Mayor of Baltimore v. Johnson

³²² Pattison, J., delivered the opinion of the Court. The appellee.'in this ease filed her bill in Circuit Court No. 2 of Baltimore City against the appellant, alleging therein that she is the owner of a lot of land on the southwest side of Green Spring avenue, in the City of Baltimore, and that the city, in extending Park Hill avenue from Park Heights avenue to Green Spring avenue, has condemned a strip of said land one thousand feet in length and fifty feet in width, for which the appellee has been awarded by the Commissioners for Opening Streets the sum of four thousand nine hundred and thirty-five dollars, and has been assessed with benefits to her abutting land a like sum of four thousand nine hundred and thirty-five dollars; from which action of the Commissioners an appeal has been taken by her to- the Baltimore City Court, where the case is now pending. The bill further alleges that, in condemning said lands for the purposes aforesaid, the grade of the street has not been established, and the City Engineer has refused to establish such grade, although the appellee has requested him to do so and has tendered him the costs thereof. The reason assigned by the engineer for his refusal to establish the grade being, “that the proceedings of the Commissioners for the opening of the Green Spring parkway have not advanced to the point where we can request the City Surveyor to officially establish this grade,” but suggested that the tentative street grade made by Joseph W. Shirley, chief engineer of the Topographical Survey, in compiling his preliminary plans for the parkway would, no doubt, be finally adopted without any material change as grade establishments, and that such grade would answer the purpose in ascertaining the quantity of excavation or fill to be made.

The bill also alleges that “until the grade is established it is impossible that said appeal can be tried fairly and with justice either to your oratrix or the defendant, because one of the factors or elements in determining either benefits or damages will be the necessary cost of cutting or filling her ³²³ adjacent property abutting on said avenue so to be opened, and tbis cost cannot be estimated until said grade is established.” The bill further alleges that the plaintiff has asked that the trial of the case on appeal be postponed until the grade of the street be established, but the defendant has refused to consent to such postponement, and the case has been set for trial and will soon be reached in regular course upon the docket. The prayer of the bill asks that the defendant be “enjoined from proceeding with the trial and hearing of the appeal in Baltimore City Court until the establishment of the grade 4"i Park Hill avenue so condemned and to be opened.” ' The defendant demurred to the bill and its demurrer Icing overruled, tlie appeal is taken from the order over-j uling such demurrer. The main question presented by this appeal is, whether the grade of the street opened through the lands of the appellee should be first established by the city before it be permit [od o assess the appellee with benefits to her adjacent lands, caused by the opening of said street. It was said by Judge Boyd in the case of Mayor and City Council of Baltimore v. Smith, 80 Md. 470 : “The evidence shows that a number of the lots of the company which will front on the proposed street, and have been assessed for benefits, were below the established grade of the street.

The company offered to prove the amount of filling necessary to bring them to that grade, to fit them for use for building purposes. The city objected, but the Court overruled the objection and permitted the company to prove the estimated amount of filling necessary in each of the lots. In such cases jurors are entitled to have before them any facts that will aid them in reaching proper coneulsions. The opening of the street having been determined to be a direct benefit to Tese lots, the next inquiry was how much will they bo benefited.

Different modes may be adopted for determining that ³²⁴ question. A lot which would be left eight feet below ttio grade of the street after it is opened, would not be benefited • as much as it would be if on the level of the proposed street.” “Hence, in ascertaining the amount of benefits, testimony tending to show the cost of filling the lots to* the level of the established grade will be relevant. The jury was authorized by the ordinance to view the premises, and did so in this case. When they -went upon the.property the ground to be included upon the bed of the street might appear to be level, or nearly so, with that adjoining it on either side, and hence, in assessing benefits, they might have been misled, unless they were informed how much filling would be required to bring the adjoining property to the level of the established grade and what the cost would