The effect of this structure was to effec- The declaration, as originally filed, altually bar all ingress to and egress from leged that the abutment or approach had the premises, unless by means of a ladder been "erected and constructed upon and from the second floor window to the newly against the improvements and the lot of constructed footway. The light and airground owned by the plaintiffs;" that is, was shut off from the first floor of the that there had been an actual physical inpremises, thereby rendering that portion of vasion of their property. Upon the conthe dwelling damp and uninhabitable. To clusion of the evidence the declaration was recover for the damages thus inflicted the amended by the striking out of this lanpresent suit has been brought by the own guage. By the second count of the amenders against the mayor and city council of ed declaration, however, it was alleged Baltimore and the Baltimore & Ohio Rail- "that the plaintiffs have been deprived road Company. Both of the defendants of the use, enjoyment, and possession of admit the damage, but each insists that the the said lot of ground and the improveother is liable. At the trial of the case ments thereon, and deprived of the use in the Baltimore city court, the court and enjoyment of said Hamburg street granted instructions directing a verdict for and the south sidewalk thereof." That both of the defendants, upon the theory there has been any physical invasion of the apparently that what had been done land of the plaintiff in this case is not amounted, so far as the city was concerned, claimed. merely to a change of grade, and that a The real question is whether the struc change of grade by a municipal corpora- ture erected, and which is the occasion of tion of one of its highways is damnum this suit, is such an invasion of the rights absque injuria, for which it cannot be compelled to make compensation to an abutting owner; and that, as to the defendant the Baltimore & Ohio Railroad, the act done was not only with the consent, but by the authority, of the municipal corporation, approved by the legislature, and therefore there had been no invasion of the plain-poration had no right to do without maktiffs' rights by the railroad company for which it was required to make compen

sation.

There are one or two minor questions of pleading raised by the record, upon which it is not necessary to pass at this point, since they are all involved in the larger question raised by the granting of the pravers of the two defendants..

of the plaintiff as to amount to a taking of their property within the meaning of the Constitution, or whether the injury amounts merely to a consequential damage, for which there may or may not be a right of action. If it was the former, then the act was one which even the municipal cor

ing due compensation, and amounted to a tort for the commission of which the city was liable to the plaintiffs for the damage inflicted on them, whether the actual work was done by the city or by its authority. That is to say, if the invasion of the rights of the plaintiffs amounted to a taking, as regards these plaintiffs, both the city and the railroad company were tort feasors, and both liable for the injury done.

The first exception was to the admission by the trial court in evidence of the or- If the city was liable, it could not evade dinance No. 387, approved August 16, 1909, its liability by delegating to another the and which was offered in evidence by the doing of the tortious act. The ordinance railroad company. This ordinance had been by which the city gave to the railroad comset up by the pleas as a special defense. pany the right to build apparently recog demurrers to which had been filed and sus nized this when, in § 18, it assumed an tained. The exact ground upon which they obligation on the part of the mayor and were so sustained does not appear from city council, to urge the passage of an act the record. It may have been because of by the legislature authorizing the mayor the fact that the matters thus specially and city council to compensate abutting pleading amounted to the general issue. property owners for the damage sustained The suit was in the nature of an action of trespass for the damage caused by such trespass. If the act which was complained of was one done by lawful authority, then the party doing it had not committed a trespass, and the plea of non cul. was amply sufficient, and the evidence so objected to was therefore admissible as tending to sustain the general issue plea which had been filed, and the ruling of the lower court in admitting the ordinance in evidence was entirely correct.

by them, and conditionally guarantying them such compensation. There is some apparent conflict in the authorities with regard to whether acts such as are here complained of amount to an invasion or taking, or are merely in the nature of consequential damages.

This is the result in part of special stat utes in different states. No fairer statement can be made than that in the case of Story v. New York Elev. R. Co. 90 N. Y. 146, 43 Am. Rep. 146, where it is said

...

that, "while the legislature may regulate road, and in so doing elevated it some 5 the uses of the street as a street, it has feet at a point where a private right of no power to authorize a structure way of the plaintiff connected with the thereon which is subversive of and repug highway, and for the protection of passing nant to the uses of the street as an open traffic placed a guard rail along the side street. Whether a particular structure au- of the reconstructed road. After reviewing thorized by the legislature is consistent or many of the prior decisions, including most inconsistent with the uses of the street as of those already referred to, Judge Pearce, a street must be largely a question of fact, speaking for this court, said: "The injury depending upon the nature and character inflicted upon Mrs. De Lauder is not the of the structure authorized." rendering the use of her right of way inconvenient or expensive, but it is the destruction of its use, and its destruction is a taking in as just a sense as the appropriation of a gravel bank for the repair of a public road would be a taking."

