of my place called 'Mortaumonde') bounded them so laid out on the plat. From 1908 to by Lee, Hancock and Grant avenue, in Ta- 1915 they made 15 deeds to various parties koma Park, Maryland,” and to his grand- for lots on parts of sections 4, 5, 6, 7, 8, 9, daughter his "country house in Takoma Park, and 10, and in 1907 a deed of trust conveyMaryland, called 'Mortaumonde,' its contents, ing a lot in section 7. The subdivision is reand the attached grounds, stable and out- ferred to in every deed, and with possibly houses, the said grounds being bounded by one or two exceptions the plat of the trusCarroll, Grant and Lee avenue, on the three tees is specifically referred to. Every avenue sides, and on the fourth by a fence running on the plat is referred to in the deeds, and from Grant to Lee avenues." The trustees Hancock avenue is referred to in most of having sold other property left by General them. Four deeds are for lots on the oppoCarroll, the proceeds of which were sufficient site side of Hancock avenue from section 7— to pay off his indebtedness, made no more the one against which the assessment was sales in that addition. Katharine C. Beale made. It would be impossible for the occuand John W. Beale, her husband, and Sam- pants of most of the lots sold by Mr. and uel S. Carroll made a deed of partition, by Mrs. Beale to reach Carroll avenue, or any which Mr. Carroll conveyed to Mrs. Beale, other street connected with Takoma Park, or by courses and distances, a tract of land which for the public to get to them, without using a substantially corresponds with the outlines part of Hancock avenue, and one of the othof the addition, excluding what had been er avenues laid out on the plat, and all of the sold to George N. Beale, but none of the deeds, with one exception, are for lots which avenues are mentioned, excepting Carroll. can only be reached by going over one or That deed includes section 7, upon which was more of the avenues in this subdivision. the assessment against Mrs. Beale complain- Mrs. Beale built on section 2, which fronts ed of. on Grant and Hancock avenues, five houses, laid water pipes back of them, and connected them with the water main built on Grant avenue by the municipal authorities, and has since paid water rents for them. In a letter dated June 8, 1907, signed by John W. Beale, he stated that in consideration of the privilege granted him by the mayor and council of Takoma Park to supply water to his four new houses on Grant avenue by the extension of one supply pipe, he agreed that the water rent should be promptly paid according to the regulations of the town, granted access to the proper official of the town to inspect or cut off the water when necessary, and concluded by agreeing: George N. Beale in his lifetime sold seven lots in section 1. In all of the deeds the plat of the trustees is referred to, and in all except two Grant avenue is called for; the two lots not fronting on that avenue. Five of those deeds were made in the year 1895, one in 1896, and one in 1898. One of those lots fronting 178 feet on Grant avenue was reconveyed to said Beale in 1903, and the two lots not fronting on that avenue were also reconveyed to him that year. In his lifetime the town authorities had laid down a water main on Grant avenue, extending from Carroll avenue to a point 89 feet from Hancock avenue. He built a residence on section 3, fronting on Carroll avenue, and built on the rear of that section five houses, all of which he connected, by written permission of the town authorities, with the water main laid by the town on Grant avenue. He also built on section 1 houses which were connected with the water main by permission of those authorities. When he built his houses on the rear portion of section 3, he applied for and obtained a permit from the town authorities, as required by the ordinances in force. It will be remembered that the water mains now in controversy are an extension of the one on Grant avenue to Hancock, and then on Hancock avenue. The extension is large ly for the benefit of the people to whom the Beales sold lots, and for the benefit of themselves and others to whom they may yet sell. Katharine C. Beale and John W. Beale, her husband, were not only parties to the suit in which Carroll's addition to Takoma Park was laid out, but the testimony shows that Mrs. Beale superintended the drafting and printing of the plat. The tract of land was originally in woods, and before the trustees made any sale, Mr. and Mrs. Beale laid off the "That if at any time the water main is exsessed cost thereof and to connect each of the tended on Grant avenue I agree to pay my asaforesaid four houses with said main by separate service pipes." Those may have been four of the houses owned by Mrs. Beale, but, if so, we do not understand her to repudiate his action, and at any rate it was a clear recognition by him of the right of the town to have the water main on Grant street, and inferentially at least to extend it on Grant street. The evidence of the superintendent of public works of Takoma Park, taken in September, 1915, was to the effect that about 2 years before that time the town had spent $150 on Grant avenue, from Carroll avenue to the lower part of Grant; that about 15 years before water mains had been put on Grant avenue to within about 80 feet of Hancock avenue; that