Whiting-Middleton Construction Co. v. Preston

Pattison, J., delivered the opinion of the Court. This action was brought by the appellee, Edward D. Preston, described in the declaration as the owner of the rever ²¹² sion in fee and the annual ground rent of ninety-three dollars issuing out of a certain lot of ground known as 1704 Barclay street, located between Lanvale street and Lafayette avenue, in the City of Baltimore, under a lease for ninety-nine years, renewable from time to time forever, to recover for damages to his “said reversion and annual ground rent” resulting from injury to the dwelling house thereon, caused by excavations made by the appellant company in a private alley along and immediately adjacent to said dwelling,, in the construction of a sewer in said alley for the Mayor and City Council of Baltimore. The narr. alleges that by reason of the said injury to the dwelling house, it became unfit and unsafe foy use as a dwelling and was, by the order of the Building Inspector of said city, torn down and destroyed. In the trial of the case thirteen exceptions were taken to the rulings on the evidence.

At the conclusion of the testimony the plaintiff offered one prayer, which was granted. The defendant offered six prayers; the fourth and fifth were granted, while the first, second, third and sixth were .refused. To the granting of the plaintiff’s prayer and the overruling of the defendant’s exceptions thereto, and to the refusal of the defendant’s first, second, third and sixth prayers the defendant excepted, which constitutes the fourteenth exception. The case was tried by jury and a verdict was rendered by them for the sum of $1,690.90, upon which verdict a judgment was entered.

It is from that judgment that this appeal is taken. By the plaintiff’s prayer the jury were instructed that if they found “that the excavations so made were carelessly and negligently made by the defendants, and that by reason of the careless and negligent manner in which said execavations; were made, the aforesaid ground and improvements were damaged, and that by reason of such damage, if any, so done to the said ground and improvements, the jjlaratiff £$ fh© ²¹³ owner of the aforesaid irredeemable ground rent sustained loss and damage, then the plaintiff is entitled to recover the amount, if any, of the loss and damage so sustained by him as the owner of the aforesaid ground rent.” To the granting of this prayer the defendant specially excepted, the reason given therefor being that there was no evidence to support it. By the defendant’s first prayer, which was refused, the Court was asked to instruct the jury that there was no evidence in the case legally sufficient to entitle the plaintiff to recover, and by its second prayer, which was likewise refused, the Court was asked to instruct the jury that “as it appears from the undisputed evidence that the plaintiff was the owner of the reversionary interest and the annual rent of ninety-three dollars issuing out of the lot in question, and that there is no evidence to show any injury or damage to the lot itself.” We will consider the aforesaid two prayers of the defendant in connection with the special exception to the plaintiff’s prayer. The plaintiff testified that he was the owner of the irredeemable ground rent of ninety-three dollars a year issuing out of a lot of ground mentioned in the declaration, and that the said lot, binding on the north side of an alley eight feet and four inches wide, in which the excavation was made, has a width of fifteen feet and five inches and a depth of ninety feet.

The sewer was laid in the center of the alley, by the defendant, for the City of Baltimore, in March, 1911. He was not present when the excavations were made, but saw the trench upon the second day after a part of it had been partially filled. The trench ran parallel with the south side of the house and at a distance of two feet and nine inches therefrom. He was at the time Inspector of Buildings in the City of Baltimore, and received a message from the defendant company that the house was giving way and falling; that he could not, upon the receipt of the message, go at once to the scene of trouble, but sent an inspector, Mr. Schultz.

