Bugg v. Maryland Transp. Authority

• Decision Date: 07 June 1976
• Docket Number: No. 1058,1058
• Citation: 31 Md.App. 622,358 A.2d 562
• Parties: Elvina BUGG et al. v. MARYLAND TRANSPORTATION AUTHORITY et al.
• Court: Court of Special Appeals of Maryland

Page 622

31 Md.App. 622

358 A.2d 562

Elvina BUGG et al. v. MARYLAND TRANSPORTATION AUTHORITY et al.

No. 1058.

Court of Special Appeals of Maryland.

June 7, 1976.

Certiorari Denied Sept. 14, 1976.

Charles P. Howard, Jr., Baltimore, with whom were Howard, Goslee & Kemp, Baltimore on the brief, for appellants.

Judson P. Garrett, Jr., Asst. Atty. Gen., and Daniel H. Bathon, Sp. Atty., Elkton, with whom were Francis B. Burch, Atty. Gen., and J. Michael McWilliams, Asst. Atty. Gen., and Counsel to the Dept. of Transp., on the brief, for appellees.

Argued before GILBERT and MENCHINE, JJ., PHILIP M. FAIRBANKS, Special Judge.

GILBERT, Judge.

Since 1960, Pink Bugg and Elvina Bugg have been involved in a controversy over 12.5 acres of land condemned by the erstwhile State Roads Commission and upon which part of the John F. Kennedy Expressway is now situated.

The Court of Appeals, in Bugg v. State Roads Comm'n, 250 Md. 459, 243 A.2d 511 (1968), opined, 'This case marks the end of a long trail which Mr. and Mrs. Bugg have travelled for some eight years.' 250 Md. at 460, 243 A.2d at 511. The seeming tolling of the knell for the 'Bugg-State Roads' controversy was, in the words of the late Samuel Langhorne Clemens (Mark Twain), 'greatly exaggerated.' ¹

Because of its informative value as background for the instant litigation, we deem it advisable to quote the recitation of facts set forth by the Court of Appeals in Bugg v. State Roads Comm'n, supra:

'Some time prior to June 1960, the Buggs purchased at a tax sale in Cecil County certain property located in the county which was assessed to the estate of William Cooper. While there is a suggestion that the property which was sold approximated two acres, when the Buggs instituted an equity proceeding in Cecil County to foreclose any right of redemption to the land which they had purchased, it seems that Mr. Bugg took a surveyor to the property which he thought he had purchased and indicated what he believed to be the boundaries. The surveyor prepared a description and the Buggs ultimately received a deed signed by the county treasurer which conveyed to them the tract covered by the description, containing 14.16 acres. Since the record in that case is not before us, there is no way to shed light on this anomaly.

In about 1962, the State Roads Commission (the Commission) having determined that 12.5 acres of the tract were required for the construction of the Northeastern Expressway, instituted proceedings for the acquisition of the required acreage in the Circuit Court for Cecil County and deposited the sum of $3,125, which the Commission believed to be the fair value of the property. Presumably as a result of the Commission's title examination, Charles McKeever, Marie K. McKeever, Dorothy M. Shivery and R. E. Shivery were named as defendants, together with Mr. and Mrs. Bugg. Later, it was determined that Marie K. McKeever had died, leaving as her heirs at law her children, Charles McKeever and Dorothy M. Shivery, the latter being the wife of R. E. Shivery.

Subsequent to the filing of the Commission's suit, Mr. McKeever and Mrs. Shivery brought action in ejectment against Mr. and Mrs. Bugg in Cecil County. The case was removed to and tried by the Circuit Court for Kent County and resulted in a verdict against the Buggs. In that case, in which Mr. and Mrs. Bugg were represented by counsel, Mr. McKeever and his sister were able to satisfy the court that the 14.16 acre tract had been owned by one Philip Smeltzer; that they had acquired the property from the heirs of Philip Smeltzer; and that Mrs. Shivery had paid the taxes on the property from 1957 to 1961. The court properly concluded that a tax sale of property on which taxes have been paid is invalid, . . . and may be the subject of collateral attack if the court lacks jurisdiction over the subject matter . . ..

As a consequence of Mr. McKeever's and Mrs. Shivery's victory in the ejectment suit, the Commission amended its petition in the condemnation suit, eliminating all defendants other than Mr. McKeever and Mrs. Shivery, with the result that they received the $3,125 deposited with the court clerk in connection with the taking.

