Gluck v. Mayor of Baltimore

McSherry, J., delivered the opinion of the Court. This is a proceeding by the Mayor and City Council of Baltimore to condem, under the right of eminent domain, part of a lot of ground and part of the building thereon, for the widening of Gay street. The reversionary interest in the property belongs to the estate of Samuel .Hindes, and the leasehold interest is owned by the appellant, Gluck, under a lease executed in 1885, and which expires in 1905. Gluck being dissatisfied with the award of damages made to him, appealed from the return and estimate of the Commissioners for Opening Streets, to the Baltimore City Court, where a trial by jury was had.

At the close of the evidence both the city and Gluck asked the Court to instruct the jury as to the measure of damages applicable to the facts before them. The prayers presented by the city were granted, whilst those presented by Gluck were rejected, and from these rulings this appeal was taken. Compensation was made to the estate of Hindes for the fee-simple interest in so much of the lot as is required for widening the street, and the pending controversy relates only to the amount which the lessee is entitled to be paid for his leasehold interest therein. The proposed widening of Gay street will require but a part of the leased lot, and will take a portion of the building standing thereon.

This will leave the building not only diminished in size, but without a .front wall, and consequently untenantable. Under the lease, the tenant is bound to pay in monthly instalments the rent reserved, and there is no covenant in the lease binding the landlord to make repairs. ■ The owner of the leasehold, and the owner of the reversion, together hold the fee-simple estate. Each has a distinct estate or property. “The interest of a termor, in the eye of the law, is just as potential as that of the owner ³²¹ of the fee, although in fact it may not practically be so valuable.” B. & O. R. R. v. Thompson, 10 Md. 87 . These several interests are both protected by Art. 3, sec. 40 of the State Constitution, from appropriation for public use, unless just compensation, as agreed on between the parties or as awarded by a jury, shall be first paid or tendered to the party entitled to such compensation.

Whatever be the method of ascertaining the values of these distinct interests, it is evident that the sum of those values must be the full value of the property taken. N. Y. & B. Bridge v. Clark, 137 N. Y. 95 ; Burt v. Ins. Co., 115 Mass. 1 . As the owner of each separate interest has the constitutional right to be fully compensated before his estate can be lawfully taken for a public use, he is obviously entitled to look, not to some one else for that compensation, but to the agency authorized to make, and which actually does make, the appropriation of his property.

He cannot be driven to seek redress from another. Hence, it will be no answer to his demand to say that the value of his interest, or of a part of his interest, has been improvidently awarded to some one else. Mills on Em. Dom., sec. 70.

What, then, is the measure or the standard by which the value of so much of the appellant’s leasehold interest, as is needed for widening Gay street, is to be ascertained? Primarily it would be the fair market value of his interest in the entire lot, less the fair market value of his interest in that portion which would remain after the widening of the street has been completed. Mayor, &c., v. Rice, 73 Md. 311 . This, as a general rule, is a priori correct; but the Court in the case last cited was not called on, as it is by the prayers in the case at bar, to designate the particular items which properly go to make up these relative market values.

The prayers on both sides in the pending appeal require such an analysis — those of the city by the exclusion, and those of the appellant by the inclusion of alleged constituent factors of damage. The specific inquiry then is, when part of the demised premises is taken, ³²² what circumstances affect the relative market values fixed in the rule above quoted as the standards of comparison, if the tenant is bound by an unconditional covenant to pay rent, and the landlord is under no covenant to repair the buildings injured by the appropriation for the public use ? This depends, first, upon whether the tenant still remains liable for the payment of the whole rent, though part of the leased premises has been actually taken by condemnation proceedings ; and, secondly, upon whether he is bound to replace the buildings partially removed or damaged, in the absence of a covenant on the part of the lessor to make repairs. These questions are raised by the prayers. “It is incontrovertible that nothing but a surrender, a release or an eviction can, in whole or in part, absolve the tenant from the obligation of his covenant to pay rent.

