Conrad v. Department of Natural Resources

Orth, C. J., delivered the opinion of the Court. We are called upon in this appeal to decide if the Circuit Court for St. Mary’s County erred in denying additional compensation in a condemnation action to persons displaced from a dwelling occupied by them. We hold that it did not err. ST A TEMENT OF THE CASE On 7 October 1974 a jury was empanelled in the Circuit Court for St. Mary’s County, sworn and charged to ascertain and determine whether it would be necessary for James B. Coulter, Secretary, Department of Natural Resources, acting for and in behalf of the State of Maryland (the State) to acquire certain property and “to inquire into, ascertain and jointly and impartially value the damages” which Frank Conrad and Waneta Conrad, his wife, and James McLearen and Martina McLearen, his wife (Condemnees) would sustain by its taking.

The jury found that it was necessary for the State to acquire the property and fixed the damages to be sustained by the Condemnees for their fee simple interest and estate in the parcel of land and improvements thereon in the amount of $15,000. Judgment nisi against the State in favor of Condemnees in the sum of $15,000 was ⁴⁸¹ entered on 7 October and final judgment on 14 October. This judgment is not challenged. It appears that following the return of the inquisition by the jury, Condemnees moved in open court that they be awarded $4,000 as displaced persons as was allowed by law.

On 13 January 1975 they filed a Motion for Additional Payment. The Motion was heard on 6 March and denied by order of the court on 26 May. The appeal of Condemnees from that order is before us. THE FACTS The record on this appeal is a statement of the case prepared by the parties with the approval of the lower court and filed with the clerk thereof as authorized by Maryland Rule 1026, § e. 1 As this statement supersedes, for the purposes of appeal, all parts of the record other than the judgment from which the appeal is taken and any opinion of the lower court, we set it out. “On or about the 5th day of June, 1967, Spencer P. Ellis, Director, Department of Forests and Parks, acting for and on behalf of the State of Maryland, filed a condemnation action in the Circuit Court for St. Mary’s County, Law No. 3849, ⁴⁸² against Frank Conrad and Waneta Conrad, his wife; James McLearen and Martina McLearen, his wife; and Edward J. Spence and Claudine Spence, his wife, for the condemnation of the property in these proceedings, being Lots 25 and 26, Block 31, as shown on the plat of Point Lookout, in Liber JMM No. 5, Folio 341.

The land condemned was improved by a one story frame dwelling. The defendants, Frank Conrad and Waneta Conrad, his wife, and James McLearen and Martina McLearen, his wife, have occupied and used the dwelling in question since the time of purchase, as a second home. The property condemned was acquired by the named defendants by deed from May Harris, widow, sole heir and administratix of the Estate of Frank W. Dowling, dated June 29, 1964, and recorded among the land records of St. Mary’s County, Maryland, in Liber 114, at Folio 119, and the interest of the defendants, Edward J. Spence and Claudene Spence, his wife, was conveyed to the defendants, Frank Conrad and Waneta Conrad, his wife, by deed dated the 28th day of March, 1967, recorded the 14th day of April, 1967, in Liber 133 at page 68, one of the Land Records of St. Mary’s County, Maryland, a photocopy of said deed being attached to this Statement of the Case. Before the trial of the condemnation case, Spencer P. Ellis resigned as Director of the Department of Forests and Parks, and James B. Coulter, Secretary, Department of Natural Resources, became the plaintiff. [2] ⁴⁸³ The case was tried on October 7, 1974.

At the trial Joe Plochek, Assistant Director of Program Open Space, Department of Natural Resources, testified in behalf of the State. The statement of the case set out verbatim portions of his testimony obtained on direct and cross-examination. We give a compendium His duties were “to coordinate the land acquisition for the state areas under natural resources, and also to coordinate the development of the state areas with the Department of Natural Resources.” He was familiar with the Point Lookout State Park project. An appropriation was obtained from the General Assembly in 1962 — “[g]eneral construction loan, 1962, Forest and Parks” — and the first parcel of land in Point Lookout was purchased 15 November 1963.

