State Roads Commission of the State Highway Administration v. Town of Colmar Manor

Bishop, J., delivered the opinion of the Court. This is an appeal from the ruling of the Circuit Court for Prince George’s County prohibiting the State Highway Administration, appellant, from abandoning a "quick take” condemnation proceeding. The court’s ruling was based upon a finding that there had already been a "taking” of the appellee’s property. On January 23, 1979, appellant filed a petition for the condemnation of certain property in Prince George’s County, naming as defendants the Town of Colmar Manor, a municipal corporation (appellee); Prince George’s County, and the Washington Suburban Sanitary Commission.

Neither of the latter two defendants is involved in this appeal since neither has any financial interest in the proceedings. A check in the amount of $185,250.00, payable to the Clerk of the Court, was simultaneously deposited with the petition, which in part recited: "... your Plaintiff deems the said sum of money to be the fair market value of the land and improvements taken and damages done to the aforesaid property. That your Plaintiff states that it is in the public interest and necessary for the State Roads to ²⁴² take possession of the aforesaid land and improvements immediately upon depositing the said money into the hands of the said Clerk of the Court, and in conformation with the aforesaid provisions of statute it is so taking possession for the aforesaid purposes, on the day of , 19 .” The condemnation petition closed with prayers for condemnation of the property and further proceedings. On February 16,1979, the appellee filed a Motion to Withdraw Funds Paid Into Court.

The motion recited the filing of the condemnation petition and the deposit of the check; set out the appellee’s ownership of the property and the lack of any financial interest of the Washington Suburban Sanitary Commission and Prince George’s County; and asserted appellee would not contest the taking but would contest the reasonableness of the offer. On February 26,1979, the court granted the motion, and the money was withdrawn. For the next 22 months the parties engaged in discovery and traded other pretrial motions. The only items of importance that occurred were appellant’s response to appellee’s interrogatory No. 7 and appellee’s response to appellant’s interrogatory No. 9.

The former asked "What do you contend to be the date of taking of the property to be condemned?” to which appellant responded "January 26, 1979.” Appellant’s interrogatory No. 9 requested information with reference to the use and occupancy of the said property within the past 5 years to which the appellee responded: "9. The following named persons occupied the subject property within the past five (5) years: (a) Pincus Liquors and Pincus Grill 3839 Blandensburg Road Colmar Manor, Maryland See attached Lease. (b) D & D Tire Company, Inc. 3901 Bladensburg Road Colmar Manor, Maryland See attached Lease. ²⁴³ (c) Russell F. Barrett, T/A Trojan Trojan Inc. 3933 Bladensburg Road Colmar Manor, Maryland See attached Lease.” Attached to that answer were copies of the leases: 1) a lease between appellee and Pincus Liquors and Pincus Grill dated May 1,1973 reciting a rental of $300.00 per month on a month to month term, terminable upon 30 days notice by either party; 2) a lease between appellee and D & D Tire Company, Inc. dated June 1, 1976 reciting a rental of $1,168.75 per month for an initial term of 8 months and thereafter renewable on a month to month basis, terminable upon 30 days notice by either party; 3) a lease between appellee and Russell F. Barrett, T/A Trojan Trojan, Inc. dated November 12, 1974 reciting a rental of $1,375.00 per month on a month to month term, terminable upon 30 days notice by either party. On January 9, 1981, appellant filed a petition to abandon the condemnation, alleging in part that: "... on January 7,1981, the State Roads Commission by resolution made and adopted, (copy attached), determined that the Highway Project which was the subject of the initial condemnation proceeding is to be deleted from the official State Highway Administration program and further authorized the Office of Real Estate and Office of Counsel to take such steps as are necessary to abandon this condemnation proceeding filed prior hereto against the defendants herein.” On May 13, 1981, the court denied the petition based on a finding that there had been a taking and, therefore, appellant would not be permitted to abandon.

From the denial of the petition this appeal was filed. ²⁴⁴ Question Presented The sole question raised in this appeal is whether the court erred in finding that a taking had occurred under Section 12-102 (1) of the Real Property Article and therefore abandonment of the condemnation proceedings is precluded pursuant to § 12-109 (d) (1) of the same Article. Law This case involves a "quick take” condemnation by the appellant under the accelerated procedure set out in Part IV of the Transportation Article, Annotated Code of Maryland. Section 8-334 (b) of that Article provides, in relevant part, that "condemnation proceedings under this part shall follow the procedures set forth in Title 12 of the Real Property Article and the Maryland Rules.” In terms of the issue before us, two provisions of Title 12, Real Property Article are relevant: namely, § 12-109 (d) which precludes abandonment of a condemnation proceeding after a "taking” has occurred (see also Md. Rule U 26), and § 12-102, which defines when a "taking” occurs. Section 12-102 provides: "In this title, property is deemed to be taken: (1) If the plaintiff lawfully is authorized to take the property before trial pursuant to Article III of the Constitution of the State, or any amendment to it, and the required payment has been made to the defendant or into court, any required security has been given, and the plaintiff has taken possession of the property and actually and lawfully appropriated it to the public purposes of the plaintiff.

(2) In every other case, if the plaintiff pays the judgment and costs pursuant to Subtitle U of the Maryland Rules.” As the proceeding here was a "quick take” one, the precise question is whether the events required by Section 12-102 (1) have occurred in this case. The required payment of ²⁴⁵ course was deposited into court, but had the appellant "taken possession of the property and actually and lawfully appropriated it to the public purposes of the plaintiff’ (emphasis supplied)? The legislative history of Section 12-102 shows clearly that the General Assembly desired to make the taking of possession a separate and independent element of a "taking,” not to be subsumed merely in the more amorphous concept of "appropriation” to a public use. Section 12-102 was enacted as Chapter 52, Acts of 1963, which began as Senate Bill 8 (1963).

