Town Commissioners v. County Commissioners

*659Marbury, C. J.,

delivered the following dissenting opinion, in which Collins, J., concurred.

The County Commissioners of Queen Anne’s County sought and obtained from the Circuit Court of that county a decree directing the municipal corporation known as the Town Commissioners of Centreville to remove from within the boundaries of the Court House Square on the south and west sides thereof all parking meters, parking meter posts and cement emplacements therefor, and enjoining the municipal corporation from entering into or upon the Square for the purpose of placing any parking meters, posts or emplacements on its south, west or northern sides. The Town Commissioners appeal here.

The Court House Square is the location of the courthouse of Queen Anne’s County. It is wholly within the limits of the town of Centreville, the county seat of Queen Anne’s County, and wholly within the municipal limits of the appellant corporation. The latter has admitted power to regulate parking on the streets of the town, and has admitted authority over the streets around the Square. The question here is whether, in the exercise of such authority, it can place parking meters within the boundaries of the Square.

By successive acts up to 1789 (Chapter IV of 1782, April Session, Chapter XVI of 1784, Chapter XVIX of 1788, Chapter XXV of 1789), the General Assembly authorized commissioners to acquire from funds arising from the sale of the old county-owned court house and gaol in Queenstown a site of approximately two acres from one Elizabeth Nicholson, and to build thereon a new court house and gaol at Centreville, the land thus acquired to be vested in the Justices of Queen Anne’s County and their successors and held by them forever as public land for the purpose aforesaid and for other purposes for the use of the county.

There is said to be no deed or condemnation proceeding of record, but the four corners of the Square were shortly marked by stones designated P. G. 1, 2, 8, and 4, as *660required in the statutes, and the present Court House is now within these boundaries, although the limits of the original Square have been narrowed. However, the present Square, as now bounded by cement curbs, has been in the actual and continued occupation of the County Commissioners and their predecessors in office for over 150 years without interruption. It is, of course, a matter of historical information that the Justices of the counties were the predecessors as to fiscal matters of the present County Commissioners in the several counties of the State, and the latter succeeded to their powers and duties. Schneider v. Lansdale, 191 Md. 317, 324-325, 61 A. 2d 671. It seems idle, therefore, for the Town to contend that the present appellees have no legal right to the Square, because of the absence of a deed or of a condemnation proceeding on the record. It is County property over which they have control. Code Art. 25, Sec. 1.

There was formerly an iron fence surrounding the present Square, but this was removed, and the present cement curbs take its place. Within the Square are cement walks, built and maintained by the County Commissioners, on two sides adjoining the curb and on a third side separated from the curb by a grass plot, also maintained by the County. These walks connect with a walk leading directly to the Court House door,, and furnish a convenient method for those having business in the Court House to reach their destination from any side of the Square where they may be. While these walks are also used generally by persons who havé no business in the Court House, but are merely going from one side of the Square to the other, their primary purpose and object was undoubtedly to serve those who had to visit the Circuit Court, or the various county offices located in the Court House. The streets outside the curb are partly or wholly located on the original Square, but it is admitted by the County Commissioners, as heretofore stated, that these streets are under the control of the town authorities, and that the latter can regulate park*661ing upon them. The County Commissioners, however, admit no dedication of the sidewalks, as distinguished from the streets, and claim them as their own property, free from any public easement.

Dedication is a matter of intention, and, under all the authorities, both in this State and elsewhere, permission for use for a special purpose, such as giving the public access to the owner’s business property, does not operate as a dedication to public use generally. Tiffany, Real Property, 3rd Ed., Vol. 4, Sec. 1102, p. 341; McQuillin, Municipal Corporations (Rev.), Vol. 4, Sec. 1689, p. 745; Irwin v. Dixion, 9 How. 10, 32, 13 L. Ed. 25; Mayor and C. C. of Baltimore v. Fear, 82 Md. 246, 256-257, 33 A. 637; Association of Ind. Taxi Op. v. Yellow Cab Co., 198 Md. 181, 191-192, 82 A. 2d 106, 110-111. Since that is so, it seems clear that there has been no dedication of these sidewalks within the Square, and that the municipal authorities have no control over them.

If a private person owns property adjacent to a public highway or street, the authorities in charge of such highway or street have no right to trespass upon such property without permission, and to place upon it parking meters, poles or other objects. Control over streets gives no right to use adjoining private property. Ordinary sidewalks in a town or city are part of the streets, and meters and signs can undoubtedly be placed upon them in the exercise of control over traffic on adjacent streets, but here is presented a case, not of ordinary sidewalks along a street, but of walks, built for a special purpose, not made a part of the streets, and not dedicated, as the streets have been, for general public travel. Permissive use does not constitute dedication under such circumstances as are shown to exist in this case.

The discussion to this point has proceeded on the supposition that the County Commissioners are in the same situation as a private owner, but, as a matter of fact, their situation is entirely different. While they have control of the Court House property, and have the duty *662to keep it in repair, to keep it insured, and to keep it free of trespassers (Prince George’s Co. v. Mitchell, 97 Md. 330, 339, 55 A. 673), they have no authority to sell it or to dispose of it in any way without specific instructions from the Legislature. The town authorities cannot condemn a road or a walk through the Court House grounds,, without, specific instructions from the Legislature which do not appear. N. C. Rwy. Co. v. M. & C. C. of Baltimore, 133 Md. 658, 660, 106 A. 159. Browne v. Baltimore, 163 Md. 212, 218. United States v. Certain Parcels of Land, 30 Fed. Supp. 372, 377-379, 161 A. 24. Note. 37 L. R. A. (N. S.) 101. • They cannot acquire it by prescription against the County. Ulman v. Charles St. Ave. Co., 83 Md. 130, 145, 34 A. 366. Cushwa v. Williamsport, 117 Md. 306, 319, 83 A. 389. Brady v. Mayor & C. C. of Baltimore, 130 Md. 506, 513, 101 A. 142. Sachs v. Ward, 182. Md. 385, 394, 35 A. 2d 161. Therefore, they have no power to get it, and the County has no power to give it to them.

It seems clearly to follow from all these considerations, that the town has no right to place its meters, posts and stands on the county property,, and that the decree should be affirmed.

Judge Collins joins me in this opinion.