Park Land Corp. v. Mayor of Baltimore

Boyd, C. J., delivered the opinion of the Court. This is the second appeal in this ease, the former decision being reported as Mayor, etc., of Balto. v. Park Corporation, in 126 Md. 358 . The judgment was then reversed and the case remanded for a new trial. This proceeding was commenced by a petition filed in the Baltimore City Court by the Mayor and City Council of Baltimore against the Park Land Corporation of Baltimore City, the West Forest Park Company and the 'Development Aid Corporation, to secure by condemnation the right to connect the portion of the City’s sewerage system constructed in the bed of Liberty Heights avenue “with the sewer or drain of the defendants at or near the point shown on the plat herewith exhibited and described in paragraph 2 hereof, with the right to discharge drainage into and through said sewer or sewers which the defendants own, or in which they have any interest,” etc. The sewer with which connection was desired to be made is described in paragraph 2 of the petition as follows: “Said sewer being of masonry construction and beginning at a point located twelve and five-tenths (12.5) feet, more or less, northerly from the southerly building line of Liberty Heights avenue, and ⁶¹⁴ three hundred and twenty-six (326) feet, more or less, westerly from the westerly curb line of Granada avenue, and running thence in a southwesterly direction along Granada Path.

Connection for the Baltimore Sewerage Commission’s drain lying in the bed of Liberty Heights avenue is desired with the sewer of the West Forest Park Company and Park Land Company above described, at a point four and five-tenths (4.5) feet northerly along said drain from the south building line of Liberty Heights avenue.” At the last trial the jury returned an inquisition whereby it determined “the value of the property, sewer connection and use described in the petition” to be the sum of $5,847. From a judgment entered by the lower court this appeal is taken on behalf of all the defendants. The rulings of that court were on a motion in arrest of judgment, a motion to strike out and set aside the inquisition, and a motion to dismiss the petition for condemnation, and there were ten bills of exception taken during the trial-—the first nine being as to the admissibility of evidence, and the tenth to granting the 12th prayer. All of the motions were overruled.

They were based on the allegation that the property condemned was in Baltimore County and not in Baltimore City, and that consequently the lower court had no jurisdiction. It is also claimed that an inquisition was improper under the statute. We will first consider the question of jurisdiction. The petition and answers of the three companies are in the record of the first appeal.

It is sufficient to say that the answers show that the defendant companies have a sewer system running through their respective lands, in which all of them are interested. It may help to give us a better understanding of the case by describing at some length the conditions as they existed prior to and at the time this proceeding was instituted. The Forest Park Company of Baltimore City owned a residence development, consisting, of about 42 acres, bounded by Liberty Heights avenue on the ⁶¹⁵ south and by Garrison avenue on the east, all of which was in the city, and being just east of the city’s western boundary line. That company has a sewor running near the northerly building line of Liberty Heights avenue, just under the sidewalk, which turns southerly and connects with what was known as the Callaway sewer (being" the one now owned by the defendant companies).

That connection was made under an agreement between the Park Land Corporation, the West Forest Park Company and the Forest Park Company, dated June 1st, 1909, which is to he found in the record of the case of Mayor, etc., of Baltimore v. Forest Park Co., 123 Md. 290 . The connection was at or about the intersection of Granada path with the western limits of the city. The record of the case in 123 Md. also shews that on March 25th, 1913, the city filed a petition against the Forest Park Company, the Park Land Corporation, the West Forest Park Company, the Development Aid Corporation and George E. Webb, for the purpose of condemning a connection with the sewer of the Forest Park Company which empties into the Callaway system. The proposed connection with that sewer was in the city, but near its western boundary line.

Tho case reported in 123 Md. was instituted to enjoin the city from connecting its sewer with that of the Park Land Corporation, and the West Forest Park Company, or Development Aid Corporation, on the theory that under the agreement between the Forest Park Company and the others, that company had agreed not to allow any sewer to enter into its sewer excepting to drain its land and that of George E. Webb. The city relied on an agreement between it, tho State Eoads Commission, the Park Land Corporation and tho Development Aid Corporation, entered into September 9, 1913, under which the Mayor and City Council of Baltimore connected its sewer with that then belonging to the Park Land Corporation and the Development Aid Corporation, which then owned the system formerly belonging to the West Forest Park Corporation, and disposed of the drainage ⁶¹⁶ into a stream which ultimately readies Gwynn’s Falls. It was agreed that in payment. of said connection those two corporations would accept therefor such sum as may he awarded by the appraisers therein provided for or by a jury in the condemnation proceedings theretofore brought by the city, or such other proceedings as may be properly brought to ascertain in that manner the value of such connection to the city. The record does not show when the condemnation proceeding referred to in 123 Md. was disposed of, but we understood at the argument that it was dismissed and the one in 126 Md. was begun November 23, 1914.