As introduced, the bill provided that a taking would occur under a "quick take” arrangement when the security had been paid and "there has been an actual and lawful appropriation of the property to the public purposes of the plaintiff.” During the legislative process, however, the last quoted phrase was deleted and replaced with the current language: "The plaintiff has taken possession of the property and actually and lawfully appropriated it to the public purpose of the plaintiff.” The lower court based its finding that there had been a taking and, therefore, that there could be no abandonment on the appellant’s answer to appellee’s interrogatory No. 7, and "the long period of time between the petition and the decision to abandon” and on Hardesty v. State Roads Comm’n, 276 Md. 25 , 343 A.2d 884 (1975), using the following language: "THE COURT: In determining whether or not there has been a taking, which is obviously the heart of the issue — if there has been no taking, then clearly abandonment would not be proper — Hardesty would seem to indicate to this Member of the Court that filing the petition, paying into Court is probably not sufficient to constitute a taking, although certainly there ísic] are factors. If there was a physical appropriation, clearly there ²⁴⁶ would be a taking. In the absence of a physical appropriation, though, there can still be a taking, and we think there can still be a taking in other than just scenic easement cases. In determining whether or not there has been a taking there are a number of factors.

One factor as was present in Hardesty is the long period of time between the petition and decision to abandon. In this case, there is another major factor, and that is the fact that in answers to interrogatories plaintiffs representatives under oath in a document filed in the case of public record stated that there had been, in fact, a taking.. If physical appropriation is something known only to the plaintiff when they allege in answers to interrogatories, and make an admission like that that there has been, in fact, a taking, that we feel is a major decisional circumstance. Based on the totality of circumstances in this case we feel that there has clearly been a taking.

Therefore we feel that there can be no abandonment.” Not only was there no evidence of physical possession or appropriation to its public purposes by the appellant but, on the contrary, there was an explicit concession by the appellee’s attorney that "there was no physical entry on the property” and "the property is still as it was in 1979.” In addition, there were three commercial leases (from which the appellee was collecting rents) in existence before and during the entire period of this litigation. Based on the foregoing there was neither positive possession by the appellant nor negative influence on the appellee’s actual possession and use. The court gave no weight to either the actual possession of the appellee or to the existence of the leases but rather referred to the appellant’s interrogatory answer as to the date of taking as "a major decisional circumstance.” We find that the court ²⁴⁷ misread both the statute and Hardesty and was clearly erroneous in its evidentiary conclusions. We accept the appellant’s argument that "clearly the intent of the answer was not to indicate that possession and appropriation had occurred but rather to indicate a date of valuation, concepts often confused in this area.” State Roads Commission v. Adams, 238 Md. 371, 375, n 2 , 209 A.2d 247 (1965).

For the proposition that the interrogatory answer "is clearly not conclusive on the State Roads Commission,” Safeway Trails, Inc. v. Smith, 222 Md. 206, 214 , 159 A.2d 823 (1960) is cited in which the Court of Appeals held: "... that if an inconsistency appears between statements in a pre-trial deposition and testimony at the trial, the weight and credibility of the testimony are for the jury.” and that the "... answers of the adverse party became substantive evidence — sworn, although not conclusive, admissions of fact.” (Emphasis supplied.) In the case subjudice the answer of the appellant that a taking had taken place on January 26, 1979 involves both law and fact and, therefore, was not conclusive as to if and when a taking had occurred. With relation to the concession by appellee’s attorney that there was no physical taking the appellant refers us to Salisbury Beauty Schools v. St. Bd., 268 Md. 32 , 300 A.2d 367 (1967), wherein Judge O’Donnell for the Court of Appeals stated: "The actions of an attorney within the scope of his employment are binding upon his client under the ordinary principles of agency.” (Cites omitted.) "This is particularly true concerning the stipulation of counsel in open court.” (Cites omitted.) Id. at 45, 46 . ²⁴⁸ In 2 Nichols on Eminent Domain (3rd ed.) 6.1 (1) p. 6-16, we find: "A mere declaration of an intention to take or even a threat to take, cannot constitute a taking under the fifth amendment.” In Hardesty, supra at 34 , the Court of Appeals held: "The petition filed by the Commission in the present case sought to condemn a scenic easement, together with the right of ingress or egress across the right-of-way lines along the 4.4 acres of the property fronting on the highway, and the right to erect snow fences within 100 feet of the land condemned. As previously indicated, the Commission’s petition to abandon the condemnation proceeding alleged simply that no taking had occurred. The only evidence adduced at the hearing in support of the Commission’s petition to abandon consisted of a stipulation that 'there had been no physical appropriation, no physical taking of the property’ and that the scenic easement to be acquired was 'for the purpose of leaving the trees there.’ Considering the position taken by the Commission that physical entry upon the property was required before a taking could be mandated, the skimpy evidentiary record before us, the character of the property interest at stake, the immediate entry procedure employed by the Commission in undertaking to condemn the property, the fact that the public enjoyment of the scenic beauty of the property was immediate, the length of time involved before the Commission elected to abandon condemnation, and the legal restrictions placed upon the property during the pendency of the condemnation proceedings, we conclude that Hardesty was deprived of the full use and enjoyment of his property by the Commission’s action to a degree sufficient to constitute a taking within the contem ²⁴⁹ plation of § 12-102 of the Real Property Article. 1 See Stevens v. City of Salisbury, supra.

The Commission cannot, therefore, totally abandon the condemnation proceedings it initiated on August 1, 1973.” (Emphasis supplied.) Before setting out the foregoing upon