Md.) MAYOR, ETC., OF CITY OF BALTIMORE v. BRENGLE 677 The Corporations, Dec. Dig. § 269.*] 2. EMINENT DOMAIN (§ 19*)-CLOSING STREETS tions, there can be no doubt as to the real [ demning, opening, grading, paving and curbing nature of the cause of action. It is obvi- the streets, avenues, lanes and alleys of the ously and exclusively ex delicto. The own- provides that the commission shall have the Section 3 Annex portion of Baltimore City." ership and occupancy of the designated prop- right to condemn, lay out, open, extend, widen, erty by the plaintiff is alleged; the disturb- straighten, "close," grade, and pave any street, ance of his possession by the defendant's etc., and "shall have all powers necessary and proper in the exercise of said powers.' conduct is charged; and the injuries sustain- Annex portion of the city was prior to 1888 ed are described with reasonable particular- in Baltimore county, and many of the streets, ity. The premises upon which the trespasses lanes, etc., therein were originally county roads. were committed are in each instance suffi- Held, that the Annex Commission had power were committed are in each instance suffi- to close any street which it deemed necessary ciently indicated for the purposes of a suit to close in carrying out the plan adopted by it of this character. Among the Code forms, for opening, straightening, etc., streets in the an entire count in trespass consists of the Annex part of the city. statement "that the defendant broke and entered certain land of the plaintiff, called "The Orchard,' in — county, and depastured the same with cattle." Article 75, § 24, subsec. 28. It is provided by section 22 of same article that land may be described in declarations "by abuttal, course and distance, by any name it may have acquired by reputation, or by any other description certain enough to identify the same." The trespasses in this case are alleged to have been committed in the cellar of the plaintiff, adjoining the one occupied by the defendant, in the building known as Moat's Opera House, in the town of Frostburg, in Allegany county, and upon the lot in the possession of the plaintiff, situated in the rear of the building. We can have no hesitation in holding that this description is a sufficient identification of the premises to which the suit refers. As facts are alleged which in effect constitute a trespass by the defendant upon the plaintiff's property, the omission to technically charge a breaking and entering cannot be held material, in view of the statutory rule we have quoted. [4] The point is made that the count which deals with the depredations of the defendant's chickens does not state how they damaged the plaintiff's articles of merchandise. The averment is in effect that the fowls roosted in the sheds and stables on the plaintiff's lot, and damaged his new wagons, plows, and other stock there stored. This allegation indicates with reasonable certainty the cause and nature of the injury sustained under the special conditions described. The demurrer was properly overruled, and the judgment will be affirmed. Judgment affirmed, with costs. (116 Md. 342) E. streets. The topographical map of the Annex portion of Baltimore city showing the streets as they were to be laid out and straightened, etc., showed the streets laid out at right angles, by the Annex Commission of Baltimore City, but M. avenue, which is not adopted as one of the streets, runs diagonally across a square formed by W. avenue on the north, P. avenue on the south, E. street, formerly Tenth street, on the east, and H. street, formerly Eleventh street, on the west, and crosses E. street, and cuts off a strip at the corner of W. avenue and is a square beyond W. avenue. N. avenue runs parallel with and Before closing M. avenue, the Annex Commissioners purchased as a public highway that part of the bed of Eleventh street from the south side of N. avenue to the north side of M. avenue, and had Eleventh street, which is wider than M. avenue, graded and macadamized. Held, that the closing of M. avenue was under the circumstances for a public use, even though a few owners would be benefited thereby by having the exclusive use of the bed of such avenue after it was closed. [Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 19.*] 3. EMINENT DOMAIN (§ 85*)-CLOSING STREETS -COMPENSATION TO ABUTTING OWERS. lic use without making just compensation to A street cannot be closed even for a pubabutting property owners entitled thereto. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 222; Dec. Dig. § 85.*] Appeal from Baltimore City Court; John J. Dobler, Judge. Appeal by the Mayor and City Council of Baltimore and others from an order of the Baltimore City Court, on motion of Bettie M. Brengle and others, quashing proceedings by the Commissioners of Opening Streets, acting as the Annex Commission of Baltimore City for the closing of a certain avenue. Order reversed, and cause remanded. Argued before BOYD, C. J., and BRISCOE, MAYOR AND CITY COUNCIL OF CITY OF PATTISON, URNER, and STOCKBRIDGE, BALTIMORE et al. v. BRENGLE et al. (Court of Appeals of Maryland. June 24, 1911.) 