a settlement of a particular sum, inserted by mistake double the amount, and the settlement was executed without discovery of the mistake, a bill was sustained to rectify it." These general principles have been frequently announced by this court and elsewhere. Keedy v. Nally, 63 Md. 311; Bank v. Wrightson, 63 Md. 81; Wood v. Patterson, 4 Md. Ch. 335; Boulden v. Wood, 96 Md. 336, 53 Atl. 911. Assuming this to be a party wall throughout its entire length and height, and that the appellees have the right to use all or any part of this wall at any time without expense, it is well established in law that the wall should have been a solid or blank wall. Apart from the legal aspect of a party wall, the deed, speaking of the wall, says it must be erected "in the same line and the same thickness as the north wall now standing on lot No. 21." The maintenance of windows by the owner of a party wall against the objection of the other is inconsistent with the title and right of the latter. By usage the words "party wall" and "partition wall" have come to mean a solid wall. Jones on Easements, § 687. One may be enjoined from making openings for doors or windows in a party wall, though there is neither allegations nor proof that the other owner intends ever to use the wall. Whether the other party intends to use the wall or not is quite immaterial, since he has acquired a valuable right in the wall which might be the subject of a sale or transfer, and he should be protected in this right. Id., § 688. One of the uses of a party wall is to afford a complete division between adjoining buildings, and the opening of windows in such a wall is an injury with redress by injunction. Id., § 690. In the next place, it (a party wall) is intended to serve the purpose of a complete division between adjoining houses. This forbids the construction of spaces in it which do not divide. It is no answer to say that the dominant owner stands ready to fill up the openings wherever the servient owner desires to use the wall as a party wall. That very statement admits that it had not been maintained as a party wall, and the servitude only renders lawful occupation an actual party wall. Jones on Easements, § 691. In Graves v. Smith, 87 Ala. 450, 6 South. 308, 5 L. R. A. 298, 13 Am. St. Rep. 60, it is said: "A 'party wall' must ordinarily be construed to mean a solid wall without windows or openings"-quoted in Barry v. Edlavitch, 84 Md. 95, 35 Atl. 170, 33 L. R. A. 294; Cutting v. Stokes, 72 Hun, 376, 25 N. Y. Supp. 365. As to the propriety of asking for a mandatory injunction, in this case it seems to be well settled that it is the proper remedy. High on Injunction says: "But the rule is well established that an injunction is the appropriate remedy to prevent an adjacent owner of real property from opening or using windows through a party wall between the premises." And a mandatory injunction may properly be granted requiring the closing up of the windows already opened. And in such case the injunction will be broad enough to compel the defendant not merely to patch up the openings, but to make the wall solid as a party wall should be. High on Injunction, § 332; Jones on Easements, 724. It follows from what we have said the decree of the circuit court of Baltimore City passed in this case must be affirmed. Decree affirmed, with costs to the appellees above and below. (106 Md. 39) SMITH et al. v. STATE. (Court of Appeals of Maryland. April 24, 1907.) 1. CRIMINAL LAW-TRIAL-PRELIMINARY PROCEEDINGS SEPARATE TRIAL OF CODEFENDANTS. The granting or refusing of motions to sever lies entirely within the discretion of the trial court. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1380.] 2. BURGLARY-INDICTMENT. In a prosecution for "burglary with explosives," under Acts 1906, p. 946, c. 476, defining the offense, an indictment charging that accused feloniously and burglariously did break and enter a depot, and did attempt to open and did open a certain vault, safe, and other secure place in the depot, by the use of nitroglycerin, dynamite, gunpowder, and other explosives, with intent certain moneys, goods, and chattels in said vault, safe, and other secure place in said depot then and there being, then and there feloniously to steal, take, and carry away, substantially charged the offense in the words of the statute and was sufficient. [Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Burglary, § 31.] Appeal from Circuit Court, Wicomico County; Chas. F. Holland, Judge. Frank Smith and others were indicted for burglary with explosives and appeal. firmed. Af Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. Ellegood, Freeny & Wailes, for appellants Smith and Taylor. Elmer H. Walton, for appellants Matthews and Hawkins. Attorney General Bryan, for the State. BRISCOE, J. The appellants in this case were indicted, with one John Avery, on the 25th day of September, 1906, in the circuit court for Wicomico county, for a violation of Acts 1906, p. 946, c. 476. This act provides "that any person who breaks and enters, either