author: Lowe, J.,

text:
    WILLIAM JOHN FONTANA v. STATE OF MARYLAND
    [No. 741,
    September Term, 1978.]

      Decided April 16, 1979.

    The cause was submitted on briefs to Gilbert, C. J., and Lowe and Melvin, JJ.
    Submitted by Sanford Z. Berman and Pickett, Houlon & Berman for appellant.
    Submitted by Francis Bill Burch, Attorney General, Alice G. Pinderhughes, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Robert Bonsib, Assistant State’s Attorney for Prince George’s County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

William John Fontana was indicted on March 2, 1977, charged with extortion, larceny, receiving stolen goods, motor vehicle larceny, false imprisonment, conspiracy to violate narcotics laws, conspiracy to distribute, and several variances and counts of most of those offenses. He entered a general plea of not guilty and the case was set to be tried on July 25, 1977. Fontana’s July 6, 1977, motion for continuance was granted on July 18, 1977, and the case was reset for trial on October 24, 1977. On October 13, 1977, a second motion for continuance by Fontana was granted and the case was set for trial on January 17, 1978. On January 9, 1978, a third motion was filed and continuance granted on January 17, 1978, until May 2, 1978.

On May 2, 1978, when appellant appeared for trial, he withdrew his not guilty plea and entered a plea of guilty, pursuant to a plea agreement, to one extortion count. Long and detailed questioning followed after which the court concluded that the plea was knowingly and voluntarily entered, and that appellant wished to plead guilty because he was in fact guilty. The plea was accepted, the verdict entered thereon, and presentence investigation was ordered with sentencing to be held on June 16, 1978.

When appellant appeared for sentencing on that date, he first moved for, and was denied, another continuance. He then moved to withdraw his guilty plea and to reenter his plea of not guilty. A hearing was held, pursuant to Md. Rule 731.Í.3., during which the appellant stated his reasons for the request.

“Well, I am not guilty of the charge. I am not guilty of the charges, as far as that goes, and I felt that I was being tried as a Pagan and not as an individual, and I felt under them conditions I would not receive a fair trial.
Q. In your motion to withdraw the guilty plea you indicate that you were innocent of the offense, is that correct?
A. Yes, sir.”

He added that his decision to plead guilty was influenced by a codefendant.

“Yes, sir. When he pleaded guilty he had talked to me and told me I should do the same because as we were Pagans, and the things they said in there about the Pagans and us in general, that he didn’t think there was no way that we could go to trial and win on them conditions and he told me that he thought I should plead to it and take —”

This rather unclear reasoning was explained by his attorney.

“I think that it is his desire to withdraw his plea because he feels that he wants an opportunity to allow the jury to hear his version of this particular incident. He feels that he is innocent of the offense. He feels that the witnesses that he can call in his behalf at the trial will absolve him from responsibility. And under those circumstances and in the interests of justice he desires to withdraw his plea.”

The present rule in Maryland adopted for withdrawing a plea before sentencing reads:

“When justice requires, the court may permit a defendant to withdraw a plea of guilty or nolo contendere and enter a plea of not guilty at any time before sentencing.” Md. Rule 731.Í.1.

This rule varies minimally, and apparently insignificantly, from its predecessor only in that the court’s authorization was predicated under the former rule, Md. Rule 722, upon the court deeming the action “necessary in the interest of justice”; whereas, the present prerequisite to that authority is “[w]hen justice requires” it. See Stevenson v. State, 37 Md. App. 635, 636 (1977).

We have held repeatedly that the right to withdraw a guilty plea is a discretionary matter which will not be overturned unless abused. Palacorolle v. State, 239 Md. 416, 420 (1965); Watson v. State, 17 Md. App. 263, 267-268 (1973) (and cases cited therein); Cashdan v. Warden, 5 Md. App. 402, 405 (1968). However, there is no defined limitation of what will burst the presumptive bubble that the trial judge has properly exercised his discretion in permitting or denying withdrawal. See I. W Berman Prop. v. Porter Bros., 276 Md. 1, 19-20 (1975).

Appellant would have us follow the federal examples of freely allowing the withdrawal of guilty pleas before sentencing where there is a fair and just reason for doing so, see United States v. Roberts, 570 F. 2d 999 (D.C. Cir. 1977), which appellant draws from the language of Kercheval v. United States, 274 U. S. 220, 224 (1927). See also United States v. Young, 424 F. 2d 1276, 1279-1280 (3rd Cir. 1970); accord, United States v. DeCavalcente, 449 F. 2d 139, 141 (3rd Cir. 1959). He acknowledges that such liberality is limited where the government has been prejudiced by reliance on the defendant’s guilty plea. United States v. Savage, 561 F. 2d 554, 556-557 (4th Cir. 1977); United States v. Harvey, 463 F. 2d 1022, 1023 (4th Cir. 1972); United States v. Tabory, 462 F. 2d 352, 354 (4th Cir. 1972).

We are riot averse to appellant’s suggestion of liberality tempered by balancing the inconvenience to the court and prosecution against protecting the right of an accused to a trial. Kadwell v. United States, 315 F. 2d 667, 670-671 (9th Cir. 1963). In the instant case, however, there is little, if any, justification shown on the side of the accused in counterbalance to substantial prejudice to the State and inconvenience of the court.

The State’s Attorney succinctly and persuasively set forth the counterbalancing prejudice:

“Your Honor, if I may, I think one of the standards is the interests of justice, and I would point out to the Court that at the time this case came before Your Honor for trial on May 2, the case was almost fifteen months old. It had been continued a number of times and on that particular date the State was not only ready to go to trial but anxious to go to trial. We had at that point brought in witnesses from all over the country. We had two witnesses the U. S. Marshals had to bring in that were in Federal protective custody. One witness we had to have the U. S. Marshal bring down from the Danbury Federal Correctional Institution. We had police officers from all over the State of Maryland involved here from the Maryland State Police.
Your Honor, it was a great amount of time, trouble and effort on the part of the State to bring these witnesses in from all these various different locations. And the only reason we did not proceed to trial on this date is because the defendant elected to plead guilty.
To permit him now to withdraw his plea of guilty will certainly prejudice the State and there is no real reason for it. The Court, as the Court will remember, went through that plea in great detail with the defendant and his codefendant, and the result of the Court’s inquiry showed rather clearly, in fact, very clearly, he knew what was going on and that he understood what was going on. It was a voluntary choice on his part and he knew exactly what he was getting into. I suggest to the Court that to permit him to withdraw the plea of guilty now would be in effect to permit him to gain a continuance when the State was ready to proceed, which would be delaying this matter and the interests of justice are just not served in any way by permitting him to withdraw the plea in the instant case. We ask the Court to deny the motion.”

In Cohen v. State, 235 Md. 62 (1964), the Court of Appeals addressed a similar question of whether the trial court had improperly denied withdrawal of a defendant’s plea. Although Cohen involved a plea of nolo contendere (at the time of Cohen, guilty pleas were treated under former Md. Rule 722 and nolo contendere under Md. Rule 723), the Court based part of its analysis on cases involving guilty pleas. In doing so, the Court recognized that:

“These cases, though involving pleas of guilty, are analogous to the present case wherein a nolo contendere plea was entered, since a ‘plea of nolo contendere is an implied confession of guilt, and for the purposes of the case is equivalent to a plea of guilty.’ ” Id. at 69 (citations omitted).

The pleas’ similarity, for withdrawal treatment, is further emphasized by the present inclusion of both pleas under Md. Rule 731.Í.1. Cohen is therefore persuasive if not directive of the stand of review for the trial judge’s denial of appellant’s motion to withdraw his plea of guilty under Md. Rule 731.Í.1.

