State v. Ambrose

Markell, J., delivered the opinion of the Court. This is one of five cases in Somerset County in which the issues are the same and which, by stipulation, will all be decided by the decision in this case. In 1913 the Board of Shell Fish Commissioners, pursuant to the provisions of Chapter 711 of the Acts of 1906 and amendments, leased, in the name of the State, to E. Griswold Thelin, now deceased, appellee’s predecessor in interest, a lot of land in Tangier Sound for a term of twenty years, for oyster culture, at specified rentals. By chapter 265 of the Acts of 1914, known as the Shepherd Act, the Act of 1906 was amended.

In section 83 ³⁵⁸ there was inserted a definition of “natural beds or bars”, which by both the original and the amended acts were excluded from leasing. Code of 1939, Art. 72, sec. 93. A new section, 94A, authorized resurveys to correct previous surveys and show natural beds or bars thus resurveyed, provided that such resurvey should not affect leases, of area resurveyed, in force at the time of such resurvey unless the lessees should voluntarily surrender their leases, or should forfeit them by non-payment of rentals, or unless “the rights, interests and properties” of the lessees should be acquired by the State “by condemnation proceedings instituted not later than January 1st, 1915, as provided in Section 94C”. Art. 72, sec. 107.

Sec. 94B provided for proceedings, to be instituted by three residents of the State before January 1, 1915, for judicial decision whether any specified area, excluded from the surveys or resurveys of natural beds or bars, is or is not a natural bed or bar as defined in section 83 (now 93). Art. 72, sec. 108. Section 94C provided that “The rights and interests of lessees” under leases already in force, “covering areas within the limits of natural beds or bars which may be established by the resurveys provided for by Section 94A [now 107], or by proceedings taken under Section 94B [now 108], and the oysters belonging to such lessees, located on such areas, shall be condemned by the State of Maryland for the use of the public. The proceedings for the acquisition by the State of the rights, interests and properties of such lessees”, should be “that set forth in Chapter 117 of the Acts of 1912,” and it should be the duty of the State’s Attorney to institute forthwith condemnation proceedings in behalf of the State against the lessees and “to conduct said proceedings to a finality * * *.

But no such right, interest or property shall be divested until the compensation awarded in such condemnation proceedings to the lessees or those claiming under them has first been paid to them by the State of Maryland”. Art. 72, sec. 109. The Shepherd Act made no appropriation to pay such compensation. Chapter 117 of the Acts of ³⁵⁹ 1912 was completely repealed and reenacted with amendments by Chapter 463 of the Acts of 1914, which (with subsequent amendments) is now Article 33A of the Code.

Section 15 of the Act of 1914 provided that (with an exception with respect to highways) the State and any municipal or other corporation or person which has a right to acquire property by condemnation “shall acquire such property, if condemnation proceedings be resorted to”, in pursuance of and under the provisions of Article 33A, “anything in any other Public General or Public Local Law or private or special statute to the contrary notwithstanding’ ’. Proceedings instituted in 1914 against the Board of Shell Fish Commissioners and Thelin under section 94B [108] resulted in 1915 in a judgment that the land or area covered by Thelin’s lease is a natural bed or bar. Condemnation proceedings instituted in 1915 by the State’s Attorney, in the name of the State against Thelin, resulted on October 26, 1915 in a verdict “Jury finds for the plaintiff the leasehold interest and property mentioned in petition and assesses damages to the defendant at $9000” and in “Judgment of condemnation of the leasehold interest and property mentioned in the petition in favor of the petitioner, and judgment in favor of the defendant, against the petitioner for the sum of $9000 with interest from this day until paid and Costs Nisi”. An appeal was filed on November 4, 1915 and dismissed on December 13, 1915 by the State.

A motion by the State to strike out the judgment was filed on December 3, 1915 and overruled on December 21, 1915. An appeal was filed on December 29, 1915. This appeal was not prosecuted. This case was one of thirty-eight oyster condemnation cases instituted and prosecuted in Somerset County.

