The answer of the defendants neither admits nor denies the allegations of the bill as to the derivation of the plaintiffs' title. It denies, however, the plaintiffs' right to the use of the ground in controversy for the purpose of an alley, and asserts that no alley has ever been opened or constructed through the property upon which the buildings of the defendants were being erected, and that their land was not subject to any rights of way. There was some conflict in the evidence as to the extent to which the area provided in the Ulman deed for the alley extending to Herbert street had been used for that purpose. It was testified by several witnesses that this space, though not graded or paved, has been regularly traveled by teams making deliveries and collecting material at the rear of the lots binding on the alley with which the one in controversy connected. There was other testimony to the effect that a part of the space intended for the alley had been obstructed for a number of years by deposits of building stone, and that it had never in fact been opened or used as a way. But it was shown by the witnesses for the defense that, prior to the erection of the defendants' row of houses, the whole of the ground lying between the southern tier of lots and Herlert street was vacant and uninclosed, and that this open space was customarily used by teams having occasion to visit the rear of the plaintiffs' premises and the other lots fronting on North avenue. It was disclosed by the evidence that the grade of the lots abutting on Herbert street, before the improvements by the defendants, was from one to five feet higher than that of the street. There appears to have been some excavation and grading in connection with the alley parallel with Herbert street, but there was no work of this kind ever done upon the bed of the alley now in dispute. It is to be construed as a covenant to make the defined area serviceable as a thoroughfare, and if the contractual duty was not actually performed, such a default could not impair the efficacy of the formal graut of the use of the ground for the purpose indicated. An "alley" is simply a narrow passageway. 1 Words and Phrases, 342. It may exist without any work of construction being done upon its bed; and an easement in an "alley 10 feet wide" may undoubtedly be granted and be operative, even though it be described as extending over ground not previously used for that purpose. perfectly apparent that the right thus conveyed in this case was one of great convenience and value to the property to which it was attached, and that it was absolutely necessary to be secured, in order that the alley first mentioned in the grant should be available at all for its intended uses. It would not be a reasonable construction of the terms of the conveyance to hold that the distinct grant of the easement could be defeated by the neglect of the grantor to prepare the alleyway for travel in accordance with his agreement. It is doubtless proper to conclude that the words "to be laid out by Alfred J. Ulman," as used in his deed, imposed upon him some duty in reference to the improvement of the alley. The term "lay out," as ordinarily employed in such connections, has been judicially defined to mean the adoption of outlines or location, and not the work of construction or improvement. 5 Words and Phrases, 4037; Hough v. City of Bridgeport, 57 Conn. 290, 18 Atl. 102; Foster v. Boston Park Com'rs, 133 Mass. 321; Gaines v. Hudson Co. Ave. Com'rs, 37 N. J. Law, 14; Zine Co. v. City of La Salle, 117 Ill. 417, 2 N. E. 400 8 N. E. 81. In the present case, the deed i self "laid out" the alley, within the meaning just stated, by clearly defining its location; and hence it is probable that there was some[1, 2] The main theory of the defendants thing further contemplated to be done by the is that the right of those deriving title from grantor in this regard for the benefit of the Ulman to the use of the last-mentioned al- grantee and his assigns. But to hold that ley depended upon its being "laid out." in the easement must be lost altogether, merely the sense of being constructed and opened as because some act was not performed that an alley, by the original grantor of the ease was designed to make it more serviceable, ment. It is contended that the language, would be contrary to the plain import of the "together with the use of an alley 10 feet conveyance, and would be manifestly unjust. wide to be laid out by Alfred J. Ulman," Upon. the appellees' theory, if Ulman had amounted to nothing more than a personal died shortly after his grant, as he did seven covenant, binding the grantor alone, to es- years later, without having "laid out" the tablish a way appurtenant to the land con- alley, it would have become thereby at once veyed, and that this obligation, not having and perpetually barred to the grantee, rebeen performed by the grantor during his gardless of the valuable consideration he had ownership of what was proposed to be the paid for its use. If the grantee had himself servient estate, is not not now enforceable graded the alley, it could certainly not be against the present owners of the property. said that his easement would still depend This contention does not give due considera- upon similar action by the grantor. tion to the important fact that the Ulman undoubtedly competent for those entitled to deed expressly grants the use of the way as the alley to waive the covenant for its imappurtenant