In Cohen, the trial court had set a trial date and entered a plea of not guilty after the appellant refused to plead to any of the charges against him. The trial later had to be postponed due to preliminary motions filed by the defendant. At a hearing on preliminary motions, appellant decided to enter a plea of nolo contendere to one count in return for the nolle prosequi of the other counts pursuant to a plea bargain proposed by the State. The judge, who had to decide whether to accept the plea, heard statements by both defendant’s counsel and the State; he then set a date for sentencing. On the day of sentencing, the defendant attempted to withdraw his plea and requested a trial. The court denied the motion and sentenced the defendant.

In addressing “whether or not there was an abuse of discretion in the trial judge’s refusal to allow the appellant to withdraw his plea,” id. at 69-70, the Court endorsed the trial judge’s classification of the withdrawal as “the appellant... merely attempting to ‘spar’ with the court.” Id. at 71-72. The Court found the judge justified in denying the withdrawal on that basis.

The present case factually provides even stronger reasons for upholding the presumption that the trial judge exercised his discretion properly in denying appellant’s motion. See I. W. Berman Prop. v. Porter Bros., 276 Md. at 19-20. See also Mathias v. State, 284 Md. 22 (1978) (attempted withdrawal of election of court trial for trial by jury; prejudice shown sufficient to uphold presumption that trial judge did not abuse his discretion in denying withdrawal).

In this case, the court' had been delayed, and its time consumed with suppression and other preliminary hearings and motions in preparation for a trial that was then waived. There had been three continuances over a fifteen month period. Additionally, unlike Cohen, appellant waited until the day of trial to change his plea to guilty. Presumably there was ready on that date, a jury standing by at appellant’s prior election for a trial by jury. Witnesses were brought in from out-of-State in federal custody, requiring federal marshals in attendance. Additionally, State law enforcement officers had to leave their assigned duties in various jurisdictions of Maryland to participate. All of this appellant would have us reenact because he has once again changed his mind. If Cohen was “attempting to ‘spar’ with the court,” Fontana is a contender challenging Cohen for his title.

He has shown nothing to outweigh the showings of prejudice to the State and inconvenience to the court. We find no abuse of discretion in the trial judge’s denial of appellant’s motion to withdraw his guilty plea under Md. Rule 731-f.l.

Judgment affirmed.

Costs to be paid by the appellant.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    ANTHONY JONES v. STATE OF MARYLAND
    [No. 747,
    September Term, 1978.]

      Decided April 16, 1979.

      The cause was argued before Thompson, Wilner and Couch, JJ.

      Isaac S. Kershner, Assigned Public Defender, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, and Thomas E. Hickman, State’s Attorney for Carroll County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Anthony Jones, the appellant, was convicted in the Circuit Court for Carroll County, Judge Edward O. Weant, Jr. presiding without a jury, of two counts of storehouse breaking and two counts of larceny. He received sentences of eight years on each of the storehouse breaking convictions and eighteen months on each of the larceny convictions. All of these sentences were to be served concurrently. He raises four questions for our determination:

1. Did the court err in refusing to grant appellant a hearing on the motion to suppress evidence obtained in a warrantless search and seizure?
2. Did the court err in admitting evidence obtained in a warrantless search and seizure?
3. Did the court fail to comply with Md. Rule 735 before proceeding with a court trial on the merits?
4. Was the evidence sufficient to sustain appellant’s convictions on two of the four counts?

I & II

The essential question with respect to appellant’s first two contentions is whether his failure to comply with Rule 736 was an effective waiver of his right to raise the illegal search and seizure issue. Rule 736 provides, in pertinent part, as follows:

“a. Mandatory Motions.
A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;
b. Time for Filing Mandatory Motions.
A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.”

Appellant appeared, initially, without counsel, on November 21, 1977. The court advised appellant of his right to counsel and of the availability of the Public Defender or other court appointed counsel in the event that he was unable to afford private counsel. The court impressed upon appellant the seriousness of the charges and urged him to obtain counsel within fifteen days. Appellant filed a motion for discovery, in proper person, on February 1, 1978. The next day an assistant public defender entered his appearance on behalf of appellant. A motion to suppress illegally seized evidence was filed on February 24,1978. The only indication in the record that the state complied with appellant’s pro se request for discovery appears in its written response to the motion to suppress; there the state alleged that discovery had been furnished more than five days before February 24. The record shows no further proceeding with regard to the suppression motion until April 30, 1978. On that date, prior to commencement of the trial, the court denied the motion without a hearing. One basis for its ruling was the court’s conclusion that the appellant had waived the issue by failing to comply with the time limits of Rule 736.

Appellant attacks this ruling from several directions. First, he points out that the thirty day period prescribed in the Rule is not applicable where discovery is furnished on an issue which is the subject of a motion to suppress. In that event, the motion may be filed within five days after discovery is furnished. Other than the State’s allegation in its answer to the motion to suppress, nothing in the record indicates when discovery was furnished. Appellant argues that it was therefore impossible for the trial judge to conclude that the motion was not timely filed. We decline to consider this issue because it was not raised in the court below. Md. Rule 1085. Kohr v. State, 40 Md. App. 92, 103-04, 388 A. 2d 1242, cert. denied, 283 Md. 735 (1978). Although the State’s answer to appellant’s motion to suppress specifically alleged that discovery had been furnished more than five days before the filing of the motion, appellant did not at any time refer to the discovery issue in the lower court.

Appellant next contends that “to consider the period in which [he] was unrepresented by counsel in the computation of the period in [which] constitutional rights must be exercised deprived the appellant of his constitutional right to effective and genuine representation of counsel and due process of law.” The contention is completely without merit. All that appellant had to do in order to enjoy his right to counsel, was to heed the urging of the trial court at appellant’s initial appearance. Appellant had ample opportunity either to employ his own counsel or to take advantage of the services of the Public Defender. He has made no contention either below or in this court that he was in any way prevented from obtaining counsel or that he was ignorant of his right to counsel.

Appellant further contends that because he was not apprised of the time requirements for filing a suppression motion “the record neither discloses nor supports the inference of an intentional relinquishment or abandonment of a known right or privilege.” He relies on Brookhart v. Janis, 384 U. S. 1, 86 S. Ct. 1245, 16 L.Ed.2d 314 (1966) and Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). In Kohr v. State, supra, we held that the standard announced in Johnson v. Zerbst, supra, is not applicable to the waiver of a right to have evidence suppressed on Fourth Amendment grounds. In Kohr, we considered and rejected a contention very similar to that which appellant makes here. We there said:

“Appellant urges that the burden is on the state to show, on the record, that the defendant alleged to have waived a constitutional right has made d knowing and intelligent waiver. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L.Ed. 1461 (1938). While this is correct concerning the waiver of a number of rights, it does not apply to a failure to object affirmatively to the admission of evidence by way of a pre-trial motion. In the case of a Fourth Amendment claim it is the defendant who must initially object to evidence which he believes was illegally obtained. A failure to object by way of a pre-trial motion, where required by the Rules, has been held to be an effective waiver of Fourth Amendment rights. See: United States v. Sisca, 503 F. 2d 1337 (2d Cir. 1974), cert. denied, 419 U. S. 1008.” (Footnote omitted.) 40 Md. App. at 99-100.

Under the circumstances of this case the absence of counsel was no bar to the operation of the rule. As we pointed out above, appellant was urged by the court at his initial appearance to obtain counsel within fifteen days, either privately or through the offices of the Public Defender. So far as this record reveals, the failure of defendant to obtain counsel until more than two months after his initial appearance was due to nothing other than his own inaction. He has offered no explanation, either below or on appeal, for his procrastination.

The requirements of Rule 736 are not entirely inflexible. Even where a defendant fails to comply with its provisions, the court may, upon a showing of good cause, order that the right to raise the issue of an illegal search and seizure has not been waived. Appellant argues that in the present case he was denied due process of law because the court failed to inquire on its own initiative whether there was good cause for the delay in securing counsel and the delay in filing the motion. Nothing in the due process clause of the United States Constitution and nothing in Rule 736 requires the court to make such an inquiry. Just as the appellant had the responsibility to raise on his own initiative the motion to suppress, he likewise had the responsibility to show good cause, if any existed, for his failure to comply with the requirements of Rule 736.

