Mayor of Baltimore v. Garrett

Urner, J., delivered the opinion of the Court. The appellee is the owner of a lot of ground fronting- about two hundred and eleven feet on the northwest side of the Harford road, a public highway of Baltimore City. In the execution of a general plan for the widening and improvement of ⁶¹⁰ this thoroughfare the Commissioners for Opening Streets condemned a strip of ground having an average width of about seven feet along the front of the appellee’s lot. The lines of the condemnation included about two feet of the front of a brick dwelling which occupied a portion of the lot and stood on a terrace at an elevation of several feet above the original level of the' sidewalk.

The improvement also involved the lowering of the grade of the highway to the average extent of about four and a half feet in front of the appellee’s premises. This had already been done when the Commissioners filed their report of the condemnation. The curb had then been set at the new level and the appellee had been notified to grade and pave the footway in front of his property. By the return of the Commissioners the appellee was allowed $1,424.00' as damages and was assessed $625.00 as benefits.

The damages were separated into two items, one of $824.00 for the value of the land taken and another of $600 for repairs to the building. A petition for the.review of the award and assessment thus reported was filed by the appelleein the Baltimore City Court where a trial of the issue subsequently occurred with the result that the damages were substantially increased while the assessment of benefits was -confirmed. In the course of the trial evidence was admitted as to the cost of regarding the ground condemned and the lot from which it was taken so as to place the property in the same position in relation to the street that it occupied before the grade was lowered, and the jury were instructed in effect that the appellee was entitled to be allowed for the expense of this work. These rulings indicate the principal questions to be decided on the present appeal.

The argument on behalf of the City is founded in part upon the proposition that damages are not ordinarily recoverable for an injury to adjacent land caused by a lawful change in the grade of a public highway. But the decisions of this Court which apply the rule thus stated confine it to cases in which no part of the abutting property is taken for the purpose. Green v. City and Suburban Ry. Co., 78 Md. ⁶¹¹ 294; Offutt v. Montgomery Co., 94 Md. 115 ; Cumberland v. Willison, 50 Md. 138 .

In the ease now before us the power of eminent domain is being exercised, and the rights of the appellee must be ascertained by reference to the principles which are appropriate to such a proceeding. The “just compensation” required by the Constitution to be paid where private property is taken for public use includes not only the value of the part condemned, but also a due allowance of damages for injury to the remainder. Ridgely v. Baltimore, 119 Md. 567 ; McCormick v. Baltimore, 45 Md. 512 ; Norris v. Baltimore, 44 Md. 598 ; Moale v. Baltimore, 5 Md. 314 ; Tidewater Canal Co. v. Archer, 9 G. & J. 479 . It is a well settled rule that the measure of the consequential injury to the residue of the land is the difference produced in its value by the appropriation and use of the separated portion for the purposes contemplated by the condemnation.

Shipley v. Western Maryland R. R. Co., 99 Md. 135 ; Baltimore v. Rice, 73 Md. 311 . The City contends that-the assessment of benefits in this proceeding amounts to a conclusive finding that the remaining land of the appellee is not impaired, but actually enhanced, in value by the improvement of the street. It appears from the record that while the cost of grading was not considered by the Commissioners either in awarding damages or in assessing benefits, a part of this expense was included in the allowance of damages by the jury on the trial of the appeal in the Baltimore City Court. The question first to be determined, therefore, is whether the cost of adapting the property to the new conditions can be allowed consistently with a finding that its value will advance in consequence of the improvement for which the condemned portion is appropriated.

In Baltimore v. Smith, 80 Md. 458 , an appeal was taken from an assessment of benefits alone, and the award of damages was not under review. The grade established for the street in which the land taken in that case was to be used was above the level of the abutting lots, and evidence was ⁶¹² admitted to prove the cost of filling up the adjacent ground to the level of the proposed street. This was held to reflect upon the issue of benefits to which the appeal was directed. The relevency of the proof was thus illustrated by Judge Boyd, who delivered the opinion in that case: “If a lot was worth one thousand dollars before the opening of the street and would be worth two thousand dollars after it was opened, without any work being done on it, the benefit to it would manifestly be one thousand dollars; but if it would cost five hundred dollars to bring it to the grade of the street, so as to give it the value of two thousand dollars, it is equally clear it would really only be benefited five hundred dollars.” This decision proceeded upon the just principle that an evident necessity for changing the condition of the land so as to make it capable of receiving the advantage anticipated from the improvement ought not to be disregarded in the assessment of the benefits to be charged against the property.

As the appeal was confined to the question as to the proper amount to be assessed for benefits, it was held that the award of damages by the Commissioners could not be considered. The statute has since been amended so as to provide that upon every appeal from any action of the Commissioners for Opening Streets both the damages and benefits shall be open for review and correction (Acts of 1898, Chapter 123; section 179 of Baltimore City Charter). In this case both issues were before the jury, and while they allowed for part of the estimated cost of the regrading, they included the amount in the award of damages instead of charging it against the benefits. This method was not prescribed by any instruction to that effect, but it was probably adopted for the reason that the allowance made for the regrading was beyond the amount of the benefits assessed.

The only alternative means of expressing the jury’s conclusion was to set off the sum allowed for regrading against the assessment of benefits, and then to include the excess in the award of damages. If this had been done, there would have been no benefit assessment returned by the jury, but the practical results to the parties would ⁶¹³ have been the same as those produced by the verdict as rem dered. Tf the cost- of regrading was properly allowable, no prejudice has resulted to any interest concerned from the mere fact that the disputed elements of injury were estimated ns additions to the damages rather than as deductions from the benefits; and as the jury has found the nonsequential injury to have been actually sustained, there is no room for the theory, suggested by the City, that the contrary conclusion must be assumed to have been reached becamse the verdict included an assessment indicating that the effect of the street improvement would bp to enhance the value of the property. Upon the principle announced in Baltimore v. Smith, supra, the necessary cost of placing the abutting property in a condition to receive the advantage of the street as reconstructed should undoubtedly be taken into consideration at least as reflecting upon the question of benefits.

But upon the theory that the remaining land is in fact primarily injured by the change of street- grade accomplished through the condemnation, we see no reason to restrict the land owner’s recovery to less than the amount of the damages actually sustained. The injury in such case to the land not taken consists in the impairment of its availability for convenient and beneficial use with respect to a pre-existing street, and for a loss thus occasioned as the result of such a proceeding as the present the owner is entitled to adequate compensation. It is contended, however, that even if the reduction of- the street level be regarded as a cause of injury to the residue of the appellee’s land, the proper measure of this damage is not the cost of regrading but the difference in value occasioned by the lowering of the street. In applying the rule of compensation thus invoked to the special conditions with which we are concerned in this case it must be borne in mind that the appreciation of values produced by the project to which the condemnation is incident must be disregarded.

Moale v. Baltimore; Norris v. Baltimore, McCormick v. Baltimore, and Baltimore v. Smith, supra. This principle is of special importance in a case like the present where the land owner ⁶¹⁴ is being separately assessed, as against his damages, for an amount intended to represent the increased value which will accrue to his property from the improvement. In such a situation the- most rational and reliable measure of the effect of the change of grade on the value of the remaining land is the cost of restoring it to the relative position for advantageous use which it occupied before the appropriation of a part of the property for the particular object contemplated. This, of course, conld properly include only such regrading as might be reasonably necessary to