang and the appellant. The answer to the first and third objections of the appellee is that the appellant is not claiming a right of way over the streets on the theory of an implied grant of a way of necessity, or that the deeds amount to a dedication of the streets, but relies on an express grant of the right of way. The rule that where the owner of a piece of land lays it out in lots and streets and sells lots calling to bind on such streets he thereby dedicates the streets so laid out -to public use, and a purchaser of a lot binding on one of the streets is entitled to a right of way over it to its full extent and dimensions until it reaches some other street or public way, on the doctrine of an implied covenant in the grant to him (Hawley v. Baltimore, 33 Md. 270; Stover v. Steffey, 115 Md. 524), cannot limit the right of a purchaser to whom there is an express grant of a right of way over the streets so laid out over the land of the grantor. In the case of Stover v. Steffey, supra, Judge Pattisoe" was careful to call attention to the fact in that case that none of the deeds professed to convey to the grantee “any title to, interest in, or use of said park lot” described in the plat. It would seem unnecessary to say that a grantor cannot by any subsequent act or conduct on her part deprive her grantee of the subject of an express grant. Mor can the sale by the trustee after Mrs. Quinn’s death of the remaining land in the equity proceedings referred to estop1 the appellant from asserting her claim to the right of way conveyed to her. The bill in that case was filed for the sale of the land of which *661 Mrs. Quinn, died seised and possessed, on the ground that it was not susceptible of partition, and for the purpose of a, division of the proceeds among those entitled thereto', including the appellant. The proceedings were not intended to- affect any interest she had in the land except such interest as she held in common with the other parties to the causo. Xo reference is made in the hill to the right of way of the appellant over the land sought to he sold, no attempt was made to deprive her of that right, she was not made a party to the cause except as one of the tenants in common, and the only interest decreed to be sold was the interest the parties had as- tenants in common of the property, for the purpose of dividing the proceeds among them.. All of the parties to the cause, and the purchaser of the property from the trustee, had, prior to the filing of the bill, both constructive and actual knowledge of the appellant’s right of way, and to hold that the sale deprived her of such right would he giving it an effect beyond the scope and purpose of the proceedings'. Prior to the Act of 1904, Chapter1 535, even a mortgagee or judgment creditor of one of the tenants in common was not a proper party in proceedings under Section 137 of Article 16 of the Code, and Judge Auvey said in Thruston v. Minke, 32 Md. 571, that, his rights could not be affected either by a sale or partition, tba.t he could not he compelled to join in the partition, and that no relief could he prayed against him in such a, proceeding; and in the case of McCormick v. McCormick, 104 Md. 331, where one of the joint owners, who- was a, party to the proceedings, was also a judgment creditor of another party, but had not been made a party as the holder of the judgment, Judge Bubke, speaking for this court, said that- her rights as judgment creditor should he determined without reference to the Act of 1904, and that the court had no power to restrain the execution of the judgment. The learned court below denied the relief prayed and dismissed the plaintiff’s bill on the ground that the plaintiff could be adequately compensated for the slight injury sustained by reason of the acts of the defendant “in damages at law.” In *662 the case of Chesapeake Co. v. Mt. Vernon Co., 107 Md. 532, the court said: “The decisions in this State are uniform that while an injunction will not lie to restrain a mere trespass, it will lie when the injury is destructive of the estate, as it has been held and enjoyed, or where full and adequate relief cannot he granted at law, or where it is necessary to prevent a multiplicity of suits.” In the ease of Oberheim v. Reeside, 116 Md. 275, the court said: “It is urged, however-, that the injury complained of is not irreparable and that the plaintiffs have an adequate legal remedy hy an action for damages. The record shows, as already stated, that the alley has been completely obstructed. It is entirely and finally destroyed for the purpose it was intended to serve, if the structures erected by the defendants a,re permitted to be maintained. The rule has been repeatedly declared that where a trespass works a destruction of the estate „in the character in which the complainant was entitled to enjoy it, a proper case is presented for relief hy injunction,” and in the still later case of Douglass v. Riggin, 123 Md., this court said, on page 23: “The right of the appellee, however, to continue the use of the way is vigorously disputed. It is not a case in which the owners of the fee in the ground are attempting to improve it with due regard for the rights of the party entitled to an easement. The appellants were proceeding with the work upon the distinct theory that the appellee had no interest in the premises which they are required to recognize. As their action was in direct opposition to her right and was effectually preventing her customary use of the way, the case properly admits of relief hy injunction.” See also 9 R. C. L. 821; 19 Corpus Juris, 994; and Ball v. Allen, 216 Mass. 469. The facts of this case bring it clearly within the rule established by the authorities quoted and cited, and the plaintiff was entitled to the relief sought in her hill. Decree reversed with costs, and cause remanded for a decree in accordance with the opiruion of this court.