The jury awards in the thirty-eight cases aggregated $257,975. 1 Reports of Attorney General, 13. By Chapter 582 of the Acts of 1916 $75,000 was appropriated for the compromise of these “judgments” and the Board of Public Works was authorized to abandon any of the cases which could not be compromised. Under this ³⁶⁰ Act all but five of the thirty-eight cases were compromised. The awards in the five cases, including the Thelin case, aggregate $47,000.

In 1927, at the instance of Thelin’s executor, a writ of scire facias, to “revive on the above judgment”, was issued “on judgment dated 26th Oct. 1915 for $9,000 with interest from date and costs $12.80,” and was served on the State’s Attorney. After entry of a judgment of fiat nisi, no defense was made by the State and judgment of fiat was entered on January 9, 1928. In 1937 the judgment was entered to the use of appellee. In 1939, at the instance of appellee, another scire facias was issued “on the above judgment” and was served; on the Governor and the State’s Attorney, A motion of the State to quash the writ, on grounds including those- now relied on by the State, was overruled, and judgment of fiat was entered on September 23, 1940.

By the 1945 Budget Act (Act of 1945, ch. 893, Item 32 of Supplemental Budget), $10,000 was appropriated “For the-settlement of claims of [appellee and the four other named claimants] for damage to oyster beds, settlement to be effected on terms approved-by the Board of Public Works.” No .settlement of .appellee’s “judgment” or -any “claim” of his “for damage to oyster beds” was effected. On September 23, 1946 the Board of Public Works authorized the dismissal of the condemnation proceedings in this Thelin case. On November 12, 1946 .the Attorney General filed in the condemnation proceedings an “order to mark proceedings dismissed” and also a “motion to strike, out” appellee’s “/judgment”.. -Appellee- answered and opposed the motion. ;Testimony was,taken and argument heard, By Joint Resolution No. 17, approved April 16, 1947, the. Governor was requested to include in a supplement to the-Budget for the year beginning July 1, 1947, an-item appropriating $47,000 to pay the holders of the five condemnation “judgments”, including appellee, “the face amounts of said judgments, without interest”, payment of the appropriation to be made “only if a favor ³⁶¹ able final ruling in the test proceedings now pending”, i. e., the instant case, was obtained by appellee.

No such provision was made in the Budget. On January 16, 1948 the lower court filed an opinion, in which it reviewed at length the facts relating to the lease and the litigation from 1913 to date, including among others all facts that we have stated, and for reasons also fully stated in the opinion entered an order overruling the motion. From this order the State has appealed. In the lower court and in this court the provisions in the Shepherd Act that condemnations proceedings under the act should be instituted before January 1, 1915 was apparently regarded by both parties as directory, not mandatory.

We assume, without deciding, that this view is correct, at least when the preliminary proceedings under section 94B were instituted, but not concluded, before January 1, 1915. The basic question now presented is whether the State has the right, thirty years after the jury’s award but before payment or tender of compensation, to abandon the Thelin condemnation proceedings under the Shepherd Act and strike out the “judgment” in the condemnation case. Unquestionably it has, unless the right has been denied or lost under (a) the Act of 1870, ch. 371, Code of 1939, Art. 26, sec. 29, (5) the general condemnation Act of 1914, Art. 33A, (c) the Shepherd Act itself, Art. 72, sec. 109 or (d) other special facts or circumstances relied on by appellee. Almost a hundred years ago it was decided both by the Supreme Court and by this court, that although a jury’s inquisition, when confirmed, determines the value to be paid if the property is taken, the inquisition does not constitute a taking, and the condemning public or private corporation, if dissatisfied with the valuation or for any other reason, may abandon the condemnation and is not obligated to take the property or pay the amount of the inquisition.

Baltimore & Susquehanna Railroad Co. v. Nesbit, 10 How. 395 , 13 L. Ed. 469 ; Graff v. Mayor, etc. of Baltimore, 10 Md. 544 . It was indicated in the Graff case and definitely held in ³⁶² Norris v. Mayor, etc. of Baltimore, 44 Md. 598, 606, 608 , that the property owner may maintain against the condemning corporation an action for damages caused by delay in electing, after assessment of damages, whether to take the property or abandon the condemnation. Much later it was held that unreasonable delay in electing may itself amount to abandonment of the condemnation. Wagner v. James A. Bealmear & Sons Co., 135 Md. 690 , 109 A. 466 .

