Kennedy v. Mayor & City Council

Miller, J., delivered the opinion of the Court. Mrs. Margaret Kennedy was injured on the 14th of September, 1885, by the falling of a bridge over which. — 519 — she was walking. This bridge was a portion of the deck of a canal boat thrown over a gully, which ran across an alleged street, in the City of Cumberland, called Lee street. The accident was caused by the unsafe condition of the bridge, and she and her husband brought this suit against the city to recover damages for the injury. The declaration alleges that this was a public street or highway, which it was the duty of the city to keep in repair, and the action was defended upon the ground of a denial of this allegation. It is plain that to sustain the action it was incumbent upon the plaintiffs' to establish the fact that this street or bridge was, at the time of the accident, a highway or bridge, which the city was bound to repair, and the sole question in the case is, has this been shown by anjr proof legally sufficient to support that conclusion ? The facts, all of which are undisputed, and which were received by the Court subject to exception, are substantially as follows: In 1811, Henry Shriver, being the owner of vacant land within the city limits, laid it off into a number of town lots by a plat upon which three or four streets and lanes were designated, and one of them was called Lee street, and the whole was called “ Shriver’s Addition to Cumberland.” Between 1811 and 1813, he sold some of these lots, and the deeds called for these streets, including Lee street. This street was opened up for public travel in 1813, by the owners of the adjacent lots, and was by them dedicated to the public, and has ever since been used by the public as a common highway, though the travel thereon was principally by foot passengers, because the gully above mentioned made it difficult for wagons to cross over. Several houses were built along this street in 1813, or prior thereto. The lots, including those on Lee street, were assessed to their several owners in the assessment books of the city as lots in “Shriver’s Addition.” Other streets in this Addition, laid out and opened at the same time, were repaired from time to time by the city for — 520 — several years past. At a meeting of the City Council held on the 7th of September, 1885, an order was offered by one of the members instructing the Superintendent of Streets to repair Lee street at a cost not exceeding §75, but it was not passed because it did not receive the requisite number of votes. At the next meeting, which was held on the 5th of October following, the same order was again offered, and it was then passed, and was approved by the Mayor on the 10th of October, which was nearly a month after the accident. Very soon after this the street was repaired by the city out of the money so appropriated, and these repairs-included the removal of the bridge on which Mrs. Kennedy was hurt, and the building of a new one. The bridge on which the accident happened was placed over the gully by one Chase, a volunteer, for his own accommodation, about eight years ago, and was since used by the public as a footway over the gully when using the street. This gully was a natural water way or drain for surface water from adjacent lands and hills, and was about two or three feet wide and fourteen inches deep. Since the street was laid out and opened there had been no change in the condition of its surface except that both sides of it had been fenced, one the whole length, and the other the greater part thereof. There was no evidence of any repairs by the city made on this street prior to the accident, nor of any formal resolution, order, or ordinance accepting the same. From these facts a dedication of the bed of this street to the public by Shriver and his grantees, is no doubt established, but it requires something more to create the privileges and duties belonging to a public highway. Any individual may lay out a thoroughfare through his lands, but such dedication does not impose upon the county or municipality the duty of improving or keeping it in repair. There must be an acceptance of the dedication before this duty can arise. The law on this subject is thus — 521 — stated by Judge Dillon : “ As against tbe proprietors a dedication of land for streets and highways may be complete without any act or acceptance on the part of the public; but in order to charge the municipality or local district with the duty to repair, or to make it liable for injuries for suifering the street or highway to be or remain defective, there must be an acceptance of the dedication, and this acceptance must be by the proper or authorized local public authorities. It may be express and appear of record, or it may be implied from repairs made and -ordered, or knowingly paid for by the authority which has the legal power to adopt the street or highway, or from long user by the public.” 