Friendship Cemetery v. Mayor of Baltimore

Collins, J., delivered the opinion of the Court. This is an appeal from a judgment entered for costs after the sustaining of a demurrer to each of three counts of appellants’ amended declaration, after the appellants declined to further amend. For the purpose of this opinion we will recite first the pertinent matters alleged in the third count of the declaration. This count alleges that the appellant, Friendship Cemetery of Anne Arundel County, hereinafter called the Cemetery Company, owns Friendship Cemetery, approximately nine acres in area in Anne Arundel County.

The other appellants are lot owners in that Cemetery. The appellee, the Mayor and City Council of Baltimore (the City), is a municipal corporation which has established an airport known as Friendship Airport, in Anne Arundel County. The remaining appellees constitute ⁴³⁴ the Airport Board of the Department of Aviation of the Mayor and City Council of Baltimore (the Airport Board), which is the successor of the Baltimore Aviation Commission (the Aviation Commission). Pursuant to authority contained in Chapter 956 of the Acts of the General Assembly of 1945, the City passed its ordinance No. 520 approved July 15, 1946, which contained: “a councilmanic finding that certain land in Anne Arundel County described therein is necessary for airport purposes and authorizes and directs Aviation Commission to acquire said land by purchase or condemnation.

That said Friendship Cemetery is located in the heart of said airport area described in said Ordinance No. 520, being approximately 2500 ft. from the southern boundary, 5400 ft. from the western boundary, 7200 ft. from the northern boundary, and 7600 ft. from the eastern boundary of said airport. That following the passage of said Ordinance No. 520, Aviation Commission commenced the acquisition of the tract described therein. That during 1946, Aviation Commission began negotiating for the acquisition of said cemetery; and said Cemetery Company advised the Aviation Commission it was willing for said cemetery to remain in the airport if the City would only agree to care for it permanently, thus insuring the fulfillment of the Cemetery Company’s agreement with the lot owners for perpetual care; but Aviation Commission refused to accept any responsibility for the care of said cemetery. That on February 24, 1947, Aviation Commission passed a resolution directing City Solicitor to institute proceedings to condemn said cemetery; but no such proceedings have ever been instituted.

That during the year 1947, negotiations for the purchase of the cemetery were carried on with Cemetery Company, first by Aviation Commis ⁴³⁵ sion, and later by its successor, Airport Board; but said negotiations failed for the reason that said City agencies then, and throughout all the negotiations described hereafter, have steadfastly and knowingly refused to pay a price sufficient to comply with the requirements of the formula fixed by the General Assembly in Chapter 804, Acts of 1945, namely, that in addition to damages for the land and improvements, there shall be paid the cost of removal of bodies, markers and monuments and the placing of the same at some other suitable or comparable location within the State of Maryland. That when it developed Plaintiffs were insisting upon being paid on the basis of the measure of damages fixed by said statute, Airport Board, on October 7, 1947, notified Plaintiffs it would not condemn their property. That said refusal of Airport Board to condemn Plaintiffs’ property was unlawful and in direct violation of the mandate of said Ordinance No. 520 to condemn all property that could not be purchased by Airport Board. That on January 9, 1948, Plaintiffs instituted an action against Defendants in the Circuit Court for Anne Arundel County asking that the writ of mandamus issue requiring the condemnation of their property.

That at said time, the City had acquired all of the 3200 acres within its ‘Outline Plat of Friendship Airport Site’, dated October 27, 1947, with the exception of Plaintiffs’ property and possibly one or two other small parcels of land. That realizing there was no defense to said suit, Airport Board on January 26, 1948, procured the introduction of an ordinance in the Baltimore City Council and by a suspension of the rules, secured the first, second and third readings and passage of said ordinance on said date, without knowledge of the Plaintiffs or any opportunity on their part to ⁴³⁶ oppose the same. Said Ordinance No. 161, was approved by the Mayor of Baltimore on February 26,1948. * * * That while said Ordinance No. 161 repeals and re-ordains Ordinance No. 520 aforesaid with amendments, there was no amendment made to section one which describes the tract of land (including Plaintiffs’) which it provides ‘It is necessary to acquire by purchase or condemnation’ for airport purposes. Section 2 of Ordinance No. 520, however, is amended so as to make it discretionary with Airport Board when it will acquire the unacquired parcels, namely, when needed for airport purposes, and even when needed for those purposes, making it discretionary with Airport Board whether it will condemn if the land owner will not agree as to price.

The latter provision is directly contrary to said enabling act (Chapter 956, Acts of 1945) requiring condemnation by the City where property needed for airport purposes could not be purchased. That although three and a half years have passed since the passage of said Ordinance No. 161, and although Plaintiffs’ land is the only land within the 3200 acre tract not yet acquired, Defendants refuse to condemn Plaintiffs’ land or to repeal the provisions of said ordinance declaring Plaintiffs’ property to be needed for airport purposes. That in filing an answer to said petition for the writ of mandamus, Airport Board alleged that in the exercise of its judgment and discretion under Ordinance No. 161, it had determined that the property of petitioners ‘is not needed, for airport purposes, although there is no formal or written record of any kind in the files of Airport Board showing when or for what reasons it had so exercised its said discretion. That promptly after said suit for mandamus was filed, Airport Board, through the office of its ⁴³⁷ counsel, the City Solicitor, requested a renewal of negotiations for the purchase of said cemetery and continued such negotiations until July 15, 1948, when it terminated the same on the ground that the amount of money Plaintiffs were asking, namely, $95,000.00 to $100,000.00, was too high.