about 17 or 18 years before three oil lamps were installed on Grant avenue by the town, and about 2 years before three electric lights were installed on Grant avenue and three on Hancock avenue; that between Carroll avenue and Hancock avenue, Grant avenue has been used continually during the cery wagons and bread wagons; that $150 or by the owner of the property, such sale had been appropriated for work on Hancock implies, necessarily, a covenant that the puravenue between Grant and Sheridan about 2 chaser shall have the use of such streets," years before he testified; that for the past 5 he referred to the well-known fact that the or 10 years Hancock avenue between Grant value of property is much enhanced by the and Sherman had been used by people living number of its feet which may bound on on Hancock avenue, and some of them went streets, and said: out Sherman avenue to Carroll; that Grant avenue between Carroll and Hancock had been used by the public for about 21 years at least as far as King's house; that Hancock avenue had been passable for vehicles between Grant and Sheridan avenues for prob- So far as Hancock avenue is concerned the ably 4 years. The water mains on Grant ave-trustees expressly provided in their second nue were paid for by the town, out of a fund report that it should be dedicated to those for construction of the water and sewer sys-purchasing lots as a right of way to and from tems raised by a general bond issue. the same, and if it be admitted that the ded "When a sale, therefore, is made in conformity with such plan, it seems to be but plain justice to insist that the vendor, and all claiming under him, should be held bound by the lines and designations by which the property had been sold." tended to the first street, which was Lee avenue, that could not affect the question as against the estate of George N. Beale, as section 3 fronts on Hancock avenue between Grant and Lee avenues. [3] What we have pointed out above is sufficient to show a dedication by Katharine C. Beale of the part of Hancock avenue on which section 7 fronts, regardless of whether there was a dedication by the trustees. An inspection of the plat filed with the record, together with other evidence, shows that ten or twelve lots have been purchased and improved on the westerly side of Hancock avenue between Grant and Sheridan avenues, [1] From what we have said there is am-ication of Hancock avenue by them only exple to show the dedication and acceptance of the streets involved in this case. As the trustees had laid out this addition "into squares or sections with proposed streets laid down thereon," as appeared by reference to one of the plats filed, and at the sale offered the property in sections in accordance with the plat and advertisement, it might be questioned whether they had the right to convey to George N. Beale the one-half of Grant avenue with section 1, as their deed of October 10, 1894, purported to do, unless Acts 1892, c. 684 (now section 96, art. 21, Ann. Code), gave them such authority, but passing that by without further comment, we find that on December 5, 1894, they filed the sec-four of them being on section 8, which is ond report referred to above. The plat was recorded in the judgment records of the county, and was referred to by George N. Beale and Mr. and Mrs. John W. Beale in making deeds. If it be conceded that there was any question about the dedication of Grant ave nue by the trustees, by reason of the fact that they had conveyed one-half of it to Mr. Beale by the first sale, can there be any doubt that it was dedicated by the sales Mr. Beale made of lots on section 1 fronting on that avenue, when taken in connection with what the trustees did? By his deeds he conveyed to one party 178 feet fronting on Grant avenue, and to three other parties 50 feet each, calling to run with the lines of that avenue. When such acts are considered in connection with his action in connecting with the water main laid by the town on Grant avenue at the public expense, and other matters we have stated, the representatives of his estate should not be permitted to question the right to extend that main to Hancock avenue. [2] We have had many decisions in this state on dedications since the case of White v. Flannigain, 1 Md. 525, 54 Am. Dec. 668, but the reasons there given by Chief Judge Le Grande are as applicable to-day as they were then. After saying "that where a party sells property lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such, in the just opposite section 7, and as it could not be contended that these people would have purchased from Mrs. Beale if there had been no streets provided for, and as she has undoubtedly received increased compensation for her lots by reason of their being there, it would be a great injustice to deprive them of the comforts and benefits derived from a water system on the ground that the street has not been dedicated. The use of streets for supplying the inhabitants of a town with water is not an additional servitude “and the adjoining owner, although he holds the fee to the center of the street, is not entitled to compensation as for a new servitude, for it is not such, but only a proper or necessary use incident to a street in a populous place." 