The Department of Natural Resources adopted Program Open Space. “It took over the acquisition program that was started under general construction, loan money” prior to 1971. “It’s just a new . . . funding process in 1969 they went on the acquisition program went on to the transfer tax money which took it out of general construction loan money, bond money.” The statement of the case continued: “An inquisition condemning the property was ⁴⁸⁴ returned on the same date in the amount of $15,000.00 Following the return of the inquisition, a motion was made in open Court by the defendants that they be awarded payment in the amount of Four Thousand Dollars ($4,000.00) as displaced occupants, under the provisions of Section 12-204(b)(l) of the Real Property section of the Annotated Code of Maryland. The defendants had not acquired a comparable replacement dwelling.” Waneta Conrad, one of the Condemnees, was called to testify in their behalf on the motion. A verbatim transcript of her testimony was given in the statement. We summarize it.

She and the other Condemnees “personally” owned the property condemned. She, “as owner, occupied that property for more than ninety days prior to the condemnation. . . .” She had ascertained the rental value of the property. “[T]here is nothing that rents cheaper than a hundred dollars a week, and I figure we could get one twenty-five [per week] for the twenty seasonal weeks . . .” from May through October. That period was the normal rental season for recreational property. She had investigated other units in the neighborhood and was satisfied that the fair rental of her property was $125 per week.

The Condemnees were claiming the rental value “rather than going into another property.” The statement of the case continued: “The Court took the motion of the defendants for additional payment under advisement. The condemnation award was paid to the Clerk of the Court on or about January 7, 1975, and the plaintiff acquired title to the defendants’ property. The defendants on January 13, 1975, filed a motion for additional payment, pursuant to the provisions of Section 12-204 in the amount of Four thousand dollars ($4,000.00) and of payment of Four Hundred Dollars ($400.00) moving expenses, pursuant to the provisions of Section 12-205, and a pro rata portion of the land taxes in the amount of Eighty-seven dollars and eighty-seven cents ($87.87), pursuant to ⁴⁸⁵ Section 12-110 (a) and (c). The defendants further moved that they be awarded interest in the amount of Two Hundred and twenty-five dollars ($225.00) to cover interest at the legal rate from October 7, 1974, the date of the inquisition, through January 7, 1975, the date of payment into Court.

The Court by its Order dated May 26, 1975, denied the defendants’ motion for additional payments under Section 12-204 (a); the defendants’ motion for additional payments under Section 12-205 (a) (1); and the defendants’ motion for payment of interest.” 3 THE LAW Additional payments to displaced 4 persons are provided under two sections of the Real Property Article. Section 12-202 states that a public or private agency shall make such payments, but § 12-203 places a limitation thereon. “The additional payment authorized by § 12-202 shall be made only to a displaced person who purchases and occupies a replacement dwelling which is decent, safe, and sanitary. . . .” Section 12-204 (a) prescribes: “[T]he public or private agency shall make a payment to or for any displaced person displaced from any dwelling and not eligible to receive a payment under § 12-202, if the dwelling actually and lawfully was occupied by the displaced person for not less than 90 days prior to the initiation of negotiations for ⁴⁸⁶ acquisition of the dwelling.” 5 Real Prop. Art. § 12-201 (h) defines “public agency”: “ ‘Public agency’ means the state, a political subdivision, or any of their agencies, boards, or commissions having the right to acquire land for public purposes through the use of eminent domain or by negotiation. The term does not include the Department of General Services if acquiring land for Program Open Space or any political subdivision, other than Baltimore City, Baltimore, Anne Arundel and Montgomery counties, the Board of Education of Montgomery County, the board of trustees of Montgomery College or any board or agency of any of them, or any agency, board, or commission of the subdivision when acquiring property for a public purpose for which relocation assistance is not required by federal law.” 6 (emphasis added) The provisions of § 12-201 (h) came into their present form through Acts Í973, ch. 696, effective 1 July 1973, and ch. 578, approved 21 May 1973 and effective from date of passage, and Acts 1974, ch. 12, § 2, generally effective 1 July 1974. 7 Code, art. 21, § 12-201 (a), read: ⁴⁸⁷ “The term ‘condemning authority’ shall mean the State, a political subdivision or any agency thereof, or any board or commission having the right to acquire land for public purposes by eminent domain proceedings, and any public or private utility company, railroad or other organization, body or agency having the right to acquire land for a public purpose through the use of eminent domain.