by day or night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place, by use of nitroglycerin, dynamite, gunpowder, or any other explosive, shall be deemed guilty of burglary with explosives. And any person duly convicted of burglary with explosives shall be sentenced to the penitentiary in the discretion of the court for a period of not more than 20 years." The indictment consisted of two counts. A demurrer was interposed to each count, and was overruled by the court below. The appellants then moved to sever, and this was also overruled. A motion was then made to quash each count of the indictment, and was overruled as to the first count, but granted as to the second, and the second count was quashed. The first count, upon which the appellants were tried, charged that on the 17th day of May, in the year 1906, in the nighttime of the same day, at Wicomico county, a certain building, to wit, the depot in the town of Salisbury of the Baltimore, Chesapeake & Atlantic Railway Company, a body corporate of the state of Maryland, feloniously and burglariously did break and enter, and did attempt to open and did open a certain vault, safe, and other secure place in the depot by the use of nitroglycerin, dynamite, gunpowder and other explosives, with intent certain moneys, goods, and chattels in the vault, safe, and other secure place in the depot, then and there being, then and there feloniously to steal, take, and carry away, etc. According to the record, John Avery, upon arraignment, pleaded guilty, and the four appellants pleaded not guilty. Upon trial, they were convicted upon the first count of the indictment, and each sentenced to be confined in the penitentiary for 15 years. And this appeal is from the judgment so rendered against the appellants. It will be unnecessary for us to consider the second count of the indictment, as this count was quashed, and the appellants were tried on the first count. As to the motions to sever we need only say that the granting or refusing such motions is entirely within the discretion of the trial court, under all the circumstances of the case. Arch. Crim. Prac. & Pleading, 304; 1 Chitty Crim. Law, 268; United States v. Marchant, 12 Wheat. (U. S.) 479, 6 L. Ed. 700; St. Clair v. United States, 154 U. S. 134, 14 Sup. Ct. 1002, 38 L. Ed. 936. It is, however, contended upon the part of the appellants that the court below committed an error in overruling the demurrer and in refusing to grant the motion to quash the first count of the indictment. The objection consists, as alleged by the appellants, first, because the indictment does not charge the offense in the language of the statute; and, second, because Acts 1906, p. 946, c. 476, is void, in that it neither creates a new offense, nor modifies an offense at common law. It is well settled as a general rule that in an indictment for an offense created by statute it is sufficient to describe the offense in the words of the statute. Mincher V. State, 66 Md. 227, 7 Atl. 451. The indictment in this case, we think, follows this rule, and the objection urged by the appellants is not a valid one, and cannot be sustained. The offense set out in Acts 1906, p. 946, c. 476, is "burglary with explosives," and the indictment charges that the "traversers on the 17th day of May, in the year of our Lord, 1906, in the nighttime of the same day, at Wicomico county, a certain building, to wit, the depot in the town of Salisbury of the Baltimore, Chesapeake & Atlantic Railway Company, a body corporate of the state of Maryland, feloniously and burglariously did break and enter, and did attempt to open and did open a certain vault, safe, and other secure place in said depot by the use of nitroglycerin, dynamite, gunpowder, and other explosives, with intent certain moneys, goods, and chattels in said vault, safe, and other secure place in said depot then and there being, then and there feloniously to steal, take, and carry away, contrary to the form of the Act of Assembly in such case made and provided and against the peace, government, and dignity of the state." This count of the indictment substantially charged the offense in the words of the statute, and must be held to be sufficient.. As to the second objection, viz., that the act of 1906 is void and defective, little need be said. The language of the act is too plain to admit of any serious difficulty as to its meaning and is free from all constitutional objection. The crime of burglary being a felony, it was necessary to charge in the indictment that the appellants feloniously and burglariously broke and entered, etc. The legislative intent in passing Acts 1906, p. 946, c. 476, was not to create an entirely new offense, but it was to impose a maximum penalty of 20 years in the penitentiary, if convicted of "burglary with explosives," as provided by the statute, instead of 10 years, as prescribed by existing statute, for the crime of burglary. In other words, the object and purpose of the act of 1906 was to impose a fixed and larger penalty "for burglary with explosives," than 10 years in the penitentiary. So construed, the statute is reasonable, and the legislative intent made clear. Finding no error in the rulings of the court, the judgment will be affirmed on both appeals. Judgment affirmed, with costs. (106 Ma. 69) CANTON CO. OF BALTIMORE v. MAYOR, ETC., OF CITY OF BALTIMORE. (Court of Appeals of Maryland. April 4, 1907.) 