State Roads Commission v. Pumphrey

Barnes, J., delivered the opinion of the Court. The proper date of valuation is the principal matter involved in this appeal from a judgment absolute entered on March 10, 1970, by the Circuit Court for Anne Arundel County for $8,000.00, with interest from February 17, 1970, and costs, in a condemnation case in which the appellant, the State Roads Commission of Maryland (the Commission), sought to acquire for State Road purposes certain land owned by the appellees, Franklin Pumphrey, Eva Pumphrey, his wife, and Jessie C. Meushaw, joint tenants (the Owners), located in the Second Election District of Anne Arundel County. The Commission filed a petition for land acquisition in the Circuit Court for Anne Arundel County on January 4, 1968. The land to be acquired was alleged to consist of 1.60 acres, more or less, lying between the lines marked “Right of way Line” as shown on attached plats Nos. 33735 and 33736, to be taken in fee simple.

A check for $1,200.00 was deposited with the Clerk of the Circuit Court for Anne Arundel County the same day. On April 2, 1968, the matter was certified to the Board of Property Review and on June 26, 1968, was set down ⁶³⁵ for hearing before that Board. At the request of counsel for the Owners, the hearing before the Board was postponed. In accordance with the provisions of Maryland Rule U27 e, the Commission, on July 22, 1968, filed a letter requesting the Board of Property Review to relinquish jurisdiction over the case.

On August 8, 1968, however, the Commission and the Owners (by their counsel) entered a Stipulation waiving the provisions of Rule U27 c 1, thereby extending the time within which the Board of Property Review might hear the case until August 30, 1968. The Board of Property Review, on August 14, 1968, heard testimony in regard to value and damages to the Owners, viewed the property, and on August 21, 1968, rendered its award of $4,485.00. The Commission, on September 19, 1968, filed Notice of Dissatisfaction; and on October 10, 1968, the Commission filed a formal condemnation petition in the Circuit Court for Anne Arundel County for the acquisition of 1.21 acres of land (vs. 1.60 acres in the land acquisition petition filed January 4, 1968) and the condemnation petition filed October 10, 1968, was accompanied by a plat designated No. 37213 (vs. Plats Nos. 33735 and 33736 filed with the land acquisition petition filed January 4, 1968). Paragraph 6 of the condemnation petition filed October 10,1968, alleges the following: “6.

That your Plaintiff [the Commission] has heretofore on the 4th day of January, 1968, deposited a check under the provisions of Chapter 59 of the Acts of 1956, in the amount of ONE THOUSAND TWO HUNDRED ($1,200.00) DOLLARS, payable to the Clerk of the Circuit Court for Anne Arundel County, to the use of the aforesaid defendants, in the hands of the said Clerk, in conformity with the provisions of Article 89B, Section 9, Public General Laws of ⁶³⁶ Maryland, and your Plaintiff deems the said sum of money to be the fair 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 Commission to 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 conformity with the aforesaid provisions of statute it has taken possession for the aforesaid purposes on the 4th day of January, 1968.” The prayers for relief were; “ (a) That the property described in the aforegoing petition may be condemned so that your Plaintiff may acquire a fee simple title thereto, together with other rights hereinabove described. “ (b) That further proceedings may be had in this cause under the authority of and pursuant to the provisions of Article 33A and Article 89B of the Public General Laws of Maryland relating to the subject of ‘Eminent Domain’.” On February 24, 1969, the Commission and the Owners, through counsel, stipulated that Plat No. 37213, revised January 9, 1969, should be used in the case in lieu of Plat No. 37213 theretofore filed; and the revised plat was filed in the proceedings. Apparently the only changes in the revised Plat No. 37213 were the elimination of the notation “21’ stream & marsh” designation in the westerly portion of 1.21 acre tract replaced by the designation “Marsh & Pond Area” and the addition, still farther west, of a designation of “Marshy Pond Area” beyond the westerly division line of the 1.21 acre tract. The bearings and distances and the curve data remained the same in the two plats.

