German Evangelical Lutheran Saint Lucas Congregation v. Mayor of Baltimore

Boyd, C. J., delivered the opinion of the Court. This is an appeal from the Baltimore City Court granting a motion of the appellees to dismiss the appeal of the appellant from the action of the Commissioners for Opening ¹⁴⁴ Streets.in the City of Baltimore. The Mayor and City Council of Baltimore passed an ordinance, known as Ho. 387, and approved on the 16th of August, 1909, which provided for the elimination of certain crossings at grade over the tracks of the B. & O. R. R. Co., between Camden and Ostend streets, for the construction and maintenance of bridges and approaches carrying Lee street, Hamburg street,. Stockholm street and Cross street over the tracks of said railroad, and, amongst other thingá, for condemning and closing certain portions of a number of streets named, including Henrietta, between the east side of Eutaw and the west side of Howard street.

It was the same ordinance which was before this Court in Walters v. B. & O. R. R. Co., 120 Md. 644 , but a wholly different question is now presented. The appellant owns a property on the southwest corner of Henrietta and Eutaw streets, which fronts 155 feet on the former and 7 5 feet on the latter — running from Eutaw street on the east to an alley 20 feet wide on the west. The lot is improved by a church, a school house and a parsonage. The appellant contends that this property will be greatly damaged by the closing of this part of Henrietta street, and it endeavored to have the Commissioners for Opening Streets allow it damages for the injuries thereby sustained.

The Commissioners refused to allow any damages and that, refusal resulted in the appeal to the Baltimore City Court. Considerable testimony was taken in the lower Court by the appellant, tending -to show that its property was materially depreciated in value by the closing of the part of Henrietta street — • although it was in direct conflict with that offered by the appellees. The motion to dismiss the appeal, which was granted by the lower Court, was as follóws: “The City contends that the appellant has not proved any damage to its property as a consequence of the closing of Henrietta street, between the east side of Eutaw street and the west side of Howard street, of such nature as to entitle it to any award in this case, and therefore prays that the appeal be dismissed.” ¹⁴⁵ The appellant’s property does not abut on the portion oí the street which was closed, hut is on another square which is hounded on the north by Henrietta street, on the east by Eutaw street, on the south by Hamburg street and on the west by Warner street, there being also an alley 20 feet wide which runs from Hamburg to Henrietta street at the west side of the appellant’s property. The part of Henrietta street which is closed is east of the intersection of Henrietta and Eutaw streets, both of which are 66 feet wide.

The ingress to and egress from the, property has not been affected, but-the direct approach to it from the east by way of Henrietta street is cut off and requires a more circuitous route. There were 10 or 12 tracks of the B. & O. R. R. Co. which crossed Henrietta street at grade, between Eutaw and Howard, before Henrietta street was closed. The access from the north, south and west have not been affected, and there will he two overhead bridges crossing the railroad tracks within a few squarés of the property when the proposed improvement is completed. When the location of the appellant’s property is borne in mind, and it is also remembered that this is a condemnation proceeding into which the appellant has come, there cannot he much difficulty in reaching a correct conclusion under the decisions of this and other Courts.

The provisions of section 40 of Article 3 of our Constitution that the General Assembly “shall enact no- law authorizing private property to he taken for public use, without just compensation,” etc., have been before this Court many times, and although the Constitution does not declare what rights shall he regarded as property, or what shall constitute a “taking” within its meaning, there are decisions which are conclusive of those questions. In the familiar case of O’Brien v. Balt. Belt R. R. 74 Md. 363 , Chief Judge Alvey, in delivering the opinion of the Court, said: “In such case as this, therefore, it would seem to he clear, both upon principle and authority, that there is no such taking of private property for public use as is contemplated by the Constitution of the State; and hence-there ¹⁴⁶ is no ground for any preliminary proceeding by way of condemnation.” O’Brien was the owner of a lot of ground and improvements thereon, situate on the east side of Howard street, between Camden and Lee streets, and conducted there a livery stable business. His bill alleged that the railroad company was about to dig up the west half of the bed of Howard street, in front of his property, to a depth of from / ten to twenty-four feet,- below the then surface of the street; '•that it was an open cut and, when made, Howard street, be- ' tween Camden and Lee, would be destroyed as a public highway to the extent of the cut, and devoted to the exclusive use of the railroad company.

The plaintiff sought to enjoin the ’ defendant, and the case was before this Court on an appeal from an order refusing to grant the injunction. The Court referred to the unquestioned right and power of the Legislature, through the agency of the municipal government, to change- and alter the grades of existing streets, without liability to the abutting owners of property for the mere consequential damages that may be suffered by reason of the changed condition of the streets, but said that that reason,' ■applicable to the change of grade and the improvement of streets for municipal purposes, did not apply in the ease of a /grant of power to change the grade of and occupy the street with steam railroad tracks, by a railroad company, having no connection with the municipal government, notwithstanding the fact that that improvement was exclusively by and for the railroad company, the Court announced the conclusion stated above. In considering the question it said: “It is not charged that there will be any invasion of or physical interference with any part of the plaintiff’s lot, in the construction of the road. The most that he claims for is that he will be deprived of the full use of the street, as it now exists, and that his property will be depreciated in value, by the construction of the road.