And, even when he suffers some additional inconvenience, as where there is a change of grade of the streets made by the municipal corporation, as a result of which he is more or less inconvenienced, he is still without any remedy as against the municipal corporation; damage of this character being regarded as damnum absque injuria. Peddicord's Case, 34 Md. 463; Green v. City & Suburban R. Co. 78 Md. 304, 44 Am. St. Rep. 288, 28 Atl. 626. It is upon this familiar principle that the city claims exemption from liability in the present case; and, if there is nothing more than a change in the grade of Hamburg street, the position is sound.

And the same doctrine has been distinct

This suggests as the first pertinent inquiry the question, What are the rights of an abutting owner in a street? Primarily, of course, comes the right to its use as a thoroughfare in common with all others, and for any infringement upon this which he suffers in common with all other mem-ly recognized in numerous other cases, both bers of the community he has no right of in Maryland and elsewhere. Thus, in Webb action. Lake Roland Elev. R. Co. v. Web- v. Baltimore & O. R. Co. 114 Md. 216, 79 ster, 81 Md. 535, 32 Atl. 186. Atl. 193, it was said: "The primary purpose" of a street, “and the obligation of the municipal authorities [is] to preserve the beneficial enjoyment of the streets by the abutting landowners as a constituent part of the general public." Again, in Lake Roland Elev. R. Co. v. Baltimore, 77 Md. 377, 20 L.R.A. 126, 26 Atl. 515: "The control of the city over the streets is attended with the duty of preserving them for their legitimate purposes." The mayor and city council cannot devest themselves of this trust. In the case of Reining v. New York, L. & W. R. Co. 128 N. Y. 157, 14 L.R.A. 133, 28 N. E. 640, it was declared that owners of lots abutting on city streets were entitled to the benefit of the street for access, and cannot be deprived thereof without compensation. In this case a solid embankment had been built along a street in Buffalo, and in consonance with the doctrine stated it was said: “The public cannot justly demand such an appropriation of a street by a municipality in aid of a railroad enterprise." In Vanderlip v. Grand Rapids, 73 Mich. 522, 3 L.R.A. 247, 16 Am. St. Rep. 597, 41 N. W. 677, a street was being regraded and raised about 30 feet, practically burying the dwelling of the plaintiff, and the city sought to evade liability for the damage caused by reason of its right to regrade. The work was being done by the city itself, but its act was held to be a taking of the property, one which would be arrested by injunction until due compensation had been made. The rule was again emphasized in Egerer v. New York C. & H. R. R. Co. 130 N. Y. 108, 14 L.R.A. 381, 29 N. E. 95, where it was held that an abutting owner cannot be deprived of the street affording him access to his premises, unless there is left for his use and enjoyment other suitable means of access, or just compensation is paid him

But the owners of lots abutting upon public streets have easements or rights in the street which are valuable, and are in addition to those which they have with the general public. This is recognized in our statute law, which confers upon the city of Baltimore the power for laying out and closing up streets by providing for compensation to such owners upon the closing of an adjacent street.

So, in Van Witsen v. Gutman, 79 Md. 405, 24 L.R.A. 403, 29 Atl. 608, where an alley was attempted to be closed, thus taking from other abutting owners their means of ingress to and egress from their property through the alley to the public street, it was held that the right was a valuable one, and could not be taken for public use without compensation, and a fortiori not for private use. And in Town send v. Epstein, 93 Md. 537, 52 L.R.A. 409, 86 Am. St. Rep. 441, 49 Atl. 629, the same rule was followed where the interference was with regard to light and air.

