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a settlement of a particular sum, inserted the premises.” And a mandatory injuncby mistake double the amount, and the settle tion may properly be granted requiring the ment was executed without discovery of the closing up of the windows already opened. mistake, a bill was sustained to rectify it." And in such case the injunction will be broad These general principles have been frequent- enough to compel the defendant not merely ly announced by this court and elsewhere. to patch up the openings, but to make the Keedy v. Nally, 63 Md. 311; Bank v. Wright wall solid as a party wall should be. High son, 03 Md. 81; Wood v. Patterson, 4 Md. on Injunction, $ 332; Jones on Easements, Ch. 335; Boulden v. Wood, 96 Md. 336, 53 724, Atl. 911.
It follows from what we have said the de. Assuming this to be a party wall through cree of the circuit court of Baltimore City out its entire length and height, and that passed in this case must be affirmed. the appellees have the right to use all or any Decree affirmed, with costs to the appelpart of this wall at any time without expense, lees above and below. 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,
(106 Md. 39) the deed, speaking of the wall, says it must
SMITH et al. V, STATE. be erected "in the same line and the same
MATTHEWS et al. v. SAME. thickness as the north wall now standing on (Court of Appeals of Maryland. April 24, lot No. 21.” The maintenance of windows
1907.) by the owner of a party wall against the ob 1. CRIMINAL LAW-TRIAL-PRELIMINARY PROjection of the other is inconsistent with the CEEDINGS-SEPARATE TRIAL OF CODEFENDtitle and right of the latter. By usage the
The granting or refusing of motions to words “party wall” and “partition wall” have sever lies entirely within the discretion of the come to mean a solid wall. Jones on Ease trial court. ments, $ 687. One may be enjoined from [Ed. Note:-For cases in point, see Cent. Dig. making openings for doors or windows in a
vol. 14, Criminal Law, $ 1380.] party wall, though there is neither allega
2. BURGLARY-INDICTMENT. tions nor proof that the other owner intends
In a prosecution for “burglary with ex
plosives," under Acts 1906, p. 946, c. 476, deever to use the wall. Whether the other par fining the offense, an indictment charging that ty intends to use the wall or not is quite im accused feloniously and burglariously did break material, since he has acquired a valuable
and enter a depot, and did attempt to open and
did open a certain vault, safe, and other secure right in the wall which might be the sub
place in the depot, by the use of nitroglycerin, ject of a sale or transfer, and he should be dynamite, gunpowder, and other explosives, with protected in this right. Id., § 688. One of intent certain moneys, goods, and chattels in the uses of a party wall is to afford a com
said vault, safe, and other secure place in said
depot then and there being, then and there plete division between adjoining buildings, feloniously to steal, take, and carry away, suband the opening of windows in such a wall is stantially charged the offense in the words of an injury with redress by injunction. Id.,
the statute and was sufficient. 8 690.
[Ed. Note.-For cases in point, see Cent. Dig.
vol. 8, Burglary, § 31.] In the next place, it (a party wall) is intended to serve the purpose of a complete
Appeal from Circuit Court, Wicomico Coundivision between adjoining houses. This ty; Chas. F. Holland, Judge. forbids the construction of spaces in it which
Frank Smith and others were indicted for do not divide. It is no answer to say that burglary with explosives and appeal. Afthe dominant owner stands ready to fill up
firmed. the openings wherever the servient owner
Argued before BRISCOE, BOYD, PEARCE, desires to use the wall as a party wall. That
SCHMUCKER, BURKE, and ROGERS, JJ. very statement admits that it had not been Ellegood, Freeny & Wailes, for appelmaintained as a party wall, and the servi. lants Smith and Taylor. Elmer H. Walton, tude only renders lawful occupation an actu for appellants Matthews and Hawkins. Atal party wall. Jones on Easements, § 691. torney General Bryan, for the State. In Graves v. Smith, 87 Ala. 450, 6 South. 308, 5 L. R. A. 298, 13 Am. St. Rep. 60, it is said: BRISCOE, J. The appellants in this case “A 'party wall' must ordinarily be construed were indicted, with one John Avery, on the to mean a solid wall without windows or
25th day of September, 1906, in the circuit openings"-quoted in Barry v. Edlavitch, 84 court for Wicomico county, for a violation Md. 95, 35 Atl. 170, 33 L. R. A. 294; Cutting of Acts 1906, p. 946, C. 476. This act provides v. Stokes, 72 Hun, 376, 25 N. Y. Supp. 365. "that any person who breaks and enters,