We find no error in the trial court’s ruling that appellant waived his right to raise the issue of an unlawful séarch and seizure. It is therefore not necessary for us to consider appellant’s second major contention that the admission of evidence obtained in a warrantless search and seizure was reversible error.

Ill

Appellant contends that his election of a court trial was not made with full knowledge of the right to a jury trial as required by Md. Rule 735. The rule provides that an election of a court or jury trial shall be made in writing and signed by the defendant. Section b of Rule 735 sets out a form for this purpose. A defendant reading that form would be apprised of his right to a jury trial, that a jury consists of twelve persons, and that in order to be convicted in a jury trial all twelve jurors must find a defendant guilty beyond a reasonable doubt. Section d of Rule 735 provides as follows:

“If the defendant elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.” (Emphasis added.)

In the present case no written election was filed pursuant to Section b of the Rule. Prior to the commencement of trial, the following exchange took place in open court between appellant and his counsel:

“Mr. Levin: Your Honor, we would waive the reading of the criminal information in case number 4620.
Mr. Jones, I’ve advised you, sir, that these are serious charges and you do have the right to a jury trial in this matter. Do you understand that?
The Defendant: I understand.
Mr. Levin: You have to speak up so —
The Defendant: I understand.
Mr. Levin: Do you understand what the jury trial is?
The Defendant: I understand.
Mr. Levin: Okay. You indicated to me earlier and you’ve indicated to the Court that you do not wish to have a jury trial. Is that still your desire?
The Defendant: That’s right.
Mr. Levin: And you’ve indicated to me that you wish to have this case tried before the Court sitting without a jury? That’s still your desire?
The Defendant: That’s true.
Mr. Levin: We are ready to proceed, Your Honor.
The Court: The plea is not guilty to all —
Mr. Levin: Not guilty to all nine counts of the charging document, case number 4620.
The Court: Okay.”

Appellant argues that this election was not made with “full knowledge” of his right to a jury trial because he was not informed of the basic elements of a jury trial as described in the form contained in Section b of the Rule. This argument may be answered by reference to our recent decision in Fairbanks v. State, 42 Md. App. 15, 398 A. 2d 814 (1979). The facts of the present case are almost indistinguishable from those of Fairbanks. There, Fairbanks’ attorney merely asserted that his client understood what a jury trial was, that he had an absolute right to have a jury trial, and that he wished to waive that right and be tried by the court. When asked whether that recital was correct, Fairbanks replied in the affirmative. On those facts we held that there had been compliance with Rule 735. Consistency with our decision in Fairbanks, supra, dictates that we reject appellant’s argument on this issue.

IY

Appellant finally contends that the evidence was insufficient to sustain his convictions on two of the counts with which he was charged. The evidence showed the following chronology of events.

On September 15, 1977, at approximately 5:30 p.m., a Mr. Dorsey Brockington, entered a “High’s” store in Westminster Shopping Center. Brockington engaged the store clerk in a conversation and a few minutes later another individual entered the store and ordered an ice cream cone. On cross-examination, the store clerk gave some indication that this second person was the appellant. At approximately 6:00 p.m. another employee came into the store and went into the back room where it was discovered that the back door was open and that a safe had been broken into and that a bag of coins was missing. At approximately 6:20 p.m., a Mr. Zeiler saw two males loading cases of cigarettes into the trunk of a Cadillac automobile behind a “Pantry Pride” store in Westminster. Zeiler also observed a third person, identified as the appellant, seated in the automobile. Mr. Zeiler notified the police of his observations and a “lookout” call went out for the vehicle. At approximately 6:30 p.m. the Cadillac was detained by the police at a gas station in Westminster and the occupants, including appellant, were arrested for possession of marijuana. Mr. Zeiler was brought to the scene of the arrest and identified the automobile and the occupants, including appellant, as those whom he had seen at the Pantry Pride. The automobile was then towed to the police barracks where it arrived at 7:18 p.m. The trunk was opened and both the cigarettes and the money stolen from the High’s store were found therein.

Appellant was found guilty of one count of storehouse breaking and one count of larceny in connection with each incident. It is with respect to the convictions based on the High’s theft that he now argues the evidence was insufficient to establish his criminal agency. We think the evidence was clearly sufficient to permit the application of the rule that when one is found in the unexplained possession of recently stolen goods an inference may arise that he is the thief. Under the circumstances of this case the occupants of the automobile may be considered as being in joint possession of articles found in the trunk. The stolen coins were found in the trunk of the car in which appellant was riding within an hour of the High’s theft and this is obviously “recent” possession. We have no difficulty in concluding that the evidence was sufficient to establish appellant’s criminal agency with respect to the High’s incident. Hale v. State, 5 Md. App. 205, 245 A. 2d 908 (1968) and Bury v. State, 2 Md. App. 674, 286 A. 2d 751, cert. denied, 249 Md. 731 (1968) are directly in point and dictate this conclusion.

Judgments affirmed. Appellant to pay the costs.

      . See Rakas v. Illinois, 439 U. S. 128, 99 S. Ct. 421, 58 L.Ed.2d 387 (1978), note 1.

      . We do note, however, as a passenger in the car the appellant would lack standing to complain under Rakas v. Illinois, 439 U. S. 128, 99 S. Ct. 421, 58 L.Ed.2d 387 (1978).

      . Appellant contends the trial court conceded that the clerk did not identify him and that the judge dissuaded defense counsel from pursuing the question of identification on cross-examination. We think counsel misreads the record.


author: Gilbert, C. J.,

text:
    COMPTROLLER OF THE TREASURY v. IRVING MACHIZ
    [No. 766,
    September Term, 1978.]

      Decided April 16, 1979.

    The cause was argued before Gilbert, C. J., and Moylan and Couch, JJ.

      Gerald Langbaum, Assistant Attorney General, with whom was Francis Bill Burch, Attorney General, on the brief, for appellant.

      L. Paige Marvel, with whom were Marvin J. Garbis and Garbis & Schwait, P.A. on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This case teaches three lessons: 1) former tax collectors do not like to pay income taxes any more than other taxpayers; 2) there is wisdom in not representing yourself in tax disputes; and 3) that the findings of fact made by the Maryland Tax Court are binding on a circuit court if those findings are “supported by substantial evidence.” Md. Code Ann. art. 81, § 229 (o).

The record before us shows that the appellee, Irving Machiz, a former district director for the Internal Revenue Service, and later a paid consultant to the appellant, the Comptroller of the Treasury for the State of Maryland, challenged the appellant’s decision that appellee was liable for the payment of State income taxes for the year 1974. Machiz avers that he was a resident of Florida at that time and, therefore, is not properly chargeable for the payment of Maryland income taxes.