In the case of De Lauder v. Baltimore County, 94 Md. 1, 50 Atl. 427, the county commissioners had reconstructed a county

for the deprivation of the same. In Haynes 62 Atl. 575; Richardson v. Kent County, v. Thomas, 7 Ind. 43, and Lackland v. Md. 87 Atl. 747, decided April 8, North Missouri R. Co. 31 Mo. 187, the 1913. As already pointed out, as to these principle is very concisely given that "the plaintiffs both of the defendants were tort right" of an "abutting" owner to the use feasors, and therefore these plaintiffs are of a street "is as much property as the entitled to recover against either or both. lot itself, and the legislature has as little The plaintiffs were no parties to the ordipower to take away one as the other." nance, if it is to be regarded in the light of a contract, and cannot therefore be limited in their right of recovery to only one of the two joint tort feasors. What may be the respective liabilities of the city and the railroad company inter sese, resulting from any undertakings or agreements between them, is a matter in which these plaintiffs have no concern, and which it is not necessary now to decide.

In § 1325 of 3 McQuillin on Municipal Corporations, that author deals with the subject of the right of access to a street by an abutting owner, and says: This right also "includes a certain convenience in the use of his property with respect to the rest of the world, such as the opportunity for a man's customers to come to his place of business without reasonable hindrance or interruption.

This

This is not a case such as arose in Gar.. is held to be a proprietary right, diner v. Boston & W. R. Corp. 9 Cush. 1, an easement in the street attached to the where the railroad alone was sued, there estate or ownership of property abutting having been an agreement made betweED on a street or alley, and property which | the company and the city of Boston for cannot be appropriated to the use of the public without compensation.”

In view of the authorities to which reference has been made in part, and the injury to the property of the plaintiff's being such as already indicated, it follows that, the construction of the abutment or approach complained of in this case amount ing to a taking of property of the plaintiff's which neither the mayor and city council could do or authorize to be done without making just compensation therefor to the owner, that so far as the present plaintiffs were concerned, both defendants were joint tort feasors, and therefore both liable to the plaintiffs, and the rulings of the court below on the prayers withdrawing the case from the jury erroneous.

In the oral arguments and the briefs of the defendants in this case, it was virtually conceded that the plaintiffs had been damaged, but the contention was that what had been done did not amount to a taking, as there had been no physical invasion of the plaintiffs' lot, and the damage which had been suffered was consequential in character. As already indicated, this court cannot agree with that view. But it was further urged that, by reason of the ordinance, the liability was not a joint one, and that by its decision this court should place the entire liability upon one or the other of the defendants, and absolve the other. This it is impossible to do in the present case, for a number of reasons. The defendants were sued jointly, and the verdict as rendered was a joint verdict as to both defendants. If now it was erroneous as to either, it is necessary to reverse the entire judgment and remand the case. East Baltimore Lumber Co. v. K'Nessett Israel Aushe S'Phard Congregation, 100 Md. 689,

the raising of Tremont street to avoid a grade crossing, and the railroad was held to be primarily liable for damages occasioned thereby. In the present case both the city and the company are parties defendant; both are liable to the plaintiffs, whatever may be their respective liability as to each other, as the result of the passage of the ordinance and the subsequent act of the legislature.

Judgment reversed, and case remanded for a new trial; costs to be paid by the ap pellees.

While, under the provisions of § 800 of the Code of Civil Procedure, a person

Headnote by LETTON, J.

Note. — Enforceability of contract to give child share of estate in consideration of the surrender of the child to promisor, as affected by noncompliance with the statute prescribing mode of adoption.

This note is supplemental to the note to Chehak v. Battles, 8 L.R.A. (N.S.) 1130. consent of the natural parents, see note to As to the validity of adoption without Allison v. Bryan, 30 L.R.A. (N.S.) 146.

As to the right of parties to adoption

desiring to adopt a child should file the petition for adoption in the county of his residence, and the county court of another county should refuse to receive and file the same, yet, the statute being enacted for the benefit of the child, in a case where the facts are that all the interested parties appeared before the county court of another county, and agreed on the one side to relinquish the child, and consented to its adoption on condition that it should have the full rights of heirship as if born in wedlock, and on the other to adopt and make it an heir, and the child is surrendered to the custody of, and remains in the family of, the adopting parent until the death of that parent, which occurred while the child was of tender years, the collateral heirs of the deceased adopting parent are estopped to deny the validity of the adoption proceedings and that the child is entitled to inherit.

Messrs. Wilcox & Halligan and J. G. Mothersead, for appellant:

County courts have jurisdiction of adop tion proceedings, and the statute providing that the petition shall be filed in the county where the person desiring to adopt resides should be construed as directory only.