This term shall not include any political subdivision other than Baltimore City or any agency thereof, or any board or commission when acquiring property for a public purpose and such purpose is not wholly or partially financed by federal funds.” Chapter 696 of Acts 1973 rewrote subsection (a) of art. 21, § 12-201. Under the heading “Condemning authority”, it defined “Public Agency” in paragraph (1) and “Private Agency” in paragraph (2). It added the provision: “The term [public agency] does not include the Department of General Services if acquiring land for Program Open Space . . . .” Acts 1974, ch. 12, § 2, adopting the Real Property Article, codified as its § 12-201 (h) the former art. 21, § 12-201 (a) (1), making only changes in style. 8 Fifteen years ago the General Assembly enacted legislation with the expressed intent to provide a means whereby any county or city, or the State Department of Forests and Parks may acquire by purchase and otherwise, and through the expenditure of public funds, the fee or lesser interest in real property “in order to preserve, through limitation of their future use, open spaces and areas for public use and enjoyment.” Preamble, Acts 1960, ch. 63. It declared, § 1, codified as art. 66C, § 357A (a): “The acquisition of interests or rights in real property for the ⁴⁸⁸ preservation of open spaces and areas constitutes a public purpose for which public funds may be expended or advanced.” An open space or an open area was defined to be any space or area characterized by great natural scenic beauty or whose existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding urban development, or would maintain or enhance the conservation of natural or scenic resources.

The intent and purpose of the legislation remained steadfast through amendments and revision. See Nat. Res. Art. § 5-1201 and S 5-1202.

In 1970 the General Assembly declared there was a need for a program to make funds available to State agencies and subdivisions in order to expedite the acquisition of outdoor recreation and open space areas “before the escalating cost of land prevents its purchase for public use and before potential areas are devoted to some other use” and “to accelerate the development of needed outdoor recreation facilities. Acts 1970, ch. 606, codified as art. 66C, § 357B (a), under the subtitle “Program Open Space”. In effectuating the purposes of § 357B, the General Assembly had established a funding program the previous year. Acts 1969, ch. 403, authorized the creation of a State debt of sixty million dollars to be known as the “Outdoor Recreation Land Loan of 1969” or “Program Open Space”.

See art. 66C, § 357B (c). Section 5 (b) of ch. 403, Acts 1969, provided that one-half of the funds available be appropriated by named State agencies, one of which was the Department of Forests and Parks. “These funds shall be used for State acquisition projects.” Section 11 of the Act designated, for the fiscal year 1970, the allocation of the funds appropriated by § 5 (b). Under the heading “State Parks”, item (4) allocated $191,000 for “Point Lookout (St. Mary’s County: Land Acquisition (approximately 191 acres)).” Subsequent amendments of art. 66C, § 357B were in furtherance of the purpose of the legislation, and the revision leading to the repeal of the law by Acts 1973, 1st Sp. Sess., ch. 4, § 2, effective 1 January 1974, made, in the main, only stylistic changes.

The Program ⁴⁸⁹ Open Space provisions now appear in Nat. Res. Art. §§ 5-901 to 5-907. Originally, the Program Open Space legislation, in apportioning the funds, included the Department of Forests and Parks as one of the State agencies to share in one half of the funds available under the Program to be used for acquisition projects.

