Brack v. City of Baltimore
| Decision Date | 17 February 1915 |
| Docket Number | 9. |
| Citation | 93 A. 994,125 Md. 378 |
| Parties | BRACK et ux. v. MAYOR AND CITY COUNCIL OF BALTIMORE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.
"To be officially reported."
Appeal by Henry L. Brack and wife from adverse judgment in condemnation proceedings by the City of Baltimore. Reversed and cause remanded.
Wm. J Ogden and Frank Gosnell, both of Baltimore, for appellants.
S. S Field, City Sol., of Baltimore, for appellee.
This is a condemnation proceeding for the acquisition by the city of Baltimore of certain land of the appellant, in Baltimore county, included in the area required for the storage and protection of a new water supply for the city to be impounded by an extensive dam in the valley of the Gunpowder river. The tract condemned contains about 44 acres. It embraces the middle portion of the appellant's farm of 190 acres, and lies along a stream called Peterson's run, which, for the greater part of its course through the farm, will be absorbed in the waters of the reservoir. By the appropriation of ground in this proceeding the remainder of the appellant's land will be divided into two disconnected tracts of approximately equal acreage. The buildings are located at the eastern end of the farm, and an outlet is provided by a roadway extending through the property to a public thoroughfare beyond its western limits. This private way crosses Peterson's run by a bridge not far below the point where the stream enters the farm, but the land taken by the city will be necessarily flooded to such an extent as to prevent the use of the roadway and bridge at their present level. The condemnation of the intersecting tract, which is proposed by the petition to be acquired in fee simple, would also in itself have debarred the landowner from the use of the customary outlet, but it was provided by an amendment to the petition that the property required should be condemned subject to the obligation upon the part of the mayor and city council of Baltimore to construct a suitable bridge over Peterson's run, and a suitable road from each side of the bridge to the outlines of the property sought to be condemned, along the line of the present way; the new road and bridge to be equally as good as those now existing, and to be at a sufficient elevation to furnish a safe and solid roadway connecting the separated portions of the farm, and to be for the perpetual use and benefit of the owners of the remaining land, by whom, however, it was to be maintained. By the same amendment it was further stipulated that the condemnation should be subject to the reservation in behalf of the landowner, his heirs or assigns, of the right of access to the run above the roadway for all domestic purposes, including the cutting of ice and the right to have live stock, except hogs, resort to that portion of the stream.
The petition was thus amended, by leave of the court, after the jury had been impaneled and had viewed the premises. Objection to the amendment was taken by a motion ne recipiatur, which was overruled; and a formal exception to this action was reserved, and constitutes the first bill of exceptions in the record. The appellant complains of the modification referred to mainly on the ground that it is inconsistent with a condemnation in fee simple, to which the proceedings are in terms directed, and seeks to accomplish by the provisions stated the partial satisfaction of damages which are claimed to be legally demandable as a whole in money. Other exceptions were reserved to the refusal of the court below to allow the defendant to show that the land being condemned has special features which give it an independent value as a reservoir site. The appeal by which the questions we have indicated are brought before us for determination has been taken by the defendant from a judgment entered upon the inquisition as returned by the jury awarding him damages to the amount of $15,967.
In the argument of the case in this court the subject first considered was the propriety of the exclusion of evidence as to the adaptability of the land for reservoir purposes, and we will adopt the same order of discussion.
The just compensation to which the landowner is entitled, where part of his land is taken for public use, includes the value of the ground condemned and a due allowance for consequential damages, if any, to the remainder. Patterson v. Baltimore, 124 Md. 153, 91 A. 966; Baltimore v. Megary, 122 Md. 20, 89 A. 331; Baltimore v. Garrett, 120 Md. 608, 87 A. 1057; Ridgely v. Baltimore, 119 Md. 567, 87 A. 909. With respect to the property taken the award must be based upon its actual market value at the time of the condemnation. Norris v. Baltimore, 44 Md. 607; Moale v. Baltimore, 5 Md. 314, 61 Am. Dec. 276; Tide Water Canal Co. v. Archer, 9 Gill & J. 479. The rule is that the market value of the land is to be estimated in reference to the uses and purposes to which it is adapted, and that any special features which may enhance its marketability may properly be considered. But the fact that the land is needed for the particular object sought by the condemnation is not to be regarded as an element of the value to be ascertained. The question is, not what the property is worth to the condemning party, but what could probably be realized from its sale to any purchaser who might desire it for any or all of the purposes for which it is available.
In 15 Cyc. 757, it is said:
In Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206, where three islands in the Mississippi river were being condemned for use in the construction of a boom, and the owner desired to have their special availability for such use considered in the estimate of his damages, it was said:
It was held in Sargent v. Merrimac, 196 Mass. 171, 81 N.E. 970, 11 L. R. A. (N. S.) 996, 124 Am. St. Rep. 528, where a landowner was seeking compensation for property taken as a source of municipal water supply, that:
"The market value to which the petitioner was entitled was made up of the value of the land apart from its special adaptability for water supply purposes, plus such sum as a purchaser would have added to that value because of the chance that the land in question might be some day used as a water supply."
The decision in Moulton v. Newburyport Water Co., 137 Mass. 163, was to the same general effect.
In Spring Valley Waterworks v. Drink-house, 92 Cal. 528, 28 P. 681, it was held to be proper to show that land which was being condemned for a reservoir site was so situated as to be peculiarly adapted to such use. The same theory was adopted in the case of Alloway v. Nashville, 88 Tenn. 510, 13 S.W. 123, 8 L. R. A. 123, where land was condemned for a reservoir, and it was said that:
The market value to which the owner was entitled
An opinion delivered by Lord Chief Justice Alverstone, in Re Gough and Aspatria, Silloth and District Joint Water Board [1904] 1 K. B. 422, approves as correct the following statement of Wright, J., whose action was under review:
"If there is a site which has peculiar advantages for the supply of water to a particular valley or a particular area of any other kind, or to all valleys or areas within a certain distance, if those valleys are what might be called natural customers for water by reason of their populousness and of their situation, if the site has peculiar advantages for supplying in that sense, apart from value created or enhanced by any act of Parliament or scheme for appropriating the water to a particular local authority, I think it may be taken that there is a natural value in the site for the purposes of water supply, and that it should be taken into consideration."
The case of Brown v. Forest Water Co., 213 Pa. 440, 62 A. 1078, also recognized the rule that the special availability of land for reservoir or water supply purposes...
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