Ulman v. Charles Street Avenue Co.

Roberts, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court No. ■ 2, of Baltimore City, sustaining a demurrer to a bill filed by the appellant for the purpose of enjoining the appellees from tearing up, removing or interfering with the sidewalks, drains and trees in front of the property of the appellant on Charles-street avenue in said city. The material facts as alleged in the bill are as follows : i. That appellant is a citizen and taxpayer of the city of Baltimore, and the owner in fee of two pieces of ground, formerly in Baltimore County, but'now within the limits of Baltimore City, as extended by the Act of 1888, ch. 98, beginning for the first lot at the northeast corner of Charles-street avenue and 28th street and running therefrom northerly, bounding on the east side of Charles-street avenue 400 feet, to the south side of 29th street, with an even depth easterly of 184 feet and 3 inches to Lovegrove alley. Beginning for the second on the northeast corner of Charles139 street avenue and 29th street, and running thence northerly on the east side of Charles-street avenue 200 feet, with an even depth easterly of 184 feet 6 inches to Lovegrove alley. The first lot was acquired by the appellant from John Sinclair, by a deed dated the 2nd day of October, 1874 ; the second lot was acquired from the Peabody Heights Company of Baltimore City, by their deeds, dated respectively, the 21st of March, 1888, the 7th of November, 1889, and the 1st of October, 1891. 2. That a certain William Holmes was formerly seized in fee of the said two parcels of land, and the land adjoining it on all sides, including the whole of the bed of Charles-street avenue, and being so seized conveyed the first of the said two parcels to the said Sinclair, and the second with the other land, to the Peabody Heights Company, describing the first as beginning at the corner formed by the intersection of the east side of Charles street as laid down with the north side of Barnum street (now 27th street), thence north bounding on the east side of Charles street, four hundred feet to the south side of Holmes street (now 28th street), &c., and the second as beginning on the east side of Charles street, at the distance of four hundred feet northerly from the northeast intersection of Barnum street and Charles street, and running thence northerly, bounding on the east side of Charles street one thousand feet, &c., and thereby dedicated the said Charles-street avenue as a street for the benefit of the property so conveyed and now vested in the plaintiff. That the records in the office of the Circuit Court for Baltimore County show that a warrant, return and inquisition as to damages sustained by William Holmes for land for the use of the Charles-Street Avenue Company was returned to that Court and the inquisition confirmed by consent on October 6th, 1856. 3. That both of said parcels of ground are improved by dwellings, the one on the first described parcel having been erected about twenty-five years ago, and that on the second described in 1888, and have since been continuously occupied as residences. That footways or pave — 140 — ments about 15 feet in width, and extending along the entire Charles-street avenue front of said lots, and drains or gutters for the drainage of water from said lots and pavements, have at considerable expense been made by the appellant, and have been since their construction in constant use. That the margin of said footways have been ornamented by the appellant with numerous shade trees, nearly all of which are upwards of twenty years growth, and gas lamps thereon have been erected by the Mayor and City Council of Baltimore. 4. That the said Charles-Street Avenue Company, the appellee, was incorporated by the General Assembly of Maryland at its session of 1854, chapter 204, passed March 10th, 1854, with power and authority to construct a turnpike road 66 feet wide from the then northern boundary of Charles street, to-wit; from a point between Twenty-third and Twenty-fourth streets to a point on the road known as Powder Mill road, in Baltimore County. That the said company within a year or two thereafter constructed a road of a width varying from twenty to thirty-eight feet only, in the direction indicated by said Act, and nearly all of which has now remained for a period of nearly forty years. That the width of the said road opposite the property of the appellant did not exceed thirty feet, all of which was outside and beyond the aforesaid footways, drains and trees, which footways, drains and trees were constructed and planted by the appellant without any knowledge of any conflict whatever, with any pretended claims, rights or interests of any kind whatsoever on the part of said appellee company. 