Jeweler v. Potomac Electric Power Co.

Hammond, J., delivered the opinion of the Court. This appeal from a judgment on a jury’s inquisition in a condemnation case was argued with that in Potomac Electric Power Company v. Birkett, 217 Md. 476 , recently decided, and presents different aspects of some of the points there ⁴⁶² decided. Appellants in this case argue that the Potomac Electric Power Company (Pepeo) did not establish proof of its right of eminent domain in Maryland, did not show proper corporate authority to institute the condemnation proceedings or to take a fee simple title to the land sought to be condemned, did not show approval of the Public Service Commission for the extension of its lines, as well as that the form of inquisition was improper and the trial court erred in deciding as a preliminary matter that Pepeo was justified in taking a fee rather than an easement. Pepeo replies that its right to condemn land in Maryland was conceded and the requirement that it be shown was waived and that the other objections of appellants are captious and unsubstantial.

When we decided in the Birkett case that Pepeo had the right of eminent domain in Maryland and that it was proper for the court to decide questions of law in condemnation cases in advance of trial, the heart was cut out of appellants’ defense to Pepco’s taking of their lands in this case. The verdict of the jury was substantially in excess of the highest estimate the experts put on the land taken, and appellants do not claim that the amount of the award was too low. Their quarrel is with the right to take the, land at all, and, if the taking is inevitable, that a fee rather than an easement was condemned. Pepco’s petition to condemn alleges that it was “authorized by law to acquire by purchase or condemnation property or rights necessary for use in connection with the transmitting or selling of electricity * * Appellants answered that they “neither admit nor deny” those allegations and called for “strict proof thereof.” Pepeo says that under Maryland Rule 372 b, appellants’ failure to deny the right to condemn makes the averment of that right deemed “to be admitted.” The landowners say that the rule applies only to equity and that condemnation proceedings are subject to the rules governing actions at law under Code, 1957, Art. 33A, Sec. 4.

We find it unnecessary to decide the point. The failure to deny the right of condemnation is significant as indicating that appellants had no real doubt that Pepeo had the power of eminent domain. More important, we find ⁴⁶³ the record to show that appellants did in fact waive proof of this right of Pepeo. That such a waiver was not without the contemplation of the condemnation article at the time the case came to issue is shown by the provision of Sec. 3 of Art. 33A, as the section then read, that upon failure to make timely answer a defendant “shall be regarded as in default, so far as the right of condemnation is concerned.” In the case before us a pre-trial conference was held on June 4 and another on June 7.

At the second conference, Judge Lawlor told counsel for appellants that her notes showed that he had stipulated at the June 4th meeting that Pepeo had the right of eminent domain in Maryland. When the reply indicated that he thought he had not made this concession, Judge Lawlor told him several times that if she were mistaken, he would have an opportunity to make an issue of the point. The ensuing colloquy makes it clear that appellants’ counsel did not question the fact that Pepeo had the right of eminent domain but rather went to the point of whether it must prove the necessity of condemning the land in question and the necessity of taking a fee rather than an easement. The conference of June 7 was called to decide, or to arrange for decision of, the latter question.

The record in the Birkeit case shows that when Judge Anderson said that: “In the Jeweler case there is no question as to the right to condemn * * counsel for Pepeo, in the presence, and with the acquiescence, of counsel for appellants in this case, replied: “No, your Honor, in the Jeweler case Mr. Brown said he did not question our power to condemn; he questioned the necessity but not the corporate power.” (We may take notice of the record in other cases that have been before us. Snodgrass v. Stubbs, 192 Md. 287 ; Fletcher v. Flournoy, 198 Md. 53, 60-61 .) Subsequently, in the Birketl case the landowners, by the same lawyer who represented appellants, amended their answers to deny specifically the corporation’s right to condemn. We find confirmation of our conclusion that the point was waived in the present case in the failure of the landowners to so amend or otherwise to act on Judge Lawlor’s invitation to put the matter in issue, if they so desired. ⁴⁶⁴ Appellants moved for a directed verdict at the close of Pepco’s case and at the close of the whole case, in part on the ground that Pepeo “has failed to show any compliance with any statute or law of the State of Maryland authorizing it to condemn * * Judge Lawlor denied the motions, we think properly, because Pepco’s right of eminent domain in Maryland had been conceded and the necessity of proving it waived by appellants. There is no substance to the landowners’ contention that the agents of Pepeo, who