Gardiner v. Mayor of Baltimore

Pearce, J., delivered the opinion of the Court. This is an appeal by John C. R. Gardiner from a decrée of the Circuit Court No. 2 of Baltimore City, passed May 21st, 1902, in the case of the Mayor and City Council of Baltimore against John C. R. Gardiner and others. The bill was filed under the Act of 1892, ch. 165, now sec. 827 of the New Charter of Baltimore City, which is as follows : “Whenever any property shall have been condemned in any form of proceeding for the use of the Mayor and City Council of Baltimore, and in consequence of infancy, insanity, absence from the city of any persons entitled to receive any money awarded in such proceeding, conflicting claims, refusal to accept, or any other cause, such money cannot be reasonably or safely paid to any person or persons, it shall be lawful for the Mayorand City Council of Baltimore to file a bill or petition in any Court of equity in the city or county where the property is condemned, or any portion thereof lies, and whenever such Court shall be satisfied for any of the persons aforesaid that such ³⁷⁶ money ought to be paid into such Court, it shall pass such decree as it shall deem proper, and the payment of any money into Court under such a decree or order shall be considered in all respects equivalent to a tender thereof to any person or persons entitled to such money, and who may be made a proper party to such proceeding.” The original bill filed set forth that under Ordinance No. 44, approved April 4th, 1892, land was condemned to open Ensor street from Eager street to the south side of Chase street, and that damages and benefits were awarded thereunder to the various owners, or alleged owners, of the land condemned ; and that among these, damages were awarded to John C. R. Gardiner and Sarah R. Gardiner, his wife, as joint tenants, or to such persons as may be legally entitled thereto, for the fee-simple interest in lot designated on the plat accompanying this opinion by the letter J, in the sum of $2,801.33 less benefits assessed on lot 44 on plat B returned by the Commissioners, in the sum of $223, the net damages in their case being $2,578.33, for the fee-simple interest in the lots aforesaid. But that in fact the said Gardiner and wife were not entitled to any allowance for that part of Lot J which comprised the bed of Little Ensor street (as shown on the plat accompanying this opinion) because the same was before said condemnation, a dedicated highway, and that said Gardiner and wife had, by petition in the Baltimore City Court, asked for a writ of mandamus to compel the then city official, known as the Examiner of Titles, to issue a certificate for the net amount of said damages, which the said Baltimore City Court refused to order.

The bill further alleged that said portion of Lot J previously dedicated as aforesaid, was valued by the Commissioners for Opening Streets at $1,193.33, and that the true and just amount due said Gardiner and wife under said con-, demnation was $1,385 arrived at as follows : Total award..... $2,801 43 Deduct benefits.....223 00 Deduct value of bed of Little Ensor . 1,416 33 Street dedicated . . . .1,193 co--- Net . $1,385 00 ³⁷⁷ and then tendered Gardiner and wife said sum of $1,385, (which they refused) and the bill further alleged that they could not reasonably or safely pay said award to said Gardiner and wife. The prayer of the bill was that the net sum alleged to be due Gardiner and wife, and the other parties to the biil, (all of which have since been adjusted) be paid into Court to the credit of the cause, and that the defendants answer the bill and adjust their respective demands. A few days later an amended bill was filed, under leave of Court, asking that the whole amount awarded to Gardiner and wife (less benefits), viz : $2,578.33, be allowed to be deposited in Court. Gardiner and wife demurred to the original and amended bill, 1st, because they alleged the bill did not state a case within the operation of sec. 827 of the New Charter; 2nd, because the bill was multifarious in making the other land owners mentioned, parties to the cause ; and 3rd, because the bill did not state any case entitling the plaintiff to relief in equity.

This demurrer was, after argument, overruled by Judge Wickes on December 8th, 1900, and correctly as we think, for reasons which will hereafter appear. Gardiner and wife then answered the original and amended bill admitting the condemnation proceedings set forth in the bill, but denying that there had ever been any dedication of that part of Lot J, comprising the bed of Little Ensor street, or that the Commissioners for Opening Streets had ever valued that part of said lot so dedicated, at $1,193, or at any other sum, and averring that at the time of said condemnation they had a fee-simple title to the whole of Lot J, and filed as an exhibit a deed to them from Olivia Wolf, dated February 23rd, 1889, embracing the whole of Lot J within its lines. The answer also alleged that plaintiff was estopped from disputing their title to Lot J, and to the whole of the award by Art. 48 of the City Code of 1893, and that the decree prayed would operate as a taking of their property without due process of law, in violátion of the Fourteenth Amendment of the Constitution of the United States. The bill and answer were considered without testimony and on December 8th, 1900, the ^{378 379} EXPLANATION OF PLAT.

Lot J as described by the Commissioners is shaded light on the accompanying plat. The Homestead Lot is enclosed from B to L, to K, to H, to G, thence -to B, and the improvements on it are marked “ 3 S. B. D. and 2 S. B. B. B.” meaning 3-Story Brick Dwelling and 2-Story Brick Back Building and in the rear 2-Story Brick Stable. The part of Lot J marked with a broad X is the bed of Little Ensor street within the lines from B to W, to T, to M, thence to B, and is beyond the present opening. Lot I includes the whole lot shaded dark and the land to the South thereof, part of said Lot I being within the bed of Little Ensor street.

Little Ensor street, as laid out by the Ordinance of 1857 begins at A to B, to C, to D, to E, to F, thence to A, within the black lines. The lines E to F, to R, to S, to Q, and thence to E, show the 66 feet width now taken for the new opening of Ensor street. ³⁸⁰ Court, Judge Wickes, being of opinion that the sums of money mentioned in the original and amended bill, should, under sec. 827 of the New Charter, be paid into Court as prayed, passed a decree that said sums be paid into Court, subject to its order, “ in full settlement and satisfaction of all claims and demands of all parties against the said Mayor and City Council growing out of the condemnation of said lots * * * * but it appearing that there is a contention between the Mayor and City Council and the said Gardiner and wife as to the actual ownership of a portion of the fee-simple estate in Lot J, * * * it is adjudged, ordered and decreed, that the said net amount of $2,578.33 awarded for the fee-simple interest in Lot J shall await and abide the final adjudication of the said contention over Lot J.” This decree further appointed James W. McElroy, trustee, to grant and convey to the Mayor and City Council all the lots condemned as aforesaid, and such conveyance was accordingly made. No appeal has ever been taken from this decree which was passed December 8th, 1900, and is consequently by lapse of time, final and conclusive as to every matter therein determined, provided the decree was within the jurisdiction of the Court. Barrick v. Horner, 78 Md. 253 .

We do not doubt that the Court had full jurisdiction to pass this decree. The allegations in a bill determine the question of jurisdiction, and the true test in all cases is whether a demurrer will lie to the bill. Tomlinson v. McKaig, 5 Gill, 276 . The allegations of this bill state a case clearly within the scope of sec. 827 of the New Charter, and there can be no doubt of the power of the Legislature to make that enactment.

The bill is not multifarious, since its object is the single one of making the condemnation