Fisher v. Milliken, 8 Barr. 111. Thus, if the premises have been wrongfully entered by a disseisor and the tenant dispossessed for the entire term, or even by the military force of a public enemy, or if they have been destroyed or rendered untenantable by earthquake, lightning, floods or fire, and thus all enjoyment by the tenant entirely lost, yet his covenant remains. Workman v. Miffin, 6 Casey 369, and cases there cited. It is also equally settled that a taking by the sovereign under the right of eminent domain is not an eviction.

Frost v. Earnest, 4 Whart. 90 ; Dobbins v. Brown, 2 Jones, 75 ; Ross v. Dysart, 9 Casey, 452; Schuylkill & Dauphin R. R. Co. v. Schmocle, 7 P. F. Smith, 271 Dyer v. Wightman, 66 Pa. St. 427. The case last cited, and from which the above extract is quoted, was a condemnation proceeding in which the fee-simple was taken for the construction of a railroad. To the same effect see Peck v. Jones, 70 Pa.

St. 85 ; Ellis v. Welch, 6 Mass. 246 ; Parks v. Boston, 15 Pick. 198 ; Folts v. Huntley, 7 Wend. 210 ; Foote v. City of Cincinnati, 11 Ohio St. 408 ; Emmes v. Fecley, 132 Mass. 346 ; Stubbings v. Village of Evanston, 136 Ill. 37 ; S. C. 11 L. R. A. 839; Corrigan v. City of Chicago, 144 Ill. 537 ; S. C. 21 L. R. A. 212, and copious ³²³ notes. In Wash. on Real Property, vol. i, page 342, the author says: “It has sometimes been attempted to apply the principle of eviction from a part of the premises where lands under lease have been appropriated to public use under the exercise of eminent domain. * * * But the better rule, and one believed to be adopted in most of the States,, is that such a taking operates, so far as the lessee is concerned, upon his interest as property, for which the public, are to make him compensation, and does" not affect his: liability to pay rent for the entire estate, according to the terms of the lease ; and this extends to ground rents.” In Parks v. Boston, supra, it was held: “Where part of a lot of land under lease is taken by the Mayor and Aldermen of Boston for the purpose of widening a street, the lease is not thereby extinguished, nor is the lessee discharged from his liability to pay the reserved rent during the residue of the term, but the lessor and lessee are each entitled to recover compensation for the damage so sustained by them respectively.” And in Foote v. City of Cincinnati, supra, where the leased premises had been appropriated for a street, the Supreme Court held that the lessee was not released from the payment of rent, but that he was entitled to recover from the city the damages he sustained. Whilst there are a few_ cases, chiefly in Missouri and Louisiana, which hold a contrary view, the correct doctrine, both upon principle and by the decided weight of authority, seems to be that a condemnation of a part of a leasehold estate for a public use does not at law amount to an eviction ; and whether the fee or a mere easement be taken, the tenant still remains liable under his covenant to pay the rent originally reserved, because nothing short of a surrender, a release or an eviction will discharge him from his covenant in this behalf. If a condemnation of part of the premises will not discharge the tenant’s covenant to pay rent, neither will it operate to apportion the rent so as to relieve the tenant of any portion of his liability to the lessor.

Apportionment of the rent does not mean abatement of it • because though rent may ³²⁴ be apportioned, the tenant still remains liable to pay the whole of it, but in different parts to different persons, except where he has purchased or acquired the reversion of part ■of the demised premises. So the question recurs, not what will apportion, but what will abate the rent? The total destruction of the premises does not discharge the payment of rent, or any part of the rent, and nothing save a release, a surrender or an eviction will. A condemnation by eminent domain of part of the landlord’s reversion is notin law an eviction or partial eviction, for an eviction is the act of the landlord or of a third party holding under a paramount title.

Taylor, Land & Ten., sec. 381. Neither is it a