While what is set out in the following memorandum is implicit in the opinion of the court, the writer desires to emphasize certain points. The complainant does not seek to have the deeds annulled for fraud or mistake, but affirms and relies upon them to support his theory that the easement granted for the public way through the complainant's land must be permanently kept open as a public highway in accordance with complainant's construction of the meaning expressed by the recitals in the two deeds. So, while relying on the deeds as the basic ground of his relief, it does not lie in the mouth of the complainant to assail as invalid the instruments on which he depends for the maintenance of his rights. Even if the deeds had been obtained from him by fraud or deceit, the plaintiff has given verity to the instruments by his full ratification and confirmation. The instruments must, therefore, be accepted as valid and, so, operative. With all question of fraud excluded by the election of the plaintiff, it follows that the original deed and the second or declaratory deed must be read together to construe correctly the meaning and effect of the grant, since the general rule is that deeds made in full execution of the creation of an easement in the land merge the provisions of the contract of the parties and all previous negotiations and agreements leading up to the execution of the deeds as well as all prior and contemporaneous proposals, stipulations, and oral agreements. West Boundary Real Estate Co.v. Bayles, 80 Md. 495, 31 A. 442; Worthington v. Bullitt,6 Md. 172; Bladen v. Wells, 30 Md. 577, 581.
The provisions of the two instruments constitute a covenant on the part of the County Commissioners of Harford County that the easement granted shall be kept open and maintained by the covenantor as a county road. The county accepted the grant of the plaintiff. From the point where the easement was intersected by the railway at the southern boundary line of the right of way of the railroad company, the county extended the new county road, on the bed of the former private way of the *Page 422 plaintiff and others, across the railroad right of way and the land of one Brown, a short distance to the highway known as the Philadelphia Road. Thus, approximately on the private right of way of the plaintiff and others, a county road was opened which ran from its union with the Philadelphia Road southerly over the land of Brown and the right of way of the railway company and the land of the plaintiff and others to its terminus. The rights and obligations of the plaintiff must be determined with reference to the rights and obligations of the public in the way thus created. In accepting the promise of the county commissioners to maintain and to keep the public way open, the grantor was charged with the knowledge that this covenant would bind the grantee only so long as its observance was in the public interest, which might require, in the honest exercise of a sound discretion, either the abandonment of the highway or a part thereof, or a change in its location, or an abolition of the railway crossing at grade. The grantor must be held to have known that the county commissioners could not covenant against the exercise of the police power or of its discretionary power to change, alter or close, whenever the proper occasion arose, the highway in accordance with the public welfare, safety or convenience. Niland v. Bowron, 193 N.Y. 180,85 N.E. 1012; Globe Slicing Machine Co., Inc., v. Murphy,161 Md. 667, 671, 672, 158 A. 26; Williston on Contracts (Revd. Ed.), secs. 615, 626.
The parties were also apprised that the declared policy of the State was to close public railway crossings because of their danger to travelers by rail and highway, and thus a covenant not to abolish a grade crossing would be invalid as against public policy. The removal of the grade crossing was, therefore, a contemplated event. The time of its occurrence with reference to the grant of the plaintiff might be near or distant or never. Hence, when the grade crossing is abolished is immaterial so far as the rights of the parties are concerned. The plaintiff, consequently, has no redress in equity by way of injunction and his remedy, if at all, would be at law to recover such *Page 423 damages as he may show himself entitled to recover, if there be a breach of the covenant to keep the road open. Whalen v. Balto. O.R. Co., 108 Md. 11, 21-24, 69 A. 390; Maryland etc. R. Co. v.Silver, 110 Md. 510, 517, 518, 73 A. 297; Whalen v. Balto. O.R. Co., 112 Md. 187, 199, 200, 76 A. 166; Linthicum v.Washington, B. A. Ry., 124 Md. 263, 269, 92 A. 917; Schnepfev. Consol. etc. Co., 164 Md. 630, 634-636, 165 A. 889;Chesapeake Potomac Tel. Co. v. Board of Forestry,125 Md. 666, 674, 94 A. 322.