5. That the said Charles-Street Avenue Company has acquired but a portion of the land required for its said road, and no part of that constituting the bed of Charles-street avenue, binding on the property of the appellant, either by condemnation, purchase, agreement or otherwise, so far as the land, Court or other records disclose, or so far as the appellant knows, unless the same was acquired by the condemnation referred to in paragraph 2 of the bill. 6. That the said company and Joseph W. Jenkins, Jr., its agent, now — 141 — declare their intention to widen said road opposite the property of the appellant, and in some other portions thereof, to a width of 66 feet, and to that end to tear up, remove and destroy the said sidewalks, drains and trees of the appellant, and are about to, and will carry said intentions into effect unless restrained. 7. That the said appellee company has for a period of 40 years failed to avail itself of the franchises granted by said Act of Assembly. That they must be held by their said action to have abandoned any right to construct a road of 66 feet width, especially when the exercise of such a right will inflict irreparable injury upon others who in ignorance of any such right have improved their property. 8. That all of Charles-street avenue, from the southern terminus of said road north of Twenty-fifth street, formerly Huntington avenue, has with the full knowledge and acquiescence of the said company, been improved by the owners of the property bounding thereon with dwellings and sidewalks, and waterways have been laid and constructed, trees planted, and the street between the sidewalk, about forty feet in width paved by them, and the steps giving ingress and egress thereto project beyond the building lines thereof. That some twelve or fifteen houses, with the knowledge and acquiescence of the said company, have ^lso been erected on Charles-street avenue north of Twenty-fifth street, and have been similarly improved with sidewalks, waterways and steps. That the said turnpike road could not now be made of the width of sixty-six feet, as required by the Act of Assembly, without destroying the said sidewalks, waterways, trees and steps. That the removal of the steps would deprive the owners of the only means of ingréss and egress from the front, and irreparably injure the same. 9. That as the Act of Assembly aforesaid authorizes the construction of a turnpike of sixty-six feet in width from the Powder Mill road to the then northern boundary of Charles street, only a road of that width from the said northern terminus to the said southern terminus is sanctioned, and any road short of that authorized would not be within the provisions — 142 — of the Act, and would in effect be the same as if no Act had ever been passed. That that portion of Charles-street avenue, between the northernmost intersection of Charles street and Twenty-fifth street, which has been improved as aforesaid, has for many years been wholly abandoned by the company, and it has no intention whatever to assume control over or to widen the same, nor to widen certain other portions, and has, therefore, no right, and should therefore not be allowed to widen the road at any other point, io. That by virtue of the Act of 1888, chapter 98, whereby the property of the appellant on Charles street has been brought within the limits of Baltimore City, all the streets and sidewalks have been brought under the jurisdiction, control and supervision of the. Mayor and City Council of the city of Baltimore, and the said company have, therefore, no right to interfere with the said sidewalks and drains withont the authority of said Mayor and City Council, which authority has not been obtained, ix. That the said improvements made by the appellant and the other owners of said property on Charles street, were made with the full knowledge and acquiescence of the said company, and it is now, therefore, estopped from in any manner interfering therewith. 12. That the appellant, as to the sidewalks, drains, and trees on the property first described, has- been in the continuous adverse and uninterrupted enjoyment and possession under claim of title for upwards of twenty years. In'support of the demurrer the appellees assign the following grounds: 1. That the plaintiff has not, by reason of the matters alleged in paragraphs 1, 2 and 3 of said statement of facts, acquired any title or interest in the road of the defendant corporation, except the ordinary interest of an abutting owner. 2. That the defendant corporation has not, by reason of the matters stated in paragraphs 4 and 5 of said statement, lost its right to macadamize its road to the full width of sixty-six feet as authorized by its charter. 3. That the proposed action of the defendants, as stated — 143 — in paragraph. 6 of said statement, will not inflict irreparable injury on the plaintiff, and that for any injury suffered by him the plaintiff has ample remedy at law. 4. That the defendant corporation is and always has been legally unable to abandon its right to a road sixty-six feet wide, as it is alleged to have done in paragraphs 7 and 9 of said statement. 5. That the matters alleged in paragraphs 8 and 11 of said bill do not estop the defendant corporation from widening its said road to the full width authorized by its charter, and the plaintiff has acquired no legal or equitable right by reason of the matters alleged in paragraph 8 of said statement. 