Shreve v. M. & CC OF BALTIMORE

Prescott, C. J., delivered the opinion of the Court. Just about 100 years ago, Baltimore City (the City) condemned some 55 acres of land, which were located in Baltimore County and belonged to Charles A. Buchanan. A large portion thereof is now the bed of Lake Roland. The only question involved is whether the City obtained a fee simple (sometimes referred to as a fee simple absolute) estate in the land as a result of the condemnation proceeding or something less than a fee simple estate therein.

The City condemned under the authority of Chapter 376 of the Acts of the General Assembly of 1853 (the Act), which stated that it was an Act “for supplying the city of Baltimore ⁶¹⁶ with pure water.” Section 1 provided that the City could “contract for, purchase, lease and hold * * * in fee simple, or for a term of years, any land * * * spring, brook, water and water course, and also the right to use and occupy forever or for a term of years” any land, spring, brook, etc., which the City might “conceive expedient and necessary for the purpose of conveying water into the said city.” Section 2 provided that if the owners “of such land * * * spring, brook, water, or water course * * * earth, timber, stone or other materials, or with the * * * owners of such ground through which” the City might “find it necessary to have a right of entry and passage, for the purpose of conveying the said water into the said city” and the City could not agree, then the City would have a right to condemn. The procedure prescribed was, more or less, standard at that period of time: a Justice of the Peace issued his warrant to the sheriff directing him to summon a jury; the jury assessed the property owners’ damages in an inquisition; the inquisition was filed with the clerk of the Circuit Court to be confirmed by the court at its next session, if no sufficient cause to the contrary were shown. The only remaining portions of the Act of particular pertinence to the case at bar follow. The jurors were directed “to inquire into, assess, and ascertain [the money to be paid by the City] for the land, spring, brook, water rights or other property which [the City] may deem necessary to- purchase and hold or use for the purpose; * * * [and each juror was required to make an oath or affirmation] that he would justly * * * value the damages which the owners * * * [would] sustain by the use and occupation of said property * * If the first inquisition were not confirmed, the court should “direct another inquisition in the manner above described, and such inquisition shall describe the property taken, or the bounds of the land condemned, and the quantity or duration of the interest in the same, * * *, and such valuation, when paid or tendered * * * shall entitle [the City] to the use, estate and interest in the same * * * as fully as if it had been conveyed by the owner or owners of the same * * (All emphasis added.) On or about October 6, 1857, the City, having failed in negotiations to purchase Mr. Buchanan’s property, condemned the same.

The City’s letter to the Justice of the Peace directed him ⁶¹⁷ “to summon a jury * * * to meet on the premises for condemnation of said lands.” The warrant to the sheriff directed him to summon a jury “to value the said lands,” and to “value the damages which the [owner] will sustain by the use and occupation of said property or such part thereof as may be taken by [the City].” The notice to the property owner informed him of the condemnation proceeding and stated that its purpose was “to value the damages which will be sustained by you by the condemnation of [your] property for the use and occupation of [the City] for conveying water into said City.” The sheriff’s return, which included the inquisition, stated that the jury had been shown “the tract of land within described and the plat thereof * * * and [he] directed the said Jury to estimate the damages resulting to the [owner] from the taking of said land and also the Fee Simple estate therein for the conveying of water to the City * * The inquisition, signed personally by each juror, said that the jurors had been summoned “to value the damages which the [owner] will sustain by the use and occupation of the Piece or Parcel of land in said County the Fee Simple thereof by [the City].” After lengthy metes and bounds descriptions of the parcels taken, the inquisition not only included the land in its assessment of damages but added “together with the appurtenances and Water rights: which said * * * parcel of land is required by [the City] for conveying Water into said City.” It further provided that “the right to use the private Road at Station number twenty is to be retained by [the owner], his heirs and assigns forever * * and assessed the damages resulting from “the taking, use and occupation” at $13,000, roughly $235 per acre. Later, the owner and the City agreed upon certain changes in the metes and bounds named in the inquisition, but no objections were filed to its being confirmed and the court did so on March 1, 1858. Thereafter, the property owner directed the clerk of the court to “enter the verdict of the Jury * * * satisfied.” 1 ⁶¹⁸ The City took possession of the property, and, together with other land separately purchased or condemned, used it for some ninety years as part of its water system or as a standby reservoir. In 1945, the City ceased utilizing the same for that purpose, and now operates it and the adjoining area as a recreational facility.

The appellants are described in their brief as “the successors in title to the late Charles Adams Buchanan,” and those upon whom title will devolve, if they are successful herein. They filed suit in ejectment asking a return of the property and $1,-500,000 in damages for its detention, and, after demand under Maryland Rule 326, they produced copies of the condemnation proceeding. The appellees demurred; the trial court sustained the demurrer without leave to amend; this appeal followed. Upon the above statement of facts, the case has been ably and thoroughly prepared and presented by counsel on both sides.

At this stage, our single question—Did the City acquire fee simple title to the property as a result of the condemnation proceeding?—assumes dual aspects. First, did the City have the power to make a fee simple taking of the property, and second, if it had such authority, did it, in fact, make such a taking under the condemnation proceeding? I Involved in this first facet are several principles so well-known and fundamental in nature that no citation of authority is necessary to sustain them. It is elementary that private property cannot be taken under the authority of eminent domain unless it be for a public purpose.