There is an intimation, which the record before us neither confirms nor explains, that Mr. Bugg may have paid taxes on the 14.16 acre tract from the time of the tax sale until the Commission's taking, and he testified below that he has been paying taxes on the 1.66 acre parcel which remained after 12.5 acres had been taken. Resolute in the pursuit of their claim, the Buggs, on 26 May 1967, brought a suit in Cecil County against the Commission in which they sought to eject the Commission from the 14.16 acres or alternatively, to require the Commission to answer in damages. The Commission moved to dismiss, on the ground that the verdict in the Cecil County ejectment suit was determinative of the Buggs' rights. The Buggs countered with the contention that the Cecil County case only validated the McKeever-Shivery title as to the 12.5 acres taken in condemnation, leaving a 1.66 acre parcel still titled in the Buggs. It was from the order dismissing the Buggs' suit that this appeal was taken.' 250 Md. at 460-61, 243 A.2d at 511-12.

We glean from the record that the Buggs reopened the prior case and demonstrated, to the satisfaction of the trier of fact, that the Buggs were indeed the true owners, in 1960, of the land in controversy. The treasurer of Cecil County was apparently directed to exectute a new deed to the Buggs. The deed, dated August 25, 1972, recites that it was made pursuant to a decree of the Circuit Court for Cecil County passed on June 15, 1972. ² The deed further states that the prior treasurer's deed was erroneous in that it purported to convey two acres of land '. . . then belonging to the heirs of Philip Smeltzer, deceased, instead of the land then owned and assessed to William Cooper's Estate . . ..' Furthermore, the new deed stated the correct quantity of land as '. . . 15.406 acres of land more or less . . ..'

Approximately two years later, on August 2, 1974, Gary Bugg, 'Administrator of the Estate of Pink Bugg, Deceased,' ³ brought suit against the Maryland Transportation Authority (MTA) and against, as the Attorney General describes it in his brief, the '. . . mythical John F. Kennedy Memorial Highway Commission.' The suit was commenced by the filing of a paper writing entitled 'Bill in Equity for Damages.' The 'Bill' alleged that Pink Bugg was unlawfully ejected from his rightful possession of approximately 13 acres of the land when the State Roads Commission, the predecessor of the MTA, took the land for use in connection with the John F. Kennedy Memorial Highway. Monetary damages in the amount of $10,000,000 were demanded. The MTA demurred to the 'Bill.' Subsequently, Elvina Bugg was added as a party plaintiff. ⁴ Judge J. Albert Roney, Jr., sustained the MTA's demurrer to the 'Bill' with leave to amend.

Elvina Bugg, individually, and Gary Bugg, as administrator of the estate of Pink Bugg, ⁵ filed an 'Amended Bill of Complaint' against 'Maryland Transportation Authority, et al.' ⁶ The 'Amended Bill' narrated substantially the same facts as the original Bill except that it charged that there was no adequate remedy at law and if '. . . brought in a law court would be classified as an ejectment proceeding . . .' and, thus, was '. . . immediately precluded by the doctrines of sovereign immunity.' Viewing themselves as being without a remedy at law, the complainants stated that the MTA's actions, in building and using a highway running over the complainant's land, constituted '. . . a continuing nuisance . . .' which should be abated, and that the wrong committed by the State against them should be righted.

The complaint further averred that for '. . . at least twelve (12) years last past . . .' the MTA has been endeavoring to '. . . assume . . . sole control . . .' over the 12.5 acres. The complainants prayed, inter alia, that the court: (1) enjoin the MTA '. . . from preventing plaintiff's . . . entry upon and over . . . (the) property . . .'; (2) enjoin the MTA's use of the property '. . . without due compensation to plaintiffs . . .'; (3) enjoin MTA '. . . to remove each and every structure (upon the land) and . . . to abate the nuisance . . .'; (4) restrain the MTA '. . . from permitting the unlawful flow of vehicular traffic . . .' over the highway; (5) compel the MTA to regrade the land; (6) order payment from MTA of compensation for the nuisance; and (7) further order payment of '. . . restitution in the amount of $10,000,000.00 . . ..' The MTA promptly filed a 'Motion Raising Preliminary Objection,' Md. Rule 323 b. Judge Roney granted the MTA's motion that the case be dismissed, and this appeal followed.

In this Court, the appellants raise three questions, namely:

'I. Whether the trial court was in error in granting dismissal based upon a Preliminary Motion Raising Objection on the ground of governmental immunity, where there had been exercised statutory consent on the part of the State to be sued.

II. Whether the failure of the trial court to distinguish the instant case from the precedent relied on (in) its opinion deprived Appellants of the compensation to which they are justly entitled.

III. Whether the dismissal of the instant case by the trial court deprived the Appellants of their rightful standing to contest, pursuant to State legislation condemnation of their land.'

We view the three questions to be but one, namely, did the chancellor err in granting the MTA's motion raising preliminary objection?

From Bugg v. State Roads Comm'n, supra, we learn that the MTA's predecessor, in 1962, paid $3,125 for the 12.5 acres to the parties that were determined by the circuit court to be the rightful owners of the tract. The order of June 15, 1972, indicates, however, that the earlier ownership determination by the circuit court may have been wrong.

To...