Dobler v. Mayor of Baltimore

Digges, J., delivered the opinion of the Court. The plaintiff in this case is the owner of an unimproved lot of ground located in Baltimore City, lying between Fort ¹⁵⁶ Avenue and Clement Street, running from one of these streets to the other, with a frontage on each of 315 feet 5 inches. The lot was acquired by the plaintiff in January, 1920, is rectangular in shape, the depth or distance between Fort Avenue and Clement Street being 466 feet and the frontage on each of these streets being, as stated, 315 feet 5 inches. Fort Avenue was at the time of the purchase of the lot, and still is, an improved, paved street, while Clement Street, in January, 1920, where the plaintiff’s lot abuts thereon, was a dirt street, not graded or paved, although a paper grade of Clement Street had been fixed by the city in 1909.

The record discloses that the plaintiff’s ownership' of the lot of ground in question is in conjunction with William Merriken, the latter having an undivided one half interest therein. Mr. Merriken’s occupation is that of a real estate broker, and prior to the purchase of the lot he had been employed by the real estate department of the Baltimore & Ohio Railroad to purchase or secure options on land lying on Clement Street in the immediate vicinity of the plaintiff’s lot. The Baltimore & Ohio Railroad, in the procurement of land in that vicinity, was acting for the American Sugar Refining Company, which corporation subsequently purchased land and established one of its branches on the opposite side of Clement Street from the plaintiff’s property. About two or three blocks distant from the plaintiff’s land, going west on Clement Street, the Key Highway intersects Clement Street, and at a distance of about 18 feet east of the plaintiff’s lot the Baltimore & Ohio Railroad tracks cross Clement Street, forming what is known as Jones Yard.

At the time he purchased it, the grades of the plaintiff’s lot, Clement Street, and the land to the-north of Clement Street subsequently occupied by- the American Sugar Refining Company, were practically the same; this is to say, the land on both sides of Clement Street was about the same elevation as the bed of the street. The municipal authorities of Baltimore City were of the opinion that the establishment of a branch of the American Sugar Refining Company in the city would be of marked benefit (and their judgment in this respect has been fully vindi ¹⁵⁷ •cated), and, in their negotiations with the officials of the Sugar Refining Company, expressed themselves as being willing to do whatever was legally within their power to make the locality suitable for the business operations of the refining company. The refining company’s property extended from the north side of Clement Street to the Patapsco River. While its property, therefore, had water transportation accessible, and was adjacent to the tracks of the Baltimore & Ohio Railroad, it was an additional argument in inducing them to locate in Baltimore to show that their property could be directly connected with the Pennsylvania Railroad and the Western Maryland Railroad, the other two great railroad systems entering Baltimore.

This could be done by the use of what is known as a belt line railroad, which consists of municipally owned tracks laid along certain streets of the city, so that cars to be loaded or unloaded could be carried directly from any one of the three railroad systems to the factory or place of business of the person or corporation desiring the use of the cars. Iii 1920 the tracks of the belt line extended in Key Highway to the point of its intersection with Clement Street. The grade of Jones Yard, where the Baltimore & Ohio tracks cross Clement Street, was about 20 feet lower than the grade of Clement Street, and in order to extend the belt line railroad from Key Highway east on Clement Street, and also connect with the Baltimore & Ohio Railroad, it was necessary to lower the grade of Clement Street to the level of the Baltimore & Ohio tracks where they crossed or went under the old bed of Clement Street. In doing this it would result in the plaintiff’s lot, as it bordered on Clement Street, being from about 10 to 20 feet above the level of Clement Street as regraded.

The city determined to lower the grade of Clement Street to conform with that of the Baltimore & Ohio tracks, and to improve, pave and better the street, and also to extend the belt line railroad along the street as thus regraded. The highway engineer of the city, in accordance with the law and ordinance governing the same, notified the city surveyor to establish a new grade on Clement Street from Key Highway to Jones Yard, in order to carry ¹⁵⁸ out the contemplated improvement. The city- engineer, in accordance with the provisions of the ordinance, gave notice of the time at which he would re-establish the grade of Clement Street, but before the work was actually done the plaintiff in this case secured a preliminary injunction in the Circuit Court of Baltimore City, from the granting of which an appeal to this Court was taken, where the order granting the injunction was reversed and the bill dismissed. Baltimore v. Dobler, 140 Md. 634 .