Initially, a hearing officer of the appellant resolved the question of Machiz’s tax liability vel non adversely to the self-represented appellee. Machiz then appealed, pro se, to the Tax Court where he fared no better than he had before the hearing officer. Aggrieved by the action of the Tax Court, Machiz, still acting as his own advocate, appealed to the Circuit Court for Baltimore County. There, the parties litigant submitted the matter to the court on a “Stipulation of Facts.” That stipulation, quoted textually, provided:

“Petitioner, Irving Machiz, 63 years of age, became a resident of Maryland in 1937 and resided in Maryland on a year round basis until 1972. In 1943, he commenced employment with the Internal Revenue Service, ultimately becoming District Director of Internal Revenue Service for the District of Maryland, a position which he held until his retirement on June 30,1972. Mr. Machiz is a certified public accountant. At the time of his retirement, he received offers to join various accounting firms. When he advised them that he was not interested in working full time, only one firm, Berman, Goldman and Ribakow (B.G. & R.), Certified Public Accountants of Columbia, Maryland remained interested. He advised B.G. & R. that he only wanted to be involved three or four months of the year at the most. He advised them that he could be contacted even while in Florida where he was then intending to purchase a home. On that basis, a limitéd partnership arrangement was entered into which lasted four years until June 30, 1976.
In the fall of 1972, Mr. Machiz purchased a condominium home in Miami Beach, Florida. He stated that he spends an average of seven months of the year in Florida, four months in Baltimore and one month travelling; for the year at issue, 1974, he stated that he definitely spent more than 183 days in Florida.
At the time of his retirement and for approximately fourteen years prior thereto, Mr. Machiz resided with his wife, Mildred, at 7401 Campfield Road in Baltimore County, Maryland. They did reside in their Campfield Road home for a period of time in calendar year 1974. In January, 1974, Mr. Machiz registered to vote in the State of Florida. Petitioner’s Exhibit 1, a Florida voting registration card for the year 1976-77, indicated that he registered in Florida on January 17,1974. Records of the Baltimore County Election Board (Respondent’s Exhibit No. 2) reflect that Mr. Machiz’s name was removed from the list of eligible Baltimore County voters on March 4, 1974, the reason being his registration in Florida. The same Exhibit reflected that Mildred Machiz terminated her Baltimore County voting status in June, 1975 and registered to vote in Florida at approximately the same time. Respondent’s Exhibit 1, Mrs. Machiz’s Baltimore County voting registration record reflects that she did vote in Maryland in the 1974 election.
Mr. Machiz attempted to introduce into evidence a notice received in 1975 directing him to report for jury duty in Florida. Respondent’s objection to admission of this notice was sustained. Mr. Machiz did introduce as Petitioner’s Exhibit 2 a Florida Intangible Property Tax Return for the year 1974. Mr. Machiz testified that he was physically in the State of Florida on the last day of the years 1972, 1973, 1974 and 1975. On April 30, 1974, Mr. Machiz entered into an exclusive listing agreement with Grempler Realty, Inc. for the sale of his Baltimore home. The listing agreement was terminated in September with no purchase offers having been received, despite a lowering of the price asked. Petitioner’s Exhibit 3 is a letter confirming the listing agreement. In April of 1976, the home was listed with another realtor, D.H. Blum. The home was still listed as of the date of the hearing at the Maryland Tax Court, July 7, 1976; despite weekly advertisements in two local newspapers, no bids have been received. Testimony also established the following:
(a) In 1974, Mr. Machiz applied for and received a Florida homestead exemption.
(b) Mr. Machiz maintained his Maryland driver’s license throughout the year 1974 and still had the license in July, 1976.
(c) Mr. Machiz’s automobile was registered in the State of Maryland.
(d) Mr. Machiz did not obtain a Florida driver’s license. His automobile was used primarily for business purposes in connection with his association with the Maryland accounting firm of Berman, Goldman and Ribakow.
(e) Mr. Machiz did maintain bank accounts in Maryland during the year 1974.
(f) Mr. Machiz’s wife, who has lived with him throughout their marriage and who has spent the same amount of time in Maryland and Florida as has Mr. Machiz, maintained her Maryland driver’s license and Maryland automobile registration for the year 1974.
(g) Mr. Machiz did not know if he retained phone service at his home in Maryland throughout the year 1974.
(h) Mr. Machiz’s name was listed in the Maryland phone directory for the year 1974.
(i) Mr. Machiz had been a member of the Beth Israel Synagogue Congregation in Baltimore County but does not remember when that membership was discontinued.
(j) Mr. Machiz belonged to no country clubs or social clubs in 1974.
(k) For the year 1974, Mr. Machiz was in Maryland for the months of May, June, September, October and part of November.
In addition to the preceding contacts, testimony at the Maryland Tax Court established the following business contact.
(a) During the year 1974, in addition to his association with B.G. & R., Mr. Machiz was a consultant for the State of Maryland, Comptroller of the Treasury, and delivered twelve lectures during thát year for personnel in the Comptroller’s office.
(b) Mr. Machiz was paid a fixed semi-monthly sum during the course of his partnership with B.G. & R. The terms of his partnership required that he be available throughout the year for consulting work. He was on occasions called while in Florida. On one occasion, as a result of such a call, he came to Maryland, but this did not occur in the year 1974.
(c) B.G. & R. paid dues for Mr. Machiz for membership in the Maryland Association of Certified Public Accountants and the American Institute of Certified Public Accountants. B.G. & R. also listed Mr. Machiz in the phone book as a member of their firm and paid his membership fee in the advertising club. Mr. Machiz conducted no business activities in the State of Florida and was not associated with any accounting firm there.
The amount of the assessment for the year 1974 was $2,245.60, plus interest. It is agreed, however, that the assessment included interest income of $899 attributable to United States Government H Bond and that this amount is not taxable and should be subtracted from the total additional income upon which the assessment was reached.”

The circuit court, in a “Memorandum Opinion,” reversed the Tax Court. The circuit court opined “that the Maryland Tax Court was erroneous in interpreting the Statute [Md. Ann. Code art. 81, § 279 (i)] as a matter of law. The [circuit] Court finds as a matter of law that the taxpayer, Irving Machiz, intended to abandon his Maryland domicile and was, in fact, domiciled in Florida during the year 1974.”

Obviously unwilling to accept that setback, the Comptroller appealed to this Court. Mr. Machiz then ceased acting as his own attorney and retained counsel to represent his interests in the appeal. For reasons that we shall hereafter note, his recognition of his need for the services of an attorney came too late, because counsel could not undo that which Machiz had done, namely, virtually stipulate himself into a position from which his lawyer cannot extricate him.

Determination of Machiz’s taxpaying status for the year 1974 involved a construction by the Maryland Tax Court of Md. Ann. Code art. 81, § 279 (i) which defines a “resident” as: “an individual domiciled in this State on the last day of the taxable year, and every other individual who, for more than six months of the taxable year, maintained a place of abode within this State, whether domiciled in this State or not----” The thrust of that section, as Judge Singley noted in Comptroller v. Lenderking, 268 Md. 613, 616, 303 A. 2d 402, 404 (1973), is bifurcated in that it reaches either those persons domiciled in Maryland on December 31 of the taxable year or those individuals who maintained a place of abode in Maryland for at least six (6) months of the taxable year. See also Evans v. Comptroller, 273 Md. 172, 328 A. 2d 272 (1974); Wood v. Tawes, 181 Md. 155, 28 A. 2d 850 (1942), cert. denied, 318 U. S. 788 (1943).

The Tax Court, based on the facts before it, found that notwithstanding Machiz’s efforts to sell his Baltimore County property, “his maintenance of a home in ... Florida, and his registering to vote in Florida,” he was domiciled in Maryland on the last day of 1974.

The Tax Court grounded its domiciliary findings upon determining that Machiz owned a home in Maryland, he conducted all of his business activities in Maryland, his two motor vehicles were registered in Maryland, he possessed a Maryland driver’s license, the majority of his bank accounts were in Maryland, and his wife was registered to vote in this State. Such a finding falls within the ambit of Shenton v. Abbott, 178 Md. 526, 530, 15 A. 2d 906, 908 (1940), that domicile means “that place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning.” We believe that on the facts before the Tax Court a reasoning mind could logically reach the decision that agency reached.

In accordance with Md. Rule B 7 (d), “the parties, with the ápproval of the agency” prepared the stipulation which, along with the exhibits received into evidence by the Tax Court, constituted the record on appeal to the circuit court.

Md. Ann. Code art. 81, § 229 (o) provides:

“In any case, the circuit court for the county or the Baltimore City Court shall determine the matter upon the record made in the Maryland Tax Court The circuit court or Baltimore City Court shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record. In other cases, the circuit court or Baltimore City Court may affirm, reverse, remand, or modify the order appealed from.”