6. That the road of the defendant corporation is not a street or highway of Baltimore City, and is not under the control of the Mayor and Gty Council of Baltimore as alleged in paragraph 10 of said statement, and it is not necessary for the defendant corporation to obtain a permit from the said Mayor and City Council before proceeding to increase the width of the macadamized portion of its road or to dig up the same within the width of sixty-six feet authorized by its said charter. 7. That the plaintiff has not acquired any title or interest in said road, or in any portion thereof, by reason of the matters alleged in paragraph 12 of said statement. 8. That the plaintiff has not stated in his bill, such a case as entitles him to any relief in equity against these defendants. The appellee having demurred to the whole bill we have thought it proper to state the facts fully as they are set out in the bill. Some of the questions raised by the appeal are of importance. It will not, however, be necessary to treat the grounds of demurrer in detail, as the questions raised by the bill are of a closely analogous character, and can be considered together. The main question on this appeal, around which many minor propositions group themselves, is the omission of the appellant to allege in his bill, — 144 — with sufficient legal certainty the failure of title in the appellee company to the bed of Charles-street avenue. By the fifth paragraph of his bill the appellant seeks to plead the failure of title in the appellee company which will be found in the statement of facts hereinbefore set out. This is not to be regarded as the statement of a fact well pleaded, nor is it a fact, which the demurrer admits. It is not every statement which finds its way into a bill in equity, that is admitted when the bill is demurred to. The rule is that a demurrer admits the truth of the facts stated, so far as they are relevant and well pleaded, but not conclusions of law or theories of construction drawn therefrom. The allegations of the fifth paragraph seek to raise a question not based upon facts charged, but depending upon surmise and inference, and yet they are facts absolutely essential to the appellant’s case, and without which he can have no standing in a Court of Equity. The appellant claims title by adverse possession to the fifteen feet extending from the line of his dwelling into Charles-street avenue, wherever he has built his pavement, constructed his drains and planted his trees. It is not anywhere charged in the bill that said fifteen feet used as a pavement or footway is covered by or included within the said conveyance to the appellant. The well-settled rule, applicable in Courts of Law and Equity as well, is that he who asserts title must depend not upon the weakness of his adversary’s title, but upon the strength of his own. The question of title by adverse possession as applied to a public road or highway, is not a question upon which the authorities in all respects agree. The well-established rule of the common law is, however, that “ the common right of way ” cannot be lost by the attempted adverse possession of a private individual, and it seems to us that it is such a rule as can be legitimately changed by legislation only, and not by judicial decision. Elliott on Roads and Streets, 669; Cross v. Mayor of Morristown, 18 N. J. Eq. 305 ; Van Witsen v. Gutman, 79 Md. 405. In the case of — 145 — Tainter v. Mayor of Morristown, 19 N. J. Eq. 59 and 60, the Court says: “ The possession for over twenty years can avail the complainant nothing. It is well settled that time does not run against the State, or the public, by analogy to the Statute of Limitations against individuals, but only where the State or public are expressly included. This is a wise and wholesome principle that I feel no inclination to disregard or to narrow. To protect highways from encroachments that it is the business of no one to resist, requires that the public be allowed to resume its rights at any distance of time, disregarding any loss to those who have appropriated and erected improvements on the public domain, or to the more innocent purchasers from them.” To the same effect is the very learned opinion of C. J. Beasley in 18 N. J. Eq. 305, supra. We have given careful consideration to the authorities on the subject of adverse possession as sought to be applied in this case, and we entertain no doubt of the correctness of the views expressed by Mr. Elliott in his work on Roads and Streets. Such being the case, the allegation of the appellant’s bill fail to make out a valid title by adversary possession to the fifteen feet of ground in controversy here. (Decided March 25th, 1896). There are other questions which have been learnedly discussed at the hearing of this appeal, but which are not necessary to be decided. For the reasons stated we affirm the decree below. Decree affirmed, with costs.