3 Dillon on Mun. Corp. (5th Ed.) § 1212; 3 McQuillin on Mun. Corp. § 1344. "The condemnation or dedication of land for use as a street or highway in a city or town, or in close proximity thereto, carries with it the right to use the highway for the laying of gas and water pipes, since that is one of the purposes for which such highways are used, and is within the scope of the easement." Water Co. v. Dubreuil, 105 Md. 424, 06 Atl. 439. Takoma Park has a population of about 3,500, including about 2,000 within the corporate limits, and about 1,500 in the District of Columbia. [4, 5] The only grounds for contending that sideration are the letter of January 25, 1904, | dedication may be revoked. Clendenin v. from the Mayor of Takoma Park to Mr. George N. Beale, in which he said he had written to Mr. Prettyman relative to Grant avenue, and he informed him that it was not public property, and the mayor suggested a dedication of it. That was written in regard to laying cement sidewalks. It might well be that the town authorities would not lay cement sidewalks unless there was a formal dedication of record, but it is not shown that the mayor had any authority to surrender any rights that the town had, and if in point of fact such acts had been done as amounted to a dedication, his letter could not be construed to mean that the town sur Maryland Con. Co., 86 Md. 80, 37 Atl. 709. ceedings, regardless of the question of dedication: rendered such rights as it had to the streets. | Jections urged against the validity of the proIt may be that he was not correctly advised, or it is more probable that there was some misunderstanding as to the facts or what Mr. Prettyman meant. It is possible that at the time it was not thought that evidence of acceptance by the town was such as to justify the expenditure of money on it to the extent of putting down cement sidewalks. But it will be noticed that the letter of the mayor to Mr. George N. Beale was written over three years before that of Mr. John W. Beale, and many acts relevant to dedication and acceptance occurred after the date of the mayor's letter. (a) It is clear that section 614 of article 16, as codified by chapter 790 of the Acts of 1912 (being section 31 of chapter 310 of the Acts of 1896) can have no application, inasmuch as we have determined that there was a dedication. That section only applies to a case where it becomes necessary to take private property for such public use as is therein provided for, as its terms, in our judgment, distinctly show. the abutting property by section 40a of chapter 18 of the Acts of 1904 (section 621 of article 16). Section 40b (622 of article 16) then provides that "before entering upon the construction of any work or improvement specified," an ordinance shall be passed as therein stated, and provides for notices of the hearings, concluding as follows: [12] (b) Nor can we have any doubt about the provisions of the charter as to notice of [6] Then the claim that Mrs. Beale has hearings. The municipality was first authorpaid taxes on the land included in the ave-ized to assess the cost, or any part thereof, nues is relied on, but it is not shown how of laying water mains and sewers against the property is assessed. As we have seen, her brother conveyed the land to her as an entirety, by courses and distances. Sometimes an owner of land which is assessed by the acre prefers to leave the assessment in that way, instead of by lots or subdivisions. Certain it is that in many instances the assessment for a tract is less by the acre than it would be by lots into which it is divided. There can be no doubt that portions of some of the avenues have been conveyed away by Mrs. Beale, if she owned them, regardless of the effect of the act of 1892, but yet it is said she is assessed with the whole. We would not be justified in holding that there was no acceptance or intention to dedicate on account of her paying the taxes, especially if she was simply assessed for the land as an entirety or by the acre, and not for the lots or sections she still owned. [7-10] What we have said above, together with additional facts which might be mentioned, is sufficient to show an acceptance on the part of the town. For several years it had annually run a road scraper over and rounded up Grant avenue along its entire length, and Hancock avenue between Grant and Sheridan avenues. A town is not required to accept a dedication at once, or ordinarily within any particular time, although where no rights of third parties have accrued, or if accrued have been extinguished "Owners of property not residing within the limits of said town shall be served with said some newspaper of general circulation in said notice by publishing the same three times in town, the last publication to be not less than ten days before said hearing, and by posting a copy of said notice in a conspicuous place upon the property of said nonresident owner." It is contended by the appellants that section 616 of article 16, which was section 33 of the act of 1896, required the notice to be as therein provided for "once a week for three consecutive weeks in some newspaper having general circulation in said town." It would not be a compliance with section 622 if section 16 was only followed, for the former requires a copy of the notice to be posted on the property, as well as published in a newspaper. We are aware of no rule of construction of statutes which sustains the