2 Dillon on Mun. Corp., sec. 642. The doctrine that such acceptance is necessary in such cases was recognized by this Court in McCormick vs. Mayor, &c., of Baltimore, 45 Md., 524. The question then is, do the facts above stated show such an acceptance by the city authorities before the happening of the injury sued for, of the dedication by the proprietors of the bed of this street, or is there anything in them upon which a jury could be instructed or allowed to infer such acceptance ? The user by the public set out in this statement of facts is ■wholly insufficient to make this street a public highway, for it has been repeatedly decided by this Court as the law of this State, that where user or prescription is relied on to establish a public highway, there must be an uninterrupted user by the public for at least twenty years, •and such user for any less period of time will not suffice. Day vs. Allender, 22 Md., 511; Browne vs. Trustees of M. E. Church, 37 Md., 108 ; Thomas vs. Ford, 63 Md., 352. The fact that the lots were assessed in the assessment books of the city as lots in “ Shriver’s Addition,” is, in our ■opinion, entitled to no weight whatever in determining this question of acceptance. This was simply the recording of the description of the lots for the purpose of taxa — 522 — tion, as the owners themselves had chosen to describe them in their deeds, and in order to distinguish and identify the property assessed and taxed. Nor is any greater-weight to be attached to the fact that the city had repaired other streets in this addition which were laid out and opened at the same time. It was perfectly competent for, and within the absolute discretion of, the city authorities, to accept some of these streets and refuse to accept others; and the fact that they did repair others and did not repair this one, tends rather to show that they had determined, and for good reasons, not to incur the expense of grading and repairing it, and not to accept its dedication. The acceptance by the city of the Act of 1878, ch. 484,. amending its charter, has also been relied on by counsel for the appellants. But this Act made no change in the-city limits. The land embracing this so-called Addition,, and which was thus, platted and laid out by Shriver into lots with intersecting streets and lanes, was within the original limits of the city. If the amended charter had,, for the first time, brought the land so platted within the-city limits, and it had been accepted by the city, a different question would have been presented. In that case there would have been some ground for contending that the acceptance of the amended charter operated an acceptance or adoption of the streets so laid out and dedicated to the public by the owners. One of the sections of the amended charter requires the city authorities, as soon-as. practicable, to provide by ordinance for a survey and map of the city limits, and for the location upon the map “ of the streets and alleys already laid out and opened,”' but no such ordinance has as yet been passed. Besides,, this section makes no mention of the streets in question, nor of any particular street; and the terms “ streets and alleys already laid out, and opened,” in the connection in which they are used, evidently mean the streets and — 523 — alleys which the city itself had laid out and opened, or which had then become public streets, and not those which had been simply dedicated to the public by private individuals. This leaves for consideration the single fact, that about, a month after the accident the City Council appropriated a sum of money to the repair of this street, which was-subsequently expended in repairing it. It has been earnestly argued by counsel for the appellants, that this-fact should have been submitted to the jury upon the question of acceptance or adoption, not as of itself amounting to a recognition or adoption by a retrospective effect, but as an act tending to show that the city had previously recognized and adopted the street. A-decision to the effect that such evidence was admissible upon this ground -was made by a majority of the Court in the case of Manderschid vs. City of Dubuque, 29 Iowa, 73; but in the opinion of the Judge who dissented, this point is met by the remark that such evidence might perhaps bind the city in the future, but to hold that it “ would create a retrospective liability would be to hold that present acts of adoption tend to prove a prior adoption, and it is needless-to combat such a proposition.” No doubt there are cases in which such evidence is properly admissible, as in Folsom vs. Town of Underhill, 36 Verm., 580, where several years, prior to the accident the selectmen of the town directed the highway surveyor to expend money on the road, and he did so, and where other surveyors had also previous to-the accident worked out a portion of the highway taxes on the same road, but without any express direction from the-selectmen on the subject. The Court in that case held that, the work first done under the direction of the selectmen was clearly an act tending to show a recognition or adoption of the road by them, and that the working out of taxes by other surveyors prior to the accident without instructions by the selectmen was proper to be considered in connection with any prior act- of theirs recognizing the road as524 •a public highway, or with any evidence that such work was known to and not disapproved hy them. And in connection with these facts the Court further held that .the •act of the selectmen in directing repairs immediately after the accident was also admissible as an act tending to show that they had previously recognized and adopted the road. There were therefore some acts of fepair proved in that case, tending to establish the fact of adoption or acceptance of the road by the proper authorities prior to the accident, which the subsequent acts of repair •could throw light upon, emphasize or explain, and a careful reading of the opinion shows, we think, that-that was the ground upon which they were admitted in evidence. 