to the land since acquired by provement, and to use it in its primitive the plaintiffs. If the phrase "to be laid condition. As they did in fact use the Md.) OBERHEIM v. REESIDE 593 In White v. Flannagan, supra, where the plaintiff's right of way to a wharf over a street was obstructed by the defendant, it was said by the court: "In judging of the application of the remedy by injunction, reference must always be had to the nature and character of the thing to be protected. *** By throwing obstructions over the street, so as to prevent a passage along its bed, it is just as much destroyed as if it were covered by a house; in the language of the authorities, it is irreparable mischief, because it destroys it as a street." The encroachments in the case before us not only exclude the plaintiffs altogether from the use of the way directly affected, but also render the connecting alley unavailable for the purposes for which it was designed. Under the conditions here existing, it is plain that legal remedies would be inadequate. The easement would not be recoverable in ejectment (Callaway v. Forest Park Co., 113 Md. 7, 77 Atl. 141; Nicolai v. Baltimore City, 100 Md. 579, 60 Atl. 627; Canton Co. v. Baltimore City, 106 Md. 69, 66 Atl. 679, 67 Atl. 274, 11 L. R. A. [N. S.] 129), and actions of trespass could not, from the nature of the case, be expected to afford the plaintiffs suitable redress. while vacant, for the purpose contemplated| Rose, 61 Md. 414; Baugher v. Crane, 27 in the deed under which they claimed, it Md. 41. would not be a just disposition of the case to hold that they may now be deprived of their vested right by the present owners of the servient estate, simply because a personal covenant of the common grantor to "lay out" the alley had not been performed. [3] In suits of this nature, where relief by injunction is sought as a determinative and not as an ancillary remedy, it is, of course, essential that the right of the plaintiff to the invaded estate should be free from any reasonable doubt or dispute. When the title relied upon is controverted, and it appears that there is some ground for the objection, a court of equity will not interfere, except for temporary protective purposes, until the question of legal right can be decided by a court of law. Bernei v. Sappington, 102 Md. 190, 62 Atl. 365; Gulick v. Fisher, 92 Md. 353, 48 Atl. 375; Clayton v. Shoemaker, 67 Md. 216, 9 Atl. 635; Whalen v. Dalashmutt, 59 Md. 250; Lanahan v. Gahan, 37 Md. 105; Amelung v. Seekamp, 9 Gill. & J. 468; Cherry v. Stine, 11 Md. 27; Chesapeake & Ohio. Canal Co. v. Young, 3 Md. 489. Such a situation is usually presented where the title involved depends upon or is affected by adverse user, as in each of the cases just cited. But when the legal title sought to be protected is not doubtful, there is no occasion to require the parties to resort to a court of law for its adjudication. White v. Flannagan, 1 Md. 543, 54 Am. Dec. 668. In the case at bar, there is no dispute as to the execution and delivery of the deed granting the easement in question, or as to the valid acquisition by the plaintiffs of lands to which it was intended to be appurtenant. There is no issue of adverse user, and no denial of right, except upon a theory which is opposed to the terms of an express grant. We do not find here sufficient ground of objection to the plaintiffs' title to justify us in subjecting them to the expense and delay of a preliminary proceeding at law. [4, 5] It is urged, however, that the injury complained of is not irreparable, and that the plaintiffs have an adequate legal remedy by an action for damages. The record shows, as already stated, that the alley has been completely obstructed. It is entirely and finally destroyed for the purposes it was intended to serve, if the structures erected by the defendants are permitted to be maintained. The rule has been repeatedly declared that, where a trespass works a destruction of the estate in the character in which the complainant was entitled to enjoy it, a proper case is presented for relief by injunction. Baltimore Belt R. R. Co. v. Lee, 75 Md. 600, 23 Atl. 901; Schaidt v. Blaul, 66 Md. 147, 6 Atl. 669; Long v. Ragan, 94 Md. 464, 51 Atl. 181; Herr v. Bierbower, 3 Md. Ch. 458; Davis v. Reed, 14 Md. 157; Shipley v. Ritter, 7 Md. 413, 61 Am. Dec. 371; Shipley v. Caples, 17 Md. 182; Scully v. 81 A.-38 [6] The defendants charge that the plaintiffs were guilty of laches in failing to assert their right to the alley until the building by which it was obstructed had been nearly completed. It was proven that the erection of this particular dwelling was begun in March, and that a formal protest in writing was not. sent by the plaintiffs until June 27th, when the house was under roof. It is to be gathered from the testimony of one of the defendants that before this letter was written the plaintiffs proposed that a space be left open at the rear ends of three of the lots, so that there would be room for teams coming into the alley from Monroe street to be turned around and driven back to the point of entrance. When this proposal was made, the ground was unfenced. There were some negotiations on the subject, but they were not brought to a definite conclusion, and the defendants proceeded later to build a fence across the southern end of the alley leading to Herbert street. The plaintiffs then sent their letter, demanding the removal of the obstructions. One of the defendants testified