The Court of Appeals, in Comptroller v. Diebold, Inc., 279 Md. 401, 369 A. 2d 77 (1977), interpreted then Md. Ann. Code (1957, 1969 Repl. Vol.) art. 81, § 229 (1). That section provided in pertinent part:

“The circuit court of the county or the Baltimore City Court of Baltimore City, [s/c] shall determine the case upon the record of the Maryland Tax Court and may affirm, reverse, remand or modify the order appealed from; provided, that, unless such order is erroneous as a matter of law or unsupported by substantial evidence appearing in the record, it shall be affirmed.”

The similarity between the language of former section 229 (1) and present section 229 (o) is evident.

The Court said that the standard by which the “result reached by the Tax Court is reviewed is whether a reasoning mind reasonably could have reached the factual conclusion which that agency reached. Fairchild Hiller Corp. v. Supervisor of Assessments, 267 Md. 519, 521, 298 A. 2d 148, 149 (1973). The application of this test need not and must not be either judicial fact finding or a substitution of judicial judgment for agency judgment. ” (Emphasis supplied.) 279 Md. at 407, 369 A. 2d at 81.

A review of the stipulation presented to the circuit court instantly discloses that there was evidence presented to the Tax Court from which a “reasoning mind reasonably could have reached the factual conclusion that the agency reached.” Id. Consequently, the circuit court should not have substituted its judgment for that of the Tax Court.

Although the judge in the circuit court couched his holding in a manner that appears to be calculated to avoid conflict with Dieboldhe has, nevertheless, transgressed upon the fact finding of the Tax Court. Labeling judicial fact finding as “a matter of law” camouflages the impermissible fact finding, but it does not render it invisible, nor does it change its nature in any manner. Just as a “[r]ose is a rose is a rose is a rose,” so too, a fact is a fact is a fact is a fact. Obfuscation of facts by miscalling them matters of law serves only to confuse the issue, not solve it.

We hold that the Circuit Court for Baltimore County erred when it substituted its judicial fact finding for that of the Tax Court. The Tax Court's findings of fact are supported by substantial evidence from which “a reasoning mind reasonably could have reached” the same factual conclusion as that agency.

Judgment reversed.

Case remanded to the Circuit Court for Baltimore County with instructions to affirm the order of the Maryland Tax Court:

Costs to be paid by appellee.

      1. The parties, with the approval of the Tax Court, may, pursuant to Md. Rule B 7 (d), agree upon a statement of the case which statement then becomes the “record on appeal."

      . Gertrude Stein (1874-1946) Sacred Emily (1918).


text:
    MAYOR AND TOWN COUNCIL OF NEW MARKET et al. v. WILLIAM J. ARMSTRONG ET UX.
    [No. 787,
    September Term, 1978,]

      Decided April 16, 1979.

      The cause was argued before Moylan, Lowe and Mason, JJ.

      Mary E. Storm for appellant Mayor and Town Council of New Market. Peyton Paul Phillips for other appellants.

      James W Hane and H. Warren Buckler for appellees.
   Lowe, J.,

delivered the opinion of the Court.

On July 19, 1974, William J. and Jane P. Armstrong purchased a property upon which stood an old schoolhouse. The deed described the land as “consisting of Lot No. 84 and Lot No. 85 situate in Hall’s Part of the Town of New Market containing one-half (%) acre of land, more or less.” The reference to “Hall’s Part of the Town” derived from Nicholas Hall who must have been among the first subdivision developers. In 1793, he laid out the proposed Town of New Market on a recorded plat, dedicating the streets and alleys thereon to the use of the public forever.

Lot No. 85 was bordered on its western boundary by Federal Street and on its eastern boundary by Lot No. 84. Both of these lots abutted North Alley as their northernmost boundaries. A substantial portion of the adjoining Federal Street and of North Alley constituted the concern of this appeal. Indeed, the old schoolhouse had been constructed over a substantial part of Federal Street, and over a portion of North Alley as well.

Upon complaint of the Armstrongs under the Maryland Uniform Declaratory Judgment Act, the Circuit Court for Frederick County declared the couple had acquired substantial portions of the described street and alley by adverse possession. In order to clarify the portion so proclaimed, the court included in its order not only a metes and bounds description but a plat clearly designating those portions so obtained. We reproduce that plat at this juncture to facilitate a clearer understanding of that which will follow:

Pursuant to Md. Rule 1028.g., the parties stipulated to a statement of undisputed facts and exhibits narratively summarizing the testimony. To ease our burden of revjew still further, they synopsized their summary. That synopsis is brief enough to include, yet enlightening enough to add understanding to the issues raised:

“In 1793 Nicholas Hall executed and recorded a plan and plat for a proposed town, the Town of New Market. The recorded plan specified, inter alia, that 1 the said Nicholas Hall do hereby agree to give the Alleys as now laid out, for the use of the public forever, also the streets, and that I shall never hereafter lay any claim to the same nor my Heirs and Assigns.’
In 1878 the Town of New Market was incorporated. There appears to be no specific record whereby the Town formally accepted the Hall dedication of the streets and alleys. Recently, however, Hall’s plat was used in connection with the Town’s zoning regulations and master plan, the latter recommending improvement of some streets and abandonment of others.
In 1974, William J. Armstrong, et ux, purchased Lots Nos. 84 and 85 as designated on the Hall plat which were improved by a structure which was formerly a school house. Prior to the purchase, the Armstrongs knew that the structure located on the premises encroached upon the right of ways of Federal Street and North Alley. Mr. Armstrong also testified that he was familiar with the Hall plat prior to the Armstrongs’ purchase of the lots.
In 1976 the Armstrongs instituted these proceedings seeking, in essence, to quiet title to their real property. The evidence produced showed that they had fee simple title to Lot 84, but that the leasehold and reversionary estates in Lot 85 never merged.
The encroachment by the school building onto the street and alley apparently occurred in 1939 when the School Board caused another school to be physically moved to the site of the old building. It was placed in front of the building by the contractor and another classroom was added, making it into a two-classroom school house.
The Armstrongs, apparently to establish their ownership of one-half of the bed of North Alley and one-half of the bed of Federal Street, presented evidence to show the nature and extent of the use of the premises as a school facility. Such evidence indicated that a flower bed was planted at the front of the school house; that children walked upon Federal Street and North Alley to get to the school; that a parking place was established in front of the school for the buses to use when unloading the children; that the school children played on Federal Street and North Alley; that North Alley east of Federal Street is not constructed and that in the area where the alley should be there are large trees and natural growth as well as a farm fence, owned by the Brinkleys, running east-west which partly encroaches into the North Alley right of way. The farm fence which partly encroaches in North Alley has been in the same location for at least 60 years. The testimony of life long residents clearly showed Federal Street and North Alley have been considered as alleys until the present day.
The Town and the Brinkleys, to establish the pre-1939, as well as post-1939 acceptance of the Nicholas Hall dedication of the streets and alleys by public use over a long period of time, presented similar evidence, viz. the testimony of New Market residents showed that parts of the streets and alleys were generally travelled and used by the public. Such evidence indicated that parts of Federal Street and North Alley were used in delivering newspapers to residents of that area in the 1920’s; that flat stones were placed on the west side of Federal Street for the pedestrians; that at one time horse stables were maintained on North Alley east of Lots 84 and 85 and that users of the stables travelled upon Federal Street and North Alley.
Other evidence showed that originally the streets and alleys of New Market, including Federal Street and North Alley, were dirt, then tar and chips, then gravel and finally paved in part of the width. Such improvements and the general maintenance and snow removal of such streets was undertaken and performed by the Town. The paving of Federal Street and North Alley is approximately 12 feet wide and occurred in the 1950’s. In the 1960’s, the Frederick County Metropolitan Commission constructed sewer lines in the bed of the right of ways of Federal Street and North Alley, partly beneath the paved roadways.”

