State v. Ambrose., 5.

CourtCourt of Appeals of Maryland
Citation62 A.2d 359
Docket NumberNo. 5.,5.
PartiesSTATE v. AMBROSE.
Decision Date10 November 1948

62 A.2d 359

STATE
v.
AMBROSE.

No. 5.

Court of Appeals of Maryland.

Nov. 10, 1948.


Appeal from Circuit Court, Somerset County; Levin C. Bailey, Judge.

Condemnation proceedings by the State of Maryland against Harry T. Ambrose. From an order overruling motion of the State to strike out a judgment making an award to defendant for condemnation of defendant's leasehold interest in land, the state appeals.

Order reversed and cause remanded with directions.

62 A.2d 360

J. Edgar Harvey, Deputy Atty. Gen. (Hall Hammond, Atty. Gen., on the brief), for appellant.

Walter H. Buck and Edward H. Burke, both of Baltimore (R. Contee Rose and Eben F. Perkins, both of Baltimore, on the brief, for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, and MARKELL, JJ.

MARKELL, Judge.

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 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. Section 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 1912 was completely repealed and reenacted with amendments

62 A.2d 361

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 Law 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 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...

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