Peck v. Baltimore County

Moore, J., delivered the opinion of the Court. This is an appeal in a condemnation suit filed by Baltimore County in connection with the widening and relocation of Bosley Avenue and the creation of a bypass of Towson, the County seat. The case was decided by the Circuit Court for Baltimore County (Land, J.) upon motions for summary judgment wherein the County contended that the property in question, being part of the roadbed of Baltimore Avenue between Susquehanna Avenue and Towsontowne Boulevard, had a nominal value of $1.00 as a matter of law; and the heirs of one Washington Townsend, the appellants herein, argued that although the property had been used as a right of way, such use had been abandoned prior to the condemnation proceedings, thereby releasing any encumbering easement for right of way purposes, and the land should be valued as an unencumbered fee simple interest. A formal appraisal submitted on their behalf estimated the fair market value of their interest at $118,750.

By Memorandum and Order, the trial court denied the motion of the heirs and granted the motion of the condemning authority, holding that the easement had not been abandoned and that the fee interest subject to condemnation should be valued as impressed by the easement. The court thereupon entered an Inquisition awarding the heirs the sum of $1.00. We find no error and affirm. I Appellants’ intestate, one Washington Townsend, acquired a large parcel of land in the vicinity of the Baltimore County Court House in Towson, Maryland on March 4, 1862.

The property was thereafter subdivided and Mr. Townsend conveyed lots using descriptions that bounded on the edges of certain roads, including Baltimore Avenue, which he had laid out in the course of subdividing. The particular property subject to these condemnation proceedings formed a bed for ³²⁵ the roadway of Baltimore Avenue. The court below held that title to the roadbed was retained by Townsend, subject of course to an easement for road purposes, and remains in his heirs. 1 In June 1973, Baltimore County entered into a federal-state program of highway improvement in the Towson area. This program involved, in part, the relocation of Bosley Avenue and the creation of the Towson bypass.

Bosley Avenue, Susquehanna Avenue, and Baltimore Avenue in the area of Towsontowne Boulevard were redesigned. A part of Baltimore Avenue was discontinued, landscaped, and became a portion of a “mini-park.” The latter portion of Baltimore Avenue was 60 feet wide, aggregating approximately 9,500 square feet, and is the subject of this controversy. The remaining portion of Baltimore Avenue was realigned and continued in vehicular use as part of redesigned Bosley Avenue. Thus, a part of Baltimore Avenue continued to be used as a roadbed.

The two portions of the road consisted of a total of 28,563 square feet or .0656 acres. The County’s petition for condemnation, filed on July 7, 1975, sought to acquire the fee in both portions of the roadbed, and the petition for condemnation, as amended, alleged that the property was required “for the purpose of landscaping of a mini-park on a portion of the parcel and to improve highway design for traffic flow on the remainder of the parcel, which will continue to serve as a public road as part of Baltimore Avenue, Bosley Avenue and the public road serving the Baltimore County Jail.” As previously indicated, only the 9,500 square feet condemned for the mini-park are involved in this appeal. ³²⁶ An appraiser was appointed to value the property in the petition and a “prior entry appraisal” was duly filed on July 29, 1975 showing an appraisal in the amount of $1.00. The “comments” of the appraiser, Bernard F. Semon, were as follows: “This estimate of value is quite unique in that the subject property under appraisement represents a portion of the bed and adjoining sidewalk area of the existing Baltimore Avenue in the heart of Towson. After a careful review of this situation and reading the Court’s decision in the case of King v. Mayor and Council of Rockville [ 249 Md. 243 , 238 A. 2d 898 (1968)], it is your appraiser’s opinion that a similarity exists and, therefore, the Unknown Heirs of Washington Townsend are entitled to a nominal value as just compensation for the proposed acquisition.

A nominal value in your appraiser’s opinion is estimated to be $1.00.” Subsequently, in answers to interrogatories, the appellants submitted a formal appraisal by William H. Baldwin, Sr., who estimated the fair market value of the 9,500 square feet of land at $12.50 per square foot or a total of $118,750. The undisputed facts in the record before the lower court in its consideration of the respective motions for summary judgment included the following: 1) the actual entry for work preceded the filing of the petition for condemnation; 2) there was never any statutory road closing; 3) appellants never paid any taxes on the land and never acted in reliance on the actions of the County nor entered upon or used the land; and 4) the County has continued to use subsurface easements for sewers. The lower court, in a comprehensive memorandum which accompanied an order granting the County’s motion for summary judgment, stated in part: “The Court has carefully and fully considered the affidavits and exhibits filed by the parties. There can be no doubt that there does not exist a material ³²⁷ dispute of fact.