The issues raised on appeal assign error to the judgment for at least five reasons which include:

1. the Nicholas Hall restrictive covenant, running with the land, not to lay claim to streets or alleys, was known to appellees;
2. relief granted by adverse possession was contrary to the theory of relief prayed;
3. propriety of the finding of adverse possession against a municipality;
4. clear factual error (sufficiency) in finding adverse possession; and
5. improper tacking to carry the adverse possessory right to appellees.

To the extent appellants attack the factual findings of the court we are not impressed. Our review of the record indicates that there was sufficient evidence from which the court could have found that appellees’ predecessors in interest (to which we will generally refer as the Board of Education) had fulfilled the requisites of adverse possession. Md. Rule 1086; Rogers v. Burnopp, 263 Md. 357, 360 (1971). This factual attack was the primary focus of an intervening party below, G. Ross Brinkley, et ux., who also appealed. The Brinkleys contend as well that the court erred in overruling their motion for summary judgment. Because we have found sufficient facts upon which the court could have reached its result, it follows necessarily that there were sufficient facts in dispute to have justified denying summary judgment. See Broadfording Ch. v. Western Md. Ry., 262 Md. 84, 88-89 (1971).

— remedy contrary to relief prayed —

Responding first to the procedural assault that neither the specific relief of adverse possession, nor a general relief prayer sufficient to encompass it were prayed, it has been held that when there is a justiciable issue presented by a bill of complaint or declaration seeking declaratory relief,

“a declaration should be given even if it is not the declaration sought by the plaintiff and, indeed, is entirely or partially contrary to the theory of the plaintiff on which declaratory relief is sought.” Woodland Beach Ass’n v. Worley, 253 Md. 442, 448 (1969).

That is precisely what occurred here. Pursuant to the Maryland Uniform Declaratory Judgment Act, the appellees asserted their ownership of the street and alley under and by virtue of Md. Real Prop. Code Ann. § 2-114 (1974):

“Unless a contrary intention appears in the deed, will, or other instrument, if any deed, will, or other instrument grants or bequeaths land binding on any street or highway, or if any street or highway is one or more of the lines of the land, the deed, will, or other instrument passes to the legatee, donee, or grantee, all the right, title, and interest of the testator, donor or grantor in the street or highway. Except that to the extent the testator, donor, or grantor owns other land on the opposite side of the street or highway, the deed, will, or other instrument passes the right, title, and interest of the testator, donor, or grantor only to the center of that portion of the street or highway on which the two or more tracts coextensively bind.”

They then contended that since their property abutted the street and alley which were dedicated but never accepted, their title ran to the center of the street and alley. The court did not agree with that premise. It held that the statute was not in being at the time of dedication and the theory of appellees fell with that finding.

“I cannot rule — I don’t think it is the law — that the plaintiffs own one-half (V2) of the bed of Federal Street bordering lot 85 subject only to a 5 foot public easement therein. In the first place, the public easement in front of Federal Street is wider than that by the very paving. In addition, I don’t find it to be the law prior to the statute that when you convey lots with reference to a plat, this automatically carries ownership to the center of a bordering street that isn’t even mentioned in the deed.”

But the court further found that there was no formal acceptance of the dedication at the time of the encroachment by the Board of Education (and its predecessor) in 1939, nor during the prescriptive period. The court set forth its general factual findings (see n.2, supra) and, subsequently, its more defined determination of precisely what was acquired by the adverse possession. These findings culminated in the final decree. As can be seen from the plat which the court appended to that decree, the portions for the acquired roadbeds include over half of the ways on both Federal Street and North Alley.

— sufficiency of adverse possession evidence —

The court’s defined area finding was predicated upon that which it determined had been used by appellees’ predecessors in title, the Board of Education (and its predecessor in purpose), for the prescribed adverse possessory period. The deed describes simply Lots No. 84 and 85 as depicted on the Hall plat and alludes not in the slightest to the additional land in the street beds which was found to be acquired by the Board through adverse possession.

(Lot 85)

Addressing the question of evidentiary sufficiency, appellants claim that the Board did not fulfill the elements of adverse possession to Lot 85, stating that appellees failed to show that the Board held the land in a hostile, nonpermissive posture. With respect to Lot 85, appellants submit that appellees needed to show nonpayment of “ground rent” for the requisite period in order to claim ownership. Their argument follows from a showing that Christian Harding, a predecessor of the Board, had acquired both the leasehold and reversionary interests to Lot 84 (which could then merge by operation of law to vest fee simple ownership in the holder), but only held the leasehold interest for Lot 85. In 1839, however, Harding quitclaimed “all of his interest” in Lots 84 and 85 to the Primary School for District No. 62 (forerunners of the Board of Education of Frederick County). The Board conveyed the land in the 1960’s in fee simple to Messrs. Frenkil and Palmer, who subsequently conveyed to the Armstrongs the same fee simple title.

Since the chancellor held that the Board had acquired a fee simple title to both lots, the question of title to Lot 85 which is tangentially raised by the Town, is (if to be answered at all) one to be decided under the clearly erroneous rule. Md. Rule 1086. Despite the fact that Harding conveyed title to both lots by quitclaim deed, and only one lot appeared to be held by him in fee, the chancellor empirically concluded that the Board accepted the title to both lots as being in fee simple.

“It is inconceivable ... that the commissioners of those days would have bought lots with the intention of putting up a primary school on those lots had there been ground rents outstanding.”

That the Board had so assumed is supported by its transfer of the property to Frenkil, et al (and they to Armstrong) in fee simple. Those deeds alone were prima facie evidence of what they purported to convey, cf. Harmon v. State Roads Comm., 242 Md. 24, 32-34 (1966); Siemiesz v. Amend, 237 Md. 438, 440 (1965), and all of this was supported by the opinion of Armstrongs' title examiner as set forth in the stipulated facts:

“that the Armstrongs had good fee simple title to both lots 84 and 85.”

Since neither the Town nor the intervenor had any claim or interest in Lot 85 but for its proximity to the adjacent roadbeds, neither is a proper party to attack the validity of the ruling as related to Lot 85; see Taussig v. Van Deusen, 183 Md. 436, 441-442 (1944), nor may they complain at this late date that a possible proper party, or even necessary party is not before the court to do so.

To the extent that the intent to possess adversely the adjacent roadbeds claimed by the Town is interwoven through the need to ascertain the state of mind of the possessors and conveyors of the lots, the Town has a valid concern; but it does not go beyond those states of mind.

(the adjoining land possessed)

The court’s boundary lines indicating the land that was adversely possessed, extended beyond Lots 84 and 85, and included parts of Federal Street and North Alley. The judge found that the Board also acquired ownership of those additional areas by adverse use. Although the street and the alley had been dedicated to the public use by Nicholas Hall, the judge found that no acceptance had been effected. In Mauck v. Bailey, 247 Md. 434 (1967), the Court of Appeals stated that dedication “presents no impediment ... to the acquisition of property by adverse possession where the public has never accepted the offer of dedication.” Id. at 443.

— dedication —

At the heart of the court’s rulings was its factual findings as to what part, if any, of Nicholas Hall’s street and alley, dedication had been accepted by the public. Clearly a dedication to public use is no more than an offer until it is accepted. Hackerman v. City of Baltimore, 212 Md. 618, 624 (1957); Harlan v. Bel Air, 178 Md. 260, 265 (1940). This prevents subdividers from forcing road maintenance upon the public against its will. Kennedy v. Mayor, & C., of Cumberland, 65 Md. 514 (1886). Obviously, there being no municipality at the time of Nicholas Hall’s dedication in 1793, no formal acceptance was effected, and the absence thereof, even after New Market assumed that status, was conceded. The Town argues, however, that an acceptance was effected by public users.

The court found otherwise. Regarding North Alley, only that portion east of Federal Street is involved here. The agreed statement of facts indicates that the only use thereof was by those involved in the educative purpose to which the owner of the adjoining lots, the Board of Education, had devoted the abutting property — with but a single exception.