The jurisdiction of the court was not in terms attacked by the answers or otherwise, but the answer of the Park Land Corporation, after referring to the drainage system of itself and the De- ■ velopment Aid Corporation, and that it had been unable to agree with the city for the use of the drain, says: “Wherefore, your defendant, whose system lies entirely in Baltimore County, and to whom the city owes no obligation in the matter of taking care of its drainage, is compelled to treat the city as a stranger who desires to make the use of its property, which said use is more valuable than the city has been heretofore willing to admit”; and in the answer of the Development Aid Corporation it is said: “That all of the property of this defendant lies in Baltimore County, and therefore has no claim upon the city nor city agents to take care of the drainage necessities of its community, and this company was organized for the purpose of so doing,” etc. The petition does not allege that the connection is in Baltimore County, but the plat filed with it, upon a close inspection, looks as if the point of connection may be a few feet west of the line, if the plat is correct. The day the jury was sworn on the former trial the parties entered into the following agreement: “It is • understood and agreed that all errors in pleading are hereby waived, and the defendants afore ⁶¹⁷ said waive any and all technical questions, such as the jurisdiction of the court and the right of the plaintiff to proceed, as in this case done; it being the intention and purpose of the parties hereto to leave for determination only the question of the amount of the compensation, if any, to which the defendants are entitled by reason of the connection of the drainage . set forth in said petition.” The jury at the first trial fixed the value of the property, sewer connection and use at $18,000. The city made a motion for a new trial, but that was overruled, and it then brought the case to this Court. The present appellants endeavored to sustain that judgment, and no suggestion was made at the argument or in the briefs that the lower Court or this Court had no jurisdiction.

Now for the first time, •after a verdict has been rendered fixing the value at $5,847, the question of jurisdiction is urged. Of course, there can be no doubt about the general doctrine that jurisdiction of the subject-matter can not be conferred by consent. Nor will we question the contention of the appellants that the jurisdiction conferred on the Circuit Courts of the counties and the law courts of Baltimore City, by Article 33A of the Code is a special and limited one, and entirely distinct from •and independent of their common law powers. Hyattsville v. W. W. & C. R. R. Co., 124 Md. 577 .

We will, moreover, concede that a petition for condemnation should be filed in the county, or the City of Baltimore, where the property sought to be condemned is situated. But notwithstanding all these matters, there are other considerations which can not be ignored. By the Act of 1904, Chapter 349, section 3, the Mayor and City Council of Baltimore were authorized to acquire for its sewerage system by ■gift, purchase, lease or other like methods of acquisition, or by condemnation, any land or property situated wholly or partly within the city, or within any of the counties of the State, or any interest, franchise, easement, right or privilege ⁶¹⁸ therein which may be required, etc. The general rule is that tvhen a single tract of land which is sought to be condemned is located in two counties, the condemnation proceeding may be in either; 10 R. C. L. 206, section 176; 15 Cyc. 834. In the note to the latter, on page 835, cases are cited to the effect that condemnation may be had in any one county for a telegraph line along the right of way of a railroad company which extends through several counties.

In Whitney v. Central Georgia Power Co., 134 Ga. 213 , as reported in 19 Am. & Eng. An. Cases, 982, there is a note citing many authorities. Some of them are governed by statutes, but in the-absence of a statute we are of the opinion that if the connection purposed to be condemned by this proceeding was in Baltimore City there could be no question about the right to condemn there.

Such a rule seems to- us to be peculiarly applicable to1 sewer connections. There was an existing sewer owned by the defendant corporations with which the-city desired to connect its sewer at or about the western limits of the city. It is true that the land over which the sewer runs seems to be owned in part by one corporation- and the rest by another, but all three defendants are interested in what is spoken of as the Callaway system of sewers, which extends from a point at or about the city’s western-line on Liberty Heights avenue southerly into Baltimore County. The connection with the sewer was in fact actually made under the agreement of September 9th, 1913, before this proceeding was begun, although the parties had not agreed upon the compensation.

By their agreement of November 30, 1914, they waived all errors in pleading, and declared it to be their intention and purpose to reserve only the question of the amount of compensation, as will be seen-by the agreement, which is set out in full above. It was at least a close question whether the connection was on the city side or on the county side of the western boundary line of the city. It may be that the question of jurisdiction in the minds of the attorneys which they undertook ⁶¹⁹ to waive by the agreement just referred to was whether a connection in Baltimore City gave a court of that city jurisdiction, although the line beyond the connection was in fact in Baltimore County; hut, however that may be, if the court determined it had jurisdiction because the connection was believed to be in Baltimore City, then whether it was right or wrong in its conclusion can make no difference on this, the second appeal. It had the right to decide that question, and as has often been said, it is not whether a court rightly decided a question, hut whether it had the right to decide the question at issue.

Stanley v. Safe Deposit Co., 87 Md. 450; New York Min. Co. v. Midland Co., 99 Md. 512 . In Stanley v. Safe Deposit Co., this Court said, it is undoubtedly true that the Orphans’ Courts are tribunals of special, limited jurisdiction, but as they have the right to-admit wills to probate, when the will in question “was presented to the Orphans’ Court of that county for probate, that court was required to decide and determine whether it had jurisdiction to admit the will to. probate, and therefore, at the threshold, had power to decide and determine whether Mr. Cox had been, in fact, at the time of his death, a resident of the county. This was an inquiry which it was necessary for the Orphans’ Court to make and to decide before it could proceed either to admit the will to probate or to grant letters of administration * * * Tf it bad a right to decide the question of residence, then it had the right to determine whether it had jurisdiction to admit the will to probate, and if it decided that preliminary question erroneously its decision was subject to