Brack v. City of Baltimore
Decision Date | 05 April 1916 |
Docket Number | 34. |
Parties | BRACK et ux. v. MAYOR, ETC., OF CITY OF BALTIMORE. |
Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; Allan McLane, Judge.
Proceedings by the Mayor and City Council of Baltimore, to condemn lands in connection with the water system of the city, against Henry L. Brack and wife. From a judgment for petitioners defendants appeal. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Carlyle Barton and Alfred S. Niles, both of Baltimore (Niles, Wolff Barton & Morrow and William J. Ogden, all of Baltimore, on the brief), for appellants.
S. S. Field, City Solicitor, of Baltimore (E. J. Colgan, Jr., Asst. City Sol., of Baltimore, on the brief), for appellees.
The appellants rely on: (1) Their demurrer to the amended petition, which was overruled by the court; and on (2) the exceptions to the rulings of the court on the evidence. All of eight prayers offered by the city and four offered by the appellants were conceded, and hence no questions arise as to them.
1. The demurrer to the amended petition was on the ground that the condemnation of the property mentioned in said proceedings in the manner set forth in the third and fourth paragraphs of said petition will not give the mayor and city council of Baltimore the title to said property required by the terms of the act of 1908, chapter 214. The amended petition asked for the condemnation of 22.15 acres of land described in it in fee simple, subject to a reservation in perpetuity to the defendants, their heirs, assigns, or owners of the farm of the defendants shown on the plat annexed to the petition, or any portion thereof, to a right of way for ingress and egress for all purposes of a roadway over the said 22.15 acres and across Peterson's run, substantially following the same location as the present roadway shown on the plat.
Judge Urner, who delivered the opinion in that case, after referring to P. R. R. Co. v. Reichert, 58 Md. 261, and Russell v. Zimmerman, 121 Md. 339, 88 A. 337, as well as a number of authorities outside of this state, said:
In the proceeding now before us evidence was offered by both parties as to the cost of a bridge and embankment, and as the jury were unquestionably authorized to consider those costs in awarding the damages, they presumably did so. We see no valid reason why a reservation of the right of way over the land condemned should not be allowed, as was done. A bridge and roadway were already there, and as they would be rendered useless, or practically so, by reason of the increased height of the water, it was proper that the owner should be paid for them, and we do not understand why the city should not be permitted to condemn the property subject to the right of way. Such right of way would not interfere with its use of the property for the purposes intended, and it would be not only unreasonable, but useless, to require the city to take the entire part of the farm on the easterly side of the run. If it had attempted to do so, it might well have been met with the objection that it was not necessary.
The owner is not required to build a new bridge and embankment, but he will get the money allowed by the jury to do with it as he sees proper. The prayers which were conceded told the jury what damages they could allow, and there is no reason why the jury should have failed to understand the situation precisely as it existed. In this proceeding the city is not obligated to build the bridge and road, but the owner is paid in money for them, and the right of way is reserved. The Legislature cannot be supposed to have intended to prohibit the city from condemning property so situated subject to a reservation of a right of way in the place of the roadway already existing. Although section 1, c. 214, of the Acts of 1908 provided that property acquired for certain purposes named in that act should be in fee, the new article of the Code on Eminent Domain, 33A, as adopted by chapter 117 of the Acts of 1912, and subsequently amended by chapter 463 of the Acts of 1914, expressly provided that the state and any municipal or other corporation, etc., which has the right to acquire property by condemnation, shall acquire it, if condemnation proceedings be resorted to, "in pursuance of, and under the provisions of this article, anything in any other public general law or public local law, or private or special statute to the contrary notwithstanding," except in proceedings for the opening, closing, etc., of highways. Then section 12, art. 33A, provides that:
"The title so acquired in any condemnation proceeding under this article shall be an absolute or fee-simple title, and shall include and be all the right, title and interest of each and all the parties to the proceedings, whose property has been so condemned, unless otherwise specified in the judgment of condemnation."
That is practically the same as it was in section 5 of the act of 1912, and the proceeding to condemn the appellant's property was begun after that act went into effect; the amended petition having been filed after the act of 1914 was passed. There is therefore nothing in the statute which prevents the city from taking less than a fee-simple title if it be conceded that this reservation of the roadway had the effect of reducing or qualifying the fee. The demurrer was...
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