Mayor of Baltimore v. Bregenzer

Burke, J., delivered the opinion of the Court. Otto Bregenzer, the appellee on this record, filed a bill of complaint in the Circuit Court Eo. 2 of Baltimore City in which he prayed that the Mayor and City Council of Baltimore and the Baltimore and Ohio Railroad Company be restrained from erecting in front, against, and upon his property the approach mentioned in the bill, to a bridge which it was proposed to erect over Eutaw street. Both defendants answered the bill, and testimony was taken- in open Court under the Statute. Upon the facts in evidence the lower Court determined that “at least as to Eos. 424, 426, 428 and ⁸⁰ 430 West Cross street, the construction of the proposed viaduct on Cross street according to the approved plans offered in evidence, even as explained, or modified by the witness, Ogier, would amount to a taking of the plaintiff’s property, under the decision of the Court of Appeals of Maryland in' the case of Walters v. B. & O. R. R., 120 Md. 644 ,” and ordered that both defendants be enjoined “from constructing said viaduct in' front of the plaintiff’s property on Cross street mentioned in these proceedings according to the said plans unless and until just compensation, as provided by the laws of this State, shall have been fully paid or tendered to the plaintiff.” The following statement embraces all the material and essential facts in the record: The appellee is the owner of seven leasehold lots of ground with improvements thereon situate on the north side of Cross street between Warner and Eutaw streets in Baltimore City, and known as Mos. 424, 426, 428, 430, 432, 434 and 436 West Cross street.

Each lot has a front on Cross street of twelve feet with an even depth of sixty feet to a three foot alleys except Mo. 426 West Cross street, which has a front of fifteen feet with a like depth of sixty feet. The improvements consist of two-storv brick houses, in fair condition, with cellars about seven feet high and fourteen feet long. Each house has two sunken cellar windows, 24 inches high and 27 inches wide, except house Mo. 436. This house has an areaway and one cellar window.

The first floor of each house is elevated above the pavement, and the entrance to each house is by. means of steps leading from the street—the number of steps varying from four to six. The houses are rented to colored tenants. For some of the houses the appellee receives seventeen dollars per month each, and for others he receives three and three dollars and a half per week. Under the provisions of Ordinance-Mo. 387, as amended by Ordinance Mo- 320, approved July 16, 1913, the Mayor ⁸¹ and City Council of Baltimore, was about to change the grade of Cross street in front of the plaintiff’s property, and the Baltimore and Ohio Bailroad Company, under the terms of said ordinance, was about to begin the construction of a bridge over Eutaw street and also the construction of an approach to said bridge—the approach to be located in the bed of Gross street adjacent to the houses mentioned.

The purpose of this work was to carry the traffic over Eutaw street and to eliminate the dangerous grade crossing on that street. The Baltimore and Ohio Bailroad Company in its answer to the bill filed in this case said: “That unless prevented by the writ of injunction it intends to and in fact is compelled by the provisions of Ordinance JSTo. 387 of the Mayor and City Council of Baltimore, approved August 16, 1909, a copy of which is filed herewith, marked ‘Defendant’s, the Baltimore and Ohio Bailroad Company, Exhibit Fío. 1,’ and within the time set out in said ordinance and in accordance with plans and specifications which have been approved by and are on file with the city engineer of Baltimore City, to change the grade of Cross street between Sharp and Warner streets, by means of the construction of a steel girder bridge over the present railroad tracks in Cross street, with the necessary stairways and approaches thereto, as will more particularly appear by reference to said ordinance and plans.” The approach will be of concrete construction, with a width of 25 feet for a drive way and 10 feet for a footway, and it is proposed to construct it on the building line in front of the plaintiff’s property and in contact therewith. It is to be built upon what is practically a five per cent grade, and the effect of the construction upon the plaintiff’s houses Would be as follows, viz: First, it would necessitate the removal of the steps to which we have referred; secondly, it would completely obstruct the cellar windows and the area-way mentioned and shut off the light and air from the cellar’s of the houses; thirdly, the relation of the footway, adjacent to the property would be as to the respective houses as fol ⁸² lows, viz: the surface of the footway in front of house Eo. 424 would he 30 inches above the first floor; in front of house Eo. 426 it would be 8 inches above the first floor level; in front of house E01. 428, it would be one inch above the first floor level; in front of house Eo. 430, the first floor level would be 5% inches above the surface of the approach; Eo. 432 would be 14 inches above; Eo. 434, 22 inches above, and Eo. 436, 30 inches above. It would therefore require a less number of steps to enter four of the houses after the construction than is now required.

As to house Eo. 424 it would require two steps down, from the proposed footway to reach the first floor, and one step down to reach the first floor at Eo. 426. The first floor of Eo. 428 would be prac-, tically level with the footway. During the construction of the approach very great inconvenience as to ingress and egress to and from the houses would be suffered by the occupants thereof. The approach would be built wholly within the limits of the street and there would be no actual or physical invasion or appropriation of any part of the plaintiff’s lots.

Ordinance No. 387 was considered by this Court in the Walters case, supra, and in Baltimore and Ohio Railroad Company v. Kane, 124 Md. 231 , and Baltimore and Ohio Railroad Company v. Kahl, 124 Md. 299 . In the two latter cases the liability of the railroad company for damages to property of abutting owners resulting from the construction of a similar approach was established. It is declared by Section 40, Article 3 of the Constitution that, “The General Assembly shall enact no> law authorizing private property to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation.” The jurisdiction of a Court of Equity to prevent by injunction the taking of private property for public use in disregard of that section of the organic law is well established in this State. Western Md. R. R. Co. v. ⁸³ Owings, 15 Md. 199 ; American Telephone Co. v. Pearce, 71 Md. 535 .

It is proper to say, in view of certain remarks of counsel at the hearing, that the Court does not understand that it announced a new legal principle in the Walters case, or that it impaired in the slightest degree the settled principles of law upon the subject it was dealing with. It merely applied these principles to the facts of that ease. The section of the Constitution quoted does not define property, nor does it declare what shall be a taking. It leaves those questions to- the determination of the Courts upon the facts of each particular case.

The general rule applicable to the subject was stated in Garrett v. Lake Roland R. R. Co., 79 Md. 277 . In that case the abutment of solid masonry in the bed of Forth street and the elevated structure of which Mr. Garrett complained were located nine feet and eight and one-half inches from the curb line of his property. Fo part of the street was included within the lines of his deed for the property located on that street and directly opposite the abutment. It was alleged that the construction of this abutment of solid masonry in the bed of Forth street and the elevated structure would, by reducing the width of the street in front of the plaintiff’s lots to less than ten feet, destroy the access to his property from Forth street and prevent him from reaching the same with vehicles ordinarily used in Baltimore.

It was further charged that the destruction of his right of access to his property would render it entirely unsalable, and deprive him of the market value thereof, and constitute in fact and in law a taking of his property without making compensation therefor, as required by the