The appellee, Bellese Davis, filed a bill in this case in the Circuit Court for Baltimore County for an injunction to restrain and prohibit the appellants, the defendants below, from maintaining a gate and fence across the bed of a portion of Morris avenue, in Lutherville, Baltimore County, and also from interfering with the free use of this avenue by the plaintiff, or by any other person desiring to use it. The bill also prays for a mandatory injunction to require and compel the defendant to remove the gate, fence and all other obstructions erected by them across the bed of the avenue.
The case was originally heard on bill and answer, and on the 10th of July, 1899, the Court held that the avenue had been dedicated to the public use, but in consequence of an allegation that another avenue had been, in the year 1866, by common consent, opened and substituted in the place and stead of Morris avenue, the bill of complaint was retained for further proceedings.
The case was subsequently heard on bill, answer and proof, and this appeal is from a decree of the Circuit Court for Baltimore County, dated the 21st of December, 1899, declaring that the bed of Morris avenue was dedicated to the public use as a street, and directing an injunction prohibiting the maintaining of all obstructions now in the bed thereof, and further granting a mandatory injunction requiring the removal of the gate, fence and all other obstructions which had been erected by the defendants across or in the bed of the avenue.
There can be but little controversy as to the question of dedication, raised by the pleadings and facts of this case. It is admitted that Morris avenue was laid out on a map or *Page 396 plat of Lutherville as far back as August 24th, 1854, by the Trustees of the Lutherville Female Seminary of Baltimore County. The plat or plan divided the property into lots and upon this plat Morris avenue was laid out by the then owners of the land and extended as a public street or avenue. Besides this, it appears from the deed itself, under which the appellant claims title, that the Trustees of the Lutherville Female Seminary of Baltimore County expressly reserved the right and use of so much of the lot of land as may be required to lay out, open and extend the avenues, streets and alleys designated on the plat of the whole tract of land called Lutherville; the avenues, streets and alleys are to be laid out and opened for the use and benefit in common of the owners and occupants of lots now sold or hereafter to be sold in the village of Lutherville.
Now, the law on the subject of dedication has been repeatedly laid down by this Court to be that where an owner lays off land in lots and sells them as bounding on certain streets which are sufficiently designated, the streets so called for are held as dedicated to the public, and the vendor is bound by an implied covenant to the purchaser to keep them open, and the purchaser takes the lot he buys, subject to the servitude upon so much of the bed of the street as goes to him under his purchase, in fee.White v. Flannigan, 1 Md. 525; Lippincott et al. v.Harvey, 72 Md. 577.
It is also well-settled law that mere non-user and lapse of time do not constitute an abandonment of a dedicated street. M. C.C. of Baltimore v. Frick, 82 Md. 85; McCormick v.Mayor, c., of Baltimore, 45 Md. 524.
The question of substitution relied upon by the appellant is one of fact, and depends upon the evidence in the case. It appears that Morris avenue is one of the principal streets of the town. According to the testimony it is a half-mile long and fifty feet wide, and runs through the centre of the town. It is opened for travel its entire length except about 350 feet, where it runs through the appellant's land. The avenue, which it is alleged was substituted in its place, is *Page 397 about forty feet wide and 400 feet deep and it was extended in 1872 by one of the lot-owners 100 feet easterly for his own private convenience. Mr. Coonan, the engineer who testified in the case, says that it is indicated on the plat by red lines and is marked twenty foot avenue or lane; that it comprises the northerly half for a depth of about 300 feet of a blind avenue of irregular width, extending easterly from Francke avenue for a distance of about 500 feet, where it terminates at a fence which extends across the full width of the avenue. It has several small houses and a stable on it. The proof shows that this blind avenue or alley was opened simply for the benefit of the appellant and another lot-owner of the town of Lutherville. All the witnesses except one state that "they never heard until this suit that it was supposed by anybody that the opening of this avenue was a substitution by common consent of the owners and occupants of lots in the town of Lutherville for Morris alley." It is quite clear, we think, that the contention of the appellant, as to this substituted avenue, cannot be sustained.
Nor do we think that the appellee is estopped by the decree of the Court of Baltimore County, passed on the 2nd of October, 1873, in the case of Marston et al. v. Commissioners ofLutherville, and which is set forth in the record. It in no way affected the rights of the parties now before the Court.
For these reasons, the decree of the Circuit Court for Baltimore County will be affirmed.
Decree affirmed with costs.
(Decided June 14th, 1900.) *Page 398