LaFontaine's Heirs v. LaFontaine's Heirs

Hammond, J., delivered the opinion of the Court. Annie N. LaFontaine, a resident of the District of Columbia, owned some twenty acres of land in Prince George’s County. In 1950, the State Roads Commission, having determined that some two acres of the land were needed for highway construction and being unable to agree with Mrs., LaFontaine as to value, proceeded as authorized by the Constitution, Article 3, Sec. 40B, and the statute, Code (1951), Art. 89B, Sec. 9, by depositing with the clerk of the Circuit Court for Prince George’s County a check for $13,770.00, which it estimated,to be: “* * * the fair value of the land and improvements taken”, and taking possession of the needed land. Filed simultaneously with the deposit was a petition which recited the need for the immediate taking, described the property and prayed its condemnation under the provisions of Code (1951), Art. 33A.

Annie N. LaFontaine died in 1951. By her will, she gave, bequeathed and devised unto her husband, James A. LaFontaine, an absolute estate in all of her real and personal property. He had predeceased her. In 1953, The Lincoln National Bank of Washington, the executor of her estate, filed a petition in the Circuit Court for Prince George’s County, in which it set forth the facts which have been recited and alleged that under the laws of the District of Columbia, the devise and bequest to James A. LaFontaine lapsed as to real and personal property in the District, and that the heirs and next of kin of Annie N. LaFontaine would take such property.

The petition alleged further that under the provisions of Code (1951), Art. 93, Sec. 351, a devise, legacy or bequest does not lapse by reason of the death of the devisee or légátee- during the lifetime of the testator, and requested the court to" defclaf é ³¹⁷ whether the devise of the Prince George’s County real estate to James A. LaFontaine had lapsed. In addition, the petitioner asked the court to declare whether the money in the registry of the Circuit Court for Prince George’s County is personalty, payable to the executor of the estate of Annie N. LaFontaine, or whether it is to be considered as real estate in Prince George’s County. All of the heirs and next of kin of both Annie N. and James A. LaFontaine were brought before the court. On the petition of the executor and the answers of the heirs and next of kin, the lower court “Adjudged, Ordered and Decreed”: (1) that the will of Annie N. LaFontaine is to be construed according to the law of Maryland, insofar as it affects real estate located therein; (2) that the devise of Maryland real estate did not lapse but that upon the death of Annie N. LaFontaine, the real estate descended to the heirs of her deceased husband, James A. LaFontaine; (3) that the money deposited in court in payment for the two acres of land, entered on by the State Roads Commission before the death of Annie N. LaFontaine, is to be treated as real estate, and as such, descended to the heirs of James A. LaFontaine.

The appeal before us does not challenge the first and second parts of the decree, and it is affirmed as to them. The point on which the parties differ is whether the money in the registry of the court was real estate or personal property at Annie N. LaFontaine’s death. It is established law that if property is taken before the death of the owner, the right to compensation is not considered incident to the real estate but is a chose in action, passes to personal representatives, and will not be included in a devise of real estate taken. If the taking of the property did not occur until after the death of the owner, the heirs, or if there be a will, the devisees of the land taken are entitled to the compensation.

Nichols, Eminent Domain, 3rd Ed., Sec. 5.5 and 5.5(1) (2); Kent v. Co. Comm. of County of Essex, 10 Pick. 521 ; Neal v. Knox and Lincoln R. R. Co., 61 Me. ³¹⁸ 298; Welles v. Cowles, 4 Conn. 182; Briegel v. Briegel (Pa.), 160 A. 583, 584 ; New York Central and H. R. R. Co. v. Cottle, 168 N. Y. S. 463, affd. 229 N. Y. 514 , 129 N. E. 896 ; In re Nelson, 181 N. Y. S. 908; Sanders v. Smithfield (N. C.), 19 S. E. 2d 630, 632 ; U. S. v. Baker, 183 F. 280 , Ann. Cases, 1912C, 595; C.J.S., Eminent Domain, Sec. 203; 18 Am. Jur., Eminent Domain, Sec. 237. The difficulty lies in determining at what point the taking occurs, for inevitably there is a point in valid proceedings by which land seized which must be said to be the punetum temporis of the taking. The lower court did not have the benefit of evidence to establish when entry on the land took place, when construction of the road began, when the improvements on the land were destroyed, how far construction of the road had progressed before Mrs. LaFontaine died, whether she waived service of process, whether she validly could, or intended to, challenge. the right of the Commission to condemn, or-whether, in fact, she acquiesced in the right to condemn and sought merely to increase the amount of the compensation to be received.