“One man had stables that faced East North Alley east of Lots 84 and 85. He and his visitors regularly used East North Alley to come and go from his stables.”

A single adjacent property owner’s use is a far cry from a public user sufficient to warrant public acceptance. And so it was that the court found:

“Now there is no indication whatsoever in the evidence before me that North Alley from its intersection with Federal Street to the east was ever used in any way by the public. There is certainly no indication that the Town of New Market or Frederick County prior to the chartering of the Town of New Market ever formally accepted that portion of North Alley into the public system. So that I would clearly hold also, at the present time, that the Board of Education and its predecessors had a valid fee simple title by adverse possession in North Alley which they did convey to the plaintiffs by virtue of the conveyance of being the same property conveyed to them by so and so in reference to the lots. So I have no problem with that part of North Alley at all. That has clearly been blocked in use and there has never been anything done in that area except use by the Board of Education and the students and predecessors of the Board.”

We cannot declare the finding to have been clearly erroneous. Md. Rule 1086.

The court then turned its attention to the pertinent Federal Street portion under contention.

“Now, I come to a further problem and that is with Federal Street. It is very obvious that there has been more of a use of Federal Street by others than there was in that portion of North Alley that I have just referred to.
I find as a fact that at least from the time of the purchase by the school commissioners in 1839 that there was certainly a pathway in the bed of Federal Street that people, youngsters, sometimes used. There was also a space some period later on, apparently according to one witness, where you could take a horse and wagon in and go up to North Alley and turn westward and use North Alley. And it would seem to me that it is perfectly clear that the public generally did use that portion of Federal Street to an undetermined but rather narrow width. Other than that, there is nothing to show that there was an acceptance or even an attempted acceptance by the public generally of Federal Street at all up until such time as the Town of New Market decided to pave a portion of it and up until the time that the Metropolitan Commission put in the sanitary sewer in that same area. That was an attempted acceptance. No one else objected and I find clearly that the Town has accepted this offer of dedication which I find remained open, at least without objection, for the paving along that particular area.
I think that acceptance also would permit the Town to build or install paving in the full width of Federal Street as shown on the plat with the exception of that portion that — where there is an encroachment of the building. I think when property owners construct in a paper street an improvement such as the Board of Education did, the municipality or the public generally have paved only a portion of the street in front of it, did not undertake to do anything about the balance, I think there was an intention at least for that area of Federal Street not to accept the dedication and I so find.
Now the consequence of this factual law finding is that the property owners, the plaintiffs, may continue their building as it now exists because I think they have acquired the title that the Board of Education had and I think the Board of Education by placing its building and encroaching on that area since 1939 has acquired title by adverse possession because it was no act of the public in any way accepting that portion of Federal Street or the portion of North Alley upon which the building also encroaches. In the absence of acceptance up until that time it is too late for the Town to undertake to say at this late date when it accepted only a portion in front of that building that they now want to accept the balance.”

— all or nothing —

We are not impressed with appellants’ argument that partial acceptance necessarily constitutes an acceptance of the whole. Appellants quote from McRobie v. Town of Westernport, 260 Md. 464, 469 (1971), indicating that:

“The test of public use is not whether the [parking] lot is used at all times to capacity but whether it is utilized to a substantial degree.”

We find McRobie totally inapposite. The question in that case had nothing to do with accepting a proposed street dedication; it turned upon whether a property could be sold by the town without special statutory authority. If the land was held proprietarily, it could be; if devoted to governmental — or public — use, it could not. The public use issue there was to determine whether the town must hold what it had, not how it could gain what it had not. The test of public user in the former was qualitative and quantity was of no concern. In determining acceptance of an offer of dedication both factors are reviewed. It is necessary qualitatively to determine if the use was public, and quantitatively to determine the intent of acceptance or the limitations of such intent to accept.

Doctrinally, there is implicitly an intent to use the whole by virtue of a user of a part, but that implication is only in the absence of anything to show a contrary intent. 26 C.J.S. Dedication> § 41 b (1956). As indicated, the court here found expressly that by acquiescing to the Board’s encroachment and improving and using only a portion of Federal Street, there was a clear intention indicated not to accept in whole, but only to accept in part, i.e., the portion actually under public use.

“I think when property owners construct in a paper street an improvement such as the Board of Education did, the municipality or the public generally have paved only a portion of the street in front of it, did not undertake to do anything about the balance, I think there was an intention at least for that area of Federal Street not to accept the dedication and I so find.”

— color of title —

Appellants also argued that even if the Board did acquire the land by adverse possession, the Armstrongs cannot claim ownership of the roadbeds in question absent express mention of said property in the fee simple deed from the Board conveying Lots No. 84 and 85. They cite Fleischmann v. Hearn, 141 Md. 463, 468 (1922) and Hansel v. Collins, 180 Md. 209, 217 (1942), to indicate that the Armstrongs cannot tack the time of possession by the Board to their own time of possession. These cases are inapposite. Each deals with tacking as a means of tying together two or more successive adverse possessors in order to total the requisite twenty year period. Tacking as such, is not the problem before us.

The chancellor here held that the statutory twenty year period vesting title had uninterruptedly passed while the Board owned the adjacent lots and acquired title to the contested land by adverse use. The question is not one of tacking to reach the statutory period, but whether the disputed portions of the street and alley were transferred under color of title with Lots No. 84 and 85 by the Board to Messrs. Frenkil and Palmer, and in turn by those gentlemen to the Armstrongs. In other words, given the court’s finding that title to the property had vested in the Board, the problem of tacking vanishes, and once again the Town overreaches to stake its claim. The property is removed from the Town’s reach since the only question becomes whether the Board conveyed the property adversely possessed in the roadbeds along with Lots No. 84 and 85. At this point, the issue is not one the Town can raise as an interested party; the Board and Messrs. Frenkil and Palmer are the only possible parties with an interest in said property. Cf. Fedder v. Component Struct. Corp., 23 Md. App. 375, 381 (1974). Only if the chancellor was wrong in his premise that the Board had acquired title by adverse possession, would the Town have any possible interest sufficient to give it standing to contest the transfer between the parties. It is apparent that if there was nothing conveyed by the Board, it retained the land it adversely acquired. The land could not “revert” to the Town which had been held never to have acquired an interest in it. See Broadfording Ch. v. Western Md. Ry., 262 Md. at 87-88.

Even assuming standing by the Town to raise this question on appeal, we would respond to their contention in the negative. Color of title is not a prerequisite to continuance of adverse possession, it was at most a preferred proof. Zehner v. Fink, 19 Md. App. 338, 346-347 (1973). In Zehner we responded to just such an argument based in part upon the same authority asserted here by the Town. We pointed out in Zehner, and even more strongly later in Rosencrantz v. Shields, Inc., 28 Md. App. 379 (1975), cert. denied, 276 Md. 749 (1976), that color of title was not necessary for tacking to provide continuity of possession of land, provided the land in question was contiguous to that described in a deed, and that lands both titled and untitled were part of a close, apparent by reason of physical boundaries such as fences or hedges.

In Rosencrantz, we relied upon Freed v. Cloverlea Assn., 246 Md. 288, 299 (1967), where the Court of Appeals adopted the rule quoted from 17 A.L.R.2d, 1128, 1131:

“ ‘... where title by adverse possession is claimed to an area contiguous to that described in the deed or contract, and the whole property, described and not described, was in use by the vendor as a unit, and the fact thereof was apparent by reason of the position of fences, hedges, buildings, etc., the instrument instead of operating to negative the element of privity, seems to possess, as conjoined with such circumstances, and evidentiary valúe in support of privity, and this is most noticeable in instances in which the description used was such that it might reasonably have been supposed to include the whole property.
‘At the present time, making allowance for contrary rulings still apparently adhered to in a few jurisdictions, the cases, especially the later ones, run generally to the effect that in order to permit the tacking of successive adverse possessions of vendor and purchaser of an area not within the premises as described in the deed or contract but contiguous thereto, the composite fact to be established is the intended and actual transfer or delivery of possession of such area to the grantee or vendee as successor in ownership or claim.’ ”

It is apparent that the land in dispute was physically delineated. (.E.g., On North Alley the chancellor found ownership in the Armstrongs by adverse use of their predecessors (the Board) “up to the fence line” and on Federal Street “up to the line that the Town has blacktopped----”, and so on.) A plat was prepared setting such forth. Therefore, although there is no question of tacking the reasoning applied by Freed to determine what was transferred is the same.