The work was then completed by the city about May, 1922. On August 22nd, 1924, the present case was instituted in the Court of Common Pleas by the appellant, who was also the plaintiff in the case in 140 Md., to recover damages for injury occasioned his lot by the regrading of Clement Street. The declaration, after stating the plaintiff’s ownership' of the lot, a description of the same, and the method of his acquisition of title, further alleges: “That, at the date of said conveyance to the plaintiff, Clement Street where it bounds said parcel of land of the plaintiff, was, and for more than ten years had always been, a public street of the said city, and the grade of said street was, and for more than ten years had always been, the same as the grade which had been established by the said City on or about the fourteenth day of October, 1909 ; that to the grade so established the grade of said parcel of land of the plaintiff conformed; that on the northeast side of Olement Street, and directly opposite said parcel of land of the plaintiff, and at an elevation twenty feet lower than that of said parcel of land of the plaintiff is the land of said company, which is improved by a very valuable plant for the refining of - sugar; that within three years before this suit the city wrongfully changed said grade of Olement Street where it bounds said parcel of land of the plaintiff by sinking the bed of said street twenty feet and thereby deprived the plaintiff of the use of his said parcel of land on said street; that this the city did, not for any public purpose, but for the sole and exclusive purpose of sinking the bed of said street from the ¹⁵⁹ level of said parcel of land of the plaintiff to the level of said land of the said company for the private interest, benefit and advantage of said company, and in pursuance of an understanding or agreement between them that said company would establish said plant if the city would so change the grade of said street.” After demurrers to- the declaration had been overruled and issue joined on the general issue plea, the case proceeded to trial and testimony was offered on behalf of the plaintiff in substantiation of the allegations contained in his declaration. At the conclusion of the testimony the defendants offered a general “demurrer to the evidence” prayer, as follows: “The court instructs the jury that there is no evidence in this case legally sufficient to entitle the plaintiff to recover against the defendants, and the verdict must, therefore, be for the defendants.” This prayer was granted by the lower court, to which action exception was taken by the plaintiff, and this constitutes the only bill of exception in the record.

Under the direction contained in this prayer a verdict was rendered for the defendants, and judgment entered upon said verdict for costs. Erom that judgment the appeal is taken. The effect of the ruling of the court on the prayer was to determine that the plaintiff had offered no evidence legally sufficient to entitle him to a verdict, and in determining the correctness of this ruling we are bound to assume the truth of the plaintiff’s evidence. The declaration contains practically the same averments as contained in the bill for the injunction passed upon by this Court in the case of Baltimore v. Dobler, supra.

A number of the allegations in that bill were disposed of adversely to the plaintiff’s contention, because the averments merely stated a conclusion based on information the source of which was not disclosed, and without giving any facts or circumstances sufficient to enable the court to reach its own conclusion. However, it was decided in that case that a change in the grade of a street made by a municipal corporation under statutory authority, where abutting property is rendered more difficult of access, ¹⁶⁰ without, however, destruction of all means of ingress and egress, does not- involve a taking of property within the meaning of the constitutional prohibition of the taking of private property for public use without compensation. In that case Judge Adkins, speaking for the Court, said: “The controlling facts in the case are as follows: 1. There is no physical taking of any part of the lot. 2.

There is no destruction of plaintiff’s easement in the use of the street. 3. There are m> improvements erected on the lot on Clement Street, the reasonable use and enjoyment of which would be destroyed by the proposed regrading. 4. There is a wide front of the lot on another street, so that ingress to and egress from the lot does not depend upon convenient access to Clement Street.” There can be no doubt that the decision in that case is conclusive' and binding on the point that there has been no taking of the plaintiff’s property in the constitutional sense. It is also1 conclusive that the plaintiff’s easement in the use of the street was. not destroyed; and further, that there were no1 improvements on the lot of the plaintiff abutting on Clement Street the reasonable use and enjoyment of which were destroyed; nor was ingress to and egress from the lot so prevented as amount to a taking.

We must consider these matters as res adjudicaba. But the plaintiff in t this case contends that if the municipality had no authority to do the thing it did, the doing of which resulted in injury to the plaintiff, he is entitled to consequential damages therefor; that the unlawful thing, or the thing done without authority, was the extension of the belt line railroad east on Clement Street from Key Highway to the yards of the Baltimore & Ohio Railroad, and that the regrading of Clement Street was incidental to that main and unlawful purpose. There is no need of citation of authority for the proposition that unauthorized acts of the officials and agents of municipal corporations which result in damage to individuals, are compensable; but we do not think that that principle can be applied to the facts ¹⁶¹ in this case, for the reason that we do not have to inquire or determine whether the extension of the belt line railroad along Clement Street was done under valid authority, it being wholly unnecessary for a determination of this case. The injury complained of, for which damages are asked by the plaintiff, grows out of and is alleged to be caused by the lowering of the grade of Clement Street along the line of the plaintiff’s property, and leaving that property, after such lowering, at an elevation of from 10 to 20 feet above the surface of the street.

All of the testimony is to that effect. There is no testimony that the extension of the belt line railroad injured the plaintiff, and no evidence of one cent of damage resulting therefrom. Assuming, then, (without so deciding) that this extension by the city was without legal authority, there could be no recovery in this case, because no damage is shown to have occurred by reason of the doing of the unauthorized act. The whole injury alleged and shown to the plaintiff’s property was occasioned by the lowering of the grade, or the regrading, of Clement Street.

The evidence is that the city had fee simple title to the bed of this street, and it is conceded that the Mayor and City Council have ample authority to establish and reestablish the grades of the streets and alleys of the city whenever in their judgment the public necessity or public convenience requires. Having this authority, if it be1 exercised in accordance