Still later, the right to recover damages for delay was reaffirmed, but it was expressly held that in such an action the condemnation award cannot be recovered. Petroli v. Mayor & City Council of Baltimore, 166 Md. 431, 435 , 171 A. 45 . The instant case is not an action for damages for delay. No such action could be maintained against the State because the State has not consented to be sued.

The right of a condemning corporation to abandon condemnation proceedings was restricted, and a right in certain circumstances to obtain a pecuniary judgment against the condemning corporation was given to a property owner, by Chapter 371 of the Acts of 1870, Art. 26, sec. 29, which provides: “In all cases of proceedings to condemn lands, for any purpose whatever, under any law or charter, upon the return and ratification of the inquisition by the proper court, and in all cases in which inquisitions may have been heretofore returned and ratified, the said court shall render a judgment against the person or corporation for whose use the condemnation may be so made in favor of the owners named in the inquisition for the amount of the damages awarded by the jury, and unless, within ninety days after condemnation ratified, the same shall be abandoned by written notification to said owners, execution may immediately thereafter issue on said judgment, as in other cases of judgment rendered in courts of law.” In Merrick v. Mayor, etc. of Baltimore, 43 Md. 219 , in which the opinion of Judge Brown in the lower court was adopted by this court, Judge Brown said: “The Act clearly implies, that in proceedings to condemn land, the return ³⁶³ and ratification of the inquisition by the proper court do not constitute a judgment on which an execution can issue, but it provides that on such return and ratification the court shall render a judgment against the persons or corporations for whose use the condemnation may be made, in favor of the owners named in the inquisition, for the amount of damages awarded by the jury, and it gives ninety days after ratification in which the property may be abandoned, before execution can issue. Now to what class of cases does the Act apply? To those certainly which are provided for by the Acts of 1868, ch. 471, secs. 170-175, inclusive, that is, to cases where corporations are authorized to acquire land, etc., by condemnation. * * * And the Act of 1870, ch. 371, also applies to all other cases of condemnation under any special Act, where there is an inquisition of a jury which is required to be returned to court for confirmation. * * * Three things are made necessary by the Act of 1870, Ch. 371, in the cases to which it applies: first, a return of the inquisition; second, a ratification thereof by an order of the court; and third, a judgment against the person or corporation for whose use the condemnation is made.” 43 Md. 234 . The Act of 1868, ch. 471, secs. 170-175, Art. 23, secs. 329-334, “Condemnation of Property by Corporations”, (part of the general corporation law of 1868), apparently the first general condemnation law in Maryland, was applicable to corporations “incorporated under the laws of this State”, which manifestly does not include the State itself.

It was held in the Merrick case that the Act of 1870 does not apply to Baltimore street openings, where the valuation is made by a Board of Commissioners and not, except on appeal, by a jury. 43 Md. 235 . This decision has always been adhered to, and the procedure for opening, closing, widening or straightening highways is excepted from the application of the general condemnation law of 1914. Art. 33A, sec. 15. As has already been stated, the general condemnation law of 1914 is applicable to all condemnation proceedings (except highway cases) conducted by the State or any ³⁶⁴ municipal or other corporation or person.

Art. 33A, sec. 15. Upon any verdict becoming final, if it is “for the petitioner on the right to condemn and assessing damages to the defendants”, the court upon the verdict “shall forthwith enter a judgment in favor of each defendant against the petitioner for the amount of damages or compensation awarded” him and costs. Art. 33A, sec. 11. In Pitsnogle v. Western Maryland Railway Co., 123 Md. 667 , 91 A. 831 , Ann. Cas. 1916B, 1171, it was held that the condemnation Act of 1912 (repealed and reenacted with amendments by the Act of 1914) does not repeal, and is not inconsistent with, the Act of 1870, and that a railroad company may, within ninety days after verdict but before judgment, abandon a condemnation.

In State Roads Commission v. Redmiles, 176 Md. 677, 679 , 6 A. 2d 551 , it was held that the State Roads Commission likewise may, within ninety days but after judgment, abandon a condemnation under the Act of 1914. In the Redmiles