Hardesty v. State Roads Commission

Murphy, C. J., delivered the opinion of the Court. On August 1, 1973, the State Roads Commission of the State Highway Administration (the Commission) filed a petition for land acquisition in the Circuit Court for Anne Arundel County pursuant to powers vested in it under § 40B of Article III of the Constitution of Maryland and Maryland Code (1969 Repl. Vol.) Art. 89B, §§ 10-20. 1 The petition stated: “This is not a formal condemnation petition and does not require an answer.” The petition recited that it was necessary for the Commission to acquire the property and rights of W. Russell Hardesty et al. (Hardesty or condemnees) in 4.4 acres of land located on United States Routes 50 and 301, as shown on Commission Plat No. 36325 filed in the proceedings, for the following purpose: “[F]or Perpetual Easement for Special Purpose of Scenic Easement . . . Together with any and all right of ingress or egress across the lines which are designated ‘Right of Way Line of Through Highway’ except by means of such public road ²⁸ connections as the Commission may construct or permit to be constructed; Together with the perpetual right to erect and maintain snow fences between October 1st and April 1st of each and every year, within one hundred feet of the land condemned.” In accordance with the provisions of § 13 of Art. 89B, the Commission deposited a check with the court for $23,600, which it estimated to be the fair value of the property rights to be acquired.

The parties being unable to agree on the fair value of the property, the Commission referred the case on January 18, 1974 to the County Board of Property Review, pursuant to the provisions of Art. 89B, § 20. Thereafter, on March 5, 1974, Hardesty filed a petition with the court seeking to withdraw the money deposited by the Commission (with interest), as authorized by Art. 89B, § 14. The court granted the petition upon the express condition that the condemnees “pay back to the said Commission the difference between the said sum and the final award, if said final award be less than the sum heretofore paid into Court.. ..” On June 26, 1974, the Commission, pursuant to Code (1974) Real Property Article, § 12-109 and Maryland Rule U26 filed an election to abandon condemnation proceedings, and asked the court to order that Hardesty return $23,826.17 to the State because “[n]o taking of the property sought to be condemned has yet occurred nor will it ever occur.” Hardesty filed an answer to the Commission’s election, urging that the Commission not be permitted to abandon condemnation; the condemnees asserted that “a taking has already occurred and plaintiff has possession of the property and has appropriated it to the public purposes of the plaintiff by virtue of the fact that the taking was for a scenic easement for Maryland Route 50, the benefit of which the public has already enjoyed.” A hearing was held before the court on August 29, 1974. It was stipulated between counsel that “there has been no physical appropriation, no physical taking of the property” and that “this scenic easement was a situation in which the ²⁹ State did not intend to go down and knock down trees so you can see a lake, the scenic easement was for the purpose of leaving the trees there.” No other evidence was adduced by either side.

Counsel for the Commission argued that because there had been no physical appropriation, entry upon, or seizure of the property, no taking had occurred. He maintained that the rights of the parties with respect to the land “have not changed one iota” and that title to the property had not passed. Counsel for Hardesty argued that it was the State’s purpose in seeking a perpetual scenic easement to maintain the property “all wooded and hilly”; that the State’s purpose was “to keep the woods there, keep the hills as they are so it will be nice and beautiful”; that during the period that the Commission plat was on record, title to the Hardesty property was affected and the condemnees “couldn’t have done anything, in contradiction to the scenic easement”; that by its condemnation proceeding, the Commission had “deprived the owner of the right to build a high rise or anything he wants”; that the basic purpose of the Commission in acquiring the scenic easement “was so that people can look at what is actually there. . . . They take possession . . . when they do this, and at that moment, when they file the plat and file the case, that deprives the owner of the right to make a contract.” Hardesty maintained that physical possession is never involved in the taking of a scenic easement.

The court concluded that no taking had occurred; it therefore permitted the Commission to abandon the condemnation proceedings and directed that Hardesty return the sum of $23, 476.17 to the Commission. 2 This appeal followed. Under Real Property Article, § 12-109 (d) and Maryland Rule U26, a condemnation proceeding may not be abandoned after “taking has occurred.” Section 12-102 of that Article provides that property is deemed to be taken in cases where the condemning authority is authorized to take the property before trial when “the required payment has been made to the defendant or into court, any required security has been given, and the plaintiff has taken possession of the property ³⁰ and actually and lawfully appropriated it to the public purposes of the plaintiff.” In initiating the condemnation proceedings in this case, the Commission acted under §§ 236-238 of Art. 89B (Subtitle “Highway Beautification”), which authorizes it to acquire, among other things, strips of land necessary for the restoration, preservation and enhancement of scenic beauty within and adjacent to federal-aid highways of this State. The concept of a scenic easement according to Kamrowski v. State, 31 Wis. 2d 256, 263 , 142 N.W.2d 793, 796 (1966) “springs from the idea that there is enjoyment and recreation for the travelling public in viewing a relatively unspoiled natural landscape . . ..” One federal statute defines a seenic easement as “the right to control the use of land . .. for the purpose of protecting the scenic view . . . but such control shall not affect, without the owner’s consent, any regular use exercised prior to the acquisition of the easement.” 16 U.S.C.A. § 1286 (c) (1970). A scenic easement has otherwise been characterized as a negative easement or servitude precluding the owner of land from doing an act which, if no easement existed, he would be entitled to do: “Negative easements involve the payment to the landowner for a termination or extinguishment of a portion of his property rights.

Scenic easements are an example: the landowner is paid by the state to terminate his right to erect structures or buildings or otherwise use his land so as to destroy the view from the highway. The state obtains no rights to enter upon the land, either for its departments or for the public at large. The state obtains only the right to enforce the negative easement through court action.” Comment, Progress and Problems in Wisconsin’s Scenic and Conservation Easement Program, 1965 Wis. L. Rev, 352, 360 (1965).

Hardesty argues on appeal that the occupancy or possession of a scenic easement is visual, not physical; that it is a negative easement prohibiting the landowner from ³¹ altering the scenic nature of his land. He contends that because the scenic easement condemned by the Commission was along a well-traveled highway and the condemnees refrained for 10 months from taking any action inconsistent with the scenic easement, the property was possessed by the public and appropriated to the purposes of the Commission. The Commission having made the required payment into court, and the condemnees having properly withdrawn the sum deposited, the condemnees maintain that a taking has occurred and that the easement cannot now be abandoned. The Commission argues that it has not taken Hardesty’s property within the contemplation of § 12-102 of the Real Property Article because it has not “taken possession ... [of it] and actually and lawfully appropriated it to the [Commission’s] public purposes . . . .” The Commission says that physical entry must be shown before a taking will be decreed and that filing of the plat and posting of money with the court do not constitute a taking.

That there can be a taking of property giving rise to a vested right of compensation without formally divesting the owner of his title is well settled. State Roads Comm’n v. Orleans, 239 Md. 368 , 211 A. 2d 715 (1965); LaFontaine’s Heirs v. LaFontaine’s Heirs, 205 Md. 311 , 107 A. 2d 653 (1954). That a taking of property may occur without actual physical appropriation, entry or seizure is likewise clear. Arnold v. Prince George’s Co., 270 Md. 285, 294 , 311 A. 2d 223, 227-28 (1973);