This, however, is but an injury, to whatever extent it may be suffered, of an incidental or consequential nature. The construction of the railroad being authorized by competent authority, it' cannot be treated as a ¹⁴⁷ public nuisance, and no right of action can arise against the company before it is known whether, and to what extent, damage may be sustained by the construction of the road in the bed of the street.” In the case of Garrett v. Lake Roland El. Ry. Co., 79 Md. 277 , the same principles were announced by Judge McSherry.

Mr. Garrett was the owner of unimproved lots fronting 436 feet on the west side of Horth street, which was 36 feet wide between the curbs and 60 feet between the building lines. The railroad company erected in front of Mr. Garrett’s property a stone abutment, forming an incline plane, to carry on its highest side the iron superstructure for an elevated road, and to serve on its surface as the northern approach to that elevated road. It was 83 feet, 2% inches in length and 35 8/3 0 feet in width. It started at the street grade and gradually rose to a height of 9 feet — leaving a space between its western face and the curb line contiguous to Mr. Garrett’s property of 9 feet, 8/4 inches.

The erection of that structure was held not to be a taking of private property for public use within the meaning of the Constitution. See also Poole v. Falls Road Ry. Co., 88 Md. 533 . Those cases should be sufficient to dispose of this appeal, unless there be some statute upon which the appellant can rely.

In each of them the act complained of was exclusively for the benefit of the railroad company proceeded against, and the municipality had no such interest as it has in the execution of this ordinance. We will not now stop to consider the distinction between this case and those, by reason of the fact that this is a condemnation proceeding by the city, for even if the railroad company was conducting the proceedings, it could not be said that there was a taking of the appellant’s property. Section 6 of Article 4, entitled City of Baltimore, of Code of Public Local Laws (Baltimore City Code, 1906, section 6, suUseotion 26), gives the Mayor and City Council power “To provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any ¹⁴⁸ ■street, square, lane or alley within the hounds of said city, which in its opinion the public welfare or convenience may require,” and then continues: “To provide for ascertaining whether any, and what amount in value, of damage will be caused thereby, and what amount of benefit will thereby accrue to the owner or possessor of any ground or improvements within or adjacent to said city, for which said owner or possessor ought to he compensated, or ought to pay a compensation, and to -provide for assessing or levying, either generally on the whole assessable property of said city, or specially on the property of persons benefited, the whole or any part of the damages and expenses which it shall ascertain will be incurred in locating, opening, extending, widening, straightening or closing up the whole or any part of any streets,” etc. Then section 175 (Baltimore City Charter) provides that whenever the Mayor and City Council shall by c-rdinance direct the Commissioners for Opening Streets to lay out, open, extend, widen, straighten or close up., in whole or part, any street, etc., the Commissioners “shall ascertain whether any and what amount of value in damages will thereby be caused to the owner of any right or interest in any ground or improvements within or adjacent to the City of Baltimore, for which, taking into consideration all the advantages and disadvantages, such owner ought to he compensated Section 175 and the succeeding sections provide the procedure by which streets, squares, lanes or alleys can be laid out, opened, etc., and cannot be construed as intended to allow damages which were not previously allowed. The part of section 6 which is quoted above was passed in 1838, Chapter 226, and was codified as section 837 of Article 4 of Code of Public Local Laws of 1860.

The same language was continued in section 806 of that Article of Code of 1888. The Mayor and Council of Baltimore had, under the authority so given, passed an ordinance prescribing the manner of proceeding in opening, closing, etc., streets, as early as 1841, ¹⁴⁹ (Alexander v. Baltimore, 5 Gill, 383 ), and when the present charter was adopted, the provisions of section T75 were in that ordinance; Baltimore City Code of 1893, Article 4-8, section 6; hut notwithstanding the provisions of section 6 have been in the charter, and those of section 175, in the ordinance passed in pursuance of the charter, for so many years, we have been cited to no ease, and are aware of none, which justifies the contention of the appellant that in a condemnation proceeding for opening, closing, etc., streets, damages can be allowed for a property situated as that of the appelant is. On the contrary, the eases of O’Brien v. Ball. Belt R. R. Co., Garrett v. Lake Roland El.

Ry. Co., and Poole v. Falls Road, Ry. Co., cited above, were decided while those provisions were in full force, and no reference to them was ma.de. Moreover, by the terms of the statute, the Commissioners axe only entitled to allow the damage “for which, taking into consideration all advantages and disadvantages, such owner ought to he compensated” — meaning, of course, such as he ought to be compensated for under the established rules of law and practice in such cases.

