Kelly v. Mayor & City Council

Miller, J., delivered the opinion of the Court. This suit was brought by the appellant on the 10th of January, 1885, against the Mayor and City Council of Baltimore to recover damages alleged to have been done to his land which abuts on Caroline street, by the grading and paving of that street in front thereof. The declaration avers that the city did this grading and paving wrongfully and without any warrant or authority of law, because that portion of this street on which the plaintiff’s land abuts had never been lawfully condemned or opened as a public highway. Caroline street is one of the. streets laid down on Poppleton’s Plat, but no attempt was ever made to condemn and open that part of it which lies between Townsend street ¹⁷³ and Nortli avenue, until the passage of a special ordinance for that purpose on the 12th of May, 1876.

Under this ordinance, condemnation proceedings were taken, and after they had, as was supposed, been duly completed, the city passed Ordinance No. 93, of 1881, which directed this part of the street to be graded and paved, and that the expense thereof should be assessed upon the owners of property binding thereon. This latter ordinance is in the usual form of such ordinances passed since and under the Act of 1874, ch. 218.' After the work had been done, and "the assessments made out, the plaintiff in this suit, in connection with other property owners along the lino of the street, filed a bill in equity to restrain the collection of the assessments made against them. In this bill the complainants averred that the paving ordinance of 1881 was prematurely passed and all the proceedings under it were illegal and void, because the previous condemnation proceedings were ineffectual, inasmuch as no compensation had ever been paid or tendered as the law requires, to a. certain property owner through whose land the street passed, and from whom some of the complainants derived their title. That case came before this Court on appeal) and is reported in 62 Md., 371 .

It was there decided that no paving ordinance like this could be validly passed under the Act of 1874 unless the street had been first validly “ condemned, ceded, or opened as a public highway;” that the failure to pay or tender compensation to this, property owner as required by the Constitution of the State, as well as by the laws and ordinances of the city, was a fatal defect in the condemnation under the ordinance of 1876; that consequently the paving ordinance of 1881 was without “ legal sanction,” and all proceedings under it, including the assessments in question, “ were ultra vires and absolutely null and void.” This Court accordingly affirmed the decree appealed from in that case, which made perpetual the injunction restraining the collection of these taxes or assessments. ¹⁷⁴ The result of this litigation was that the plaintiff was relieved from the paving tax, and that the work was done without any special expense to him, and paid for by the tax payers of the city generally. Not content with this, he now seeks to recover from the city damages which he alleges have been done to bis property by tbe construction of this street. Now assuming (but gratia argumenti only) that tbe city is liable therefor at all, if in fact any damage has accrued to bis land, it can only be on tbe ground that tbe city became a trespasser by doing tbe work or ordering it to be done. Tbe trespass consists in erecting an embankment across or in front of tbe plaintiff’s lots, which has been paved and curbed as a street usually is, and the damages recoverable for such a trespass must be measured by the injury done to bis lots in tbe condition in wbicb they originally were, by reason of tbis embankment.

But no question involving such damages or tbe proof of them, is presented by tbe r.ulings to wbicb exceptions were taken at the trial. All that tbe record shows on tbis subject is that the Court refused to allow the three following questions t'o be put to tbe plaintiff’s witnesses, &c. 1st. Was or was not tbe first grade line that was established for tbis street a proper and sufficient grade line for wbicb a street would be- required ? 2nd. What amount of filling, if any, is necessary to adapt .the plaintiff’s lots on cither side of this'street to the grade as now established, so that tbe lots can be utilized for tbe erection of bouses thereon ? 3rd.

Has or has not tbe plaintiff’s property/ in your judgment, been damaged by the grading, paving, and curbing of tbis street, as now graded, paved and curbed ? It is obvious from tbe tenor of these questions, that tbe purpose of counsel in asking them was to elicit proof to tbe effect that the present grade line of tbe street was too high in front of plaintiff’s lots, and to make the city responsible for tbe cost of filling up tbe lots to that line, ¹⁷⁵ or rather for the difference between the cost of filling to that line and the cost of filling them to the original grade line. In support of the right to claim such difference in cost as part of the damages, it has been argued that there ■was such irregularity in the proceedings under which .the present grade line was established, as to make it unlawful. But whatever errors we have found in other proceedings relating to this street, we find none in these by which this line was established.

The Legislature by the Act of 1874, ch. 218, gave to the city power to provide, by general ordinance, for the