that when this communication was received about $1,000 had been expended on the house at the northern end of the alley, and that it was finished at an additional cost of $200. It is insisted that the plaintiffs are estopped by their previous inaction to now demand that the obstructions be removed. It is a well-settled principle that mere silence as to rights of record does not create an estoppel. Frazee v. Frazee, 79 Md. 30, 28 Atl. 1105. In Schaidt v. Blaul, supra, an al Decree reversed and cause remanded, to the end that a decree may be passed in accordance with this opinion; the costs to be paid by the appellees. (116 Md. 352) ley was obstructed by the erection of a mas- [ plaintiffs are entitled to the relief by injunc sive stone wall and a stable; the former tion, for which they have prayed. having been finished, and the latter being in The learned court below dismissed the bill course of construction, when the owner of an without prejudice to an action at law; but, easement in the alley applied for an injunc- as we have concluded that the case is a proption. The defense was interposed, among er one for redress in equity, the decree will others, that the plaintiff, with full knowledge be reversed, and the proceedings remanded that the work was in progress, and that for a new decree in accordance with this large sums of money were being expended opinion. upon it by the defendant, made no complaint of any kind until it was completed. It was contended that by this course of conduct the plaintiff was estopped to allege that his rights had been violated. In overruling this contention, and affirming the decree below, requiring the removal of the wall and stable, the court quoted from Casey v. Inloes, 1 Gill, 502, 39 Am. Dec. 658, as follows: "The doctrine that, where one stands by and sees another laying out money on property, to which he himself has some claim or title, and does not give notice of it, he cannot afterwards, in equity and good conscience, set up such claim or title does not apply to an act of encroachment on land, the title to which is equally well known, or equally open to the notice of both parties; but the principle applies only against one who claims under some trust, lien, or other right, not equally open and apparent to the parties, and in favor of one who would be misled or deceived by such want of notice." COLONIAL TRUST CO. et al. v. GERKE et al. (two cases). (Court of Appeals of Maryland. June 24, APPEAL AND ERROR (§ 1097*)-DECISION ON A decision of the Court of Appeals on a prior appeal is the law of the case and is conclusive on the parties with reference to all subsequent proceedings. Error, Cent. Dig. §§ 4358-4368; Dec. Dig.. § [Ed. Note.-For other cases, see Appeal and 1097.*1 Appeals from Circuit Court of Baltimore City; Thos. Ireland Elliott, Judge. Suits between Florence B. Gerke and others and the Colonial Trust Company, as administrator of Charles G. C. Ross, deceased, and others, for the construction of a will. A decree having been entered in conformity to the orders of the Supreme Court on a prior appeal (114 Md. 289, 79 Atl. 587), the administrator appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PATTISON, URNER, and STOCKBRIDGE, JJ. H. Findlay French and Thomas Mackenzie, for appellant. Charles J. Wiener, Roger T. Gill, and Edward M. Hammond, for appellees. In the case here under consideration, the plaintiffs' rights were of record. The defendants had procured an examination to be made of the title to their land, and must therefore have had actual, as well as imputed, notice of the easement they were obstructing. While they have offered evidence tending to prove that the alley had not been graded or used along its defined course, yet they could see that this was not really necessary, so long as the adjacent ground remained vacant and uninclosed, and thus afforded an unrestricted means of access for teams to the plaintiffs' lots. They were aware that in closing the area of the alley BRISCOE, J. This case is brought into leading to Herbert street, and in building this court for the second time. There are a fence along the northern margin of the one two appeals in the record, but they present extending to Monroe street, the principal the same questions and are from the same value and utility of the entire way would be decree. One appeal is on behalf of the Colodestroyed. It seems clear to us upon the nial Trust Company, administrator of Charles facts that the defendants are not entitled to G. C. Ross, and the other is taken by the rely upon the principle of equitable estoppel Colonial Trust Company and Thomas Macin their opposition to the plaintiffs' efforts to kenzie, trustees, under the will of Charles protect their easement. We find in the case Gerke, deceased. On the former appeal, reno superior equities in favor of the defend- ported in 114 Md. 289, 79 Atl. 587, this court ants upon the strength of which they should reversed the decree of the circuit court of be permitted to continue the obstructions. Baltimore City and remanded the cause to The loss they may incur in the removal of the end that further proceedings should be the building and fence they have erected in had in conformity with an opinion filed in the bed of the alley cannot be supposed to the case upon a proper construction of Mr. equal that which the maintenance of these Gerke's will, declaring the rights of the obstacles inflicts upon the owners of the 24 parties thereunder. In the course of