Patterson v. Mayor of Baltimore

Boyd, 0. J.? delivered the opinion of the Court. This is the second appeal by the appellants in a proceeding for the condemnation and opening of Twenty-fifth street from the east side of Greemnount avenue to the west side of Harford avenue, under Ordinance Na 416 of the Mayor and City Council of Baltimore, approved December 9th, 1909. 'The former appeal is reported in 121 Md. 233 . There are thirty-seven exceptions in the record—the last one presenting the rulings of the lower Court in rejecting eleven of the appellants’ thirteen prayers, and granting the city’s third and •seventh prayers and overruling the special exception to the •city’s seventh prayer, and the others containing exceptions to rulings on the evidence.

The first twenty exceptions relate to damages, Undoubtedly an important element in estimating damages for land taken under condemnation proceedings may be its availability for or adaptability to certain purposes. In this case, although the tract of land owned by the appellants had not been laid out into lots but had been held by them and those under whom they claim for many years as an unimproved and unideveloped tract of land, it was admissible to show that it was ⁶⁵⁰ available for city lots, and to point out tbe special advantages for residential or industrial purposes the particular parts of' it had. In the testimony of Mr. Atwood, a witness for the appellants, who was shown to be an experienced, civil engineer and surveyor, and had been a commissioner for opening streets for one term and city surveyor for two terms, he was-permitted to state fully his views as to the effect of locating Twenty-fifth street according to the location made in these proceedings. The appellants, however, did not deem thatsufficient, but sought to introduce two plats made by the witness.

The first, second, third, fourth, fifth, sixth, eighth, ninth, tenth, twelfth, thirteenth and ninteenth exceptions relate to those plats. The Belt Line of the Baltimore & Ohio R. R. Cta. runs through the tract of the appellants—dividing-it into two parts of about equal areas, each part containing-in the neighborhood of fifty acres. It is only the part south of the railroad which is involved in this case. Mr. Atwood testified that Twenty-fifth street, as proposed to be located,, was 100 feet wide and runs, roughly speaking, parallel with; the railroad and approximately from 100 to 120 feet from it.

His theory was that by thus laying out the street, the1 depth between the railroad and the north side of the street was not sufficient “to- utilize it for most businesses of any large character,” and if- that side of the street was used for residences they would run back to the railroad, which would be disadvantageous to them. He spoke a good deal about the' irregularly shaped lots, and said that the proposed location of the street had the effect of forcing the irregularities to the-so-uth of the street, instead of putting them along the railroad.. The lots were not actually laid out on the ground, and the plats prepared by him were simply of a plan he proposed as the best method of developing the tract. "While we do not see any particular injury that would likely have been done-by admitting the plats in evidence, it is possible that they might have misled and confused the jury, rather than helped" them.

The jurors were taken upon the ground, and could see for themselves the actual conditions there. Presumably- ⁶⁵¹ the location of the proposed street was pointed out to them, as well as such other locations as were relevant. Considerable discretion in such matters must be left to the trial Judge, and if there be: room for a difference of opinion as to> whether the plats offered by the appellants; could have aided the jury, without the danger of misleading them, the action of the lower Court was at least within the discretion that must be allowed it—especially was that so as to the plat on the blackboard referred to in the third exception. The plat used in the condemnation proceedings and one used by the appellants at the former trial were before: the jury, and with a witness as intelligent as.

Mr. Atwood on the stand, there ought to have been no difficulty in his making his views plain to the jury with the use of the plats which were before them, for all legitimate purposes. There was, therefore, no reversible error in the rulings in any of those exceptions, although some of the questions ruled out, possibly might have been admitted without injury. In the seventh exception Mr. Atwood was asked to say whether he was able to state whether or not this land “possesses a special adaptability for use for the laying out through the same, of streets or roads or rights of way for the purpose of constructing or making or creating building1 lots or lots for commercial and industrial purposes:, and if so> stale io the jury iuhat plan viould he the highest utility of this properly for those purposesV’ He was permitted to answer the; question except as to the last clause, which we have italicized. The Court was clearly right in excluding that.

The question for the jury was not “what plan would be the highest utility of this property,” but what damages the appellants were entitled to by reason of taking the land, in the way proposed. It may be that some other plan might produce, better results to the appellants than the one proposed, but if that be so, that was one of the questions the jury could consider. The city can not be required to adopt the plan which “would be the highest utility of the property” for the purposes named and to permit different experts to answer such a question, wo ⁶⁵² might have as many opinions as there were experts. They would soon get into the realms of- speculation.