And where there are constitutional or statutory limitations upon the quantum or duration of the estate permitted to be taken, those limitations, when properly raised in court, must be recognized and adhered to. Appellants, with commendable zeal and industry, have set forth in their brief an interesting and instructive historical background relating to the condemnation of property, in an effort to show that the City had no authority, under the Act, to make a fee simple taking. We would deem it appropriate to consider the same and elaborate thereon at greater length in this opinion, were it not for the fact that we recently passed upon nearly ⁶¹⁹ if not all the arguments raised here in State Roads Comm. v. Johnson, 222 Md. 493. Also compare Ligon v. Potomac Electric Power Co., 219 Md. 438 .

For the purposes of this appeal, we shall assume, without deciding, that the heirs and successors in title of Mr. Buchanan lost no rights as a result of no caveat or exceptions being filed to the ratification of the inquisition in the condemnation proceeding. 2 At this point, the main thrust of appellants’ argument is to the effect that, although the City was specifically empowered to purchase fee simple titles, the Act did not explicitly and in precise terms authorize the condemnation by the City of a “fee simple” estate, even though other legislative acts, at various times, did. They claim that this demonstrates the Legislature knew how to grant the right to take absolute title when it wanted to by the use of such express terms, and the failure to use, explicitly, the term “fee simple” in Section 2 of the Act proves that the Legislature did not intend for the City to have this power and authority. This argument overlooks the universally-recognized rule of statutory construction that the legislative intent in enacting a law is to be gathered by a consideration of the enactment as a whole, which we shall do below. Pumphrey v. County Com’rs of Anne Arundel County, 212 Md. 536 ; Shub v. Simpson, 196 Md. 177 ; Fisher v. Bethesda Discount Corp., 221 Md. 271 .

A following of appellants’ argument here would have required a different result in Johnson, supra, where the principal question involved was whether the condemnor (a railroad company) had the authority to take, and did take, a fee simple estate in property or only an easement therein, under Sections 14 and 15 of Chapter 123 of the Acts of 1826 wherein the terms “fee simple,” “fee simple absolute,” “absolute estate,” or similar ones are nowhere to be found. See also Taylor v. Baltimore, 45 Md. 576 , a case cited by appellants, wherein this Court stated: ⁶²⁰ “The Act [the Act involved in this appeal] * * * is very full and general in its language ***.*** the power conferred upon the authorities of the city to purchase, etc., is in two aspects: The first is to purchase in fee-simple, or for a term of years, any of the property mentioned, and the second is to purchase the right to use or occupy forever, or for a term of years, the same enumerated property [italics in the opinion]. It is apparent * * * that the Legislature contemplated that the city might require, according to the exigencies of the case, the absolute title to the surface, as for example, for the construction of reservoirs; and then again, the right only to use and occupy the land for tunnels and conduits. If it were otherwise, and it was designed that there should be a condemnation always of the surface, why, m addition to the power to condemn in fee, should the power also be given to condemn the right to use and occupy?

A fair construction of the Act shows that the power has been conferred to subject such land, as it may be necessary to take, to precisely the use and occupation that may be necessary to accomplish the purpose and end designed,— that is, the introduction of a supply of water into the city limits.” (Later italics ours.) The quotation demonstrates that this Court, as early as 1877 when the case was decided, felt and expressed the opinion that the Act empowered a taking in fee. We now proceed directly to the question as to whether or not the Act empowered the City, under proper circumstances, to take a fee simple title in land condemned. It would be a futile gesture, we think, to repeat in any great detail the provisions of the Act set forth above, for. they are very similar to, and in some instances identical with, the provisions of the enactment involved in Johnson, supra. In fact, a careful examination of the two reveals that the Act in the case at bar is more explicit in authorizing an absolute taking than the one in Johnson.

We shall state or repeat only a few short excerpts from the Act, which we consider very cogent. In Section 1, ⁶²¹ after authorizing the purchase, lease, etc., of real estate, spring, brook, etc., in “fee simple” or for a term of years, and also-“the right to use and occupy forever or for a term of years,”' the City is “invested with all the rights and powers necessary for the introduction of water into said city * * *.” And in Section 2, after stating that if the parties are unable to agree upon the purchase of any land, etc., which the City deemed expedient or necessary, then the jury should assess the money to be paid by the City “for the land, spring, brook, water rights or other property which [the City deems] necessary to purchase and hold or use for the purpose * * The use of the-disjunctive in the last sentence indicates to us that the Legislature was drawing a distinction between property that was-to be purchased and held and property that was merely to be- used, namely, that absolute title could be obtained to that which-was to be purchased and held, and something less than absolute title to that which was simply to be used. Compare Taylor v. Baltimore, supra. Finally, the Act provides that the inquisition “shall describe the property taken * * * and the quantity or duration [italics ours] of the interest in the same * * *”■ and the payment or tender of the damages assessed “shall entitle [the City] to the use, estate and interest in the same * * * as fully as if it had been conveyed by the owner or owners * * We think the Legislature could and would have used much simpler language than this and the other quotations made at the beginning of this opinion, had it intended to limit the taking to mere easements.

Should we labor the question further, we will only find ourselves repeating what we said in the Johnson case. There, we held that under Chapter 123 of the Acts of 1826, an act very analogous to our Act and less specific, in our judgment, in empowering a fee simple taking, the condemnor could and did take fee simple title to the land condemned. We see no need to elaborate further upon the question. The rulings in Johnson are, we think, controlling here, and we hold that, under proper circumstances, the Act empowered the City to acquire fee simple title by condemnation.

We add this paragraph