It is clear that Baltimore County never intended to abandon the use of the property in question for its high way purposes. It is also clear, beyond question, the use of a portion of the property for a ‘mini-park’ and pedestrian thoroughfare is clearly incidental to the traffic control upon the adjacent highway." (Emphasis added.) II Appellants contend that the parcel involved must be valued without regard to the prior easement because at the date of the taking the easement had been abandoned by the rerouting of the roadway. The intent to abandon is essential to a finding of abandonment and intent is a question of fact. Ayres v. Hellen, 235 Md. 258, 260-61 , 201 A. 2d 509, 510-11 (1964); Millson v. Laughlin, 217 Md. 576, 588-89 , 142 A. 2d 810 , 817 (1958); 3 Tiffany, Law of Real Property § 825 (3d ed. 1939).

In the instant case, motions for summary judgment were filed by both sides, and appellants, although alleging error in the denial of their motion, concede in brief that the issues may have been determined appropriately on summary judgment, since no genuine dispute as to a material fact existed. Md. Rule 610 (a). We are in agreement with Judge Land’s holding that Baltimore County “never intended to abandon the use of the property in question for its highway purposes.” The entry of an Inquisition awarding appellants nominal damages only was proper. In a condemnation proceeding, damages are awarded “as of the date of the taking, if taking has occurred, or as of the date of trial, if taking has not occurred.” Md. [Real Prop.] Code Ann. § 12-103 (1974); Big Pool Holstein Farms, Inc. v. State Roads Commission, 245 Md. 108, 113 , 225 A. 2d 283, 285 (1967).

If the (Condemned property is subject to an existing easement in the public for highway purposes at the time of taking, it has been said to have no substantial value and only nominal damages will be awarded. United States v. Certain Parcels of Land Situated in Fairfield, 54 F. Supp. 667, 669 (D. Md. 1944); King v. Mayor of Rockville, 249 Md. 243, 251 , 238 ³²⁸ A. 2d 898, 903 (1968); Moale v. Mayor of Baltimore, 5 Md. 314, 323 (1854); see 5 Nichols on Eminent Domain § 16.101 [4] (3d ed. 1975); 29A C.J.S. Eminent Domain § 157(2)(a) (1965); Annot., 17 A.L.R. 1249 (1922). In determining whether the lower court correctly found that appellants’ property continued to be burdened by a highway easement at the time of taking, we look to well-recognized principles regarding the requirement for abandonment of such a servitude. It is stated in 2 American Law of Property § 8.97 (1952 & Supp. 1962), that “[t]o produce an abandonment of an easement there must be action respecting the use authorized by the easement which indicates an intention never to make the use again.” Accord, D. C. Transit System, Inc. v. State Roads Commission, 265 Md. 622, 625-27 , 290 A. 2d 807, 810-12 (1972).

With respect to abandonment of an easement held by the public for highway purposes, a presumption in favor of the continuance of the easement has generally been held to attach, and “the burden is on the one who asserts abandonment to prove it by clear and satisfactory evidence.” 39A C.J.S. Highways § 130 (1976). See Ayres v. Hellen, 235 Md. at 261 , 201 A. 2d at 510 . An often mentioned maxim of the common law, “once a highway, always a highway,” reflects this presumption but, as stated in 3 Tiffany, Law of Real Property, supra at § 929, it is technically obsolete, as “a highway may cease to exist through any one of several causes.” 2 The relocation of a highway is an example of a situation where an easement in a public highway may cease. Relocation will not, however, automatically effect abandonment of the easement in the old route.

Floreth v. State Highway Commission, 472 S.W.2d 614, 619 (Mo. 1971); 39A C.J.S. Highways § 130 (1976). Rather, there must be an intention ³²⁹ on the part of public authorities that “the new way be wholly substituted for the old.” 39 Am.Jur.2d Highways, Streets, and Bridges § 154 (1968). Case law, therefore, which speaks of an “implication” of abandonment resulting from the replacement of an old highway by a new road must necessarily be viewed in terms of the intentions of the road closing authorities. See Annot., 158 A.L.R. 543 (1945).

Perhaps because the intent to abandon presents issues of fact, some lack of consistency is apparent in the cases. As stated in 2 Elliott, Law of Roads and Streets § 1176 (3d ed. 1911), an early treatise: “It is not easy to reconcile all of the decisions upon the question of abandonment.... Sometimes there are decisions on each side of the line in the same jurisdiction and so close to the line that it takes very careful discrimination to distinguish them.” Appellants argue that two Maryland cases involving relocation and simultaneous road closing are controlling under the instant facts. In Jenkins v. Riggs, 100 Md. 427 , 59 A. 758 (1905), it was held that a statutory road closing proceeding resulted in the abandonment by Baltimore County of a particular highway, and injunctive relief to prevent the closing was unavailable.

The court noted, however, in apparent dictum: “It has been repeatedly decided that an alteration by competent authority of an existing road or way operates as a discontinuance of such portions of the old road as are not embraced within the limits fixed for the new one even if no formal or special order of closing or discontinuance is passed.” (Citations omitted.) 100 Md. at 438 , 59 A. at 762 . The Jenkins case was cited for this proposition in Libertini v. Schroeder, 149 Md. 484 , 132 A. 64 (1926), where a nonstatutory road closing was involved. The Court there held that “[t]he alteration of the location of the turnpike road was made by competent authority, and it