Code, art. 66C, § 357E (a). Acts 1972, ch. 626, designated former § 357E as § 357D and rewrote it. As rewritten, the State agencies specified to receive one half of the funds available under the Program, to be used only for land acquisition projects, were the Department of Natural Resources and the St. Mary’s city commission. Art. 21, § 357D (a).

As revised by Nat. Res. Art. § 5-903 (a), it reads: “One half of the funds available under this program shall be used for recreation and open space purposes by the department and the St. Mary’s City Commission.” 9 As we have indicated, note 2, supra, the Department of Forests and Parks was made a part of the Department of Natural Resources by Acts 1969, ch. 154, effective 1 July 1969. By ch. 348, Acts 1972, the legislature made clear the role of the Department of Natural Resources by adding a third paragraph to Code, art. 66C, § 343 (now Nat.

Res. Art. § 5-201 (b) with stylistic changes) declaring: “From and after July 1, 1972, all rights, powers, duties, obligations, and functions heretofore conferred upon or exercised by the Department of Forests and Parks shall be transferred to and exercised by the Department of Natural Resources; and all references to the Department of Forests and Parks appearing in this Code, in other laws of the State, or in ordinances, resolutions, rules, regulations, legal actions, directives, or documents, shall be deemed to mean the Department of Natural Resources.” By Acts 1969, ch. 403, § 9, codified as art. 78A, § 19A (a), a Land Acquisition Division was created under the ⁴⁹⁰ Department of Public Works with the direction: “Land for State projects funded under . . . ‘Program Open Space’ shall be acquired exclusively by this Division. The Land Acquisition Division is charged with the sole responsibility to acquire land for State projects funded under . . . ‘Program Open Space’. . ..” 10 By Acts 1970, ch. 97, § 3, the Land Acquisition Division was removed from the Department of Public Works and placed under the Department of General Services. Section 19A (a) of art. 78A was enacted in its present form by Acts 1972, ch. 72, passed as an emergency measure, approved 17 April 1972 and effective from the date of its passage.

It reads, in part pertinent to our inquiry: “There shall be a land acquisition division under the Department of General Services. Land for all public improvements . . ., including those State projects funded under . . . ‘Program Open Space’ shall be negotiated exclusively by this division; and all State acquisitions shall be made in the name of the using State agency or in the name of the principal department of the State government of which the using agency is a constituent part. ... All eminent domain proceedings filed by the State of Maryland in the name of a director or secretary and now pending in the courts of the State shall be valid, legal and effective without the necessity of joining the Secretary of General Services as a party to each proceeding.” * 11 The power of eminent domain is a prerogative of sovereignty limited by § 40, Art. Ill of the Constitution of Maryland. 12 Boswell v. Prince George’s County, 273 Md. 522 , ⁴⁹¹ 530 (1975); Ridings v. State Roads Comm’n., 249 Md. 395, 399 (1968). Real Prop.

Art. § 12-207 (i) provides: “If any interest in land is to be acquired by exercise of the power of eminent domain, the public agency concerned shall institute a formal condemnation proceeding.” Md. Rule U4, § a requires: “A proceeding for condemnation shall be brought by the State, municipal or other corporation, commission, board, body or person seeking to have the property condemned, . . . .” Summ,ary of the Law In 1960 the Department of Forests and Parks received legislative authority to acquire land in order to preserve open spaces and areas for public use and enjoyment. In 1969 the Department of Forests and Parks was made a part of the Department of Natural Resources. In that year, also, the legislature established a funding program for the acquisition of land under Program Open Space, and a Land Acquisition Division was created under the Department of Public Works to acquire land for State projects so funded. Some of the funds were allocated for the acquisition of land by the State at Point Lookout and were made available to the Department of Forests and Parks.

In 1970 legislation was enacted implementing Program Open Space, and the Department of Forests and Parks was again designated as one of the agencies to which funds to acquire such land were available. In 1970 the Land