Bouton v. Potomac Edison Co.

Cole, J., delivered the opinion of the Court. This case represents chapter two in the dispute between the Potomac Edison Company and Donald M. Bouton and his wife over the Company’s attempt to acquire by eminent domain an easement for the route of an overhead electric transmission line. We are asked to determine whether the Court of Special Appeals erred when it remanded the case, without affirmance or reversal, to the trial court for further proceedings on the grounds that the question of the Company’s right to condemn should not have been submitted to the jury. Chapter one began when the Potomac Edison Company (Company) applied for a certificate of public convenience and necessity from the Public Service Commission (PSC) for the ³⁰⁷ construction of a line to run from the Company’s Carroll Station in Carroll County to its proposed Mt.

Airy Station in Frederick County. Such a certificate is a prerequisite to the exercise of the Company’s right of eminent domain. Maryland Code (1957, 1975 Repl. Vol., 1979 Cum.

Supp.), Art. 78, § 54A. As proposed to the PSC, the relevant portion of the line, which constitutes only a small portion of the total, would have passed through a heavily wooded area belonging to Daniel Mater along a path approximately parallel to the property line between the land of Mater and that of Izaak Walton League. Located on the League property, but immediately adjacent to the Mater property, was a Boy Scout pond. After passing through this area, the proposed line would have exited the wooded area at the property line between the lands of Mater and Bouton and passed through a relatively small corner of the Bouton property.

The PSC granted the certificate to construct the proposed line by its order No. 61016 dated November 13, 1974, but subjected the proposed route to certain modifications only one of which, paragraph 2 (g), is relevant here: That with respect to the area where the proposed transmission line passes in the vicinity of the Boy Scout Camp, the Company be required to make a modification of its proposed line routing so as to place approximately an additional 100 feet between the transmission line and the pond; the movement of the line, in order to effectuate this modification, should be confined to and remain within the wooded area southwest of the pond .... In response to the PSC order, the Company planned a modified route and filed a petition for condemnation consistent with its modified plan in the Circuit Court for Frederick County. The trial court granted summary judgment in favor of the Company on the right to condemn and submitted the question of damages to a jury which awarded Bouton $24,200. Pending appeal by Bouton, the Company deposited the amount of the jury verdict with the court, ³⁰⁸ posted the required bond, and constructed the line.

We remanded without affirmance or reversal because the trial court never passed upon the question of whether the modified line route conformed to the PSC order. We said We believe that the true issue in this case is whether the modified line route (the basis for the easement here sought) was in conformance with condition (2) (g) of the Commission order granting the certificate of public convenience and necessity (the prerequisite to the exercise of the Company’s right of eminent domain).... if the modified line route did not conform to the order, the Company would have no authority under its right of eminent domain to obtain an easement based upon the improper line route. [Bouton v. Potomac Edison Co., 282 Md. 142 , 383 A.2d 669 (1978).] On remand, in the trial court, both sides filed motions for summary judgment which were denied and the case was submitted to the jury. The jury found that the modified route did not comply with the PSC order and judgment was entered for Bouton. The Company appealed to the Court of Special Appeals which remanded without affirmance or reversal holding that the case should not have been submitted to the jury on the issue of whether the easement sought was in compliance with the PSC order because questions relating to the right to condemn are not for the jury, but for the court.

Potomac Edison Co. v. Bouton, 43 Md. App. 371 , 405 A.2d 755 (1979). The appellant, Bouton, contends that it was not error to submit the case to the jury. In the alternative, he contends that even if such action constituted error, it was harmless because the trial court should have granted either his motion for summary judgment or his motion for directed verdict. The appellee urges us to affirm the Court of Special Appeals’ holding that whether the Company had the right to condemn the modified route was not a question for the jury. ³⁰⁹ We agree with the Court of Special Appeals that the question of whether the modified route complied with the PSC order should not have been submitted to the jury.

