Friendship Cemetery v. City of Baltimore

Delaplaine, J., delivered the opinion of the Court. Friendship Cemetery of Anne Arundel County, a Maryland corporation, and Norman W. Clark and his wife, owners of a lot in the cemetery, petitioned the Circuit Court for Anne Arundel County for a writ of Mandamus to compel the Mayor and City Council of Baltimore and the members of the Airport Board of the City Department of Aviation to condemn the cemetery for the Friendship Airport. They are appealing here from an order dismissing their petition. The Maryland Aeronautics Act authorizes any city in the State to acquire, establish, maintain and operate an airport either within or without its limits.

Laws of 1945, ch. 956, Code Supp. 1947, art. 1A, sec. 35. The Act provides that the powers hereby conferred shall include acquisition of property for an airport, but directs that any city, before acquiring property for an airport, shall make application to the State Aviation Commission for a certificate of approval of the site selected to insure it shall conform to minimum standards of safety and shall serve the public interest. Laws of 1945, ch. 760, Code Supp. 1947, art. 1A, sec. 17. In 1946 the Mayor and City Council of Baltimore passed an ordinance selecting the site for its airport at Friendship in Anne Arundel County, and declaring it to be necessary to acquire for that purpose the tract of land described by metes and bounds in the ordinance.

The ordinance authorized and directed the City Aviation Commission (now called The Airport Board, under Baltimore City Charter, 1949 Ed., sec. 137) to acquire all of the land within the designated area, containing approximately 3,000 acres, by purchase if possible, but if impossible, then by condemnation. ⁶¹⁴ The City made application to the Commission for a certificate of approval of the site selected. Among those who opposed approval were representatives of Friendship Methodist Episcopal Church South and the Friendship Cemetery. The church and the cemetery were within the area declared to be needed for the airport. In spite of the protests, the Commission approved the site.

We agree that there is nothing in the record to indicate that the Commission believes that the public safety requires that the cemetery must be immediately condemned for the purposes of the airport. In giving its approval to the site selected by the City, the Commission was interested in the general location and the approximate size of the airport and other considerations set forth in the statute. Work was started on the airport in 1947. Parcels of land completely surrounding the cemetery were acquired.

The church was acquired by the City and torn down. The cemetery is located on the Fort Meade Road, which runs from Baltimore to Fort Meade. The cemetery company owns two parcels of land in the area. One parcel contains 3.37 acres, the other 5.75 acres. ■ The managers of the cemetery company were willing to sell the cemetery.

But one of the difficulties was the fact that the City asked for the transfer of the certificates of title to the lots and the consent of the owners to the removal of bodies. The cemetery company thought it impossible to comply with this requirement, because about 1,800 lots had been sold, and about 600 of these had been used. Negotiations covering a period of several years were conducted without avail. The company then asked the Airport Board to institute condemnation proceedings.

But it was found that the cost of removing the bodies to another cemetery was enormous. The Maryland statute provides that whenever any State, County or City authorities shall proceed by the power of eminent domain to acquire property which is used as a cemetery, the jury, in assessing damages, shall take into consideration, in addition to the damages for the ⁶¹⁵ land and improvements, the cost of removal of the bodies, markers and monuments to some other suitable or comparable place within the State. Laws of 1945, ch. 804, Code Supp. 1947, art. 33A, sec. 9A. One of the officials of the cemetery offered to move 504 bodies from the cemetery to Meadowridge Cemetery for $109,850.