As to the propriety of asking for a manda either by day or night, any building, whether tory injunction, in this case it seems to be inhabited or not, and opens or attempts to well settled that it is the proper remedy. open any vault, safe, or other secure place, by High on Injunction says: “But the rule is use of nitroglycerin, dynamite, gunpowder, well established that an injunction is the ap or any other explosive, shall be deemed guilty propriate remedy to prevent an adjacent of burglary with explosives. And any person owner of real property from opening or duly convicted of burglary with explosives using windows through a party wall between shall be sentenced to the penitentiary in the
discretion of the court for a period of not day of May, in the year of our Lord, 1906, more than 20 years." The indictment con in the nighttime of the same day, at Wicomico sisted of two counts. A demurrer was inter county, a certain building, to wit, the depot posed to each count, and was overruled by in the town of Salisbury of the Baltimore, the court below. The appellants then moved Chesapeake & Atlantic Railway Company, a to sever, and this was also overruled. A body corporate of the state of Maryland, felomotion was then made to quash each count niously and burglariously did break and enter, of the indictment, and was overruled as to and did attempt to open and did open a certain the first count, but granted as to the second, vault, safe, and other secure place in said de and the second count was quashed. The first pot by the use of nitroglycerin, dynamite, guncount, upon which the appellants were tried, powder, and other explosives, with intent cercharged that on the 17th day of May, in the tain moneys, goods, and chattels in said vault, year 1906, in the nighttime of the same day, safe, and other secure place in said depot at Wicomico county, a certain building, to then and there being, then and there fewit, the depot in the town of Salisbury of the loniously to steal, take, and carry away, Baltimore, Chesapeake & Atlantic Railway contrary to the form of the Act of Assembly Company, a body corporate of the state of in such case made and provided and against Maryland, feloniously and burglariously did the peace, government, and dignity of the break and enter, and did attempt to open state." This count of the indictment substan. and did open a certain vault, safe, and other tially charged the offense in the words of the secure place in the depot by the use of nitro-statute, and must be held to be sufficient. glycerin, dynamite, gunpowder and other ex As to the second objection, viz., that the plosives, with intent certain moneys, goods, act of 1906 is void and defective, little need and chattels in the vault, safe, and other se be said. The language of the act is too plain cure place in the depot, then and there being, to admit of any serious difficulty as to its then and there feloniously to steal, take, and meaning and is free from all constitutional carry away, etc. According to the record, objection. The crime of burglary being a John Avery, upon arraignment, pleaded guil- felony, it was necessary to charge in the inty, and the four appellants pleaded not guilty. dictment that the appellants feloniously and Upon trial, they were convicted upon the first burglariously broke and entered, etc. The legcount of the indictment, and each sentenced islative intent in passing Acts 1906, p. 946, to be confined in the penitentiary for 15 years. C. 476, was not to create an entirely new And this appeal is from the judgment so ren offense, but it was to impose a maximum dered against the appellants.
penalty of 20 years in the penitentiary, if It will be unnecessary for us to consider convicted of "burglary with explosives," as the second count of the indictment, as this provided by the statute, instead of 10 years, count was quashed, and the appellants were as prescribed by existing statute, for the tried on the first count. As to the motions to crime of burglary. In other words, the obsever we need only say that the granting or ject and purpose of the act of 1906 was to refusing such motions is entirely within the impose a fixed and larger penalty "for burdiscretion of the trial court, under all the glary with explosives," than 10 years in the circumstances of the case. Arch. Crim. Prac. penitentiary. So construed, the statute is rea& Pleading, 304; 1 Chitty Crim. Law, 268; sonable, and the legislative intent made clear. United States v. Marchant, 12 Wheat. (U. S.) Finding no error in the rulings of the court, 479, 6 L. Ed. 700; St. Clair v. United States, the judgment will be affirmed on both appeals. 154 U. S. 134, 14 Sup. Ct. 1002, 38 L Ed. Judgment affirmed, with costs. 936. It is, however, contended upon the part of the appellants that the court below committed an error in overruling the demurrer
(106 Md. 69) and in refusing to grant the motion to quash CANTON CO. OF BALTIMORE V. MAYOR, the first count of the indictment. The objec ETC., OF CITY OF BALTIMORE.