That on August 23,1948, the minutes of Airport Board show that a Mr. Watner, owner of Meadowridge Cemetery had proposed to remove all the bodies from Friendship Cemetery to Meadowridge Cemetery for $140,000.00, if he could get the consent of all lot owners. That although the minutes contained a notation ‘that the proposition of the Friendship people * * * would cost about $95,000.00’ said Board nevertheless decided to hold Mr. Watner’s proposal in abeyance; and from that date until November 5, 1948, Airport Board continued to negotiate with the said Mr. Watner, at which time counsel for the Plaintiffs protested the consideration of Mr. Watner’s plan even for the reduced price of $109,000.00, since Airport Board had refused to consider paying the Plaintiffs $95,-000.00 to $100,000.00. That thereafter Airport Board carried on negotiations with the Plaintiffs and Mr. Watner until December 7, 1948, when it advised Mr. Watner his proposal could not be accepted. That sometime after December 31, 1948, said Airport Board made Plaintiffs an offer of $58,000.00, well knowing said figure was wholly inadequate to cover damages for Plaintiffs’ said land and improvements and the cost of removal of the bodies, markers and monuments and the placing of the same at some other suitable or comparable location within the State of Maryland, as required by Chapter 804 of the Acts of 1945.

That because said offer of $58,000.00 was inadequate, Plaintiffs refused the same. That throughout these negotiations ⁴³⁸ the records of Airport Board, as stated, contain no reference to a finding that Plaintiffs’ property was not needed for airport purposes, but on the other hand show conclusively that said Board was always ready and willing to purchase said Plaintiffs’ property at its own price, but that it felt it could not be required to condemn the same. That following the acquisition of a sufficient amount of property, Defendants, their agents or servants, began the construction of said airport. That prior to the construction of the airport Plaintiffs’ property abutted on an improved road connecting with Linthicum and Baltimore City on the north and Annapolis, Washington, etc., on the south.

That during the course of construction of the airport this road was eliminated entirely north of Plaintiffs’ property; and for a time during 1948, it was barricaded south of Plaintiffs’ property, although the barricade in question was subsequently removed. That after the acquisition of the 3200 acres for the airport, the owners thereof moved away and in most cases the houses themselves were razed. That Friendship Church, which adjoined said Cemetery was'purchased by the City and razed. That said church had frequently been used by the owners of lots in said cemetery for burial services.

That in the month of February, 1949, Defendants, their agents or servants, in the construction of said airport felled trees upon the iron fence and gate of the cemetery, damaging the same beyond repair; and persons unknown removed the broken fence. That, in addition, at or about the same time, said agents or servants of Defendants planted a telephone pole in said cemetery and strung a line across the same and said agents or servants further drove across the cemetery and • the graves therein with, bulldozers dam ⁴³⁹ aging the same. That all of said acts of the Defendants, their agents or servants, were done without knowledge or permission of the Plaintiffs. That because of the acts of the Defendants as well as those of their agents and servants aforesaid, various persons owning lots in said cemetery began removing their dead; and at this time the bodies of approximately 80 of the 600 persons buried in said cemetery have been removed.

That because of said acts of the Defendants and those of their agents and servants aforesaid, no one is willing to purchase a lot in said cemetery; and, in fact, no one has purchased a lot therein since 1946, except Plaintiffs, Norman Clark and M. Lillian Clark, who have consummated an agreement to purchase their lot made prior to the coming of the airport. That since the coming of the airport the Cemetery Company has therefore been deprived of new revenue from the sale of lots; and the revenue from the opening of new graves has steadily decreased. That prior to the coming of the airport said Cemetery Company was operated profitably and had accumulated a maintenance fund of from $5,000.00 to $6,000.00. That as a result of the coming of the airport and the acts of Defendants, their agents and servants aforesaid, the unsold land in said cemetery, being more than two-thirds of its area, has become unsaleable for cemetery purposes or any other purpose and said Cemetery Company has therefore been deprived of all lawful use of the same.

