D. C. Transit Systems, Inc. v. State Roads Commission

Smith, J., delivered the opinion of the Court. After instituting condemnation proceedings in the Circuit Court for Prince George’s County against certain land then alleged to be owned by D. C. Transit Systems, Inc. (the Transit Company), appellant, the State Roads Commission (the Commission), filed an amended petition claiming that the Transit Company owned only an easement and naming as additional parties defendant the heirs of the original grantors of the instruments it claimed to have granted the easement. It then filed in the condemnation proceeding a motion for declaratory judgment and other relief. The trial judge (Loveless, J.) signed an order holding that a fee simple title to the various parcels of land was vested in the “unknown heirs, devisees, successors or assigns” of the original grantors and that the fee simple estates were held “clear and discharged of any use or interest of any kind for or on behalf of the defendant, D. C. Transit Systems, Inc.” We shall affirm that portion of the order which held the instruments to have granted an easement rather than a fee simple estate.

We shall remand for further proceedings without affirmance or reversal the finding that the franchise has been abandoned. The Transit Company raises three questions on appeal which may be summarized as: (1) whether the Commission may be allowed to amend its condemnation proceeding filed pursuant to Code (1957), Art. 89B, § 9, after it has taken possession of the land so as to allege that the original defendant land owner does not own the land which it was alleged to have solely owned in the orginal petition; (2) whether the instruments in question granted an easement or a fee simple estate; and (3) whether the easement had been abandoned. ⁶⁷⁸ The land in question was desired for the widening of Rhode Island Avenue. It was said to be a strip with an average width of 60-70 feet running from the District of Columbia line to Farragut Street in Hyattsville. The sum of $74,725.00 was deposited in court.

The Commission took actual possession of the land on November 24, 1967. The original petition, filed on September 26, 1966, alleged ownership in the Transit Company under a deed from The Capital Transit Company recorded in 1956. Hearing on the petition to amend was held on March 12, 1969. The trial judge granted the Commission leave to amend saying in pertinent part: “So I am going to grant the motion to amend with it being fully understood that I, at this time, do not feel that it can go to an ultimate condemnation, as amended, with six to twelve different properties being involved. * * * “I am granting the amendment; you have permission to amend.

I think I have given my reasons for it and I made it clear. I think it would be a waste of time to hear the proper testimony as to this title because I am assuming that it’s there, and I don’t want to pass upon whether it’s good or not. “I am doing this solely in the interest of justice. I feel the State Roads Commission, in the vernacular, goofed in this case and was probably done on a title examination. From experience, as I recall, you would take a deed back twelve years or twenty years, something like that, and if there was nothing to indicate it was to the contrary you would go no further.

I see mentioned .here we are going back into 1895, and so forth, on these various things. So I can see why a title examiner would make such an error. But it has been a goof.” The amended petition alleged title held in fee simple in a number of individuals, seven of which transactions ⁶⁷⁹ are here in issue. Essentially the same language was contained in each of the seven deeds to Columbia and Maryland Railway, a predecessor of the Transit Company.

