Mayor of Baltimore v. Black

Bartol, O. J., delivered the opinion of the Court. This suit was instituted by the appellees in May 18P7, to recover damages for injury done them by the alleged wrongful delay, default and negligence of the appellant in the matter of opening and condemning Presstman street. The case was before this Court on a former occasion, upon the plaintiffs’ appeal, reported in 50 Md., 235 ,. where will be found a statement of the facts which gave rise to the suit. They need not be repeated here.

On that appeal the judgment was reversed because of error in granting the prayer of the defendant, which denied to the plaintiffs the right to recover because “ no assessment of damages or benefits had been made by the Commissioners, and the City had never taken actual possession of the plaintiffs’ property.” In the case then before the Court the following propositions were decided: 1st. Where a property owner has suffered actual damage by the culpable or unreasonable delay of the City authorities in prosecuting a work of this kind, or in determining to abandon it, he is entitled to be indemnified for his loss, whether the delay complained of occurs before-or after the assessment of damages and benefits has been completed. 2nd. The question whether such culpable or unreasonable delay has occurred, or in other words the question of negligence on the part of the defendant, is one for the jury to decide,- under the instruction of the-Court. i ³³⁹ 3rd. Where an Ordinance for condemning and opening a street has been passed, and remains unexecuted, or but partially carried into effect, and the property owner acquiesces in the delay, he cannot maintain an action for damages caused thereby.

In order to entitle him to maintain an action against the City for alleged negligence in such case, he must prove that some action has been taken on his part, whereby the City has been put in default; such as a remonstrance, or application made to the' proper City authorities to go on with the work or to repeal the Ordinance. In the absence of some action of this kind on the part of the property holder, the City authorities would be justified in concluding that no person is suffering loss or damage by the delay, and negligence cannot he imputed to the City. 4th. As to the measure of damages, the rule was declared that the plaintiffs can only recover for such special damages as they actually suffered from the default and negligence of the defendant. Under this ruling the case has been again tried and a verdict and judgment recovered by the plaintiffs, from this judgment the present appeal has been taken.

Three bills of exception were taken by the appellant, two of them raising questions of evidence, and the third presenting for review the ruling by the Court below upon the prayers. The prayers will first be considered. Of these two offered by the plaintiffs were granted, and those offered by the defendant, four in number, were refused. In our opinion, the facts enumerated in the first prayer of the plaintiffs, if found by the jury, entitled them to the verdict.

The prayer distinctly left to the jury to determine whether the delay complained of was unnecessary and negligent. The plaintiffs’ second prayer also required the jury to find that the delay in executing the Ordinance was not unavoidable, and claimed to recover such damages ³⁴⁰ as the jury should find from the evidence, the plaintiffs sustained hy reason of such delay. These prayers seem to us to state the law correctly, and in accordance with the decision rendered on the former appeal. The first and second prayers of the defendant rest upon the theory that the remonstrance and complaint hy the plaintiffs ought to have been addressed to the Mayor and City Council, or that they ought to have mode application to that body to go on with the work, or to repeal the Ordinance; and that in the absence of proof of such remonstrance or application addressed to the Mayor and City Council, the plaintiffs are not entitled to recover.

This proposition is not in accordance with the rule announced in 50 Md. The principle upon which that decision rests, is, that in order to maintain a suit of this kind, the plaintiffs must show that they have not tacitly and voluntarily