1. MUNICIPAL CORPORATIONS (§ 269*)-STREETS -CLOSING-POWER OF ANNEX COMMISSION. JJ. German H. H. Emory and Joseph S. Goldsmith, for appellants. Daniel B. Chambers and Wm. Edgar Byrd, for appellees. Acts 1904, c. 274, § 1, authorizes the mayBOYD, C. J. This is an appeal from an or and city council of Baltimore to issue stock from time to time, the proceeds of which should order of the Baltimore city court quashing be used only to provide the expenses of "con- the proceedings of the commissioners of open*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes ing streets, acting as the Annex Commission to close this avenue, we are not specially conof the city of Baltimore, instituted for the closing of Morris avenue between Westwood avenue and Eleventh street. Three main questions seem to have been raised in the lower court. They were: (1). Is Morris avenue a public highway subject to the laws which regulate the opening and closing of streets? (2) Has the Annex Commission power to close that avenue? (3) Is the proposed closing of the avenue for a public use? The lower court decided the first two questions in favor of the city, but quashed the proceedings on the ground that the closing of the avenue was not for a public purpose. From the order thus quashing those proceedings, this appeal was taken. 1. We do not understand it to be contended in this court by the appellees that Morris avenue is not a public highway, and, as the testimony seems to be conclusive on that question, we will not discuss it, but treat it as so established. cerned as to the use of the money, as in this instance no money is required. These appellees were allowed $10 damages and were assessed $10 for benefits, and the total damages allowed and costs of the proceedings were $705.89, which amount is balanced by the benefits charged. In addition to that, the Hilton Land Corporation, Max Brafman, and Oregon Milton Dennis executed a bond to the city indemnifying it against all costs, expenses, etc., connected with the closing of this avenue. Whether or not the commission could use part of the money realized from the stock for closing a street, which is to be closed in connection with the opening, grading, etc., of other streets, is therefore not a pratical question in this case. In Baltimore City v. Flack, 104 Md. 107, 64 Atl. 702, this act was held to be valid, and was considered at length in reference to the question then before the court. Chief Judge McSherry, in speaking for the court, [1] 2. By the Act of 1904, c. 274, the mayor quoted from section 3 so much of the lanand city council of Baltimore were authoriz- guage as was applicable to that case the ed to issue stock to the amount of $2,000,000, power to grade and pave-and said, "The from time to time and payable at such times powers thus given are broad and unqualifiand bearing such rate of interest as they ed." The power to close any street, avenue, should by ordinance prescribe; provided, etc., is just as broad and unqualified as that however, that not more than $500,000 of to grade and pave, as they are all in one stock shall be issued in any one year. It sentence. Indeed, in some cases the power was then provided that "the proceeds of the to close would be essential to an intelligent sale of said stock shall be used only for exercise of the power to open, grade, pave, the purpose of providing the costs and ex- etc., and hence it may be that, in speaking penses of condemning, opening, grading, pav- of how the proceeds of the two million loan ing and curbing the streets, avenues, lanes were to be applied, the word "closing," on and alleys of the Annex portion of Baltimore page 123 of 104 Md., 64 Atl. 702, was purposeCity." By section 2 provision is made for ly used; but, even if it was inadvertently ina special commission to be known as the serted in the connection in which it was used, "Annex Improvement Commission," which there can be no doubt of the power of the was to continue in office until the work of commission to close any street, avenue, etc.. the commission was completed; provision be- which must properly be closed in carrying ing made for filling vacancies. Section 10 out a plan adopted by the commission for enacted that, in lieu of the commission pro- opening, straightening, etc., streets. A street vided for by section 2, the mayor and city which runs diagonally across a block, as council could by ordinance authorize and Morris avenue does, would not only be unempower the commissioners commissioners for opening necessary, but would be a serious injury to streets of Baltimore city to perform the du- most of the lots in that square, and would ties and functions prescribed for the said result in the erection of an undesirable class commission, and that was done. of houses, as the lots would not be large enough for better buildings, and would be a useless burden upon the city in keeping it in order. It will be observed that in the above quotation, providing for the use of the proceeds of the sale of the stock, the word "closing" is not included, but by section 3 it is enacted "that said commission shall have the right and power to condemn, lay out, open, extend, widen, straighten, close, grade and pave any street, avenue, lane or alley or any part thereof, from curb to curb," and it is expressly stated "that said commission shall have all powers necessary and proper in the exercise of said powers." The definite power to close any street, avenue, etc., was thus vested in the commission, and although that word is not used in the section providing for the use of the proceeds of the sale of It must be remembered that these $2,000,000 were to be expended in the Annex part of the city, which was prior to 1888 in Baltimore county, and the Legislature must have known that there would be streets, avenues, lanes, and alleys, which were originally roads of the county, and which were so laid out that some of them must either be closed, or