1. DEDICATION-EVIDENCE-WEIGHT AND SUF FICIENCY. Evidence that deeds, containing no reference to a park dedicated to the public, described, lots conveyed by reference to an unrecorded plat, purported copies of which showed a tract reserved as a public square near the lots, none of the copies of the plat introduced in evidence being identified as the one to which the reference was made, or as having been in the possession of the grantor, was insufficient to show an offer to dedicate to the public the tract reserved as a park. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 85-87.] 2. ADVERSE POSSESSION-HOSTILE CHARACTER -PERSON DEDICATING LAND. Where the owner of land offers to dedicate it to the public as a park, but continues in pos session excluding the public for a period of over 20 years, he acquires good prescriptive title to the tract. 3. SAME-CONTINUITY OF POSSESSION-EFFECT OF MORTGAGE. Where the dedication of a park is claimed, the fact that the original owner gave a mortgage on its property, excepting that portion theretofore laid out as a public park and dedicated to public use, does not interfere with the owner's claim by adverse possession, where it occupied for over 30 years after the date of the mortgage, and there was no evidence of acceptance of the dedication on the part of the public. 4. EJECTMENT-RIGHT OF ACTION-PROPERTY SUBJECT OF ACTION. An action of ejectment by a city will not lie for land in which it claims an easement for park purposes, but does not claim the legal title. [Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Ejectment, §§ 16-62.] Appeal from Superior Court of Baltimore City; George M. Sharp, Judge. Action by the mayor and city council of the city of Baltimore against the Canton Company of Baltimore. From a judgment in favor of plaintiffs, defendant appeals. Reversed, without new trial. Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. Edgar H. Gans and Arthur George Brown, for appellant. Joseph S. Goldsmith and Albert C. Ritchie, for appellee. SCHMUCKER, J. The appeal in this case is from a judgment in ejectment rendered by the superior court of Baltimore City in favor of that city against the Canton Company. The land described in the declaration is a lot or square of ground in Baltimore City forming a part of what is known as the "Canton Company's" land, and bounded by Canton avenue, Lancaster, Patuxent, and Canton streets. The judgment is not for the property described in the declaration, but is "for an easement in the property described in the declaration, with exclusive right to the possession of the same for use as a public park." The city does not claim title to the square under any conveyance. It sues for the protection of an alleged incorporeal right or easement of the public to use the square as a park, upon the theory that there had been a dedication of it by the Canton Company to public use for that purpose. Two bills of exception appear in the record; one to rulings on the admissibility of evidence, and the other to the court's action on the prayers. The two cardinal questions presented by the appeal are: First, whether there was an unrevoked dedication of or offer to dedicate the square to public use as a park at the time the city undertook to accept it; and, secondly, whether the present action of ejectment will lie at the suit of the city to secure to the public the enjoyment of the square as a park. We have come to the conclusion that the case must be reversed upon both of these propositions, and, as important public interests are involved in the issue, and the question of dedication was fully and ably discussed upon the briefs and in the argument before us, we will express our views upon both propositions in the order in which we have stated them. The dedication of land to any public use is essentially a matter of intention. Certain dealings with property by its owner have been held to afford conclusive evidence of his purpose to make the dedication, but it is essential to establish the intention in every case. The principle of dedication rests largely upon the doctrine of estoppel in pais, and, while there are general rules applicable to certain lines of conduct on the part of the owner of the land, each individual case must, after all, be decided upon its own facts and circumstances. Baltimore v. Frick, 82 Md. 83, 33 Atl. 435. All of the facts in each case tending to show the intentions of the owner must receive due consideration, for, as was said in McCormick v. Baltimore, 45 Md. 524: "The evidence of such intention is furnished in various ways, but, as dedication will be presumed where the facts and circumstances of the case clearly warrant