The Owners filed their answer to the condemnation petition of October 10,1968, on March 7,1969. ⁶³⁷ The condemnation trial was set for February 16, 1970. Immediately prior to trial, a question arose between the Commission and the Owners in regard to the proper date to be used in respect to the valuation of the subject property, the Commission contending that January 4, 1968, was the proper date of valuation, the Owners contending that such date was the date of trial. The Commission then filed its motion raising a preliminary question of law, pursuant to Rule 502, on February 16. The trial court (Childs, J.), after reviewing the authorities and hearing argument, ruled that the proper date for valuation was the date of trial and so instructed the jury, the Commission taking no exception to the lower court’s charge.

The jury returned an inquisition showing the amount of damages to be $8,000.00, representing the value of the land together with resulting damage. The Commission filed a timely motion for a new trial on February 19, which was argued on March 3, 1970. On March 10, 1970, the lower court denied the motion for a new trial and filed a carefully considered written opinion giving the reasons for that decision. Judgment absolute was entered on the inquisition on March 10, 1970, and an appeal to this Court was entered by the Commission on March 16,1970.

It is conceded that the Commission had not taken possession of any part of the subject property prior to trial. We are of the opinion that the lower court correctly ruled that the date of valuation was the date of trial and we shall affirm the judgment. We do not find it necessary to pass upon the additional point raised by the Owners that even if the trial court had been in error in regard to the valuation date, the judgment should nevertheless be affirmed because there was no evidence that the award of the jury was excessive or unjust or that substantial prejudice has resulted to the Commission as a result of the rulings by the trial court. Code (1971 Repl.

Vol.), Art. 33A is entitled “Eminent Domain” and generally applies to all proceedings for the acquisition of private property for public use by condem ⁶³⁸ nation. Such proceedings are governed by the provisions of Art. 33A and subtitle U of the Maryland Rules of Procedure. Art. 33A was revised by the Acts of 1963, Ch. 52, effective June 1, 1963, the former sections of Art. 33A having been repealed and the new provisions in the Act of 1963, Ch. 52 standing in lieu thereof. One provision of § 1 of Art. 33A is that “nothing herein shall prevent the use by the State Roads Commission of the procedure set forth in § 10 through 20, inclusive, of Article 89B of this Code . . . .” Section 4 of Art. 33A provides in regard to the time as of which value is determined: “The value of the property sought to be condemned and of any adjacent property of the defendant claimed to be affected by the taking shall be determined as of the date of the taking, if taking has occurred, or as of the date of trial, if taking has not occurred, unless an applicable statute specifies a different time as of which the value is to be determined.” Section 14, in regard to when the property is deemed to be taken, provides: “For the purposes of this article, property shall be deemed to have been taken: “1.

In cases in which the plaintiff is lawfully authorized to take the property before trial pursuant to § 40A or § 40B of Article III of the Constitution of this State, when the payment required thereunder has been made to the defendant or into court and any security required thereunder 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 all other cases, upon payment of the judgment and costs by the plaintiff pursuant to Subtitle U of the Maryland Rules.” ⁶³⁹ The Constitution of Maryland was amended on November 3, 1942, so that Art. Ill, Sec. 40B gave the General Assembly of Maryland the power to provide by statute that when, in the judgment of the Commission, private property was needed by the State for highway purposes, such property “may be taken immediately” upon payment to the owner by the Commission or into Court, such amount as the Commission shall estimate to be of the fair value of said property, provided such legislation also required the payment of any further sum subsequently awarded by a jury. This constitutional amendment was adopted by the General Assembly at its 1941 Session by the Acts of 1941, Ch. 607. By the Acts of 1941, Ch. 606, the General Assembly enacted a new § 4A of Art. 89B, title “State Roads” of the 1939 Code to implement the power granted by the proposed constitutional amendment as and when adopted.