Later in the day he went himself and found the “house was ²¹⁴ not quite completely down — there were some temporary props there which Mr. Stockhausen was putting up but the house had settled over, being a party wall between this house and the next door house, it settled over so as to pull the second and third floor joists out of the wall and had gone over towards this alley and settled down so as to get the fronts broken and the steps all out of gear.” The props ran from the extreme south side of tbe alley over against the wall of the house to keep it from falling. “The house was taken down, the side walls taken down to the first floor and part down to the second floor, almost all taken down, by order of the 'City.” It was a three-story house, covering the entire width of the lot, with pressed brick front, brown stone steps and sills, and in fair condition before the excavations were made. He did not know the number of rooms in the house. It was idle at the time of the injury complained of and had been idle for some time. In his testimony he also spoke of the character of the excavations and the want of precaution taken by the defendant company to prevent injury to the building, but nothing was said by him, more than what we have stated, in relation to the damages sustained, resulting, as he alleges, from such excavations, and this, so far as the record discloses, is all that was said in relation to the injury or damage resulting from the defendant’s acts.

As we have said, this action was brought by the plaintiff to recover for damage to his reversionary interest in consequence of the injury to, or partial destruction of the building or improvements upon the lot mentioned, resulting from the aforesaid excavatious. Assuming, although we are not to be understood as so deciding, that the injury to the building resulted from the negligent and careless manner in which the excavations were made in the construction of the sewer in the alley, what evidence is there that such injury to the building resulted in damage to his reversionary interest in the property? It is not only necessary that it should be shown that the injury to the building was the result of the ²¹⁵ negligent and careless manner in-which the excavations were made in the construction of the sewer by the defendant, but to entitle him to recover it must also be shown that the plaintiff’s reversionary interest was damaged in consequence of the injury to, or partial destruction of said dwelling house. It is not disclosed by the record whether or not the holder of the leasehold interest, the substantial owner of the property (Baltimore City v. Latrobe, 101 Md. 632 ), has brought any suit or action to recover damages that might have been sustained by him in the partial destruction of said dwelling house.

It may be that such action has been brought and that he has recovered damages therefor, or if not, it may be that he will yet bring an action to recover the same. The plaintiff here is the owner of the reversion in the lot-of land mentioned, leased for ninety-nine years, renewable forever, with the irredeemable ground rent incident thereto. As was said in Banks v. Haskie, 45 Md. 218 , “This character of tenure is, so far as we know, among the States, peculiar to Maryland. It has not been generally adopted, so far as we are informed, in any other State. * * * It is a peculiar description of tenure which has been sustained by our Courts, and approved and fostered by our people.

While the ground rents from their nature are usually of a fixed value, the leasehold interests are more or less fluctuating.” And Judge Miller, in discussing the nature of the lease in that case, which was similar to the one in this case, said: “It seems to us quite clear that the intention was on the part of the lessor to secure the prompt payment in perpetuity of the interest on a sum of money equivalent to the value of the property in fee at the time the lease was made; and on the part of the lessee to acquire a perpetual interest in the leased premises which would justify his making permanent improvements thereon, and enable him to avail himself of the value of the property thus enhanced, as well as of its increase in value arising from other causes. * * * Instead of selling the property in fee for its then value, and investing ²¹⁶ the proceeds in other securities, (the owner) resorts to this method of deriving an income from it, and making a secure and permanent investment of its value in the land itself.” And this Court in the case of Baltimore v. Canton Co., 63 Md. 236 , after quoting from Banks v. Haskie as we have done, said: “The landlord is not affected by the rise or fall in value of the fee; any enhancement in its value remains fixed in amount, and the lessor is really interested in the subsequent value of the land and the erection of improvements thereon, only as furnishing a sufficient pledge or security for the sum certain to he annually paid to him. * * * The landlord’s interest in the land is but a money investment analagous to that secured by mortgage.” Neither the land in this case nor its value is shown to have been lessened by the acts complained of. The injury is to the building alone, and the plaintiff is not injured thereby, unless it be shown that by reason of such injury to the building his pledge or security for the annual payment of his rent is impaired to the extent of lessening the value of his reversionary interest in said property. As the record discloses, there was no evidence before the jury upon which they could have found that such pledge or security was impaired to the extent of lessening the value, of his reversionary interest, or if so, no sufficient evidence to enable them to arrive at the amount to which he was entitled as damages therefor. Moreover, if it be found that there was an