Taylor v. City of Baltimore

Brent, J., delivered the opinion of the Court. Under Article 4 of Public Local Laws, 2nd vol. Code, title “City of Baltimore,” and sub-title “Water,” the Mayor and City Council have the power “from time to time to contract for, purchase, lease and hold to them and their successors in fee-simple, or for a term of years, any land, real estate, spring, brook, water and water-course, and also the right to use or occupy for ever, or for a term of years, any land, real estate, spring, brook, water and water-course, which they may conceive expedient and necessary for the purpose of conveying water into the said city for the use of said city, and for the health and convenience of the inhabitants thereof.” Sec. 928. In pursur ⁵⁷⁸ anee of this power, which it is conceded on all sides the Legislature of the State could rightfully confer,'they have undertaken to introduce into the city a supply of water from the Gunpowder River.

The conduit or aqueduct to be constructed for that purpose will pass through the lands of the appellants, at a distance below the surface varying from seventy-nine to a hundred and twenty feet. The parties not being able to agree upon the terms of sale, a jury of inquisition was summoned, who proceeded to assess and ascertain the amount in money to be paid by the city for the land in question, looking to the purpose for which it was to be held and used. Secs. 929, 931, 932. Their inquisition was returned to the clerk of the Circuit Court for Baltimore County, to be filed in his office and submitted to the Court for confirmation.

Sec. 934. Objections to its ratification were filed by the appellants, but that Court, upon the hearing, overruled the objections and passed an order confirming the inquisition. Since the decision of this Court in the case of the W. & S. R. R. Co. vs. Condon, 8 G. & J., 448 , the law was well settled in this State, that an appeal did not lie in cases of this description. But the Legislature deeming it wise to alter this rule, passed the Act of 1876, ch. 19, which gives the right of appeal, but limits it expressly to ‘ ‘ matters of law.” The jury in this case, by their inquisition, made the following condemnation of the land in question: “ And the use and occupation of which said second described parcel is wanted by the Mayor and City Council of Baltimore, for the purpose aforesaid, (for the introduction of water into said city,) in perpetuity, so far as may be necessary to construct", maintain and use under the same an underground conduit, 12 feet in internal diameter, for conveyance of water, without any opening on said second described parcel, and without the right to enter upon or disturb the surface, except to clear away timber on the sur ⁵⁷⁹ face, necessary to give an unobstructed view for engineering purposes during the construction of said conduit.” ■ Upon this finding of the jury the appellants asked the Court below to determine, as a matter of law, that the measure of damages cannot be less than the fair market value of the land, estimated according to the value at the surface, and that the inquisition must be set aside if the jury had given only such damage as they thought would result to the land by the tunnel constructed in the manner described.

This the Court refused, and it forms the subject of the first bill of exceptions. The appellees filed a special exception to this prayer, upon the alleged ground that there was no evidence in the cause, that the jury did not allow the full value of the surface of the land described. They seem to have allowed very nearly at the rate of $500 an acre, which seems to be considered by witnesses as about the surface value, but some of the jurors do testify, that the valuation would have been larger than that returned, if the surface value had been adopted. So there is some evidence to support the prayer, and the special objection to it must therefore be overruled.

The question is then distinctly presented, was the jury bound to allow, as the measure of damages, the estimated value of the land at the surface, or could they look to the purpose for which the land was to be condemned, and the manner and mode in which it was to be used and occupied, and thereupon estimate the damages ? The Act of Assembly, to which we have first alluded, is very full and general in its language, and seems to furnish a satisfactory solution to this question. It will be noticed, that the power conferred upon the authorities of the city to purchase, &c., 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 for ever, or for a term of years, the ⁵⁸⁰ same enumerated property. It is apparent, therefore, that the Legislature