This § 4A has now become § 9 of Art. 89B of the present code, having been amended twice in the meantime by the Act of 1950, Ch. 54 and the Act of 1951, Ch. 318. As originally enacted, § 4A provided: “Upon the adoption by the legal and qualified voters of this State of the amendment to Article III of the Constitution of this State (proposed by an Act passed at this session of the General Assembly) in addition to the power and authority provided by the preceding section of this Article, the State Roads Commission is hereby authorized to enter upon and take possession of such property and rights of way as the State Roads Commission may deem necessary, and proceed with the highway construction provided the said State Roads Commission shall first pay to the owner or owners thereof or into Court, for his, her or their benefit, such sum as the said State Roads Commission shall estimate to be the fair value of the land and improvements taken and damage done, if any; such payment, ⁶⁴⁰ however, shall in no wise limit the amount to be allowed under subsequent condemnation proceedings. Within sixty (60) days after the completion of the construction of such highway if the State Roads Commission and the owner or owners of such land are unable to agree as to compensation and damages, if any, caused thereby, the said State Roads Commission shall institute condemnation proceedings in the manner prescribed by the provisions of Article 33A of the Annotated Code of Public General Laws. It is the intention of this Act to provide that such property and rights of way, in an emergency, in the discretion of the Commission, be condemned after construction of the highway has been commenced as well as prior thereto, although so far as possible all rights of way shall be acquired or contracted for before any route is definitely located.

This Act to apply only to acquisition of property by the State Roads Commission.” 1 The Act of 1950, Ch. 54 added a provision to the original enactment that the property owner could withdraw the deposited funds from the court without prejudice, if the owner agreed to repay the Commission the difference between the deposited funds and the final award and the Commission was required to pay the owner such further sum that may “be finally awarded in a subsequent condemnation proceedings.” By the Act of 1951, Ch. 318, a provision was added which enabled the owner subsequent to the deposit into court, to request the Commission in writing that “such condemnation proceedings,” i.e., those directed to be instituted in the manner prescribed by the provisions of Art. 33A, be instituted and the Commission, within 30 ⁶⁴¹ days of the receipt of that notice, had the duty to institute such proceedings. It was the duty of the court to hear and determine such proceedings as soon thereafter as practicable. Giving effect to these amendments, § 9 of Art. 89B now provides in Code (1969 Repl. Vol.) : “Upon the adoption by the legal and qualified voters of this State of the amendment to Article III of the Constitution of this State, in addition to the power and authority provided by § 7 of this article, the State Roads Commission is hereby authorized to enter upon and take possession of such property and rights-of-way as the State Roads Commission may deem necessary, and proceed with the highway construction, provided the said State Roads Commission shall first pay to the owner or owners thereof or into court, for his, her or their benefit, such sum as the said State Roads Commission shall estimate to be the fair value of the land and improvements taken and damage done, if any; provided, however, if said sum is so paid into court, the property owner, upon written request to the clerk of said court, shall be entitled to receive said sum without prejudice to any of these rights if said property owner agrees to pay back to the State Roads Commission the difference between said sum and the final award, if such final award be less than the sum paid into court; such payment, however, shall in nowise limit the amount to be allowed under subsequent condemnation proceedings, and the State Roads Commission shall pay to the owner or owners of such property and rights-of-way from any funds, in its possession or under its control, any further sum that may subsequently be finally awarded in a subsequent condemnation proceedings.

Within sixty (60) days after the completion of the con ⁶⁴² struction of such highway, if the State Roads Commission and the owner or owners of such land are unable to agree as to compensation and damages, if any, caused thereby, the said State Roads Commission shall institute condemnation proceedings in the manner prescribed by the provisions of Article 33A of the Annotated Code of Public General Laws; provided, however, the owner or owners at any time subsequent to the payment of such sum into court request, in writing to the State Roads Commission, that such condemnation proceedings be instituted and in such case it shall be the duty of the State Roads Commission within thirty days after receipt of such notice to institute such proceedings and the duty of the court to hear and determine such proceedings as soon thereafter as practicable. It is the intention of this section to provide that such property and rights-of-way, in an emergency, in the discretion of the Commission, be condemned after construction of the highway has been commenced as well as prior thereto, although so far as possible all rights-of-way shall be acquired or contracted for before any route is definitely located. This section to apply only to acquisition of property by the State Roads Commission.” By the Act of 1956, Ch. 59, §§ 9A to 9K were added to Art. 89B of the 1951 Code, now, as amended, §§ 10 to 20 of Art. 89B of the present Code. Section 18 of Art. 89B in the present Code provides: “In the event either the Commission or the property owner shall be dissatisfied with the findings and award of the board of property review either shall have the right of appeal to the circuit court for the county or the Superior Court for Baltimore City, as the case may be, in whichever jurisdiction the property is situ ⁶⁴³ ated.

Upon