the neighborhood injured rather than benefited by opening new streets, laid out in the way city streets usually are. So, without dwelling longer on that branch of the case, we have no doubt about the power of the Md.) MAYOR, ETC., OF CITY OF BALTIMORE v. BRENGLE 679 is, with reference to the other streets which them by the Legislature, have thus in plain are to be opened. terms expressed their determination to have the streets in the Annex territory laid out in a systematic way, such as is becoming a city of the size of Baltimore. [2] 3. We are of the opinion, however, that the learned judge who decided this case was in error in quashing these proceedings for the reason given by him. The commission was required by the act, immediately after its appointment and organization, to cause to be prepared for its guidance and use a map or maps of the entire Annex, or any part or parts thereof "showing the streets, avenues, lanes and alleys and the number of houses situated in and the area of each block of ground in said Annex, and such other information as may be desired." By the Act of 1892, c. 138, a part of the loan therein provided for was authorized to be used for the preparation of topographical maps. Then chapter 576 of the Acts of 1894 prohibited avenues, streets, and alleys in the Annex from being opened, established, or condemned, and the dedication of such from being accepted, unless they conformed to the plans, plats, and surveys defined by the topographical survey, then being prepared, unless otherwise provided by an act of Assembly. By ordinance No. 129, approved December 3, 1898, the city adopted the completed plans of streets, etc., for the Annex territory. The street plans have been further regulated by Acts of 1902, c. 453; Acts 1904, c. 433; and Acts 1908, c. 158. A copy of the part of the topographical map which includes the section of the Annex with which we are now concerned is in evidence, and shows that the streets are laid out thereon at right angles; but Morris avenue (which is not adopted as one of the streets) runs diagonally across the square formed by Westwood avenue on the north, Presbury avenue on the south, Ellamont (formerly Tenth) street on the east, and Hilton (formerly Eleventh) street on the west. It then runs across Ellamont street and cuts off a strip of ground at the corner of Westwood avenue and Ellamont street. That takes off a small strip of the appellees' lot, which is supposed to front on Morris avenue; but in point of fact they have planted a hedge and inclosed the part of that avenue between their lot and Westwood avenue. It will thus be seen that, according to the plan proposed by the topographical survey and map, this territory was intended to be laid out in squares, and Morris avenue was not expected to be kept open, as the map very clearly indicates. In laying out the property in this way, it would be wholly unreasonable to require the city to leave Morris avenue open, for it would depreciate the value of the property, destroy all prospect of beautifying that locality, as it might be with streets and alleys properly laid out, and would impose the useless burden on the city of keeping that avenue in proper condition, lighting it, etc. The Legislature and the mayor and city council, by virtue of the authority vested in Section 5 of chapter 274 of the Acts of 1904 provided that the commission should be the agent of the mayor and city council to acquire by gift, purchase, lease, or other methods of acquisition, or by condemnation any private property whatsoever, including streets, avenues, lanes, and alleys, rights or interests, franchises or easement that may be required to open, widen, extend, straighten, close, grade, or pave any street, avenue, lane, etc. It further provides that as soon as the title to the property so acquired has been certified by the city solicitor the commission should have the same conveyed to the mayor and city council. As a part of the plan, and before they would close Morris avenue, the commissioners required the Hilton Land Corporation to convey in fee to the city, as and for a public street and highway, all that part of the bed of Eleventh street, from the south side of North avenue to the north side of Morris avenue, excepting the part of the east half thereof extending southerly from North avenue 68 feet. North avenue runs parallel with and is a square beyond Westwood avenue. They also required that company before conveying it to grade and macadamize Eleventh street, and, particularly as it is a wider street than Morris avenue, it would seem to be established that it is a much better one than that avenue, which is not graded or improved. We think the record shows that the closing of Morris avenue can fairly be said to be a part of the plan adopted for the annexed territory under legislative sanction. The commission cannot execute any plan it may have at one time, and although Mr. New, one of the commissioners, said that but for this application the avenue would probably not have been closed at this time, he said: "It would have been closed eventually, because the Topographical Commission has provided for it. The board of public improvements has given its approval and the city engineer has requested that Morris avenue be closed." It was said of the question of paving in case of Baltimore City v. Flack, 104 Md. on page 123, 64 Atl. 708: "It is apparent that the Legislature contemplated that the commission should do only part of the work of paving each year; and, inasmuch as to no other department