As illustrating how other Courts have regarded the provisions of statutes in such cases, we will refer to some of their decisions. Smith v. City of Boston, 7 Cush. 254 , Castle v. County of Berkshire, 11 Gray, 26 , and Davis v. County Commissioners, 153 Mass. 218 , were decided when there was h statute in Massachusetts which provided that, “In estimating the damages sustained by any person in his -property, by the laying out. altering or discontinuing of any highway, the jury shall take into consideration all the damage done to the complainant, whether by taking bis property, or by injuring it in any way,” but tbat language was not deemed sufficient by the Supreme Court of Massachusetts, to entitle an owner to compensation for depreciation of his property which did not immediately abut upon the part of the highway which was vacated. In Cram v. City of Laconia, 71 N. H. 41, S. C. 57 L. R. A. 282, and 51 At. Rep. 635 , the statute in force ¹⁵⁰ was,- “the damages sustained * * * by the discontinuance of a .highway * * * may be assessed,” etc. The Court said: “Tahen literally, this statute is broad enough to allow damages for all injuries, whether special or general.

But it has been limited by construction, in accordance with the principle already stated” — which was that only such damages as are not common to the public, but are peculiar and special, and the direct result of the discontinuance may be allowed. In Enders v. Friday, 78 Neb. 510 , S. C., 15 Am. & Eng. An. Cases, 685, the statute had this provision: “Provided, that all damages sustained by the citizens of the city or village, or of the owners of the property therein, shall be ascertained in such manner as shall be provided by ordinance”; in East St. Louis v. O’Flynn, 119 Ill. 200 , S. C. 10 N. E. 395 , and 59 American Reports, 195, the statute provided: “Where property is damaged by the vacating or closing of any street or alley, the same shall be ascertained and paid as provided by law.” Those Courts declined to allow damages to those whose property did not abut on the highways closed.

In the Illinois case the Court cited Chicago v. Union Building Association, 102 Ill. 379 , and Littler v. Lincoln, 106 Ill. 353 , in the last of Which it was said, “the rights or privileges of other proprietors in the plat, which the statute protects,' are necessarily legal rights and privileges, and such parties cannot, therefore, be affected by the closing of streets not adjacent to their property, nor directly affording access thereto, and egress therefrom.” In Howell v. Morrisville, 212 Penna. 353, S. C. 61 At. Rep. 932 , the Court refused to allow damages for vacation of a public road under the Act of 1891 referred to in that case, because it contained no express grant to property owners of the right to damages for vacation, nor any clear implication of an intent to increase the obligations of the cities or enlarge the rights or claims of property holders, and went on to say: “Even if the purpose of the Act were less plain than it is, the Court would not be justified in stretching its terms by a loose construction to cover the exceptional case ¹⁵¹ of vacation of roads. The general rule is founded not only-on sound reason, but also on sound policy and justice. While it may be admitted that substantial injury may occasionally result from the vacation of a street, yet it is exceptional, andl confined to closely built cities.

Even there, if damages are provided for, they should be most carefully hedged about to prevent the inevitable tendency to run off into speculative and shadowy claims that have no real foundation.” The appellant contended that what was said in Mayor, &c., of Baltimore v. Smith and Schwartz, 80 Md. 458 , went far to sustain its position, but it seems to us, that in so far as it is applicable at all it has just the opposite effect. We held in that ease that the appeal from the assessment of benefits did not bring up for review the damages allowed, under the statute as it then existed. After showing how the benefits are assessed, and the damages allowed, we said: “In other words, they take such property as is needed for the bed of the street and allow the respective owners compensation for it according to its then market value; they then direct that A, B and O, as owners of ground or improvements somewhere in or adjacent to the city, will be directly benefited after the street is opened, determine how much, and so assess them. If there is a shortage in the benefit column, the account is balanced by the city.

It matters not whether A’s property thus to be benefited is adjoining to or a part of the property taken for the bed of the street, or whether it is on anomer square on the street to be opened or in some other locality; if it will be directly benefited he is assessed accordingly, and called upon to contribute to the payment for said street to the extent he is so benefited. It seems clear that the two transactions of fixing damages or compensation and of assessing benefits, are separate and distinct.” It is implied as clearly as could well be that in allowing damages it does matter whether the property to be paid for “is adjoining to or a part of the property taken for the bed of the street, or whether it is on another square on the street to be opened, or in some other locality,” ¹⁵² while in assessing benefits it does not matter. Ho case can be found in Maryland where damages-have been allowed for property not “adjoining to or a part of the property taken for the bed of the street.” When a part of a property is taken and damages are allowed for injury to the remainder, it is because by talcing the part the value of the remainder is lessened, but damages are only allowed even for abutting property, not within the lines of the condemnation, when the owner is deprived of his right of ingress or egress, or there has been something done amounting to a taking of the property, as illustrated by the case of Walters v. B. & O. R. R. Co.,