This record well illustrates how conflicting the views of experts- are on such questions, and while their opinions, if kept within proper bounds, are admissible and helpful, if not, they are confusing and of no use in attaining the ends of justice. Mr. Atwood was permitted to testify to the effect this location of the street had on the property. The eleventh exception more clearly illustrates what we mean. In that, Mr. Atwood was asked, whether the opening of the street, “of the width and location proposed in these proceedings would accord with the best plan for the development of the property—by best, I mean the most advantageous to' the owners of said property rather than the city as a whole.” The city was not laying out a plan for the development of the property.

It might well be that a street of less width and differently located would cause less damage to the owner’s than the one proposed, but if s-ueh a rule be adopted as the question suggested, a city might be compelled to adopt plans for the benefit of the owners of the land being condemned, rather than those for the public good. We do not understand that to be the law of this State. -Sometimes it happens that a public improvement of this kind is materially and injuriously affected by the effort to please or benefit- some particular person, but such action by public officials should be condemned, and not sanctioned by the courts. Of course owners are generally .entitled to more compensation for taking 100 feet in width than they would be if only 60 feet were taken, and if the location is specially injurious, that fact can be considered in fixing the damages. The seventh, eleventh, fifteenth, sixteenth and eighteenth questions were properly held to be inadmissible.

The fourteenth was harmless, as the witness had already said he “would not put any blind street out there.” We see no special objection to the seventeenth, unless it was already sufficiently answered in the previous evidence. The twentieth did not require an expert to answer. If the jurors were men ⁶⁵³ of sufficient intelligence to sit on a jury, they could answer the question as well as the witness. So while there is no doubt that the appellants had the right to show the uses for which the property was adaptable, we can not agree with them as to the methods adopted for the purpose, and we find no sneh error in any of the twenty exceptions already referred to as would justify us in reversing the case.

It may he well to add here that in addition to evidence being admitted on the subject, the lower Court by the appellants’ second prayer expressly instructed the jury that “in arriving at the market value of the land to be taken, the jury must take into consideration its availability for building lots and for industrial purposes, if they find it had such availability; oven though they also find that.said land is not at present used for such purposes,” and that in fixing the damages for injury to the remaining land of the petitioners; “they should also consider whether the availability, if any, of said remaining land for use as building lots or for industrial purposes will be decreased at all, and if so to what extent, by the condemning and opening of Twenty-fifth street of the width and at the location proposed in these proceedings.” The most important question in this case is the measure of benefits to he assessed against the appellants, The City’s prayer number three, which was granted, so directly presents the question as to suggest the advisability of considering that, before considering the other exceptions to the rulings on the evidence. We will request the reporter to publish that prayer in his report of the case. The time fixed by that instruction for the consideration of the jury, as to the benefits was, “after Twenty-fifth street shall have been opened, graded, paved and curbed; it being proper to take into account the fact that the property owner will he burdened when the street shall he paved, with the special paving tax of fifteen cents for each front foot on each side of said street for a, period of ten years as a matter of law; and that as a matter of fact, in order to utilize his property, it will he necessary for the ⁶⁵⁴ property owner to pave the sidewalk and to grade the property back to a usable depth in connection with that street.” These proceedings were begun under “An Ordiance to condemn and open Twenty-fifth street from the easternmost side of Greenmount avenue (formerly York road) to the north-westernmost side of the Harford Turnpike road.” The new charter of Baltimore City in Section 6 of Article 4, Public Local Laws, under the head of “General Powers^” sub-head “Streets, Bridges and Highways,” is subdivided in the revised edition of the charter published in 1915 by the Law Department of the City. Under subdivision “(A) Opening, Extending, Widening, Straightening or Closing up- Streets,” the city is authorized: “To provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within the bounds of the city, which in its opinion the public welfare or convenience may require.” It then provides for damages and benefits, and authorizes the city “to provide for assessing, or levying, either generally on the whole assessable property of said city, or specially on the property of persons benefited, the whole or any part of the damages and expenses which it shall ascertain will be incurred in locating, opening, extending, widening, straightening, or closing up the whole or any part of any street, square, lane or alley in said city.” After1 providing for appeals to the Baltimore City Court from the decisions of the Commissioners for Opening Streets, or other persons appointed by ordinance to ascertain the damage which will be caused or the benefit which will accrue to the owners by locating, opening, etc., an^ street, it contains this clause: “To1 provide for collecting and paying over the amount of compensation adjudged to each person entitled * * * before any street, square, lane or alley, in whole or in part, shall be so opened,” etc. It authorizes the city to acquire the fee simple interest in any land for the purpose of opening, etc., the street.

That part of the section says, nothing whatever about grading, paving or curbing. ⁶⁵⁵ Later the section provides under the subdivision “(B) Grade Line of Streets” for grade lines and under subdivision “(0) Grading, Paving, Curbing, etc., Streets” it specifically gives authority “to provide by ordinance for grading, shelling, graveling, paving and