Kline v. Mayor and Council of Rockville

McWilliams, J., delivered the opinion of the Court. A condemnation jury, in March 1966, awarded appellants (Kline) $280,000 for 25 acres ($11,200 per acre) of unimproved land taken by appellee (the city) for park purposes. Kline contends the verdict should have been about $346,000 ($13,900 per acre). In this appeal he attacks both the adequacy of the award and the necessity for the taking.

In October 1963 the city, upon the recommendation of its Planning Commission, decided to buy the 25 acre site (the site) because of all the undeveloped property available for park purposes it was the most suitable. At that time the site was part of ⁶²⁸ a larger parcel (167 acres) known as the Dawson Tract. The city had been unable to acquire the site from the Dawsons by purchase. In September of 1964 Kline, fully informed of the city’s efforts to acquire the site, bought the entire 167 acre tract from the Dawsons, for $6,700 per acre.

The city tried, again unsuccessfully, to buy the site from Kline. A resolution directing condemnation was passed by the city council on 14 December 1964. The petition was filed 4 January 1965. Kline, in his answer, admitted the power and authority of the city to condemn private property for public parks but he denied the allegation that it was “necessary and proper” to acquire the site.

More than a year later (10 February 1966) the case came on for trial before Shook, J. A day and a half was devoted to the city’s proof of necessity. Kline cross-examined all witnesses at length but he offered no evidence in opposition. 1 In fact, he challenges neither the city’s good faith nor the general necessity for the taking. His complaint seems to be that the park should be put somewhere else. The following excerpt from the colloquy between the trial judge and counsel for Kline is revealing: “The Court: I think * * * that where a city council determined that it was necessary to have a park that this in itself would be within their discretion; * * * unless you showed bad faith or some other reason why it should not be done. “But the question as to whether the park should be here, I assume, is what you are challenging ? “Mr. Blocher; That’s right. “The Court: Not the actual necessity of having a park but the necessity of having this piece of ground for the park, * * *." * * * “Mr. Blocher: * * * I do not think it is necessary to take this site for a park at this location. * * * I want to explore that * * *. ⁶²⁹ “The Court: So we have the record straight, then, you are not challenging the act of the City Council in determining that they need a park ? “Mr. Blocher: Well, to be specific they need parks in the City of Rockville.

There is no question about that and I do not challenge they need parks. It is their criteria that they used to designate the taking of this parcel of land for park that I want to inquire into, to see why they decided that question.” At the conclusion of the testimony on the issue of necessity the trial judge said she found “nothing in the evidence before * * * [her] to indicate that the Mayor and Council [the city] have abused their discretion as to the necessity of the taking” and she noted that counsel had stipulated that the city “did make a bona fide offer for” the site. There is nothing in the record to indicate that Kline took exception to Judge Shook’s ruling. Trial was resumed on the issue of damages and, for reasons undisclosed, ended in a mistrial.

Trial was again resumed on 22 March before Pugh, J. Counsel stipulated “that the issue of public necessity was tried before” Judge Shook and that she ruled “there was a public necessity to acquire * * * [the site] for park purposes — and that all of the testimony in that case will be a part of the testimony in this case today, but that the issue will not be reheard, * * * [and] no additional evidence [will be] taken on die question of necessity.” Judge Pugh said he would instruct the reporter to transcribe the testimony taken before Judge Shook (together with her ruling) “so that it would be a part of the record * * * in the event of appeal * * *." At the conclusion of the evidence Judge Pugh instructed the jury (inpart) as follows: “The sole issue in this case is what is just compensation for the land that is being taken. All other issues, that is, the issue as to whether or not it is for a public purpose, have been previously determined by the Court in another proceeding in this case. The Court therefore has determined that