Mayor of Baltimore v. Megary

Boyd, C. J., delivered the opinion of the Court. This is an appeal from the rulings of the Baltimore City Court in the trial of an appeal from the award of damages and the assessment of benefits made by the Commissioners for Opening Streets in connection with the condemnation of part of a lot of ground owned by Louisa V. Megary, one of the appellees. The Commissioners awarded her $15,-104.00, and assessed her remaining lot for $1,269.90 hen&fits. By the inquisition of the jury the damages were increased to $20,821.00, and the benefits were reduced to $800.00.

The appellant complains of the action of the lower Court in granting the property owner’s second, third, fourth, sixth and seventh prayers. By Ordinance Humber 145 of the Mayor and City Council of Baltimore, approved July 23,1912, the City provided for the condemning and opening of Thirty-seventh Street from Charles Street to University Parkway. Charles Street runs north and south and University Parkway runs northwest and southeast, intersecting Charles Street at an angle of about forty-five degrees, as appears from the blue print of the plat filed. Mrs. Megary owns in fee simple a lot which fronts 100 feet on the west side of Charles Street, running westwardly to the northeast side of University Parkway, the northern line being 300 feet in length, and the southern line 220.68 feet, the western line being 26.01 feet, and the south ²⁴ western line fronting on University Parkway 108.46 feet.

Thirty-seventh Street now ends at Charles Street, its northerly side extended across Charles Street, being 20.81 feet north of Mrs. Megary’s lot. It is proposed to throw into Thirty-seventh Street the triangular space between Charles Street and University Parkway south of a curved line running from a point on Charles Street 326.39 feet north of the intersection of Charles Street and University Parkway (being 20.81 feet north of Mrs. Megaiy’s lot) to a point on University Parkway 23.80 feet from the southerly line of her lot. That will take the entire front on Charles Street of Mrs. Megary’s lot, and while it will leave a little over 84 feet frontage on University Parkway, and nearly 151 feet on the curved front on Thirty-seventh Street as extended, the remaining lot will be of a very peculiar shape and difficult to build on to advantage. 1. The appellees’ second prayer instructed the jury “that they should award to the property owner as damages, in addition to the fair market value of the lot taken and condemned by the Mayor and City Council of Baltimore, in the opening of Thirty-seventh Street between Charles Street Avenue and University Parkway, an amount equal to whatever damages, if any, caused to said property owner by reason of such taking, to the remaining lot of said property owner not taken”.

The City filed a special exception to that prayer on the ground that there was no evidence legally sufficient to show that the remaining lot of the property owner had suffered dr sustained any damage by reason of the taking of her property. It is thoroughly settled in this State that “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”; Baltimore v. Garrett, 120 Md. 608 , and cases there cited. ²⁵ The evidence of Messrs. Turnbull, Appold and White, experts produced by,the appellees, shows that the property as it is before the opening of the street has two fronts — one on Oharles street and the other on University parkway. Mr. Appold, after giving the dimensions of the lot, said “That permits the lot to be divided into two portions, with a building site on both Oharles street and University Parkway, and that the Oharles street front is worth giving up 120 feet depth for the Charles street front on the short line, and 100 feet depth on the short line for the University Parkway front, and of course on the long line it would be longer for each lot.

I think the Oharles street front is worth $150 under those conditions, and the University Parkway front $100. That makes $250 — and 100 feet at $250 is $25,000.” It will be recalled that the northern line of the whole lot is 300 feet long and the southern line is 220.68 feet. The above estimate was of the whole lot, and he. valued the part condemned at $20,000 and the balance at $5,000. As he valued the front on Charles street at $15,000, all of which was taken with the exception of a small triangle along the northern line, which could be of little or no value, and the University Parkway front at $10,000, and then fixed the damages for all taken at $20,000, it is manifest that he took into consideration the damage done to the remaining lot.

The part of the University Parkway front which was actually taken was not worth as much as the part of that front not taken, for the latter has about 84 feet front, while the other only has about 23 feet front, and there was not as much land of that part of the entire lot taken as there was left. Precisely how much he valued the respective portions of the University Parkway front he did not state, but on cross-examination in answer to the suggestion that according to his figures — $15,000 for the Oharles street front and 23 feet at $100 a foot on University Parkway — they would amount to $11,300, while he fixed the damages for the whole taken at $20,000, he said: “The lot that the city leaves under this proceeding is a very irregularly shaped lot. In my judgment ²⁶ that seriously impairs the value of the lot as against a lot such as I have described above. It makes it more difficult to build on.

Unless it is very successfully handled, it could not be built on in good taste but it might, however, under successful handling. In my judgment that detracts from the value of the lot, it is irregularly shaped you know.” He thus clearly indicates that in his estimate of $20,000 he took into consideration the damages to the remaining lot by reason of the shape it was left in by what the city took. Messrs. Turnbull and White valued the whole lot at $30,000- — -the part taken at $24,000 and what was left at $6,000.

Mr. White said in answer to the question why he placed the valuation of $6,000 on the part of the lot that was not taken; “purely on account of what I think that lot will sell for, left as it will be left and the curious shape in which it will be left.” When asked to explain the situation, he said; “I think the shape of the lot almost explains itself. It is an unusual shape. It is not capable of any great, high-class development, except one house, and very few people are able with advantage to improve the lot to their satisfaction, knowing this is a high-class neighborhood.” Mr. Bernard, an expert produced by the city, said: “I did not make any estimate of the damage to that lot. If the lot were being taken and the purpose of cutting into that lot would be for private purpose, the lot would undoubtedly be damaged, but when we fixed our benefit assessments on that lot we took into consideration all the damages which were done to that lot by reason of the cutting through of this street.

Otherwise our benefit assessment would have been in the neighborhood or somewhere around four or five thousand dollars.” As he estimated the benefits at $1,500, he apparently thus estimated the damages to the lot to be from $2,500 to $3,500. But valuing the University Barkway front as a whole, either at $10,000, according to Mr. Appold, or $12,000, according to Mr. White, or at- any other sum that might be named by the witnesses, it could hardly be necessary to have expert witnesses in order to convince the Court or the jury that taking off the part of ²⁷ this front which is taken will damage the remainder. It is apparent from the plat, that what is condemned, leaves that not taken, in such an irregular shape, and so situated, that it was necessarily damaged. In our judgment it is clear that the evidence shows that the remaining lot will he considerably damaged.

Inasmuch as none of the instructions granted at the instance of the property owner directed the jury to take into consideration their view of the property in fixing the damages, or assessing benefits, and as three of those granted at the instance of the city did in terms so direct them, and inasmuch as we think there was legally sufficient evidence to go to the jury as to damages to the remaining lot, we do not feel called upon to determine whether the fact that a jury does view the property in a proceeding of this kind will require the Court to submit the question of damages vel non to the remaining lot, even if it thought that there was no legally sufficient evidence offered at the trial tending to show such damages. Section 179 of the charter is certainly very broad, as it provides for the summoning and impaneling of a jury in an appeal to the Baltimore City Court in a case of this kind “to try any question of facts, and if necessary to view any property in the city, or adjacent thereto, to ascertain and decide on the amount of damages or benefits, under the direction of the Court.” When that is considered in connection with what this Court has said as to the view of the jury in condemnation cases in Tide Water Canal Co. v. Archer, 9 G. & J. 479 , Baltimore v. Smith and Schwartz Co., 80 Md. 473 , and Kurrle v. Baltimore, 113 Md. 76 , it cannot be doubted that some effect must be given such view by the jury. The plat used in this case helps to explain the shape of the lot left and its location with reference to what is taken, and it would be remarkable if, in determining whether the property owner will sustain damages to her remaining lot, the jury could not make any use of their view, which would show the state it will be left in, its location, etc., more satisfactorily than a plat can. If that were not so, it ²⁸ would be of but little use to permit the jury to view the property.

So without now determining whether the fact that a jury did view the premises would prevent the Court from taking the question of damages from the jury, if there was no legally sufficient evidence of.damages actually offered in Court, the view by the jury must be given considerable effect, particularly in a case of this kind where the plat and evidence show that the lot in question will be left in a very unusual and peculiar shape and position — especially for a lot situated in what the testimony shows is one of the most desirable portions of the city for residences. There is no inconsistency in estimating damages to the remaining lot and then in the same proceeding assessing benefits 'against the property owner. As was said in Baltimore v. Smith & Schwartz Co., supra, “the two transactions of fixing damages or compensation, and of assessing benefits are separate and distinct.” An award which did not include compensation for the resulting injury to the remaining land would not constitute just compensation within the meaning of the Constitution, Article 3, section 40. Ridgely v. Baltimore, 119 Md. 581 .

As said in Lewis on Eminent