At common law there was no right to an ordinary jury trial in condemnation cases, even on the issue of damages. 1 Nichols’ The Law of Eminent Domain § 4.105 [1] (rev. 3d ed. 1973). Condemnation proceedings were not ordinary suits at law. Rather, they were special proceedings, lacking the characteristics of ordinary trials, brought pursuant to the power of eminent domain, a power derived from the sovereignty of the state. See Lore v. Board of Public Works, 277 Md. 356 , 354 A.2d 812 (1976); Ridings v. State Roads Commission, 249 Md. 395, 399 , 240 A.2d 236 (1968); 1 Nichols’, supra at §§ 1.1-1.3; See generally J. Ghingher, Jr. and J. Ghingher, III, A Contemporary Appraisal of Condemnation in Maryland, 30 Md. L. Rev. 301 , 322 (1970).

It was often the practice to refer questions of damages to a commission of viewers or appraisers, usually three or five in number. Even where it was the customary practice to submit the issue to the jury, that jury was not the common law jury of twelve presided over by a judge, but was a jury of varying number depending on the jurisdiction, and was presided over by the sheriff. 1 Nichols’, supra at § 4.105. Maryland apparently was among those states which, early in its history, provided for a sheriffs jury to fix damages for the taking of land for certain purposes. Baltimore Belt.

R.R. Co. v. Baltzell, 75 Md. 94 , 23 A. 74 (1891); Barnett v. Charles County, 206 Md. 478 , 112 A.2d 492 (1954); L. Macht, Condemnation in Maryland 18, Research Report No. 31, Submitted August, 1958 (Legislative Council of Maryland). For these reasons Article 23 of the Maryland Declaration of Rights which preserves the common law right to a jury trial in civil proceedings does not include condemnation cases which are special proceedings. Thus, absent specific constitutional or statutory provisions mandating a jury trial, the issues in a condemnation case should be tried by the Court. 1 Nichols, supra § 4.105[5] at p. 4-119. In Maryland, Article III § 40 of the Constitution ³¹⁰ mandates the issue of damages be tried by a jury, 1 and consistent with our previous discussion, the issue of the right to condemn has been for the court’s determination.

This rule has received broad application. It has been held applicable to questions relating to whether the plaintiff possessed the general legal authority to condemn any property, Potomac Power Co. v. Birkett, 217 Md. 476 , 143 A.2d 485 (1958); to whether that authority was being exercised in an arbitrary, capricious, or unreasonable manner, Lustine v. State Roads Comm., 217 Md. 274 , 142 A.2d 566 (1958), Johnson v. Gas & Electric Co., 187 Md. 454 , 50 A.2d 918 (1947); and to whether the contemplated taking was for a public use, Riden v. Phila., B. & W. R.R. Co., 182 Md. 336 , 35 A.2d 99 (1933). Accord, Ligon v. Potomac Elec. Pow.

Co., 219 Md. 438 , 149 A.2d 376 (1959); Hyattsville v. W., W. & G. R.R. Co., 122 Md. 660 , 90 A. 515 (1914). The common thread running through these cases was the issue of whether the plaintiff had met certain conditions precedent, absent which there was no right to condemn. It is also clear that Md. Rule U15 was not meant to change the settled law, even assuming that it could. This rule provides that, "[a] proceeding for condemnation shall be tried by a jury unless all parties elect a trial by the court without a jury as hereinafter provided.” Nevertheless, the Committee Note to the Rule states "[n]o change is intended in the present law as to whether the question of the right to condemn is for the court or for the jury.” In other words, the Rule is intended to implement Art. Ill, § 40, which provides for a jury on the issue of the quantum of compensation due.

The present case involves the question of whether the Company complied with the PSC order authorizing it to condemn certain land. This was a matter for the court to decide. Therefore, it was error for the judge to submit the question to the jury. Such error would ordinarily require ³¹¹ remand for determination of the issue by the court; however, for the