Brack v. Mayor of Baltimore

Boyd, C. J., delivered the opinion of the Court. This is the second appeal in proceedings instituted by the Mayor and City Conned of Baltimore in the Circuit Court for Baltimore County to condemn certain lands of Henry L. Brack in connection with its water system in the valley of the Gunpowder River, in Baltimore County. Mr. Brack and Emma Brack, his wife, were made defendants. The jury found by their inquisition that it was necessary for the petitioner to acquire the land and premises described in the amended petition, for the purposes therein specified, and fixed ⁴³² the damages at $7,500.00, upon the payment of which “the-title to said tract of land described in said amended petition shall be and become vested in the said Mayor and City Council of Baltimore in fee, subject to the right of way mentioned in the petition filed in these proceedings.” The appellants rely on (1) their demurrer to the amended petition, which was overruled by the Court, and on (2) the exceptions to the rulings of the Court on the evidence.

All of eight prayers offered by the City and four offered by the appellants were conceded, and hence no questions arise as to-them. First. The demurrer to the amended petition was on the-ground that -the condemnation of the property mentioned in said proceedings in the manner set forth in the third and fourth paragraphs of said petition will not give the Mayor and City Council of Baltimore the title to said property required by the terms of the Act of 1908, Chapter 214. The-amended petition asked for the condemnation of 22.15 acres of land described in it in fee simple, subject to a reservation in perpetuity to the defendants, their heirs, assigns, or owners, of the farm of the defendants shown on the plat annexed to the petition, or any portion thereof, to a right of way for ingress and egress for all purposes of a roadway over the said 22.15 acres and across Peterson’s Bun, substantially following the same location as the present roadway shown on the plat.

It is contended that the City could only acquire a fee simple title to the property thus condemned and could not have the right of way reserved over the property. The theory of the appellants is that by condemning this tract in fee simple the portion of the farm on which the improvements are-located would be cut off from the public road and rendered useless, and that the reservation of the right of way was cal-' culated to prevent the real situation from becoming apparent to the jury, which resulted in inadequate compensation being allowed. ⁴³³ As is shown by the opinion in Brack v. Mayor, etc., of Baltimore, 125 Md. 378 , the farm of Mr. Brack, in which Mrs. Brack is only interested as his wife, consists of 190 acres. The property taken lies along a stream called Peterson’s. Rim.

The tract condemned in the first proceeding contained 44 acres, but after that case was remanded the petition was amended so that the land to be taken was reduced to 22.15 acres, which include 14.5 acres, which will be permanently flooded, and the additional acreage which may be occasionally flooded in periods of high water. The land proposed to be taken will divide the remainder into two disconnected tracts. The buildings are located on the part of the farm on the easterly side of Peterson’s. Run, and there is a. roadway which leads to a public thoroughfare west of the farm.

There is a bridge over the Run not far from the point where the stream enters the farm, which is a part of the roadway. The City has constructed a dam across the Gunpowder River, into which river Peterson’s Run empties, below the property of the appellants, to an elevation of 188 feet above mean tide and it is its- purpose to erect on the dam flash-boards to an elevation of four feet, thus making the dam with the flash-boards 192 feet above mean tide, which will interfere with the use of the road and bridge now there at their present level. In the former appeal the property was condemned “subject to the obligation upon the part of the Mayor and City Council of Baltimore to construct a suitable bridge over Peterson’s Run, and a suitable road from each side of the bridge to the outlines of the property sought to be condemned, along the line of the present way,” etc. Jr doe T7b5tkr, who delivered the opinion in that case, after referring to P. R. R. Co. v. Reichert, 58 Md. 261 , and Russell v. Zimmerman, 121 Md. 339 , as well as a number of authorities outside of this State, said: “In a case like the present, where part of the farm on which the buildings are located is apparently dependent for an outlet upon the roadway over the portion of the land which is being, condemned, it seems entirely reasonable that the way should be preserved, ⁴³⁴ if-.possible, in order to promote the convenience of the landowner and to reduce the extent of the consequential injury to the property. But as the defendant is objecting to the provisions which seek to accomplish that result, and as he is entitled to assume such a position by virtue of the rule stated in the decisions of this and other Courts, we are unable to sustain the inquisition in its present form.

