Graff v. Mayor of Baltimore

Tuck, J., delivered the opinion of this court. This record presents two propositions for our consideration: the right of the appellant to the money claimed, and the propriety of the remedy employed. Upon the first we agree with the appellee’s counsel, that the case of the Balto. & Susq. Rail Road Company vs. Nesbit, 10 Howard, 395 , is decisive of the present appeal, if we are ⁵⁵² to recognize that decision as authority.

The charter of that company, (1827, ch. 72,) as far as concerns the present inquiry, is substantially the same with the act under which the claim of the appellant is now made. Why different constructions should be-placed upon them we do not perceive. If the title to the land condemned under the first of these laws did not vest in the company, because the valuation had not been paid or tendered, it follows, that such payment or tender was necessary to give title to the city "of Baltimore in the property of the appellant. The court say: “It can hardly be questioned that, without acceptance by the acts and in the mode prescribed, the company were not bound; that if they had been dissatisfied with the estimate placed upon the land, or could have procured a more eligible site for the location of their road', they would have been at liberty, before such acceptance, wholly to renounce the inquisition.

The proprietors of the land could have no authority to coerce the company into its adoption. This being the case there could, up to this point, be no mutuality, and hence no contract, even in the constrained and compulsory character in which it was created and imposed upon the proprietors by the authority of the statute.” And, in another part of the opinion these terms are called “conditions indispensable to the vesting of a title in the company.” ' Now, if the title does not vest in the city until payment or tender, and the owner could compel payment by legal process, there would be no mutuality. The city might be required to’ pay for land that it may never use or need for the purposes of the act. This certainly would be a hardship on the citizens of Baltimore, from which, we think,-they should be relieved by adopting the interpretation of-the Supreme Court in the case cited.

This may be a severe system of legislation, as was said, because it places the property owner at the discretion, not to say caprice, of the other party, by allowing it to 'condemn and ■afterwards abandon the property. But this construction is not likely to work so much injustice as that contended for by the appellant, because, by the latter, the city is deprived of all choice of another location, after a condemnation is once made ⁵⁵³ and affirmed, no matter how great the necessity might be afterwards for adopting another, even if the owner of the land condemned had not sustained any damage by the act of the city in making the condemnation. These inquisitions, too, often tax the corporation beyond the value of the