it, so that presumption may be rebutted and altogether prevented from arising by circumstances incompatible with the supposition that any dedication was intended." It is now universally held that an intention to dedicate land lying in the beds of streets to public use will be presumed, where its owner makes a plat of the land on which the streets are laid down, and then conveys it in lots described as bounding on the streets or by reference to their numbers on the plat, from which it appears that they do in fact bound on the street. In such cases there is, in the absence of language showing that no dedication was intended, an implied covenant that the purchaser shall have the use of the streets on which his lots bound, from which a dedication of the streets to public use is held to arise. White v. Flannigan, 1 Md. 540, 54 Am. Dec. 668; Moale v. Baltimore, 5 Md. 321, 61 Am. Dec. 276; Hawley's Case, 33 Md. 280; McCormick's Case, 45 Md. 523; Tinge's Case, 51 Md. 600; Pitts' Case, 73 Md. 326, 21 Atl. 52; Baltimore v. Frick, 82 Md. 83, 33 Atl. 435. But the dedication of such streets to public use resulting from their conveyance in the manner mentioned does not become final and irrevocable until there has been an acceptance of it on the part of the public authorities. Baltimore v. Broumel, 86 Md. 153, 37 Atl. 648; Valentine v. Hagerstown, 86 Md. 486, 38 Atl. 931; New Windsor v. Stocksdale, 95 Md. 212, 52 Atl. 596. In the last-mentioned case, we said that the acceptance of a dedication "may be evidenced in one of three ways, viz., by deed or other record, by acts in pais, such as opening, grading, or keeping the road in repair, or by long continued user on the part of the public." While the authorities are agreed that streets or highways may be thus dedicated dedication of a right of way over the grantor's land, until the next or nearest open street is reached, be correct, such right of way would in many cases extend over land not only not contiguous to but very remote from the lot sold." It may therefore be said that under the decisions of this court the sale of a lot of land calling to bind on an unopened street works a dedication to public use of that street, if it is of the land of the grantor, only until it reaches the next open or unopened street. by their owners to public use, they do not | city that in all cases we must presume a agree as to the physical limits of the dedication. Some authorities hold that the streets mentioned in the deed or laid out on the plat are embraced in the dedication to the full extent that they are owned by the grantor. Other cases, among which are the decisions of this court, confine the dedication to a limited and restricted area. In Hawley v. Baltimore, 33 Md. 270, which may be regarded as the leading case upon that subject, it is said: "The law is now too well settled to admit of any doubt that, if 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. The rule is founded on the doctrine of implied covenants, and the dedication will be held to be coextensive with the right of way acquired as an easement by the purchaser. It is upon the implied covenant in the grant to him that the dedication to public use rests, and such dedication must necessarily be measured by the limits of the right he has acquired by virtue of his grant. In the case before us, the right of way or easement in Mosher street acquired by the purchasers of the lots mentioned in the proof is the precise limit of the dedication by Hiss. Over what portion of Mosher street, then, did their right of way exist? We think they acquired by their several purchasers the right of way only from Madison avenue to McCulloh street, as it is between those streets that their lots lie and bind on Mosher. The doctrine of implied covenants will not be held to create a right of way over all of the lands of a vendor which may lie, however remote, in the bed of a street. The lands must be contiguous to the lot sold, and there must be some point of limitation. The true doctrine is, as we understand it, that the purchaser of a lot calling to bind on a street not yet opened by the public authorities is entitled to a right of way over it, if it is of the lands of his vendor, to its full extent and dimensions only until it reaches some other street or public way. To this extent will the vendor be held by the implied covenant of his deed, and no further." In Hawley's Case the owner of the lot sold exhibited to the purchaser at the time of the sale a plat of his land, on which the streets were laid down, but the plat was not called for in the deed of the lot to the purchaser. In Baltimore v. Frick, 82 Md. 85, 33 Atl. 435, we cited and followed Hawley's Case as to the extent of the dedication of a street by the grant of a lot bounding thereon, and still more accurately defined the limits of the dedication by saying: "The contention that the street which limits the extent of the dedication must be an open public street is not supported by the cases heretofore decided by this court. In Hawley's Case, supra, the