tion consists, as alleged by the appellants, (Court of Appeals of Maryland. April 4, 1907.)
first, because the indictment does not charge
1. DEDICATION-EVIDENCE-WEIGIIT AND SUFthe offense in the language of the statute;
FICIENCY. and, second, because Acts 1906, p. 946, c. 476, Evidence that deeds, containing no referis void, in that it neither creates a new of
ence to a park dedicated to the public, described fense, nor modifies an offense at common
lots conveyed by reference to an unrecorded law. It is well settled as a general rule that reserved as a public square near the lots, none
plat, purported copies of which showed a tract in an indictment for an offense created by of the copies of the plat introduced in evidence statute it is sufficient to describe the offense
being identified as the one to which the reference in the words of the statute. Mincher v.
was made, or as having been in the possession
of the grantor, was insufficient to show an offer State, 66 Md. 227, 7 Atl. 451. The indictment to dedicate to the public the tract reserved as in this case, we think, follows this rule, and a park, the objection urged by the appellants is not a
[Ed. Note.-For cases in point, see Cent. Dig. valid one, and cannot be sustained. The of
vol. 15, Dedication, $8 85–87.] fense set out in Acts 1906, p. 946, c. 476, is
2. ADVERSE POSSESSION-HOSTILE CHARACTER
-PERSON DEDICATING LAND. "burglary with explosives," and the indict
Where the owner of land offers to dedicate ment charges that the "traversers on the 17th 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, $8 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. 433. 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 pur chaser 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
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 dedica dedication of a right of way over the grantion. Some authorities hold that the streets tor's land, until the next or nearest open mentioned in the deed or laid out on the plat | street is reached, be correct, such right of are embraced in the dedication to the full way would in many cases extend over land extent that they are owned by the grantor. not only not contiguous to but very remote Other cases, among which are the decisions from the lot sold." It may therefore be said of this court, confine the dedication to a lim that under the decisions of this court the ited and restricted area. In Hawley v. Bal sale of a lot of land calling to bind on an timore, 33 Md. 270, which may be regarded unopened street works a dedication to public as the leading case upon that subject, it is use of that street, if it is of the land of the said: “The law is now too well settled to grantor, only until it reaches the next open admit of any doubt that, if the owner of a or unopened street. piece of land lays it out in lots and streets Although the law relating to the dedicaand sells lots calling to bind on such streets, tion to public use of streets has been settled he thereby dedicates the streets so laid out by numerous decisions of this court, we have to public use. The rule is founded on the seldom been called upon to consider the nadoctrine of implied covenants, and the dedi ture and extent of the dedication of a park cation will be held to be coextensive with to such use when it is so designated on a the right of way acquired as an easement plat of the grantor's land, and reference is by the purchaser. It is upon the implied made to the plat in deeds conveying portions covenant in the grant to him that the dedica of the land. Most of the text-books and tion to public use rests, and such dedication many cases assert broadly that the rules and must necessarily be measured by the limits principles controlling the dedication of streets of the right he has acquired by virtue of his to public use by the use of or reference to grant. In the case before us, the right of plats in the manner mentioned by us apply way or easement in Mosher street acquired with equal force to the dedication of parks by the purchasers of the lots mentioned in and other public places designated on such the proof is the precise limit of the dedica plats. 2 Dillon on Mun. Corps. § 644; 13 tion by Hiss. Over what portion of Mosher Cyc. p. 448; 9 Am. & Eng. Encyc. of Law, street, then, did their right of way exist?
