Bernei v. Mayor of Baltimore

Magruder, J., delivered the opinion of the Court. This is an action of assumpsit, instituted by the appellant, to recover certain sums of money paid by him as •assessments of benefits upon certain vacant lots of ground, for the opening of Wilkins avenue ; and which said lots had been purchased from the City at a sale of the residue of certain lots, attempted to be taken in the whole by the “ Commissioners for Opening Streets,” and not required for the bed of the said avenue. The property was taken and sold under Ordinance Eo. 25, of April, 1813, (City Code of 1819, p>. 996,) which provides, that “ in ever}7 case where it shall be necessary, in order to effect the object proposed, that a part only of a house and lot, or of a lot, shall be taken and used, or destroyed, and the owner or owners thereof shall claim to be compensated for the whole, the said Commissioners may ascertain the full value thereof, as if the whole lot and improvement were necessary to be taken and used for such proposed object; and the whole amount of such valuation, when finally decided on, shall be paid or tendered to the owner or owners thereof, or vested in City five per cent, stock, &c.,” and the Ordinance then provides that the Street Commissioners shall, in the manner there ³⁵⁸ in prescribed, “sell the materials of any house which it shall be necessary to remove, in whole or in part, and the residue of any lot of which a part shall he taken and used as necessary to effect the object confided to the Commissioners, and for which the owners shall claim to he fully compensated, at public auction to the highest bidder, for cash, to be paid on the day when full possession shall be given of the property or materials so sold, and the said Commissioners, or a majority of them, on receiving the price or sum of' money so hid, shall convey to the purchaser,” &c., and then after some other provisions not necessary to be noticed for the purposes of this case, the Ordinance goes on to provide, “that when a lot is destroyed for the purposes for which it is used or for building purposes, then the said Commissioners shall give notice in writing to the owner or owners thereof, or their agent or agents, of the damage about to be sustained, and that such owner or oioners, or their agent or agents as aforesaid, shall have the space of thirty days to determine lohether they will or not surrender-the lot so damaged.” The alleged defect in the title acquired by the sale under which the appellant bought, as to the Carroll property, is, that some of the owners were infants, and could not assent to the surrender of the property, and that their guardian had no power to make such surrender; and as to the other lot, (the Murray lot,) that the owner did not in fact make the required surrender ; and we think' these-are fatal defects. The Ordinance itself provides for the owner or his agent making the surrender, which would seem in terms to exclude the idea that any one but the ownerj or his duly constituted agent, should be able to make the transfer of the-property to the city; and as the surrender contemplated is equivalent to a sale or grant of the property to the city, or at least, a contract for a sale, no one who is not sui' juris, could in law be capable of making it; and there is. ³⁵⁹ no power conferred by law upon the guardian of an infant to act for or bind his ward in making such a disposition of his estate.

The principles governing the proceedings under the Ordinance in question, by which the city assumes to take and sell property situated like this, not actually required to be used for any public purpose, are laid down in the case of The Mayor and City Council of Baltimore vs. Clunet, 23 Md., 449 , in which the Court, answering the objection to the validity of the Ordinance, that it took, without the consent of the owner, property not necessary for any public use, say: “ It does not sanction the taking of any property from the owner without his consent, not necessary for the public use. If more land is taken in any case than is required for the bed of the street, it is always done with the consent of the owner, to whom the option is given of retaining the fragment of a lot, when part is taken hy the city, or of claiming compensation for the whole, and allowing the part not taken, to be sold for the benefit of the parties charged with the cost of the improvement.” Here then, we see the validity of the proceeding is made to depend upon the consent of, and surrender by the owner. As we find,