Davis v. Board of Education

Sloan, J., delivered the opinion of the Court. This case was here before, when the defendant (appellant) contested the right of the petitioners, the Board of Education of Anne Arundel county, to condemn the easement or right of way described in the petition. Davis v. Board of Education, 166 Md. 118 , 170 A. 590 . Now the appeal is from an order of the trial court extending to judgment a verdict of one cent in favor of the defendant, and ordering a judgment entered in favor of the plaintiff (appellee) “for the right, interest and estates of Gertrude Lee Davis in and to the property ⁷⁶ or easement mentioned in these proceedings.” See Black v. Union News Printing Co., 167 Md. 610 , 175 A. 843 .

The petition was in the usual form for the exercise of the right of eminent domain under article 33A of the-Code (section 1 et seq.). After the decision in 166 Md. 118 , 170 A. 590 , the case went to trial, resulting in a “verdict finding for the defendant damages assessed at (one cent).” The docket entries so remained from July 12th, 1934, until August 8th, when the owner, defendant, “move(d) for judgment for the defendant,” on the theory, developed in the argument on appeal, that the formal granting of the motion as made short on the docket would finally decide all issues involved in her favor. The motion was granted, but was translated into proper form of a judgment for the plaintiff board of education for the property mentioned in the proceedings, and for the defendant for one cent damages, the value which the jury put on the easement condemned. No exceptions were taken to the verdict, nor motion for new trial or in arrest of judgment entered, although provision for all or any of these steps are preserved by section 11 of article 33A of the Code. 1 Poe, PI. & Pr., sec. 757..

After the jury is sworn, the next step is a view of the property, and it is then provided by section 9 of article 33A: “After said view, and the jury has returned to. said Court, the trial of the issues of law and fact in the-case, relative to the right to condemn said land, and the damages which will be occasioned to the defendant owner or owners thereof by the taking, use and occupation thereof by the petitioner,, and the amount of just compensation therefor to each defendant, and of all other-issues which may properly arise in said case, shall be proceeded with before said Court and jury in the same manner and under the same rules of law and practice, pertaining to the admissibility of evidence, the instructions of the Court, and all other matters arising under-said proceedings, as in other civil cases, except as herein otherwise provided.” ⁷⁷ Under this section the burden is on the petitioner to establish its right to condemn (Kenly v. Washington County R. Co., 129 Md. 1, 7 , 98 A. 232 ), and, in the aosence of any evidence in the record, or of a prayer to the contrary, the presumption is that there was legally sufficient evidence to support the judgment of the court (Jones v. State, 118 Md. 67, 72 , 83 A. 1100 ; Steil Brewing Co. v. Wash., B. & A. E. R. Co., 120 Md. 419, 427 , 87 A. 838 ; Earle v. Keating, 127 Md. 697 , 97 A. 880 ; Corkran, Hill & Co. v. Fruman, 144 Md. 257, 260 , 124 A. 878 ; Victory Sparkler Co. v. Francks, 147 Md. 368, 372 , 128 A. 635 . The last paragraph of section 11 says that, “upon any such verdict becoming final, if the same shall be for the defendant, upon the right to condemn, the Court shall forthwith enter a judgment in said case for the defendant with costs, but if said verdict shall be for the petitioner on the right to condemn and assessing damages to the defendants, the said Court upon said verdict shall forthwith enter a judgment in favor of each defendant against the petitioner for the amount of damages or compensation awarded to each of said defendants by the verdict of said jury and his proper proportion of the costs.” Williams v. N. Y., P. & N. R. Co., 153 Md. 102 , 137 A. 506 . In this case there was no formal verdict for the petitioner on the right to condemn, and such a judgment could