Small v. State Roads Commission

McWilliams, J., delivered the opinion of the Court. Appellants own about 14 acres to the west of the line AB on the sketch made a part of this opinion. The hatched area ABC is the part of their land being condemned by the appellee (the State) for the extension (in Montgomery County) of Connecticut Avenue from University Boulevard north to Viers Mill Road. In addition to the hatched area (0.79 acres, in fee simple) and 0.79 acres in easements, the State is also acquiring denial of vehicular access along the line AB which, of course, will deprive appellants’ property of direct access to Connecticut Avenue.

The parties stipulated that the fair market value of the 1.58 acres being taken is $6,100. The trial judge held that “the damages to the remainder being the only issue * * * [before him] the factual situation here precludes the award of any damage by virtue of the alleged denial of access.” It is conceded that the extension of Connecticut Avenue to Viers Mill Road along its present route was made known 20 years ago. In July 1947 the developer of the property to the east of appellants’ property recorded a plat showing the area ACDEHA to be within “Connecticut Avenue 150' R/W” and dedicating it to public use. The plat bears a legend showing the approval of the Maryland-National Capital Park and Planning Commission on 10 July 1947.

The line HE on the plat is the center line of Garret Park Road which was formally abandoned for several hundred feet west of the line HAB in 1957. While tiie precise condition of this road from H to- Viers Mill Road is disputed, we are under the impression it has not been used for some years. As we see the case, however, its condition is unimportant. In March 1958 the owners of the land lying to the west of the line GE recorded a plat showing the area HEGF to be within ⁶⁴⁸ “Connecticut Avenue.” It was further described as being “90,-170 square feet Dedicated to Public Use.” The line HE as shown thereon is the center line of Garret Park Road.

The plat shows the approval, on 12 March 1958, of the Maryland-National Capital Park and Planning Commission, Montgomery County Planning Board. Appellants acquired their property in September 1958. The State filed this condemnation proceeding in September 1964. This dispute has many other facets but since none of them affects our decision we shall not consider them.

It is conceded that in September 1964, when the State filed the condemnation proceeding, Connecticut Avenue was only a “paper street.” Construction had not yet begun. Counsel for the State insist that it “was built over virgin land.” Nor is there any dispute about the fact that, prior to September 1964, the County Council denied appellants’ rezoning application because the State was “about to create a denial of access” along the line AB. The five questions presented by each party can be rendered into the single question whether appellants had a right to go from their land to Viers Mill Road over Connecticut Avenue as it is shown on the plat. All agree it could not be done in a motor vehicle but none would deny it could be accomplished on horseback or on foot.

We think appellants had that right, and that they are entitled to offer evidence in support of their notions of its value and to have a jury resolve that value. The dedications above mentioned were made in accordance with the applicable provisions of the Montgomery County Code, §§ 17-7, 70-81 (a), 103-9, and 104-11 (1966) [previously designated as § 18-7 (1960) ; chap. 629, § 1 (1963) ; § 100-8 (1960); and Ordinance 4-115, § 1, Oct. 17, 1961, respectively]. The approvals of the Maryland-National Capital Park and Planning Commission constituted acceptance by the public. Maryland-National Capital Park and Planning Commission v. McCaw, 246 Md. 662 , 229 A. 2d 584 (1967) ; Whittington v. Good Shepard Church, 236 Md. 185, 192-94 , 202 A. 2d 751 (1964).

The appellants succeeded to the rights their predecessors in title acquired by reason of the dedications. Alan Const. Co., Inc. v. Gerding, 209 Md. 71, 74-76 , 120 A. 2d 353 (1956) ; ⁶⁴⁹ Perellis v. Mayor & City Council of Baltimore, 190 Md. 86, 93 , 57 A. 2d 341 (1948) ; Slear v. Jankiewicz, 189 Md. 18, 23 , 54 A. 2d 137 (1947). It is unnecessary for us to examine in detail all of appellants’ rights as land owners abutting the 1947 dedication.

It is enough that they have the right of egress and ingress over both dedications to Viers Mill Road. Chapman v. Rogan, 222 Md. 12, 158 A. 2d 626 (1960). Both the trial judge and the State place great reliance on our holding in D’Arago v. State Roads Comm., 228 Md. 490, 180 A. 2d 488 (1962). In D’Arago the land taken for the new limited access highway traversed the rear of the D’Arago property.

Chief Judge Bruñe, who delivered