It was also stated that it would cost $72,500 for a parcel of land in Loudon Park Cemetery which could be divided into lots equal in size and number to those in Friendship Cemetery. As the ordinance directed the Airport Board to acquire, by purchase or condemnation, all the land in the area designated in the ordinance, the Airport Board adopted a resolution on January 22, 1948, declaring that there was no existing necessity for the acquisition of certain parcels of land within the bounds of the airport site, and requesting the Mayor and City Council to authorize the Board to acquire only such parcels in the area as in its judgment may be necessary and proper. On January 26, 1948, the Mayor and City Council, in accordance with the Board’s request, passed an amendatory ordinance which authorized and empowered the Board to acquire “such of the pieces or parcels of land * * * at such times as may be necessary or proper to effect the efficient construction, maintenance and operation of the airport.” It is plain that the Mayor and City Council, by the passage of the amendatory ordinance, rescinded the mandatory provision in the original ordinance that the Airport Board shall acquire all of the land in the designated airport area. This modification the Mayor and City Council had the right to make.

The law is clear that a municipal corporation has the right to abandon any contemplated improvement and repeal or amend any ordinance providing for the same, and after such abandonment no property owner can compel the corporation to take and pay for property condemned for such purpose. Pumphrey v. City of Baltimore, 47 Md. 145, 150, 151 , ⁶¹⁶ 28 Am. Rep. 446 ; City of Baltimore v. Musgrave, 48 Md. 272 , 30 Am. Rep. 458 .

Appellants urge, however, that, even though the Airport Board is now vested with discretion to determine what parcels of land it shall acquire, nevertheless the cemetery has been damaged so severely that the Board should be compelled to condemn it. The Airport Board says that it does not need the cemetery at present. It says the cemetery is at least 2,800 feet from the nearest runway and about 350 feet from the nearest taxiway. The question before us is whether private 'property has been taken within the meaning of Article 3, Section 40, of the Constitution of Maryland, which provides: “The General Assembly shall enact no Law authorizing private property to be taken for public use, without just compensation as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation.” In England any necessary damage inflicted upon the land of an adjacent owner in the construction of a public improvement was damnum absque injuria.

Moreover, there was nothing in the history of the law or politics in the Colonies to warrant the belief that uncompensated indirect injury from public improvements was one of the evils which the framers of the State and Federal Constitutions sought to eradicate. Accordingly the courts held for many years that the constitutional limitation as to the taking of property applied only to a physical taking of the property, and the owner could not hold a municipal corporation liable for any consequential damages resulting from the proper execution of public works authorized by statute. Prior to the middle of the nineteenth century, cases did not often arise in America in which property was seriously damaged by the construction of public work on adjacent land, and hence the lack of any remedy for such injury was not seriously felt. But afterwards, in the course of the rapid growth in population of cities and the development of modern means of transportation, ⁶¹⁷ public improvements were undertaken which inflicted serious damage on private property.

Many cases of hardship were evident when it became necessary to raise or lower the grades of streets in closely built cities, and in consequence houses were left standing below or above the new grade. While the doctrine was established that consequential injuries were damnum absque injuria, the courts in many decisions, while denying the owner compensation, expressed regret at the harshness of the rule and suggested remedial legislation. In 1836 the Legislature of Massachusetts enacted a statute providing that an owner of property injured by a change of grade might recover his damages from the city or town. In some States constitutional amendments were adopted so as to make certain that property would not be damaged for the public use without compensation.

Similarly in England, although there are no constitutional restrictions upon the power of Parliament, it is the practice to insert in acts authorizing the taking of property for public use a provision for the payment of compensation to the owners of lands injuriously affected as well as the owners of lands taken. In Maryland there is no constitutional amendment or general statute requiring compensation to property owners for consequential damages resulting from public improvements. A liberalization in interpretation of the meaning of “taken” was promoted by the Supreme Court of New Hampshire in 1871 in Eaton v. Boston, Concord & Montreal R. Co., 51 N. H. 504, 12 Am. Rep. 147 , 151.

There the railroad company had cut through a ridge between the appellant’s farm and a river, with the result that the farm was flooded during freshets and large quantities of earth and stones were brought down upon it, making it unfit for cultivation. The Court held this to be a taking of property, explaining that while the term “property” was applied in common parlance to a tract of land, it actually means in law “the rights of the owner in relation to it.” ⁶¹⁸ That decision was followed by Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 179 ,