The “composite fact to be established is the intended and actual transfer____” After having acquired ownership by adverse use of the disputed land, the Board abandoned any further use or claim after transferring it to the Armstrongs’ predecessors, Frenkil, et al; it makes no claim even now, nor do Frenkil, et al., who transferred by identical description to the Armstrongs what they had obtained from the Board. It need hardly be noted that it is the Board’s interest (and Frenkil, et al), not the Town’s, that is controlling in considering what was being conveyed, and the understanding of the transferees as to what was to be obtained. The conveying instrument did not operate to “negative the element of privity,” but rather “conjoined” with the circumstances of abandoning possession of the disputed strips and the simultaneous transfer of the lots, to provide evidentiary value in support of privity.

But that is dicta in the form of alternative reasoning to our holding. Our holding is that the Town cannot successfully question the transfer. Only the Board, and Messrs. Frenkil and Palmer, can do that in light of the finding of the chancellor that title to the disputed property had vested in the Board by adverse possession. See Broadfording Ch. v. Western Md. Ry., 262 Md. 84.

— ghosts —

Appellants have exhaustively sought and addressed attacks upon the court’s ruling. Admittedly, some o.f these attacks were spectres which appellants raised only to strike down, e.g., abandonment, use capacity, equitable prescription, laches. We will not address what the court “might have found,” a prefatory phrase repeated by appellants as they raised each spectre.

Mauck v. Bailey

Appellees point out that many of the relevant contentions of the Town were addressed in Mauck v. Bailey, 247 Md. 434 (1967). In lieu of setting out each issue, argument or contention, a simple synopsis of Mauck’s holdings, which also replied to an insufficiency attack upon an adverse possession ruling, will indicate and dispose of several of the proliferate arguments by the town.

The Court began by dissipating the preclusive effect of some of the requirements of adverse possession, such as “notorious and hostile” possession.

“In our recent decision in Freed v. Cloverlea Citizens Association, 246 Md. 288, 228 A. 2d 421 (1967), Judge McWilliams, for the Court, carefully reviewed the prior decisions of this Court in regard to obtaining title by adverse possession in a case somewhat similar to the present case. He cited Blickenstaff v. Bromley, 243 Md. 164, 171, 220 A. 2d 558, 561 (1966), where we quoted with approval from 3 Am. Jur. 2d, Adverse Possession, sec. 14, the following:
‘It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question. The standard to be applied to any particular tract of land is whether the possession comports with the ordinary management of similar lands by their owners, and if so, it furnishes satisfactory evidence of adverse possession.’

In Tamburo v. Miller, 203 Md. 329, 100 A. 2d 818 (1953), Judge Hammond (now Chief Judge), for the Court, stated:

‘The modern trend and the better rule is that where the visible boundaries have existed for the period set forth in the Statute of Limitations, title will vest in the adverse possessor where there is evidence of unequivocal acts of ownership. In this view it is immaterial that the holder supposed the visible boundary to be correct or, in other words, the fact that the possession was due to inadvertence, ignorance, or mistake, is entirely immaterial.’ ”

Mauck v. Bailey, 247 Md. at 441-442.

It continued to respond to an argument (as we have here also) that adverse possession cannot be claimed against property offered for dedication to public use. The Court stated:

“Where an implied offer of dedication of this type, or an express offer to dedicate, is accepted by the public, so that the dedication is complete, our decisions have consistently followed the great weight of authority in holding that the dedicated property cannot subsequently be acquired by adverse possession. Mayor & City Council of Balto. v. Chesapeake Marine Ry. Co., 233 Md. 559, 572, 197 A. 2d 821 (1964); Messersmith v. Mayor & Common Council of Riverdale, 223 Md. 323, 164 A. 2d 523 (1960); Town Comm’rs of Centreville v. County Comm’rs of Queen Anne's County; 199 Md. 652, 87 A. 2d 599 (1952); Brady v. Mayor & City Council of Balto., 130 Md. 506, 101 Atl. 142 (1917); Cushwa v. Burgess & Comm’rs of Williamsport, 117 Md. 306, 83 Atl. 389 (1912). The rationale of this rule is, of course, that the public is not to lose its rights in the dedicated property through the negligence or inadvertence of government officials who are agents of the public.
This rationale presents no impediment, however, to the acquisition of property by adverse possession where the public has never accepted the offer of dedication. This is the situation in the case at bar. The right-of-way, abutting Mrs. Lester’s land, has, since its creation in 1935, never been accepted by the sovereign body, either expressly or through acts giving rise to an implication of acceptance. In the case of a common law dedication, the public acquires no rights and undertakes no duties in the property offered for public use until a valid acceptance has been made. Small v. State Roads Comm’n, 246 Md. 646, 229 A. 2d 408 (1967); Hillshire Corp. v. Pachuta, supra; United Finance Corp. v. Royal Realty Corp., 172 Md. 138, 148, 191 Atl. 81 (1937). And until an acceptance makes the common law dedication complete, the original dedicator or his successors in interest may invoke or modify the offer to dedicate, in whole or in part. North Beach v. North Chesapeake Beach Land & Imp. Co., 172 Md. 101, 116, 191 Atl. 71 (1937). But see, Maryland National Capital Park & Planning Comm’n v. McCaw, 246 Md. 662, 229 A. 2d 584 (1967), involving a statutory dedication.” Mauck v. Bailey, 247 Md. at 443-444 (footnote omitted).

With remarkable coincidence, Mauck also had an estoppel contention that the old covenants running with the land precluded appellant from asserting title to streets and alleys. The Court answered:

“This argument, based on equitable principles, ignores the fact that acts constituting adverse possession are, by definition, ‘inequitable,’ since they include the possession of land in defiance of the rights of the legal owners for the prescriptive period. The doctrine is based on the policy that after 20 years, no one can complain of the ‘inequitable’ and indeed, formerly illegal possession. Where, as in this case, the appellee’s possession is adverse to the rights of others in both the fee and the easement, restrictive covenants in the adverse possessor’s deed, to support the easement, are also barred from enforcement by the running of the prescriptive period, as well as by acquiescence in the violation of the restrictions. Schlicht v. Wengert, 178 Md. 629, 635, 15 A. 2d 911 (1940) and cases therein cited. 3 Tiffany, Real Property, § 871 (1967 Cum. Supp.); McLaughlin v. Neiger, 286 S.W.2d 380 (Mo. 1956).” Mauck v. Bailey, 247 Md. at 446.

The judgment of the trial court will be affirmed.

Judgment affirmed.

Costs to be shared by appellants and intervenor, equally.

      . Board of Education of Frederick County, formerly Primary School for District No. 62 (held by trustees Jacob Cronise, Eldrid W. Moberly and George Hughes and their successors), conveyed fee simple interest in Lots 84 and 85 to Messrs. Frenkil and Palmer, co-partners, who in time conveyed the property to the Armstrongs.

      . To the extent that the Brinkleys rely upon a factual foundation based upon failure of appellees to answer timely an admission of fact request, we decline to address intervenor’s argument. That issue in support of their summary judgment motion was not argued below and we wilt not address it for the first time on appeal. Md. Rule 1085.

      . The expert qualified his assertion as resting on an initial title search starting in 1839. He said he could not make a definite statement as to Lot 85 based on the search back to 1795.