land over which the right of way is given it is said must not be remote, but contiguous to the lot sold; but if the contention of the Although the law relating to the dedication to public use of streets has been settled by numerous decisions of this court, we have seldom been called upon to consider the nature and extent of the dedication of a park to such use when it is so designated on a plat of the grantor's land, and reference is made to the plat in deeds conveying portions of the land. Most of the text-books and many cases assert broadly that the rules and principles controlling the dedication of streets to public use by the use of or reference to plats in the manner mentioned by us apply with equal force to the dedication of parks and other public places designated on such plats. 2 Dillon on Mun. Corps. § 644; 13 Cyc. p. 448; 9 Am. & Eng. Encyc. of Law, p. 25. Other cases plainly distinguish between the principles applicable to the dedication of "streets affording easements directly profitable and necessary to the use of lots" and parks which are intended for public recreation and enjoyment, and are only indirectly beneficial to the lots. Baker v. Johnston, 21 Mich. 319; Coolidge v. Dexter, 129 Mass. 167; Light v. Goddard, 11 Allen (Mass.) 5, where it is said, by Bigelow, C. J.: "An attempt is made in the present case to extend this rule of interpretation much further than is warranted by any of the adjudicated cases. The plaintiff claims under a deed which describes the lots conveyed as laid down on a plan to which reference is made. Upon inspection of this plan, it appears that these lots are carved out of a large tract of land, the whole of which is divided into numerous lots or parcels, and is fully laid down on said plan. It also appears that certain other land, which at the time of the grant in question also belonged to the grantors, and which is not immediately adjacent to the lots conveyed, but is separated therefrom by a contemplated street which forms one of the boundary lines of the lots conveyed, is designated on the plan as 'Ornamental Grounds' and as 'Play Ground.' The contention of the plaintiff is that such designation on the plan referred to in the deed of lands lying in the vicinity of, but not adjacent thereto, the land granted, amounts to a covenant that those grounds shall forever continue to be appropriated and used for the uses and purposes so designated." "We are by no means prepared to adopt as a sound rule of exposition the general proposition on which the argument for the plaintiff rests. We do not think that a mere reference to a plan in the descriptive part of a deed carries with it by necessary implication an agreement or stipulation that the condition of land, not adjacent to, but lying in the vicinity of, that granted, as shown on the plan, or the use to which it is represented on the plan to be appropriated, shall forever continue the same so far as it may be indirectly beneficial to the land included in the deed, and was within the power or control of the grantor at the time of the grant." We will now consider the facts of the case before us in the light of principles to which we have referred. The Canton Company is a well-known owner of a large tract of land in the eastern section of Baltimore, which it acquired about years ago, are from which it has from time to time sold lots. These lots were described in the deeds conveying them as bounding upon various streets, and in many of the deeds made between the years 1846 and 1882 the lots conveyed were further described as being "Nos. and on the Canton Company's plat." A number of the lots thus conveyed were situated upon the streets facing the square in question, but in none of the deeds for any of the lots was any public park men EASTERN tioned or referred to, or was there even any allusion to this square. From the references in these deeds to the Canton Company's plat, it is apparent that the company had a plat of its property, but there is no evidence in the case that the company ever recorded its plat, or in any form made an issue or publication of it to the community at large, or made any representations in reference to it, other than those contained in the deeds, appearing in the record. Portions of several different plats were offered in evidence by the city, and were admitted over the objection of the Canton Company, and the court's action in that respect forms the subject of bills of exception. These plats agree in the location upon them of the respective streets. Two of them, which are alleged to be copies of Canton Company plats of about the years 1845 and 1853, respectively, and one, which is alleged to be a copy of part of Poppleton's plat of Baltimore as enlarged in 1851, so as to include Canton, also show the alleged park designated as a public square. We here insert, for purposes of illustration, a copy of a sufficient portion of the plat of 1845 to show the location thereon of the alleged park and the blocks of ground immediately surrounding it: CANTON ALICE ANNA STREET |