or agency of the city government was there delegated any authority to determine what part should be paved in any of the four years over which the work was required to extend, it must inevitably follow that to the commission, and to it alone, was committed the authority and the discretion to select, in the exercise of the broad powers intrusted to it, the streets to be paved each year." That language might well be applied to opening and closing streets, as well as to out in squares, with streets such as the plans paving them. It cannot be said that, because some parties may receive more direct benefits than the public at large by closing this avenue, it is therefore for a private and not a public use. A street opened, graded, and paved through a piece of land may enable the owner to sell lots for many times their former value, and it sometimes results in making a few persons wealthy; but it cannot be said that because the opening of the street may have such an effect it is for a private and not a public use. It is perhaps rare for an application to be made to the county commissioners of a county to open, alter, or close a road, excepting when one or more persons are specially interested in having it done. The cases of Jenkins v. Riggs, 100 Md. 427, 59 Atl. 758, and Riggs v. Winterode, 100 Md. 439, 59 Atl. 762, are striking instances of special benefits derived by an individual by the closing of an old road and the opening of new ones. The old road had not only reverted to Mr. Riggs, but was actually conveyed to him; but in the judgment of the county commissioners the public was benefited by the changes, and Mr. Riggs was sustained by this court in what was done. Nor does the case of Van Witsen v. Gutman, 79 Md. 405, 29 Atl. 608, 24 L. R. A. 403, by any means conclude this. Jew alley ran from Marion street on the south to Lexington street on the north, and was 18 feet wide at the southern and 12 feet at the northern end. Mrs. Gutman owned lots at the southern end fronting 73 feet 5 inches on each side of the alley. An ordinance authorized the closing of that portion of the alley on which her lots bounded. All of the other owners would have been debarred from access to their properties from Marion street, and there was no substitute for it. This court said: "This is palpably and plainly taking their private property for her private use. In other words, it is a forced sale to her of their property. The extinguishment of their interests does not appear to inure in any way to the public service, nor to tend to the relief of any public necessity, nor to promote any public interest, nor to subserve any public purpose, nor to be connected with anything used by the public, nor, in short, to have any relation to the public convenience or public welfare." That was manifestly correct, as no one but Mrs. Gutman, who could build on the part of the alley thus closed, would be benefited by closing it, and the public could have been in no way helped, and there was no occasion, so far as the public was concerned, for closing the part of the alley. But that is a wholly different case from this, as we have already pointed out. If that portion of Baltimore is thickly built up, as of course it is expected to be, it cannot be denied that the public at large will be bene call for, rather than have a street-the suc cessor of an old county road-running diagonally across the territory included. If a street cannot be closed under such circumstances as we have in this case, such public improvements as are contemplated by the acts referred to would be effectually obstructed, and as the commission is authorized to close streets, and it is not contended that it did not comply with the provisions required to accomplish that end, in our opinion it is abundantly shown that it is for a public use which is not affected by the fact that a few owners will be specially benefited, because they may have the exclusive use of the roadbed after it is closed. That is generally the result when any road, street, or alley is closed. The case of Matter of the Mayor, 157 N. Y. 409, 52 N. E. 1126, is very analogous, although not precisely like this. It was there held that the closing of a street in furtherance of a general street improvement plan constitutes the closing of a street for a public purpose, and in the opinion of the Appellate Division, reported in 28 App. Div. 143, 52 N. Y. Supp. 588, which was approved by the Court of Appeals, it was said: "The fact that, as a consequence of closing of the street, private ownership in its bed results, and that provisions are made by the law by which the land can be utilized and rendered valuable, does not convert the main purpose of the Legislature from a public to a private one." See, also, Henderson v. Lexington, 132 Ky. 390, 111 S. W. 318, 22 L. R. A. (N. S.) 20; Grafton v. St. Paul, M. & M. Ry. Co., 16 N. D. 313, 113 N. W. 598, 22 L R. A. (N. S.) 1; Lewis on Eminent Domain, § 209. The condemnation map filed shows that, in addition to the streets adopted by the plan, there are also alleys, one 10 feet wide. from Westwood avenue to Presbury street, and one 17 feet wide from Eleventh street to the other alley. The record is not altogether satisfactory as to the condition of Presbury street; but we assume that the commissioners will see that the interests of the public are properly protected with reference to it, and, that is not a question now before us. [3] With the use of that and Eleventh street, together with the others in that neighborhood, it is difficult to see