Langley Shopping Center, Inc. v. State Roads Commission

²³² Bruñe, C. J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Prince George’s County (Charles Marbury, Judge), sustaining appellee’s demurrer to appellants’ bill of complaint. The appellants, Langley Shopping Center, Inc. (“Langley”) and G. Albert Gude and Joseph P. Abrahams, are owners of two large shopping centers diagonally across from each other at the intersection of the four-lane highways of New Hampshire Avenue and University Lane, in a section called “Langley Park” in Prince George’s County, Maryland. The appellee, the State Roads Commission of Maryland' (the “Commission”), is reconstructing New Hampshire Avenue into a divided four-lane dual highway in front of both of the properties of the appellants.

It is about to construct in the center of this highway what is called a “median strip”, made of concrete, which divides the northbound and southbound lanes in such a manner that traffic in the southbound lanes cannot cross the northbound lanes, and vice-versa, except at openings in the median strip divider. The openings in the median strip will be beyond the appellants’ properties and thus left turns cannot be made directly into the appellants’ shopping centers. There is a traffic light at the intersection of New Hampshire Avenue and University Lane where left .turns are permitted. The bill also alleges that the Commission proposes to reconstruct University Lane as a four-lane highway and to install median strips therein in much the same manner as in New Hampshire Avenue.

Appellants claim that the median strips will cause them to lose approximately one-half of their business from motorists who are said to constitute 95% of the plaintiffs’ customers. The first question is whether or not the Commission has the right to construct a median strip in such a manner as to deprive the plaintiffs of direct access to and particularly from the far sides of the roads bordering on their respective shopping centers without the Commission having to pay compensation for the taking. The second question is whether or not the Commission has properly exercised its power. The plaintiffs do not deny the authority of the Commission to construct median dividers in the proper exercise of ²³³ its discretion and of its general powers to construct highways.

See Code (1951), Article 89B, Section 7. (See also Sections 32 and 165 of the same Article as to limiting access to certain highways.) However, the plaintiffs complain that the median strip will prevent direct access to the far sides of the roads bordering on their properties, and that this amounts to a substantial denial of their rights of ingress and egress and to a taking of their property without compensation. Automobiles traveling on the far sides of the highways will still be able to reach the plaintiffs’ properties, but will be required either to turn at the traffic signal above mentioned or to make a “U” turn at one of the cuts in the median strip or beyond the end of such a strip. The plaintiffs assert that the median strips will cause them loss because of the inconvenience caused by the fact that traffic must either turn at a traffic control or take a more circuitous route to reach their shopping centers.

Appellants place great stress on cases such as DeLauder v. Baltimore County, 94 Md. 1 , 50 A. 427 ; Walters v. B. & O. Railroad, 120 Md. 644 , 88 A. 47 ; Sanderson v. Baltimore, 135 Md. 509 , 109 A. 425 . In the DeLauder Case a culvert, embankment and guard rail cut off access; in the Walters Case a structure prevented practically all ingress and egress; in the Sanderson Case a change of grade of the street left the property inaccessible. These cited cases involve interferences with access which go much further than does the construction of the median strip which clearly does not deprive the appellants or their customers of all or substantially all ingress or egress to and from the appellants’ properties. The appellants’ situation is more nearly analogous to that of the appellants in the case of Krebs v. State Roads Comm., 160 Md. 584 , 154 A. 131 .

In that case the State Roads Commission eliminated a highway grade crossing over a railroad and relocated it so that the road distance from the appellants’ store to a nearby village was greatly increased. There the appellants alleged that eighty per cent of the trade of their store came from the village on the other side of the grade crossing and that much of the trade came to their store because of its proximity to the village; that the removal of ²³⁴ the old grade crossing and the corresponding interruption of the highway at that point would cause great inconvenience and would result in a loss of the property’s usefulness, value and business worth, and that this action amounted to a taking of property in a constitutional sense without compensation. This Court said at 160 Md. 590 -594: “It is complained that a deprivation of access in some degree will follow here upon interruption of the short communication with the territory east of the tracks, and that, considering the location of the particular property, and the degree of inconvenience to it, and to the conduct of business in it, this interference with access should be classed with the interference involved in cases of cutting off access to streets in front, as a taking of the nearby property in a constitutional sense. * * *[I]t seems difficult to draw any distinction in principle between the resulting disadvantage to property so situated and that to properties which suffer from the cutting off of access on one of two fronts, or from the reduction of wide adjacent streets to narrow passages, none of which latter disadvantages have been found to constitute takings of the properties for public use in the constitutional sense. Baltimore v. Dobler, 140 Md. 634 , 118 A. 168 ; Baltimore v. Marine Works, 152 Md. 367 , 136 A. 829 ; Balto. & O. R. Co. v. Kahl, 124 Md. 299 , 92 A. 770 ; O'Brien v. Baltimore Belt R. Co., 74 Md. 363 , 22 A. 141 ; Poole v. Falls Road Ry.

Co., 88 Md. 533, 41 A. 1069 . * * * It is argued that the complainants have, by reason of their situation, an easement in the crossing which is so near to them, at the old site,- and that, as an easement is property, and the removal deprives them of that, it must be regarded as in law a taking of their property. * * * It coul$ not be said that the property of any of these users — at least property not actually deprived of all access — is to be taken, unless it can be said that the location of the public easement at that site gave them superimposed property rights against the public as a whole. And this, we think, it did not do. Correct though it may be to say that the surrender or vacation of the public easement there will diminish values in the neighboring abutting properties, or damage businesses carried on in them, this, it seems, cannot ²³⁵ mean that the owners will lose any right other than, or in addition to, the right to travel across the tracks, which has been included and secured to them in the public easement. Their right has been only that secured to the public as a whole, even though by reason of the location of their properties it is of greater usefulness to them than to others of the public.

The question under the Constitution is not one of comparative usefulness, or loss, to one property or the other from the shifting of the crossing, but one of taking private properties in doing it. And in the opinion of this court the mere surrender of the easement of crossing at the former site, whatever may be the inconvenience or loss resulting to owners of the nearby properties, cannot be regarded as involving a taking of those properties. Balto. & O. R. Co. v. Gilmor, 125 Md. 610, 618 , 94 A. 200 .” (Emphasis supplied.) Although this is the first case in this Court to present the question as to whether or not the installation of a median divider in a highway constitutes a taking of the property of an abutting landowner for which compensation must be paid, this question, or others very similar to it, have arisen elsewhere, notably in California. In People v. Sayig, 101 Cal.

App. 2d 890 , 226 P. 2d 702 , a