Upon the remanding of the case it may be practicable to restrict the interest or area to be acquired, or modify the terms of the condemnation, so as to avoid the difficulty now presented. The brief of the appellee suggests that the objection could be obviated, and there is ample authority to. permit an amendment for that purpose. Code, Art. 33A, sec. 4.” In the proceeding now before us evidence was offered by both parties as to the cost of a bridge and embankment, and us the jury were unquestionably authorized to consider those costs in awarding the damages, they presumably did so. We see no valid reason why a reservation of the right of way ■over the land condemned should not be allowed, as was done.

A bridge and roadway were already there and as they would be rendered useless, or practically so, by reason of the in•creased height of the water, it was proper that the owner should be paid for them, and we do not understand why the City should not be permitted to condemn the property subject to the right of way. Such right of way will not interfere with its use of the property for the purposes intended, and it would be not" only unreasonable, but useless to require the City to take the entire part of the farm on the easterly side of the run. If it had attempted to do so, it might well have been met with the objection that it was not necessary. The owner is not required to build a new bridge and embankment, but he will get the money allowed by the jury to do with it as he sees proper.

The prayers which were conceded,- told the jury what damages they could allow, and there is no reason why the jury should have failed to understand the situation precisely as it existed. In this proceeding the City is not obligated to build the bridge and road, ⁴³⁵ but the owner is paid in money for them and the right of way is reserved. The Legislature can not be supposed to have intended to prohibit the City from condemning property so situated subject to a reservation of a right of way in the place of the roadway already existing. Although section 1 of Chapter 214 of the Acts of 1908 provided that property acquired for certain purposes named in that Act should be in fee, the new Article of t-ho Code on Eminent Domain, 33A, as adopted by Chapter 117 of the Acts of 1912, and subsequently amended by Chapter 463 of the Acts of 1914, expressly provided that the State and any municipal or other corporation, etc., which has the right to acquire property by condemnation, shall acquire it, if condemnation proceedings be resorted to, “in pursuance of, and under the provisions of this Article, anything in any other Public General Law or Public Local Law, or private or special statute to the contrary notwithstanding,” except in proceedings for the opening, closing, etc., of highways.

Then section 12 of Article 33A provides that, “The title so acquired in any condemnation proceeding under this Article shall be an absolute or fee simple title, and shall include and be all the right, title and interest of each and all the parties to the proceedings, whose property has been so condemned, unless otherwise specified in the judgment of coridemnation.” That is practically the same as it was in section 5 of the Act of 1912, and the proceeding to condemn the appellant’s property was begun after that Act went into effect—the amended petition having been filed after the Act of 1914 was passed. There is, therefore, nothing in the statute which prevents the City from taking less than a fee simple title, if it be conceded that this reservation of the roadway had the effect of reducing or qualifying the fee. The demurrer was properly overruled. Second.

This brings us to the exceptions taken. Ezra B. Whitman having testified as to the necessity for the taking of the property sought to be condemned, its physical condition and other matters, on crossr-examination, after saying that the dam was 188 feet high, and that flash-boards will ⁴³⁶ raise it four feet, he was asked: “It-would he perfectly possible to have flash-boards that would raise it six feet, wouldn’t it and replied, “That is possible, yes.” He was then asked: “If you had flash-boards, if the City would sometimes take a notion to put flash-boards six feet high there, they could do it?'” That was objected to and the objection was sustained—the Court saying: “It is manifest to the jury if you put a flash-board six feet or eight feet high, or ten feet high, that you will back the water up that much higher, and encroach more and more on Mr. Brack’s land than you do in this proceeding. That is simply another proceeding of Mr. Brack’s for damages. We are not trying that case.” The appellant excepted to that action, which constitutes the first bill of exceptions.

The learned judge below correctly sustained the objection to the question. The amended petition shows that it was the purpose of the City to raise the dam by flash-boards to an elevation of four feet, thus making it 192 feet above mean tide, and the jury by the inquisition found that it was “necessary for the petitioner to acquire said lands and premises, and that the damages' to be sustained, by the said Henry L. Brack and Emma Brack, his wife, by the taking of said land described in the amended petition for the purposes therein specified, at the sum of $1,500.00.” Inasmuch as the extent of the flooding of the appellants’ land must necessarily depend upon the height of the dam, and as the petition in terms stated the purpose, namely to raise the dam to 192 feet by flash-boards, there can be no doubt that the City by this condemnation is limited to the 192 feet, at least it would not be justified in raising the same beyond that height if it affects any land or rights of the appellants not taken by this condemnation, unless, of course, it acquires the right to do so in some other way than by this