appellants' contention. Section 40a (621) authorizes certain work to be done, and section 40b (622) provides that before it is begun certain things shall be done, including a hearing, and prescribes the kind of notice of hear compliance with that provision is not only might have been a fuller description of the sufficient, but required. The notice of the hearing in this case was given by publishing it three consecutive days, the last one not less than ten days before the hearing, in the Evening Star of Washington, which is shown by the evidence to be a newspaper of general circulation in the town, by posting copies on the properties, and also by mailing them to the last-known addresses of the nonresidents. There is nothing to show that in point of fact the parties did not know of the hearing. We do not mean to intimate that, if the notice required by the statute was not given, mere knowledge of the hearing would necessarily cure the omission, but as Takoma Park is practically a suburb of Washington, where we understand from the record the Beales reside, it is not likely that the appellants were prevented from attending the hearing because they did not know of it, and as they do not allege want of knowledge in their bill, or offer any evidence to show it, it is fair to assume that they have suffered no injury by reason of the character of notice given. [13] (c) Nor do we think the objection that under section 626 there would be no assessment for the main on Grant avenue, because it is only 89 feet in length on that avenue, is well taken. It is true that section 3 is a corner lot, but there was no assessment against section 3 for the main on Grant avenue. The estate of George N. Beale owned a part of section 1, along which was the extension on Grant avenue, and the assessment is against that section. The provision in section 626 that where there is a corner lot the assessment can only be made against the frontage of the lot, and where there is an improvement on the side of the property there can only be an assessment against it when it is in excess of 100 feet, in addition to the assessment made for such improvement along the street on which the property fronts, would have prohibited an assessment against section 3 for the extension of the main on Grant avenue, as that extension is only 89 feet in length; but that does not prevent an assessment against section 1. It happens that the estate of George N. Beale owned on both sides of Grant avenue along the extension, but if section 1 had been owned by some person other than the owners of section 3, there could have been no question about the right to assess section 1 for its share of the extension on Grant avenue, and the fact that it is owned by the same owners as section 3 can make no possible difference. [14] (d) A number of technical objections are made in reference to the notices, ordinances, and assessments. As this opinion is already longer than desirable, we will not discuss them in detail. They seem to us to be a substantial compliance with the requirements of the charter. It is true that there properties to be affected, but no one interested could have been misled or have failed to know that his property was intended to be made liable. Mr. Beale shows by his testimony that he was perfectly well aware of where the main on Grant avenue ended, and he had made the connections we have referred to with it. Then when the notice referred to the main on Hancock avenue, abutting sections 3, 4, 5, 6, 7, and 8, no one interested could fail to know where it was intended to lay that main. There were two ordinances and two notices of hearing because it was found that the main on Hancock avenue had to be connected with the one on Grant avenue, and hence steps had to be taken for the extension of the latter. So far as the objection that section 623 required the notices of the assessment against nonresidents to be served by publication and posting are concerned, it is shown that they were actually received by the appellants. Indeed they are filed with the bill of complaint. It is diffi cult to understand how the appellants could, under those circumstances, complain of there not having been a publication and posting. The statement of the cost of laying of the water mains and of the assessment submitted by the town treasurer to the mayor and council shows that the total assessments against the George N. Beale estate and Mrs. Katharine C. Beale is only a little over onefourth of the total assessment, and that the remainder, or nearly three-fourths, is apparently assessed against owners of lots sold by the Beales. There therefore does not seem to be any equity in the appellants' contentions, and we find no such defects as could invalidate the proceedings. The decree must be affirmed. Decree affirmed; the appellants to pay the costs. (130 Md. 313) MULLAN v. BELBIN. (No. 16.) (Court of Appeals of Maryland. Feb. 15, 1917.) 1. APPEAL AND ERROR 1050(1)-HARMLESS ERROR-ADMISSION OF EVIDENCE. In an action for damages for destruction of plaintiff's building by negligent acts of defendant in grading abutting property, the admission of evidence as to value of building destroyed was harmless, where the evidence showed that such value was less than would be the cost of restoring it to its original condition. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.] 