the improved properties to which the right of opinion in that case, we held that the esway is appurtenant. In our judgment, the tate of Charles Gerke should be held in Md.) GOLDSBOROUGH v. COBLENTZ 595 property should be administered as a trust estate as directed by the will. It appears, further, that the questions raised on this record were presented and decided by this court on the former appeal, and, this being so, they are no longer open for review on the present record. The conclusion reached by this court on the former appeal was the result of a careful and thoughtful consideration of the rights of all the parties under the will, and we find no reason to disturb it, even if this case was now properly before us. In Waters v. Waters, 28 Md. 11, Chief Judge Bartol, in delivering the opinion, said: "No principle is better established than that a decision of the Court of Appeals once pronounced in any case is binding upon the court below and upon this court in the subsequent proceedings in the same case, and cannot be disregarded or called in question. It is the law of the case binding and conclusive upon the parties, not open to question or examination afterwards in the same case." If this were not so, controversies would be endless. "Debet finis esse litium," is the maxim, which has been invariably applied by this court, whenever this question has arisen. Smith v. Shaffer, 50 Md. 132; Abraham v. Trust Co., 86 Md. 258, 37 Atl. 646; Hastings v. Foxworthy, 45 Neb. 676, 63 N. W. 955, 34 L. R. A. 321. trust, according to the terms of the will, and I will, which we sustained and held that his should be administered as a trust estate in the circuit court of Baltimore City under the orders of that court; that the administrator of Charles G. C. Ross, deceased, was entitled to one-eighth of the rents and income from the property subject to the provision in the will that the warehouse property, on Lexington street, should not be sold until after the death of the last surviving daughter of Charles Gerke, and his youngest grandchild shall have become of age. We further held, under a proper construction of the will, that Mr. Gerke's wife, during her life, and that his daughters, during their lives, should have full power to demand, receive, and collect the rents, interest, and income, to manage, control, and look after the estate, as though the same were their own absolutely. The case having been remanded, the circuit court of Baltimore City, in conformity to the opinion and decree of this court, on the 28th day of March, A. D. 1911, passed the following decree, to wit: "It is adjudged, ordered, and decreed that Charles G. C. Ross took an equitable interest in one-eighth of the rest and residue of the estate of Charles Gerke as mentioned in the third and subsequent paragraphs of his will, subject to the life estate of the wife of Charles Gerke in the whole property, and after her death to the bequest of the interest at 5 per cent. on $6,000 in favor of Walter Duncan Gerke and his descendants, and to the further provision in said will that said estate shall be held in trust, and that the storehouse property No. 5 West Lexington street, in Baltimore City, shall not be sold until after the death of the last surviving daughter of said testator and his youngest grandchild shall become of age, and also to the provision thereof whereby his said daughter shall during their lives have full power to demand, receive, and collect the rents, interests, and income of the part or share to which they may be entitled, and to manage, control, and look after the estate as though the same were their own absolutely. And it is further adjudged, ordered, and decreed that the trusts created under the will of the said Charles Gerke, deceased, from time to time as the occasions require, shall be administered under the order of this court. And it is further ordered that the Colonial Trust Company, administrator of Charles G. C. Ross, deceased, is entitled to receive oneeighth of the net rents and income from the trust property subject to the provision of said will." We find nothing in the decree appealed against that is either inconsistent with or materially different from the directions of this court on the former appeal, and, as the decree is substantially in accordance therewith, it will be affirmed, on both appeals, with costs to the appellees, respectively, in each case. (116 Md. 328) GOLDSBOROUGH et al. v. COBLENTZ et al. (Court of Appeals of Maryland. June 24, 1911.) 1. TRUSTS (§ 204*)-SALE OF TRUST PROPERTY—ANNULMENT OF JUDICIAL RATIFICATION -EFFECT. Where the court administering trust property annulled at the request of a purchaser an order confirming the sale, the court's protection of the purchaser terminated. [Ed. Note.-For other cases, see Trusts, Dec. Dig. § 204.*] 2. TRUSTS (8 204*)-SALES OF TRUST PROPER TY-JUDICIAL POWER. Where the court administering trust property annulled at the instance of a purchaser a confirmation of a sale by trustees, and granted them leave to institute further proceedings to effect a sale, the court was free to accept the highest bid offered. [Ed. Note. For other cases, see Trusts, Dec. Dig. § 204.