Typical is the instrument executed by George A. Dorr and wife on June 4, 1896. It reads in pertinent part as follows: “That in consideration of the sum of One Dollar, the said party of the first part do—grant and convey unto the party of the second part, its successors and assigns all the piece or parcel of land situate, lying and being in Prince Georges County, State of Maryland, and particularly described on a plat made by the party of the second part or its agents (the same being a plat of the Rights of way of the said Columbia and Maryland Railway and to be recorded among the Land Records of Prince Georges County) as follows, to wit: Beginning for the same at a point 40 feet distant from the centre line of the right of way of the Columbia and Maryland Railway, being the centre of a street as laid out by the Holladay Company and running thence North 47 degrees East, 690 feet, thence by a line curving to the left of 9678 feet radius parallel to the centre line and 40 feet distant therefrom 45 feet, thence along the northwest branch to a point 40 feet distant from the said centre line on opposite side, thence by a line of 9758 feet radius curving to the right, parallel to the centre line and 40 feet distant therefrom 87 feet, thence south 47 degrees west 800 feet to the Mill Race; thence along the Mill Race to the centre of the said street, thence along the centre of said Street North 36 degrees and 5 minutes East 129 feet to the place of beginning containing 68501 square feet or 1 573/1000 acres, as described on plat No. 11 of said Right of Way. ⁶⁸⁰ “Together with the improvements thereon, and all the rights, roads, ways, appurtenances and advantages thereto belonging or in anywise appertaining. “To have and hold the same unto and to the use of the Columbia and Maryland Railway its successors and assigns for a right of %vay and such other purposes as said Railway Company is authorized under its act of incorporation, the Act of 1892, chapter 388, the Act of 1894 chapter 274, and the General Incorporation Law of this State to acquire, dispose of or deal in real estate.” (Emphasis added.) It then concludes with covenants of special warranty and further assurances. Chapter 383 of the Acts of 1892 noted the formation of Columbia and Maryland Railway; provided the further power to construct the railroad from Washington to Laurel “and thence to the Pennsylvania line by any practicable route which it may select through Prince George’s, Montgomery, Howard and Frederick Counties”; and provided that it should “also have power to purchase, acquire, hold, sell, lease, dispose of and convey real or leasehold property, not exceeding fifty thousand acres, and lay out thereon town sites and erect hotels, elevators or other buildings, and to use and manage the same in any lawful way whatever and to open and work quarries and generally to make such lawful use of its said landed or other property as it shall deem desirable.” Chapter 274 of the Acts of 1894 provided that in addition to its other powers it should have the power to construct and operate a railroad, through the counties of Baltimore, Harford and Cecil. In the motion for declaratory relief the Commission alleged that the various strips of land here under consideration were owned in fee simple by the various grantors to Columbia and Maryland Railway; that D. C. Transit Systems, Inc., “only had a mere right of way”; and that ⁶⁸¹ these various easements “ceased to exist by the abandonment and termination of usage of the tracks and overhead wires by the D. C. Transit Systems, Inc.” The trial judge said in pertinent part: “It is stipulated that these deeds are in the chain of title of the D. C. Transit chain of ownership, and there seems to be no question D. C. Transit is no longer at this time operating a street railway.

Some question exists as to whether some tracks were still in the roadbed at the time the State commenced building there, but there is no apparent question that whether the tracks were in the road or not that the right of way was not being used at that time.- “This allegation has not been denied by the D. C. Transit Company in any of the pleadings and, basically, the D. C. Transit’s opposition to the motion as to declaratory relief is based on technical grounds, and that such questions that the State has raised cannot and should not be raised now, and that there were insufficient exhibits attached to the pleadings.” The “technical arguments” were held “basically moot and without merit”. Prior to the signing of the decree, counsel for the Transit Company proffered to prove that it had made agreements for the use of parts of the strip of land with the Washington Gas Light Company, the Washington Suburban Sanitary Commission, the American Telephone and Telegraph Company, the Potomac Electric Power Company and Prince George’s County. It claimed that A.T. & T. was paying an annual rent, that the Transit Company had “maintained this land, that they have maintained the drains, they maintained the bridges, they have protected it from encroachment”; that the land is assessed on the real estate records of Prince George’s County to the Transit Company “and they have paid taxes on it since 1895, and they currently are assessed for it”; that the Transit ⁶⁸² Company “has considered a use of this right of way for minibus service, that they have considered the use of this-right of way for a monorail system, and that they have-had discussions with the Metropolitan Transit Authority in the District of Columbia as to how to ultilize this strip of land”; and that at the time of the condemnation the land was in use for electrical transmission and a lot of the lines were taken down “to keep them from being vandalized and for salvage rather than any active abandonment”. He concluded with a proffer “to prove by evidence here that there has been no intention on the part of D. C. Transit in any way to abandon the land” without specifying further as to what that evidence would be.