'The subsequent repairs did not stand, as in the case before us, as the only, solitary and isolated acts of repair ■ever done upon'the road. The case of Sewell vs. City of Cohoes, 11 Hun, 626, (affirmed in 75 N. Y., 45,) has also been referred to by •counsel for the appellants. In that case the accident was ■caused by the fact that a tramway or bridge over the •street, which had been erected by the owners of a coal-yard, was too low. There was evidence tending to show that the land upon which the street was located belonged to the State, and not to the City, and the latter sought to •exempt itself from liability for the injury upon the ground that it had no title to the street, and as a consequence had no right to remove the bridge built by others. The city, however, long prior to the accident, had appropriated the land, and had graded and paved the street, and put down a sidewalk upon it, and had thus hy these acts held it out to the public as a public street, and had thereby invited the public' to travel upon it, and use it as a public highway. After the accident the City Council passed a resolution directing the removal of the tramway or hi'idge, and it was removed without complaint from any one. This resolution was offered in evidence, and the Court held — 525 — that as it had been thus successfully carried out, such exercise of control over the bridge, even though exercised after the injury, was some evidence of the “power and authority ” of the city to remove it before the accident,, and that the fact of such removal tended to repel the defence set up by the city that it should not be held negligent in a matter which it had no power to prevent. This, is the effect of the decision in that case, and it is obvious that it has very little bearing upon the point presented in this. It is also to be observed that both the cases referred to, the one in Iowa and the other in New York, rest for authority upon the decision in Folsom vs. Town of Underhill, which we have already explained. In this case it is conceded that the city had never at any time prior to the accident made any repairs upon this street, or passed any resolution, order, or ordinance accepting it as a public street. The surface of the ground had never been disturbed, the bridge over the gully or drain, the defective condition of which was the cause of the injury, was placed there by a volunteer and for his own accommodation as a foot-walk, and the City Council had in fact done no act whatever which could by possibility be construed into an invitation by them to the public to-travel upon it, or use it in any way as a public street. To allow then this single act of subsequent repair to be used against the city for the purpose of making it liable for this, injury, (and it could be used for no other purpose,) would be to give it the effect of creating a retrospective liability. Whatever effect, therefore, this act may have upon the liability of the city for future accidents and injuries, we entirely concur with the Court below in refusing to admit it as evidence in this case. The Court below in its rulings upon the prayers instructed the jury what facts it was necessary for them to find in order to entitle the plaintiffs to recover. In other words the Court treated the question of acceptance of the526 street by the city, as a question of law, and in this we find no error. This point has not hitherto been directly presented to this Court, but the ruling is sustained by our decisions in numerous analogous cases which it is unnecessary to cite. In the case however, of Folsom vs. Town of Underhill, so much relied on by appellants’ counsel for ■another point, the question did arise, and while the Court held that the question whether the dedication was complete as against the owners of the soil, was a conclusion of fact to be drawn by the jury from the circumstances of ■the particular case, they yet expressly decided that where the facts are undisputed, their sufficiency to warrant the conclusion that the road was adopted as a public highway, would he a question of law, and they answered the objection that the trial Court had not, in that case, instructed the jury what facts would constitute such adoption, by •consiruing the instruction as telling the jury in effect, that if they found the town did the acts relied on as proof of the adoption of the road with, the intention to regard ■and treat it as .an existing highway, then it thereby became a highway adopted by the town, which the town was liable to keep in repair. This is quite in accord with the practice in this State, in similar cases where the facts are -controverted or in dispute. The Court in such cases leaves the finding of the facts to the jury with appropriate instructions as to their legal effect, according as tíre jury may find them to be. And there is good reason why this rule should be applied in cases like the present, for if the -question of acceptance or adoption vel non should be left broadly to the finding .of the jury, it would follow that the liability of a county or municipality would be left in uncertainty, depending upon the varying verdicts of different juries upon the same state of facts, instead of being, -as it should be, settled and fixed by the law as declared by the Courts. But the facts in this case, as we have said, are undisputed, and we have shown they are not legally sufficient — 527 — to make the city liable for the injury sued for. It would, therefore, have been proper for the Court to have so instructed the jury in direct terms. This being so, it follows there can be no error prejudicial to the appellants in the rulings upon the prayers, and the judgment must be affirmed. Decided 23rd June, 1888.) Judgment affirmed.