Alan Const. Co., Inc. v. Gerding

Henderson, J., delivered the opinion of the Court. Alan Construction Company, Inc., as contractor, and Pleasant Plains Shopping Center, Inc., as owner, are in the process of constructing, or have just completed, a shopping center on a tract of land at the northeast corner of Loch Raven Boulevard and Taylor Avenue in Baltimore County. In addition to the frontage on these streets, the property abuts along its northern boundary upon a “service drive”, that was originally laid out for the benefit of a residential development to the north, with connections leading to Glen Keith Boulevard by way of Clyde Bank Road and Glenclyde Road, and dedicated to public use by conveyance to the County Commissioners of Baltimore County, which was duly recorded. On May 25, 1955, the appellants applied to the County Commissioners for a permit to remove the curb at a designated point along this boundary, to permit access by motor vehicles to and from the service drive.

The defendant, Robert J. Hajzyk, Roads Engineer of Baltimore County, issued a permit reading as follows: “Permission is hereby granted, insofar as this Department has the right and power to grant same for a curb opening on the South side of Glenclyde Drive at the intersection of Clyde Bank Road, as shown on the plans of George William Stephens, Junior and Associates, as revised on March 24, 1955. This curb opening to be 30' in width, and to conform to the standard specification for curb openings as adopted by the Baltimore County Highways Department.” On June 1, 1955, the appellees Gerding, Hart and Wade, and the Associates of Loch Raven Village, Inc., ⁷⁴ filed a bill of complaint alleging that they were citizens, taxpayers and residents of Baltimore County, on behalf of themselves and others, to enjoin the County Commissioners, the Director of Public Works and the Roads Engineer, as well as the appellants, from “proceeding with the alteration of said public road”, and asking the court to declare the permit, and all acts done or to be done thereunder, illegal and void. The bill contained no allegations of fact in support of the conclusion that the actions of the County officials were “illegal, unlawful and void”, other than an allegation that the appellees had failed to follow the procedures outlined in the Code of Public Local Laws of Baltimore County (1948 ed.), Title 23, Sec. 310. To this bill the County authorities and the appellants separately filed combined demurrers and answers.

The matter came on for hearing upon bill and demurrers and answers and the Chancellor, without hearing testimony, signed a decree and injunction declaring the permit void and permanently enjoining the defendants from “proceeding with the alteration of Service Drive and Clyde Bank Road as in these proceedings described, particularly in reference to any breaking of the existing curb under a permit issued on or about May 25, 1955,” and directing the Pleasant Plains Shopping Center, Inc. to replace the curbing. From that decree the Shopping Center and its contractor have appealed. The appellants contend that the owner of property abutting on a public highway cannot be deprived of access, except by condemnation. The taxpayer appellees contend, on the other hand, that an abutter’s easement is subject to the dominant rights of the public, and that the mere impairment of a right of access, that does not bar all access, does not constitute a “taking” of the property.

Both of these contentions are wide of the mark. As the case was presented on demurrer it is clear that the public authorities have made no determination that a denial of access was necessary in the public interest. On the contrary, insofar as the permit authorized the ⁷⁵ cutting of the curb, it was an indication that the County authorities found no factual basis for limiting or regulating access at the place indicated. The taxpayer appellees quote, with apparent approval, from State v. Burkett, 119 Md. 609, 626 , as follows: “An abutting owner has the unquestioned right to the use of the street as a means of ingress and egress, etc., but that right is subject to such reasonable use of the street, not inconsistent with its maintenance as a public highway, as may be necessary for the public good and convenience and does not seriously impair his right.” For present purposes, and without attempting to define the extent to which limitation or regulation of access may go, or how far the easement may be impaired, short of a “taking” in the constitutional sense, it is sufficient to