We conclude upon the authority of Concannon v. State Roads Comm., 230 Md. 118 , 186 A. 2d 220 (1962), that the order here was an appealable final order since, paraphrasing the language of Chief Judge Bruñe in that case, the Transit Company is deprived of the means of proceeding further to enforce the right which it asserts. I. The Transit Company sees Concannon v. State Roads Comm., 231 Md. 87 , 188 A. 2d 700 (1963), as being authority against the amendment the Commission here-sought. It might well have also cited State Roads Comm. v. Lancaster, 248 Md. 154 , 235 A. 2d 729 (1967). In each of those cases the Commission sought to amend the petition and plats in a “quick take” situation after it had already entered into possession.

In other words, the Commission was seeking to change the boundaries of the land it was acquiring after entering into possession. As JudgeSybert said for the Court in Concannon, at page 93, and as Chief Judge Hammond quoted from Concannon in. Lancaster , “The statute does not vest the Commission with authority to change or abandon its plans to acquire what the recorded plats show after construction begins.” (Emphasis in original.). The Court went on in Concannon to say: . “We. therefore conclude that a. taking of part of ⁶⁸³ the property and easements delineated on the original plat as intended to be taken was an appropriation of the whole, so that the Commission may not now unilaterally return unused portions to the owner and by that device effect a diminution of the ultimate award to the property owner.” Id. at 94.

Here we do not have an attempt after the taking to change the amount of land to be taken, but an addition of parties. One might infer that the Transit Company is under the impression that payment of the estimated damages into court in some way vests it with title to that sum as the named defendant. That such is not the case can readily be perceived when it is noted that Code (1957), Art. 89B, § 9, provides that if payment of the sum is made to the property owner, he must agree “to pay back to the State Roads Commission the difference between said sum and the final award, if such final award be less than the sum paid into court.” It is elementary that the condemnor in a condemnation proceeding obtains only such title as was owned by the parties to the condemnation proceeding. See Nichols on Eminent Domain, § 5.2 [2] (Rev. 3rd ed.

(Sackman). 1965), which states: “If the wrong person is designated as owner and is paid the award and the real owner is not made a party, the proceeding is not res adjudicata as against the latter, and he may recover compensation from the condemnor before his land can be lawfully occupied. When, however, the land of unknown owners is condemned, and after a lapse of several years a claimant appears and obtains the award by a decree of the court, the only remedy of the true owner is an action against the first claimant for money had and received.” ⁶⁸⁴ In other words, the Commission could not obtain from the Transit Company a fee simple title to land in this proceeding if the Transit Company owned only an easement. Maryland Rule U3 provides for condemnation proceedings to “be governed by the rules of procedure and evidence applicable to other actions at law” except as otherwise specified in that subtitle. There is no provision in that subtitle which would appear to forbid the amendment here sought.

Maryland Rule 320 a 1 provides for courts to permit amendment to “any of the proceedings” to the end “that the case may be tried on its merits.” In Concannon, 230 Md. 118 , although observing that the Court was not at that time passing upon the merits of the controversy relative to the right to amend but only on the motion to dismiss, Chief Judge Bruñe at page 123 said for the Court, “[E]minent domain proceedings can be amended at the instance of the condemnor so long as there is no prejudice to any substantial right of the property owners.” In United States v. 1.44 Acres of Land, etc., Montgomery Co., Md., 304 F. Supp. 1063 (D. Md. 1969), the federal government initially alleged ownership of land in fee simple by the same Transit Company. That case was brought under the federal “early taking” statute and an advance taking was ordered in July of 1966. Much later the government sought to amend to show that the Transit Company had been possessed of an easement which had been abandoned and that the full interest was in third-party owners of the fee. Judge Northrop permitted the amendment under Rule 71A (c) (2) of the Federal Rules of Civil Procedure which provides in pertinent part: “Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property, the plaintiff shall ⁶⁸⁵ add as defendants all persons having or claiming an interest in that property whose names can be ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interests to be acquired, and also those whose names have otherwise been learned.” Our Maryland Rule U6 requires that the petition contain. “[t]he names of all