2. APPEAL AND ERROR 1064(1)—HARMLESS ERROR-INSTRUCTIONS. In an action for destruction of plaintiff's building by negligent acts of defendant, in grading abutting property, an instruction that plaintiff could recover difference between value of his building before it was injured, and value after injury, together with actual damage to contents, was harmless error, where evidence showed such measure of damages to be less than the cost of repairing or restoring the building to its | 10. MUNICIPAL CORPORATIONS mm 400 original condition. STREETS DAMAGE FROM CONSTRUCTION DEFENSES. [Ed: Note.-For other cases, see Appeal and Error, Cent. Dig. § 4219.] In an action for destruction of plaintiff's building by negligent acts of defendant in grad ing for a street, the fact that defendant followed directions of city engineer is no defense or justification, and does not relieve defendant fron liability for injury resulting from his negli gence. [Ed. Note.-For other cases, see Municipa Corporations, Cent. Dig. §§ 962-964.] 11. MUNICIPAL CORPORATIONS 404(6) STREETS-DAMAGE FROM CONSTRUCTION-AC TION-ADMISSIBILITY OF EVIDENCE. 4. EVIDENCE 536-OPINION EVIDENCE-AD-ligent acts of defendant, in grading for a street, MISSIBILITY. In an action for damages for destruction of building by negligent acts of defendant in grading abutting property, testimony of plaintiff's son who had been in the business of making and repairing tools for 25 years, estimating cost of putting tools and machinery into original condition, held admissible. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2343, 2344, 2347.] 5. DAMAGES 40(1) EVIDENCE Loss of PROFITS. In action for destruction of building by neg evidence that the injury would not have occurred had the building been of sound and proper construction is inadmissible, where the evidence shows that defendant knew of the defective condition of building. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 996.] 12. MUNICIPAL CORPORATIONS 394(6) STREETS DAMAGE FROM CONSTRUCTION DEFENSES. In an action for destruction of plaintiff's building, due to negligent acts of defendant in In action for destruction of building by not of sound and proper construction, which grading for a street, the fact that building was negligent acts of defendant in grading abutting fact was known to defendant, does not relieve property, testimony as to plaintiff's loss of prof-him from liability for negligence. its held inadmissible. [Ed. Note. For other cases, see Municipal [Ed. Note. For other cases, see Damages, Corporations, Cent. Dig. § 944.] Cent. Dig. 88 72, 73, 87.] 6. APPEAL AND ERROR ~1050(1)—HARMLESS ERROR-ADMISSION OF EVIDENCE. In an action for damages for destruction of building by defendant's negligent acts in grading abutting property, defendant held not prejudiced by admission of evidence of lost profits, where evidence was not such as to inform jury what profits had been lost. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.] 7. APPEAL AND ERROR 1053(5)—HARMLESS ERROR-ADMISSION OF EVIDENCE. The admission of evidence as to plaintiff's loss of profits in action for destruction of building by negligent acts of defendant is not prejudicial, where the instructions of the court excluded loss of profits from the consideration of the jury. 13. MUNICIPAL CORPORATIONS 404(9) STREETS-DAMAGE FROM CONSTRUCTION-ACTION-INSTRUCTIONS. In an action for destruction of building, due to defendant's negligent acts in grading for a street, an instruction that if injury was result of negligent acts, plaintiff was entitled to recover, was properly given. [Ed. Note.-For other cases, Corporations, Cent. Dig. § 998.] 14. DAMAGES see Municipal 211-INSTRUCTIONS-APPLI CABILITY TO EVIDENCE. In action for destruction of plaintiff's build ing, due to negligent acts of defendant in grading for a street, instructions limiting recovery to nominal damages were properly refused under the evidence. [Ed. Note.-For other cases, see Damages, Cent. Dig. 539.] [Ed. Note.-For other cases, see Appeal and 15. PLEADING Error, Cent. Dig. § 4179.] 8. APPEAL AND ERROR 970(3)-TRIAL [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3851; Trial, Cent. Dig. 88 139, 140.] 9. EMINENT DOMAIN 271, 320-PASSING or TITLE-DEFENSE TO ACTION FOR INJURIES. Condemnation proceedings cannot operate to transfer title until the amount awarded or assessed is paid or tendered, and afford no defense to an action to recover for injuries to the property suffered or incurred pending condemnation proceedings. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 725-736, 741, 851, 852.] FICIENCY. 192(2)-DECLARATION-SUF of building, due to negligence of defendant in On demurrer to declaration for destruction grading abutting property, several counts of declaration held to be sufficiently explicit as against objection that they were too general and vague. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 409, 410.] 16. PLEADING 193(6)-DECLARATION-SUFFICIENCY. building, due to defendant's negligent acts in A declaration in an action for damages to grading abutting property, was not bad on demurrer as uniting counts in trespass and tres pass on the case. [Ed. Note.-For other cases, see Pleading Cent. Dig. §§ 434, 435.] W. Heuisler, Judge. "To be officially reported." Action by Charles T. Belbin against Thom For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |