Bonaparte v. Mayor of Baltimore

Urner, J., delivered the opinion of the Court. The property of the appellant, known as No. 407 St. Paul street, in ihe City of Baltimore, is required by the- city for the widening of the street in pursuance of ordinances providing for that improvement. In the proceeding for the can ⁸² demnation of the property, which consists of a lot of ground, owned by the appellant in fee simple and improved with a ■building used for residence purposes, the Commissioners for ■ Opening Streets awarded to the owner*, as full compensation for the property taken,- the sum of $5,335.85. On appeal by the owner to the Baltimore City Court, the award was in- , creased to $6,700 by the verdict of a jury.

Believing this revised valuation to be still inadequate, the owner has brought x the. case to this Court for the review of certain rulings to .which.he excepted on the theory that they had the effect of ..unduly restricting the award. .: It was proved that the appellant has expended in the pur- ■ chase and permanent improvement of the property at least rthe sum of $11,000. The building has been rented as a ■whole to- successive tenants. Extensive alterations and additions made by the appellant have adapted the building to use as an apartment house, though it has not actually been devoted to that purpose. The real estate experts who testified in the case based their valuations partly upon the capitalization of the rent currently received from the property.

The estimates of the city’s experts varied from $5,980 to- $6,075, while the experts produced by the appellant valued the property at amounts ranging from $7,500 to $8,600. One- of the latter testified that the building was well adapted to apartment house uses, and that if thus employed, it would yield rentals indicating a property value of $9,200. In view of this testimony the appellant, by his second prayer, requested an instruction to the jury that “in estimating the value of the property and the amount to- be awarded to the appellant as its owner, they must consider all the uses to which the said property could have been applied had no such public improvement as that for which it is taken been determined upon by the Mayor and City Council, and must award the appellant what they believe would have been its value under the circumstances mentioned, if employed for the most profitable use for which they may find it could have been applied, ⁸³ whether it has in fact been applied to such use or not.” This prayer was refused. The measure of the compensation to which the appellant is entitled in this proceeding is the actual market value of the property condemned.

Its market value depends upon the uses for which it is available, and any special utility which may tend to enhance its value in the market is a proper element to he considered. The availability of the property for a particular use, contributing to its market value, is not to be ignored merely because it has not in fact been applied to that use'. The valuation for condemnation purposes must disregard the effect- of the public project, for which the property is acquired, hut must take into consideration all the uses to •which it is capable of being applied at the time of the appropriation and which affect its marketability. Consolidated G. E. L. & P. Co. v. Baltimore, 130 Md. 20 ; Baltimore v. Carroll, 128 Md. 73 ; Brack v. Baltimore, 125 Md. 378 ; 128 Md. 437 ; Baltimore v. Garrett, 120 Md. 613 ; Callaway v. Hubner, 99 Md. 529 ; Baltimore v. Smith, 80 Md. 458 ; Patterson v. Baltimore, 130 Md. 645 .

Applying the. principles just stated to the present case we think the prayer we have quoted should have been granted. There is uncontrn dieted evidence that the appellant’s building, as now constructed, is specially adapted for use as an apartment house^ and that its availability for such use adds to the present rental and market value of the property. This element of value arises from the existing plan and structure of the building. It is not contingent upon any material change of conditions with respect to the land or the improvements.

It is based upon a practical and present utility which, as the evidence tends to show, directly and immediately affects the value of the property in the open market. The fact that the building has been devoted to a less profitable use than the one for which it is shewn to he specially designed does not preclude the owner from being paid for his property upon the basis of its actual market value for the most profitable use to which it is now adapted. This was the ⁸⁴ theory of the proposed instruction, and we think the appellant was entitled to' have it distinctly stated to the jury. It was not so presented by any of the granted prayer’s.

There were eight prayers offered on behalf of the appellant, three of which were refused, including the one to which we have referred. We find no error in the rulings on the other rejected prayers. The instructions proposed by the city were properly granted. The first was the only one subjected to criticism as to its form.

It instructed the jury that the market value of the property condemned should be estimated as of the time of this proceeding