*] 3. TRUSTS (§ 200*)- ADMINISTERING TRUST ESTATES-PROTECTION OF INFANTS. It will be seen, upon an examination of the opinion filed by us on the former appeal, that the decree appealed against here is not only in conformity with the views expressed in the opinion of this court, but is in part in the very language and terms of Mr. Gerke's For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes A court of equity administering a trust estate must on its own motion protect the in terests of infants in the estate, and may refuse | the 18th of October, 1910, rescinding and anto ratify a sale, though no one objects thereto. nulling the order of July 28th, which con[Ed. Note. For other cases, see Trusts, Cent. firmed the sale negotiated between the trusDig. § 268; Dec. Dig. § 200.*] Appeal from Circuit Court, Frederick County, in Equity; Edward C. Peter and John C. Motter, Judges. Proceedings by Emory L. Coblentz and another, trustees, for the confirmation of a sale of trust property. From an order overruling exceptions to the sale, interposed by Charles Goldsborough and another, they appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, PATTISON, and STOCKBRIDGE, JJ. Thomas N. Copenhaver and Wm. H. Surratt, for appellants. Albert S. Brown and Alfred J. Carr, for appellees. tees and the appellant Goldsborough, and authorizing the withdrawal from the files of the petition of the trustees for the ratification of the sale, and granting leave to the trustees to institute such further proceedings as they might desire to effect a sale of the property. At this point the relative positions of the parties were the same as they had been on the 7th July, when the second agreement for a sale was made. At some time, the date of which is not entirely certain, but prior to the taking of the testimony under the new proceedings which had been begun, the valuation of the Eutaw place properties was at the suggestion of Mr. Caughy changed from $7,250 to $8,250, but STOCKBRIDGE, J. On the 10th of May, the record does not disclose any written 1910, Julian S. Carter, professing to act for agreement entered into at this new price. It and on behalf of the appellant Charles Golds- is the undisputed testimony in this case that borough, entered into a written agreement at the interview between Mr. Caughy and with Emory L. Coblentz and W. Harry Hal- Mr. Coblentz, at which the agreement was ler as trustees, by which Mr. Goldsborough reached to take the proceedings suggested by was to purchase from the trustees two lots Mr. Copenhaver, Mr. Coblentz stated that one of ground on Eutaw place and one on Linden effect of the proceeding would be to "involve avenue for the sum of $12,250. The Eutaw a risk of Mr. Goldsborough being subjected place properties were part of a trust being to competitive bids." The attention of administered under the circuit court for Messrs. Caughy, Hearn & Carter or their Frederick county, while the Linden avenue counsel was called to this condition in the property was under the jurisdiction of one of letters of Mr. Coblentz of October 24th and the equity courts of Baltimore city. For October 25th. The new equity proceedings this reason, on or about the 7th day of July, were completed, and on the 3d of December a new contract for the sale of the Eutaw a decree was entered directing the sale of the place properties was entered into for a nam- Eutaw place properties at public or private ed consideration of $7,250. This second sale, and, if by the latter mode, providing that agreement was dated as of the same date as the sale should not be for a less sum than $8,the original contract, and signed by the same 250. On December 8th Mr. Coblentz wrote a persons as the first agreement, and by Mrs. letter to Messrs. Caughy, Hearn & Carter, Fannie Fitzpatrick, the cestui que trust for stating that the sale of the properties in queslife. The sale as proposed to be made by the tion had been reported to Mr. Goldsborough, second agreement was finally ratified and but that the trustees had received an offer confirmed by the court on the 28th day of of $8.300 from Francis L. Klemm on behalf July. of George L. Kelly. It was not true, as statThen followed a succession of corresponded in the letter, that the sale had been reence and interviews between Emory L. Coblentz, one of the trustees, and Caughy, Hearn & Carter, as representing the supposed purchaser, Goldsborough. These disclosed an objection to the title on the part of the attorney of the purchaser, in response to which, on August 30th, the trustee, Coblentz, declined to recognize the alleged objection to the title, and proposed that "the whole matter might be considered off." Instead of this, further correspondence and interviews ensued, and some time in October an understanding was reached by which the wishes of Mr. Copenhaver acting as attorney for Mr. Goldsborough in the examination of the title were acceded to. These involved a material amendment of the equity proceeding under which the trustees were to make title, and which took the form of an order passed on ported to Mr. Goldsborough, and two days later Mr. Coblentz corrected this statement in a letter to Caughy, Hearn & Carter, and proffered an explanation of his prior statement, and on the same day filed a report of sale of the property to Kelly. To this sale Mr. Goldsborough excepted, and from the order overruling his exceptions this appeal has been taken. The facts have been thus detailed at some length because a full understanding of them will materially aid in reaching a sound conclusion. The appellant relies upon four propositions: [1] (1) That the final ratification on July 28th of the proposed sale to Goldsborough gave him a title which the faith of the court was pledged to protect. This ignores the fact |