We think that without the benefit of an adequate factual background, it cannot be determined with even approximate precision whether there had or had not been a taking while Mrs. LaFontaine lived. There is no uniformity in the decisions throughout the country as to the point when the taking occurs because of the differences in the statutes of the several States. In States where payment is required before the landowner can be divested of ownership or possession, the condemnation is accomplished by prior judicial proceedings and the taking does not occur until the compensation awarded has been paid or tendered. As to condemnations generally, the requirements of Sec. 40 of Article 3 of the Constitution make this the.

Maryland rule and this Court has declared, where the exceptions to that provision were not involved, that an authorized taking, under the power of eminent domain, does not happen until compensation is paid. Dunne v. State, ³¹⁹ 162 Md. 274 ; Building and Loan Association v. Safe Deposit and Trust Company, 166 Md. 351 . In States in which land may be taken for public use by administrative decision and action, the filing of the formal act of the responsible agency usually fixes the time and extent of the taking: “* * * and when a formal act of taking is not required, the first actual authorized physical interference with the property affected marks the punctum temporis of the taking.” Nichols, Eminent Domain, 2nd Ed., Sec. 439, page 1152. In the take and then pay procedures, as in the pay before you take, the essential which must be determined is the point when there concur the vestings of the right of the condemnor to take and the right of the owner to full compensation.

It has been held that this point is — the taking occurs— when a condemnor entitled to condemn loses the right to abandon the proceedings. In re Twelfth Avenue South (Wash.), 132 Pac. 868 . The right to abandon ceases, the cases hold,' when compensation has been paid or tendered, or the authorized appropriation of land for public use actually has taken place. Nichols, Eminent Domain, 2nd Ed., Sec. 417, p. 1097; C.J.S., Eminent Domain, Sec. 335(b); City of Philadelphia v. Commonwealth (Pa), 130 A. 491 ; In re Certain Lands, etc. (Pa.), 70 A. 2d 847 ; State v. Flamme (Ind.), 26 N. E. 2d 917, 919 ; State v. Deutschman (Mo.), 1940, 142 S. W. 2d 1025, 1027-1028 .

Maryland has followed this theory. In Petroli v. Baltimore, 166 Md. 431 , the City neither paid nor tendered an unappealed condemnation award. The appellants sought damages for the City’s delay in carrying out the provisions of the award. The Court held that they could not prevail and also that they were not entitled to recover the award.

Judge Offutt said for the Court: “Until the condemning corporation has actually taken the property, as in Pennsylvania R. Co. v. Reichert, 58 Md. 261 , or until title has become vested in it by payment or tender of the award, the rights of the parties are so far ambulatory that the condemning corporation may abandon either the entire ³²⁰ project or. its right to take the particular property at the award.” (Emphasis supplied) The clear implication is that an authorized physical seizure of the property for public use vests in the landowner the right to just compensation and marks the end of the right of the condemnor to abandon. In Maryland there are two constitutional exceptions to the rule of paying before taking, which may be said to permit a taking before paying. The first, Sec. 40A of Article 3, provides that if the property is in Baltimore and is needed by the State or the City, it may be taken before a jury values it, if an appraised value is paid to the owner or into court and the payment of any additional sum which a jury