That this is true also of all unused lots or portions of lots owned by individuals. Further, that as a result of the loss of revenue formerly derived from the sale of lots and from the opening of new graves, as herein-before set forth, said Cemetery Company has constantly operated at a loss since the coming ⁴⁴⁰ of the airport and is slowly but surely headed for bankruptcy. That while the lot owners are still permitted to bury their dead in this cemetery, those lot owners who have not moved their dead, continue to use this cemetery only because they cannot afford the luxury of owning lots in two cemeteries. THAT THE ACTS OF DEFENDANTS AFORESAID, CONSTITUTE A DELIBERATE EFFORT AND DETERMINATION ON THE PART OF DEFENDANTS TO DEPRECIATE THE VALUE OF PLAINTIFFS’ PROPERTY, SO AS TO ENABLE DEFENDANTS TO ACQUIRE IT AT A REDUCED AND INSUFFICIENT PRICE AND WITH A VIEW TO AVOIDING THE PAYMENT OF DAMAGES AS FIXED BY CHAPTER 804 OF THE ACTS OF THE GENERAL ASSEMBLY OF 1945.” (Emphasis supplied.) The plaintiff claims $250,000.00 damages.

For the purposes of the demurrer it is of course admitted that the well pleaded matters in the declaration are true. In Shanfelter, etc. v. Mayor & City Council of Baltimore, 80 Md. 483 , 31 A. 439, 440 , 27 L. R. A. 648, the appellant was the lessee for a long term of years of the Imperial Hotel. Under certain ordinances passed in pursuance of an act of the Legislature the square on which the hotel was located had been selected by Baltimore City for the erection of a new court house. All the interests except that of the plaintiffs, in said square, had been obtained for the purpose mentioned.

The declaration further alleged that the building committee of the new court house “neglected, delayed and failed to complete the purchase or condemnation of his interest in said property, from May 1, 1893, to the time of the institution of the suit, although repeatedly requested and warned so to do.” Appellant alleged that he had been greatly damaged, injured, obstructed and prejudiced in his business as hotel keeper, by reason ⁴⁴¹ of the delay, in the use and enjoyment of his property. May 1, 1893, was the date on which the ordinance was passed naming the building committee and authorizing them to advertise inviting the submission of drawings, plans and specifications. The delay complained of by the appellant was from that date until a day not later than April 7, 1894. In sustaining the demurrer to the declaration this Court pointed out in that case that the mere passage of the ordinances, without any execution of them so far as the plaintiff was concerned, gave him no right of action.

It was conceded that the selection of the square for the court house, which included appellant’s property, might make his tenure uncertain and affect his business, but it was held that the city was not liable merely because it had not proceeded to acquire his interest. The determination of the city to adopt that particular site was held not to be a taking of appellant’s property nor “even a declaration of their intention to take it in invium \_sic.~\, as long as he holds it.” It was there said that the building committee had no authority under the ordinances to condemn the property before making a proper effort to agree with the appellant, and that the passage of the ordinances could not be deemed a beginning of the condemnation proceedings. This Court, however, said the following in that case, 80 Md. at page 493 , 31 A. at page 441 : “We do not mean to say that an owner of property cannot under any circumstances have relief unless the company or municipality has actually commenced condemnation proceedings. It may be possible that a case might occur, which would show such a deliberate effort and determination to depreciate the value of property for the purpose of subsequently acquiring it by condemnation at a reduced and insufficient price, as to render the company or municipality liable on the ground of fraud.

If such case is ever presented, it will be time enough to determine how far relief can be given, but in this case it is not alleged or intimated that the members of the ⁴⁴² Building Committee were not acting in perfectly good faith.” In Petroli v. Mayor and City Council of Baltimore, 166 Md. 431 , 171 A. 45, 46 , the appellants brought an action against the city of Baltimore to recover damages for loss occasioned to them by the city’s delay in “carrying out the provisions of the award”. A demurrer to the declaration was sustained. The declaration alleged that the city of Baltimore under competent authority condemned appellant’s property and damages were awarded in the amount of $3,300.00. The owners were satisfied and tendered themselves ready and willing to transfer the property to the city but it neither paid nor tendered the amount of the award, nor did it accept the landowner’s offer to transfer it, but it did attempt to induce appellants to accept therefore eighty-five percentum of the award.

All property other than that of the. appellants had been acquired. The condemnation had not been abandoned. The city had elected to proceed with the improvement and although appellants’ property was indispensable and essential to it, the city had failed, either to physically accept it, or pay the appellants the damages awarded, although frequently requested to do so. This Court in affirming the sustaining of the demurrer said, 166 Md. at pages 433 and 434, 171 A. at page 46 : “Appellants’ contention appears to be that, upon the facts alleged in the narr., the city’s delay in paying the award was unreasonable, that the condemnation of their property for an improvement to which it is essential,'and which will be completed, rendered it unsalable and destroyed its market value, and that therefore they are entitled to recover damages in this action.

Appellee’s contention is that whatever appellants’ abstract rights may be, they have failed in the declaration to allege concrete facts sufficient to warrant a recovery. While not universally recognized (Nichols on Em. Dom., sec. 420, 20 C. J. 1086), the law of this state long has been that a condemning corporation is responsible to a landowner for special damages actually ⁴⁴³ suffered through its unreasonable delay in electing either to abandon the condemnation of his property, or To pay the award therefor. Graff v. Baltimore, 10 Md. [544] 553; Norris v. Baltimore, 44 Md. [598] 606; Baltimore v. Musgrave, 48 Md. [272] 282; Black v. Baltimore, 50 Md.