Ferguson v. Herr, 64 Neb. 659, 90 N. W. 625, 94 N. W. 542; Wolf's Appeal, 10 Sadler (Pa.) 139, 22 W. N. C. 93, 13 Atl. 760; Glos v. Sankey, 148 Ill. 536, 23 L.R.A. 665, 39 Am. St. Rep. 196, 36 N. E. 628.

It was not necessary for Wilson McLaughlin to join with his wife in filing the petition for adoption.

Bland v. Gollaher, Tenn., 48 S. W. 320; Re McKeag, 141 Cal. 403, 99 Am. St. Rep. 80, 74 Pac. 1039.

The contract of adoption should be specifically enforced.

Kofka v. Rosicky, 41 Neb. 328, 25 L.R.A. 207, 43 Am. St. Rep. 685, 59 N. W. 788: Pemberton v. Pemberton, 76 Neb. 669, 107 N. W. 996; Peterson v. Bauer, 83 Neb. 405, 119 N. W. 764; Hespin v. Wendeln, 85 Neb. 172, 122 N. W. 852; Van Tine v. Van Tine, N. J. Eq. 1 L.R.A. 155, 15 Atl.

of his body, and born in lawful wedlock, the agreement will be specifically enforced in equity although the adoption proceeding was never prosecuted to a final order, where, however, the child fully performed on his part. Starnes v. Hatcher, 121 Tenn. 330, 117 S. W. 219.

As shown in the note referred to in 8 L.R.A. (N.S.), and by the later cases on the question, although an attempted adoption is invalid for failure to follow the statutory requirements, it may still be given Although the statutory requirements force and effect as a contract by virtue of necessary to a legal adoption are not perwhich the infant may assert a valid claim formed, but the adopting parents take the to the interest in the estate of the proposed child to their home and thereafter care adopting parents to which he would have for and treat her as their child, and rear been entitled had the proceeding been ef- her in the belief that she is their child, fective. Anderson v. Blakesly, Iowa, equity will decree an adoption and its re136 N. W. 210, following Chehak v. Bat-sultant rights, since to do otherwise would tles, 8 L.R.A. (N.S.) 1130, an Iowa case. And to same effect see MILLIGAN V. MCLAUGHLIN, citing the note in 8 L.R.A. (N.S.) 1130.

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result in palpable injustice. Thomas v. Maloney, 142 Mo. App. 193, 126 S. W. 522.

Where the child enters the adopting parents' household as their child, and she, And ineffective adoption proceedings in her parents, and the adopting parents, upon themselves, or when accompanied by a suffi-sufficient grounds, think and believe that ciently definite promise to leave all or a certain part of the adopting parents' property to the adopted children upon the death of the parents, may amount to a contract which, although made for the children by a third person, when fully performed by the children, may be enforced against the heirs of the adopting parents. Hood v. McGehee, 189 Fed. 205, affirmed in 117 C. C. A. 664, 199 Fed. 989.

she has been adopted, and thence forward for nearly twenty-four years she is so recognized, equity will specifically enforce a contract of adoption, although not completed by an actual adoption. Furman v. Craine, 18 Cal. App. 41, 121 Pac. 1007.

Although no order of adoption is made. and the child is not legally adopted, yet. where she was received in the family under an agreement by her father, who was the sole surviving parent, by which he transferred the right to her custody, control, and services, and the consideration named for the transfer was a covenant to adopt the

Where a verbal contract of adoption is reduced to writing, and the same is embodied in a petition to the county court for the adoption of the infant, and according to this agreement the petitioner under-child, and to support, educate, and maintain takes, in consideration of receiving the infant, to rear, educate, nurture, and adopt him, and treat him as if he were his own child, the infant to receive the adopting parent's property as if he were the heir

her, equity will specifically enforce the contract after full performance by the child. to the extent, at least, of securing to the child the share of the adopting parents' property to which she was entitled under

Mr. Warren Pratt, for appellees:

The order of adoption is invalid unless the record affirmatively shows that the person adopting resides in the county where the proceedings were had.

Ex parte Clark, 87 Cal. 638, 25 Pac. 967; Monk v. McDaniel, 120 Ga. 480, 47 S. E. 931; Aldrich v. Steen, 71 Neb. 33, 98 N. W. 445, 100 N. W. 311.