Other cases plainly distinguish beWe think they acquired by their several pur tween the principles applicable to the dedicachasers the right of way only from Madison tion of "streets affording easements directly avenue to McCulloh street, as it is between profitable and necessary to the use of lots" those streets that their lots lie and bind on and parks which are intended for public recMosher. The doctrine of implied covenants reation and enjoyment, and are only indiwill not be held to create a right of way over rectly beneficial to the lots. Baker v. Johnall of the lands of a vendor which may lie, ston, 21 Mich. 319; Coolidge v. Dexter, 129 however remote, in the bed of a street. The Mass. 167; Light v. Goddard, 11 Allen (Mass.) lands must be contiguous to the lot sold, and 5, where it is said, by Bigelow, C. J.: “An there must be some point of limitation. The attempt is made in the present case to extrue doctrine is, as we understand it, that tend this rule of interpretation much further the purchaser of a lot calling to bind on a than is warranted by any of the adjudicated street not yet opened by the public authori cases. The plaintiff claims under a deed ties is entitled to a right of way over it, if it whicb describes the lots conveyed as laid is of the lands of his vendor, to its full ex down on a plan to which reference is made. tent and dimensions only until it reaches Upon inspection of this plan, it appears that some other street or public way. To this these lots are carved out of a large tract of extent will the vendor be held by the implied land, the whole of which is divided into nucovenant of his deed, and no further." In merous lots or parcels, and is fully laid down Hawley's Case the owner of the lot sold ex on said plan. It also appears that certain hibited to the purchaser at the time of the other land, which at the time of the grant sale a plat' of his land, on which the streets in question also belonged to the grantors, were laid down, but the plat was not called and which is not immediately adjacent to for in the deed of the lot to the purchaser. the lots conveyed, but is separated therefrom In Baltimore v. Frick, 82 Md. 85, 33 Atl. 435, by a contemplated street which forms one we cited and followed Hawley's Case as to of the boundary lines of the lots conveyed, the extent of the dedication of a street by is designated on the plan as 'Ornamental the grant of a lot bounding thereon, and still Grounds' and as 'Play Ground.' The contenmore accurately defined the limits of tbe ded tion of the plaintiff is that such designation ication by saying: "The contention that the on the plan referred to in the deed of lands street which limits the extent of the dedica lying in the vicinity of, but not adjacent tion must be an open public street is not sup thereto, the land granted, amounts to a coveported by the cases heretofore decided by nant that those grounds shall forever conthis court. In Hawley's Case, supra, the tinue to be appropriated and used for the land over which the right of way is given uses and purposes so designated.” “We are it is said must not be remote, but contiguous by no means prepared to adopt as a sound to the lot sold; but if the contention of the rule of exposition the general proposition on
which the argument for the plaintiff rests. tioned or referred to, or was there even any We do not think that a mere reference to a allusion to this square. From the references plan in the descriptive part of a deed carries in these deeds to the Canton Company's plat, with it by necessary implication an agree it is apparent that the company had a plat ment or stipulation that the condition of of its property, but there is no evidence in land, not adjacent to, but lying in the vicini. the case that the company ever recorded its ty of, that granted, as shown on the plan, or plat, or in any form made an issue or publithe use to which it is represented on the cation of it to the community at large, or plan to be appropriated, shall forever con made any representations in reference to it, tinue the same so far as it may be indirectly other than those contained in the deeds, apbeneficial to the land included in the deed, pearing in the record. Portions of several and was within the power or control of the different plats were offered in evidence by grantor at the time of the grant."
the city, and were admitted over the objecWe will now consider the facts of the case tion of the Canton Company, and the court's before us in the light of principles to which action in that respect forms the subject of we have referred. The Canton Company is bills of exception. a well-known owner of a large tract of land These plats agree in the location upon in the eastern section of Baltimore, which them of the respective streets. Two of them, it acquired about
years ago, ars from which are alleged to be copies of Canton which it has from time to time sold lots. Company plats of about the years 1845 and These lots were described in the deeds con 1853, respectively, and one, which is alleged veying them as bounding upon various streets, to be a copy of part of Poppleton's plat of and in many of the deeds made between the Baltimore as enlarged in 1851, so as to inyears 1846 and 1882 the lots conveyed were clude Canton, also show the alleged park further described as being “Nos.
designated as a public square. We here inon the Canton Company's sert, for purposes of illustration, a copy of plat.” A number of the lots thus conveyed a sufficient portion of the plat of 1845 to were situated upon the streets facing the show the location thereon of the alleged park square in question, but in none of the deeds and the blocks of ground immediately surfor any of the lots was any public park men rounding it: