Norris v. Mayor of Baltimore

Miller, J., delivered the opinion of the Court. On the 18th of March, 1872, an Ordinance was passed hy the Mayor and City Council of Baltimore, providing for the condemnation and opening of Laurens street from Pennsylvania avenue to Madison avenue. The appellants were the owners of a vacant lot through which this improvement extended, hut the whole of it was not needed for the bed of the proposed street. In this state of case the owners surrendered the whole lot to the Commissioners for opening streets, and claimed compensation for the whole of it, as they had a right to do under the existing Ordinances of the City.

Baltimore City Code of 1869, Art. 43, sec. 7, page 831. The Commissioners then proceeded to value the lot and assess the damages, and from their, assessment the owners took an appeal to the City Court, and upon trial, the jury, on the 22nd of January, 1874, found an inquisition assessing the damages for the lot at $22,567.50. From this no appeal was taken hy either party to this Court. This amount was paid hy the City to the owners on the 4th of December, 1874.

At the tim.e of this payment the owners claimed interest on this sum from the 22nd of January to the 4th of December, 1874, which the City refused to pay, and the questions now arising and to he decided are, ⁶⁰⁴ 1st. Are the owners entitled to this interest or its equivalent by way of damages, and can they recover it from the City in any form of action ? 2nd. If so entitled can they enforce its payment by mandamus, the process they have resorted to in this case ? It is insisted on the part of the appellants, that interest in such a case .when payment is thus delayed, is a necessary ingredient of the “just compensation ” provided by the Constitution for taking private property for public use.

We cannot, however, so regard it. It has long been the settled law of Maryland, that both private and municipal corporations, when authorized to exercise the power of eminent domain, have the right to renounce the inquisition and select a more eligible route, or to wholly abandon the improvement or enterprise, at any time before actual payment of the amount assessed, either by commissioners or jury, and until that time no title to the property condemned vests in the corporations. Balto. & Susq. R. R. Co., vs. Nesbitt, 10 How., 395 ; Graff vs. Mayor & C. C. of Balt., 10 Md., 544 ; State, ex rel. of McClellan vs. Graves, 19 Md., 351 ; and Merrick, Adm’r of Warfield vs. Mayor & C. C. of Balt., 43 Md., 219 .

But when this sum is paid or tendered, the title vests, and the constitutional requirement is gratified. Nothing more than this sum can, in any case, be demanded by the property owner, as and for the compensation which the Constitution secures to him. This we consider to be the firmly established law of this State. No other answer than this need therefore be made to the very able argument of the appellants' counsel, as to what constitutes a taking of property under this provision.

We may remark, however, that we have seen no case, a.nd think none can be found, which has- gone to the extent of deciding that the mere assessment of damages by commissioners or a jury constitutes such taking. Such assessment is simply a mode prescribed by law, for ascertaining the value of the property ⁶⁰⁵ to he taken, or the damages that will he sustained hy the taking. It is a step preliminary to the taking, and not the taking itself. It has also been argued, that the terms in the Ordinance, regulating proceedings for opening streets.

(City Code, Art. 43, sec. 9, page 834,) which declares that the assessment of the commissioners, or the inquisition of the jury unappealed from, “shall be final and conclusive in every respect,” give a peculiar potency to this finding, and that the facts shown hy the docket entries, that this inquisition was confirmed hy an order of Court, and judgment entered thereon, which has never been stricken out or appealed from, entitle the appellants to interest on the amount thus ascertained, as upon a judgment for like sum regularly rendered. But what we understand is meant hy the terms referred to, in the connection in which they are used, is that the assessment or inquisition shall he conclusive between the parties, as to the value of the property or the damages to be sustained hy taking it, and as to the regularity of the proceedings by which that ascertainment was reached. As to the order of confirmation and entry of judgment, we are satisfied they add no strength to the appellants’ claim. By examining this 9th section of Article 43 of the City Code, under which alone the City Court was authorized to act in taking the inquisition, we find no provision whatever, for any order of confirmation, or for any judgment to he entered.

These entries were, therefore, wholly unauthorized hy law, and are inoperative and ineffectual. The Act of 1870, ch. 371, has no application to such proceedings. That Act was thoroughly examined and construed hy the learned Judge of the City Court in Merrick’s Case, and shown to he inapplicable to a case like this, and his construction of it was adopted hy this Court. We are therefore clearly of opinion, the appellants are not entitled to a mandamus, to recover this interest, either as forming part of the just compensation secured by the Constitution, or as in the nature of interest on a judgment. ⁶⁰⁶ But while we are of opinion the appellants cannot recover this amount as interest, it by no means follows they are without remedy in the premises, or that they cannot recover an equivalent sum in an action for damages.