how any one can be materially injured by closing Morris avenue between the points named; but of course a street cannot be closed even for a public purpose without just compensation to those entitled to it. No question about the regularity of these proceedings was raised before us; but it is stated in the bill of exceptions in effect that the proceedings of the commissioners were regular and in proper form, although of course the appellees did Md.) LUERY v. STATE 681 pellants to close Morris avenue and extin- to have been stolen. The cases were tried guish the easement thereover. before the court without a jury, having been For reasons given we will reverse the or- by agreement heard together. The property der of the lower court. alleged to have been stolen was solder which Order reversed, and cause remanded; the belonged to the United Railways & Electric appellees to pay the costs. Though the state on a prosecution for receiving stolen solder failed to prove receipt of any on the date named in the indictment, yet the thief having, without objection, testified that he commenced to take solder about seven or eight months before he was arrested, and that he had taken it at different times and sold it to defendant, it was not necessary, in the absence of application by defendant therefor, for the state to select some definite time on which it relied for conviction, so that testimony of the thief that he took solder and sold it to defendant about a dozen times after the day when the police notified defendant and other junk dealers that solder was being stolen, was admissible to show knowledge. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 370.*] 3. CRIMINAL LAW (§ 780*)-INSTRUCTIONSEVIDENCE OF ACCOMPLICE. Inasmuch as the courts do not charge juries in criminal cases, the juries being made judges of the law and of facts, the trial court might well adopt the practice of granting prayers advising juries against conviction on testimony of accomplice, without corroboration, although there is no statute in the state requiring corroboration. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863'; Dec. Dig. § 780.*] 4. CRIMINAL LAW (§ 753*)-DISCHARGE-EVIDENCE OF ACCOMPLICE. Company of Baltimore, and Samuel J. Barrett, an employé of that company, pleaded guilty to the larceny of it. The court rendered verdicts of guilty against the two Luerys, and found the other two not guilty. The two appeals taken by the Luerys were heard together, and will be disposed of in one opinion. Leah Luery is the wife of Solomon Luery. They are junk dealers, and have a place in the rear of a saloon on the corner of Gay and Lexington streets, and also another place on Harrison street. Solomon Luery testified that the main business was on Lexington street and the other place was used for storage. The license was in the wife's name. There are four bills of exception in the record. The first three present rulings on the admissibility of evidence, and the fourth was taken to the ruling of the court on a motion to discharge each of the defendants, which will be hereinafter set out. After two detectives, two policemen, and an employé of the railroad company were examined, Samuel J. Barrett was called by thẹ state. The indictments charged the defendants with having received stolen goods on the 10th day of August, 1910. Barrett was arrested in the afternoon of that day, and had a cake of solder in his pocket. After his arrest Detectives Davis and Bradley and Barrett went to the corner of Gay and Lexington streets. Detective Bradley testified that he first went into the defendant's place alone, showed Mrs. Luery the piece of solder he had taken from Barrett, and asked her if she had bought anything like that in the last two or three months. She said she had not, and then said that Officer Cooper had shown her the "lookout sheet" dated the 20th of July, 1910. They are issued by the department to the policemen and detectives, and this one read, "Stolen from Trouble Station, U. Ry. & E. Co., since 1st inst., about 75 lbs. wiping solder in ingots 54 in. long, 21⁄2 in. wide and 11⁄2 in. thick, stamped 'Extra Qual There is no practice which would authorize the court to discharge defendants on motion because the only evidence against them is the uncorroborated evidence of accomplices. [Ed. Note.-For other cases, see Criminality Wiping Solder.' Look over junk stores, Law, Cent. Dig. § 1727; Dec. Dig. § 753.*] Appeal from Criminal Court of Baltimore City; John J. Dobler, Judge. Solomon Luery was convicted of receiving stolen goods, and appeals. Affirmed. Argued before BOYD, C. J., and PEARCE, BURKE, URNER, and STOCKBRIDGE, JJ. Eugene O'Dunne, for appellant. Raymond S. Williams, for the State. plumbers, tinners," etc. Detective Bradley then went to the door, and called Detective Davis and Barrett. The three went into the store, and Bradley gave this account of what then occurred: "When Mrs. Luery saw Barrett, she reached down behind the counter and produced this ingot, and said, 'Yes; I bought that.' I said, 'From whom did you buy it?' She said, "That man there,' meaning Barrett. I said, 'What did you do with the rest you bought?" She said, 'I sold it.' BOYD, C. J. Solomon Luery, Leah Luery, I said, 'Do you know who to? She said, and two other parties were indicted separate- 'I don't know now. I don't remember.'" He ly for receiving stolen goods, knowing them then went to Harrison street, where he saw *For other cases see same topic and section NUMBER in Dec. 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