City of Baltimore v. State Roads Commission

• Decision Date: 27 June 1963
• Docket Number: No. 303,303
• Citation: 232 Md. 145,192 A.2d 271
• Parties: CITY of BALTIMORE and Howard D. Bennett v. STATE ROADS COMMISSION of Maryland.
• Court: Maryland Court of Appeals

Page 145

232 Md. 145

192 A.2d 271

CITY of BALTIMORE and Howard D. Bennett v.STATE ROADS COMMISSION of Maryland.

No. 303.

Court of Appeals of Maryland.

June 27, 1963.

Philander B. Briscoe, Baltimore (Francis B. Burch, City Sol., Lloyd G. McAllister, Chief Asst. Sol., and Robert C. Harrison, Asst. City Sol., Baltimore, on the brief), for appellants.

Leroy W. Preston, Sp. Atty., Baltimore (Thomas B. Finan, Atty. Gen., and Joseph D. Buscher, Sp. Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.

BRUNE, Chief Judge.

This is an appeal by property owners dissatisfied with the amount of damages awarded them in a condemnation case involving land taken by the State Roads Commission(the Commission) for the approach road to the Baltimore Harbor Tunnel.The owners, who have composed their differences over their respective claims of title to the property or properties involved and make common cause against the Commission, are the City of Baltimore and Howard D. Bennett.The questions presented relate to numerous rulings on questions of evidence, comments by the trial court on the extension of a proposed street, and instructions relating to the measure of damages.The case was tried before a jury, which viewed the premises, and awarded damages of $18,444.00 for the slightly less than ten acres taken by the Commission, and judgment was entered in accordance with this award.

The land in question is made up of six tracts, each of which was the subject of a separate condemnation suit.All of these cases were consolidated for trial.The land lies east of the Patapsco River, west of Potee Street and south of a railroad embankment which carries the Curtis Bay branch of the Baltimore & Ohio Railroad in that part of the City known as Brooklyn.For the most part the land now comprised in the tract was originally formed by the deposit of sediment brought down by the river.A good deal of it was at first an island, known as Billikin Island, but largely as a result of dumping operations by the time of the taking no part of it constituted an island any longer.

The appellants set up sixteen separately numbered paragraphs in their brief asserting in each one or more allegedly erroneous rulings relating to evidence.The appellants set them up simply in the order in which they occurred during the trial.We find that most of them are capable of being treated in groups, and in the interests of clarity and (we hope) brevity we shall so treat them.One factor which runs through the case is the length of time which elapsed between the filing of the suits and the trial thereof.The delay was due, we understand, largely to confusion as to title among different claimants to the tracts involved.The suits filed in 1955, the date of taking was January 1, 1956, and the cases were tried (for three days) in March, 1962.Meanwhile, the Harbor Tunnel approach road had been built, and construction by the City of an extension of Patapsco Avenue had been commenced.These facts were, of course, visible to the jury on viewing the premises.

The appellants' first objection to evidence (numbered I) was to the admission of an aerial photograph of the area taken in 1949.The claim that it was too remote in time because of changes in land due to accretion, new streets, and heavy filling of earth, was virtually abandoned at the argument.The admission of the photograph was within the discretion of the trial court(Hance v. State Roads Comm., 221 Md. 164, 172-173, 156 A.2d 644), and we find no abuse of discretion.

The second objection (II) is to the court's curtailing of the cross-examination of one of the Commission's witnesses with regard to the location of swampy areas on the appellants' land as shown by other aerial photographs, which the court thought 'meaningless' as to the location of swamps.The same witness did identify the location of swampy areas on a part to the property.If there were any error in this matter, it was harmless and not a ground for reversal.Hance v. State Roads Comm., supra, 221 Md. at 176, 156 A.2d at 650.

One group of objections (Nos. ILL, V, VI, and XV) pertain to evidence relating in one way or another to the character of the soil of the property taken.Profiles were admitted showing the nature of the land--satisfactory or firm subsoil, which could serve as a foundation for either an expressway or a substantial industrial building, unsuitable overlay (marshy material), and fill which had been dumped in, including garbage and junked automobiles.We think that these profiles were sufficiently authenticated as being based upon and prepared from data compiled under the supervision of the expert witness through whom they were offered.Evidence as to the cost of putting the land in proper shape for use for industrial purposes--the highest use for which the appellants claimed it was suited--was obviously relevant to its value for such purposes.The Commission contended that, without incurring great expense, the highest and best use for the property was as a dump, or for outdoor storage of automobiles.Because of the character of the soil, the Commission found it necessary to incur heavy expense to make this property usable to carry the new highway.Where the new road was to cross the proposed extension of Patapsco Avenue (discussed below) the Commission used piles.It dredged out material which was unsuitable to support the new highway all across the appellants' land, back-filled the land with suitable material and (temporarily) used surcharge material to weigh down and compact the newly placed material rapidly.

Evidence relating to the cost of making the appellants' land usable for industrial purposes included testimony to the effect that piles would be needed to support industrial buildings of various types and testimony with regard to the cost of piling.The appellants object that the trial court cut them off from cross-examining a witness for the Commission as to the length of piles that would be necessary.His figures with regard to costs were based upon the use of forty-foot piles.His testimony showed the average depth of unsatisfactory soil to be about twenty-eight to thirty feet.It is not disputed that piles, to be effective, would have to penetrate below such covering and get into satisfactory subsoil.We think that the trial court did cut the appellants off somewhat short from a proper line of inquiry, but the appellants put in testimony of their own designed to show that piling thirty feet in length would have been adequate and would have cost considerably less than forty-foot piling.The appellants conceded that thirty-foot piling would have been necessary.The jury had both sides of the picture before it.Again we find no such prejudicial error as would call for a reversal on this score.Hance v. State Roads Comm., supra.

The fact that the witness who testified as to soil conditions regularly referred to the fill as 'garbage' and did not refer to other material used as fill, was brought out clearly on cross-examination; and any objection based thereon seems too insubstantial to call for extended comment.If such testimony amounted to an exaggeration, its effect was, we think, thoroughly dissipated by the cross-examination just referred to.

One objection (XV) made by the appellants to evidence relating to the unsatisfactory character of the soil to carry heavy weights seems to be that no special treatment was needed to make part of their land suitable for the extension of Patapsco Avenue and the heavy traffic to be expected thereon.If that be the fact, we find no evidence in the record extract to support it, nor do we find any statements to support a similar assertion in their brief with regard to the subsoil under Potee Street.Even if there may be such evidence somewhere in the record, it would be a matter affecting the weight, but not the admissibility of conflicting evidence, and it would be for the jury and not for us to pass on.

The appellants' principal group of objections relating to evidence (IV, VII, VIII, XI (at least to some extent,) XII, XIV, and XVI) relate to the proposed extension of Patapsco Avenue through their property.Such an extension appears to have been still only under construction six years after the taking with which we are concerned.The first ordinance looking towards its extension was passed in 1925 and amendatory ordinances were passed in 1930 and 1935.Even the latter of these was adopted at least twenty years before the taking.There was also evidence showing that in 1952 the Commission on City Planning approved the proposed extension and showed it on a plat.The evidence also showed clearly that the Commission in 1954 in planning the Harbor Tunnel approach contemplated carrying the new road over the proposed extension of Patapsco Avenue.The trial court properly excluded as irrelevant the cost of the proposed overpass, but admitted evidence that the overpass was contemplated.

The Commission's appraisers did not allow any enhanced value for the subject property because of the likelihood of the extension of Patapsco Avenue.The appellants object to this and to the court's pointing out what was undoubtedly true, that...