Black v. City of Baltimore

• Decision Date: 24 January 1879
• Parties: SAMUEL BLACK and Margaret C. Black v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

50 Md. 235

SAMUEL BLACK and Margaret C. Black v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

January 24, 1879

Appeal from the Superior Court of Baltimore City.

This was an action instituted the 29th of May, 1877, by the plaintiffs below against the Mayor and City Council of Baltimore, to recover damages for injury to their property alleged to have been sustained under circumstances sufficiently stated in the opinion of the court.

Exception.--At the trial the plaintiffs offered the following prayers:

1. If the jury believe from the evidence, that the plaintiffs were the owners of the property described in the two deeds from Bankard & Horn to the said Margaret C. Black, offered in evidence; that by Ordinance of the Mayor and City Council of Baltimore, approved June 10th, 1871, Presstman street was directed to be opened from Gilmor to Monroe street; that the said street so directed to be opened passed through said property of plaintiffs, as shown on the plat offered in evidence; that in pursuance of said ordinance the City Commissioners for Opening Streets caused to be published the notices dated June 12th, 1871, offered in evidence; that on July 17th, 1871, the plaintiffs executed and delivered to the defendant the two surrenders of that date offered in evidence, and that the same were duly accepted by said defendant; and that subsequently thereto the said defendant advertised for sale the said property of the plaintiffs in parcels, as stated in the advertisement offered in evidence and actually sold the same at public auction on the 8th of August, 1871; that said Ordinance was repealed by Ordinance No. 95, approved on May 20th, 1875, and that from the day last named to the day of the bringing of this suit, the defendant neglected to take any further step towards the execution of the ordinance first aforesaid, then the plaintiffs are entitled to recover such damages as the jury may find from the evidence that the plaintiffs have sustained by reason of such negligence.

2. If the jury find from the evidence, the fact stated in the first prayer, and also find that the said delay in executing the said ordinance was not unavoidable, then the plaintiffs are entitled to recover such damages as the jury may find from the evidence that the plaintiffs have sustained by reason of such delay.

3. That in ascertaining the damages, the jury are at liberty to take into consideration the loss of rent and interest suffered by the plaintiffs, and the depreciation in the value of their property by the said delay of the defendant.

And the defendant offered a prayer, which is stated in the opinion of the court. The court, (Dobbin, J.,) rejected all the prayers of the plaintiffs, and granted that of defendant; to which rejection of plaintiffs' prayers, and granting of defendant's prayer, the plaintiffs excepted. The verdict and judgment being for the defendant, the plaintiffs appealed.

The cause was argued before Bartol, C.J., MILLER, ALVEY and ROBINSON, JJ.

Orville Horwitz, for the appellants.

The first and second prayers of the appellants merely affirm propositions already settled by this court in Graff v Baltimore, 10 Md. 544; State v. Graves, 19 Md. 351; Norris v. Baltimore, 44 Md. 606; Baltimore v. Musgrave, 48 Md. 272.

The measure of damages, stated in the appellants' third prayer, is the true measure of damages.

1st. The loss of rent of the dwelling house whilst untenanted, or diminution of rent of the house whilst tenanted.

2d. The loss of interest on the money invested in that part of the property which consisted of vacant ground.

3rd. The depreciation in the value of the property, by its being tied up by the action of the city, and kept out of the market.

It will also be insisted on, that the defendant's prayer should not have been granted.

Indeed, it is difficult to understand the meaning of the prayer. This action was not brought to recover the amount of damages assessed by the city and not paid. In such a case, it might well be answered that no assessment had yet been made.

But, in an action brought to recover damages for the negligence of the city in not proceeding to assess damages, and to do whatever else was necessary to be done, in order to carry out the provisions of the ordinance, to answer that you have no cause of action, because the city neglected to perform its duty, is, to say the least, a novel sort of defense even for a municipal corporation.

James L. McLane, for the appellee.

The law is well settled in Maryland, "that a municipal corporation has the right to abandon any contemplated improvement and repeal at its pleasure any Ordinance providing for the same." R. R. Co. v. Nesbitt, 10 How. 395; Graff v. Balto., 10 Md. 544; State v. Graves, 19 Md. 357; Merrick v. Balto., 43 Md. 219; Norris v. Balto., 44 Md. 598; Balto. v. Musgrave, 48 Md. 272.

It is equally well settled that the "election to abandon cannot be fairly made until all assessments of damages are finally settled, thereby placing before the City Council a definite ascertainment of the whole cost of the work;" and that "the work of opening a street from one point to another, cannot be properly commenced until the city has thus acquired the right to take all the property through which it may pass." Norris v. Balto., 44 Md. 606; Balto v. Musgrave, 48 Md. 272.

All delays occurring prior to the definite ascertainment of the whole cost of the work, have been termed by this court, "unavoidable delays for which the city cannot be made liable."

It is only for losses to owners occasioned by "unauthorized delay" on the part of the Mayor and City Council, in making its election, either "to abandon or pay," that any liability exists.

The appellants were never disturbed in their possession of their property. They were free to make what improvements they saw fit, with a certainty that the same must be paid for before the city could take the property, and it was not possible that they should sustain any loss or damage, by reason of the city's failure to condemn. From July, 1871, to May, 1875, the city simply failed to fix a price at which it would become the purchaser of the lots in question. Canal Co. v. Archer, 9 G. & J. 479.

By the repealing Ordinance of May, 1875, the city simply withdrew from the market altogether. In both instances it exercised its undoubted rights, and cannot be made to answer therefor in damages.

Bartol C.J., delivered the opinion of the court.

It appears from the record in this case that on the 10th of June, 1871, the Mayor and City Council of Baltimore passed an Ordinance to condemn and open Presstman street, from Gilmor to Monroe street, and that on the 12th of June in the same year, the Commissioners for Opening Streets gave notice, as required by the City Code, of 1869, Art. 43, sec. 6, of their intention to meet on the 12th day of July next ensuing, and proceed to execute the Ordinance of the 10th of June. On the 17th and 18th of July, the appellants, who owned land lying between Gilmor and Monroe streets, which would be cut by Presstman street, and who claimed compensation for the whole of two lots of ground, a part of which was required for the bed of the street to be opened, surrendered said lots to the city, and the Street Commissioners sold the parts thereof not included in the bed of the proposed street, in parcels, on the 8th of August, under the City Code, Art. 43, sec. 7.

Nothing...