249; Starnes v. Hatcher, 121 Tenn. 330, 117 | Nebraska," and that Brother McLaughlin S. W. 219; Chehak v. Battles, 133 Iowa, "is a minor male child under the age of 107, 8 L.R.A. (N.S.) 1130, 110 N. W. 330, fourteen years, to wit, of the age of two 12 Ann. Cas. 140; Winne v. Winne, 166 years on the 23d day of April next; that N. Y. 263, 82 Am. St. Rep. 647, 59 N. E. they do hereby declare that they (and each 832; Hood v. McGehee, 189 Fed. 205; Heal- of us) do freely and voluntarily adopt said ey v. Simpson, 113 Mo. 340, 20 S. W. 881; child as their own, upon the terms and Wright v. Wright, 99 Mich. 170, 23 L.R.A. conditions following, to wit: They intend 196, 58 N. W. 54. hereby to make it an heir of themselves, with the right to inherit from them the same as it might do if it was their own child; and that they do hereby bestow upon said minor child equal rights, privileges. and immunities of children born to us (or either of us) in lawful wedlock." The prayer was in the usual form. The petition was signed and sworn to by Mary McLaugh lin alone. On the same day Martin Me Laughlin and Eva McLaughlin, the parents of the child, filed their signed relinquishment and consent to the adoption, setting forth therein that they and the child reside in Custer county, Nebraska; that they are the parents of the child; "that Mary E. McLaughlin, residing at Arnold, in the county of Logan, state of Nebraska, desire (s) to adopt said child," "granting to said minor child full heirship, with all the rights of a child born in lawful wedlock:" and relinquished their right to the custody Letton, J., delivered the opinion of the of the child and right to its services "to court: the end that said child shall be fully adopt This was an action in partition. A ques-ed by the said Mary E. McLaughlin, upon tion of title arose in the case, the solution of which depends upon whether or not certain proceedings seeking to adopt Clarence Brother McLaughlin in the county court of Custer county were valid and effectual, or, if ineffectual, whether there was a contract of adoption which will be specifically enforced.

Void adoption proceedings are insufficient to constitute a valid contract for heirship. Albring v. Ward, 137 Mich. 352, 100 N. W. 610; Bowins v. English, 138 Mich. 178, 101 N. W. 204; Calhoun v. Bryant, 28 S. D. 266, 133 N. W. 273; Lamb v. Morrow, 140 Iowa, 89, 18 L.R.A. (N.S.) 226, 117 N. W. 1120; Burnes v. Burnes, 132 Fed. 490; Shearer v. Weaver, 56 Iowa, 578, 9 N. W. 907; Wallace v. Rappleye, 103 Ill. 258.

Mr. W. T. Wilcox also for appellees.

the terms and conditions above set out; and we hereby fully consent to such adoption. And each party waives the issuance and service of notice, and asks that the cause be immediately heard and determined."

The record of the county court recites that on the same day the matter came on for hearing, "the said petitioners and the The record shows that on October 3, said minor child being present in court in 1906, Mary McLaughlin filed a petition in person. And also Martin McLaughlin and the county court of Custer county, setting Eva McLaughlin, parents of said minor forth that "she resides in Logan county,child, whose consent is filed." The court

the agreement. Middleworth v. Ordway, 191 N. Y. 404, 84 N. E. 291.

So, where in consideration of a woman who was the mother of an illegitimate child marrying him, the man agrees to adopt the child, and the marriage is performed and the parties live together for many years as husband and wife, during which the child lives with them as their child and is treated by them as such, the agreement will be specifically enforced to the extent of permitting the child to inherit from the husband, although the agreement was never carried out by a valid adoption. Martin v. Martin, 250 Mo. 539, 157 S. W., 575.

And an oral agreement to adopt a child and leave her a designated 'share of his property may be specifically enforced where, for eighteen years, the child. in reliance

thereon, lived with the promisor, and rendered him valuable services, although it is impossible to establish a valid adoption. Peterson v. Bauer, 83 Neb. 405, 119 N. W. 764.

Where there is no agreement to leave the infant a share in the adopted parents' estate on his death, separate from and independent of the adoption, but the purpose of the parties is merely to effect the adoption, there being no agreement as to property other than that implied by the adoption, if the adoption does not have the effect of conferring upon the child the right of inheritance to the property of the adopting parents in a foreign state, equity will not imply or enforce such an agreement for the benefit of the child. Hood v. McGehee, 189 Fed. 205, affirmed in 117 C. C. A. 664, 199 Fed. 989 A. G. S.