City of Baltimore v. Megary

• Decision Date: 02 December 1913
• Citation: 89 A. 331,122 Md. 20
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. MEGARY et al.
• Court: Maryland Court of Appeals

89 A. 331

122 Md. 20

MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. MEGARY et al.

Court of Appeals of Maryland

December 2, 1913

Appeal from Baltimore City Court; H. Arthur Stump, Judge.

Condemnation proceedings by the Mayor and City Council of Baltimore and another against Louisa V. Megary and husband. There was a judgment for damages for defendants, and petitioners appeal. Affirmed.

Benj. H. McKindless, of Baltimore (S. S. Field, of Baltimore, on the brief), for appellants. Isaac T. Parks, Jr., and Albert C. Ritchie, both of Baltimore, for appellees.

BOYD C.J.

This is an appeal from the rulings of the Baltimore city court in the trial of an appeal from the award of damages and the assessment of benefits made by the commissioners for opening streets in connection with the condemnation of part of a lot of ground owned by Louisa V. Megary, one of the appellees. The commissioners awarded her $15,104, and assessed her remaining lot for $1,269.90 benefits. By the inquisition of the jury the damages were increased to $20,821, and the benefits were reduced to $800. The appellant complains of the action of the lower court in granting the property owner's second, third, fourth, sixth, and seventh prayers.

By ordinance No. 145 of the mayor and city council of Baltimore approved July 23, 1912, the city provided for the condemning and opening of Thirty-Seventh street from Charles street to University Parkway. Charles street runs north and south and University Parkway runs northwest and southeast, intersecting Charles street at an angle of about 45 degrees, as appears from the blueprint of the plat filed. Mrs. Megary owns in fee simple a lot which fronts 100 feet on the west side of Charles street, running westwardly to the northeast side of University Parkway, the northern line being 300 feet in length, and the southern line 220.68 feet, the western line being 26.07 feet, and the southwestern line fronting on University Parkway 108.46 feet. Thirty-Seventh street now ends at Charles street, its northerly aide extended across Charles street being 20.81 feet north of Mrs. Megary's lot. It is proposed to throw into Thirty-Seventh street the triangular space between Charles street and University Parkway south on a curved line running from a point on Charles street 326.39 feet north of the intersection of Charles street and University Parkway (being 20.81 feet north of Mrs. Megary's lot) to a point on University Parkway 23.80 feet from the southerly line of her lot. That will take the entire front on Charles street of Mrs. Megary's lot and while it will leave a little over 84 feet frontage on University Parkway, and nearly 151 feet on the curved front on Thirty-Seventh street as extended, the remaining lot will be of a very peculiar shape and difficult to build on to advantage.

1. The appellees' second prayer instructed the jury "that they should award to the property owner as damages, in addition to the fair market value of the lot taken and condemned by the mayor and city council of Baltimore, in the opening of Thirty-Seventh street between Charles street and University Parkway, an amount equal to whatever damage, if any, caused to said property owner by reason of such taking to the remaining lot of said property owner not taken."

The city filed a special exception to that prayer on the ground that there was no evidence legally sufficient to show that the remaining lot of the property owner had suffered or sustained any damage by reason of the taking of her property. It is thoroughly settled in this state that "the 'just compensation' required by the Constitution to be paid where private property is taken for public use includes not only the value of the part condemned, but also a due allowance of damages for injury to the remainder." Baltimore v. Garrett, 120 Md. 608, 87 A. 1057; and cases there cited.

The evidence of Messrs. Turnbull, Appold, and White, experts produced by the appellees, shows that the property as it is before the opening of the street has two fronts --one on Charles street and the other on University Parkway. Mr. Appold, after giving the dimensions of the lot, said "that permits the lot to be divided into two portions, with a building side on both Charles street and University Parkway," and that the Charles street front "is worth giving up 120 feet depth for the Charles street front on the short line, and 100 feet depth on the short line for the University Parkway front, and of course on the long line it would be longer for each lot. I think the Charles street front is worth $150 under those conditions, and the University Parkway front $100. That makes $250, and 100 feet at $250 is $25,000." It will be recalled that the northern line of the whole lot is 300 feet long and the southern line is 220.68 feet. The above estimate was of the whole lot, and he valued the part condemned at $20,000 and the balance at $5,000. As he valued the front on Charles street at $15,000, all of which was taken with the exception of a small triangle along the northern line, which could be of little or no value, and the University Parkway front at $10,000, and then fixed the damages for all taken at $20,000, it is manifest that he took into consideration the damage done to the remaining lot. The part of the University Parkway front which was actually taken was not worth as much as the part of that front not taken, for the latter has about 84 feet front, while the other only has about 23 feet front, and there was not as much land of that part of the entire lot taken as there was left.

Precisely how much he valued the respective portions of the University Parkway front he did not state, but on cross-examination, in answer to the suggestion that according to his figures--$15,000 for the Charles street front and 23 feet at $100 a foot on University Parkway--they would amount to $17,300, while he fixed the damages for the whole taken at $20,000, he said: "The lot that the city leaves under this proceeding is a very irregularly shaped lot. In my judgment that seriously impairs the value of the lot as against a lot such as I have described above. It makes it more difficult to build on. Unless it is very successfully handled, it could not be built on in good taste, but it might, however, under successful handling. In my judgment that detracts from the value of the lot; it is irregularly shaped, you know." He thus clearly indicates that in his estimate of $20,000 he took into consideration the damages to the remaining lot by reason of the shape it was left in by what the city took. Messrs. Turnbull and White valued the whole lot at $30,000--the part taken at $24,000, and what was left at $6,000. Mr. White said, in answer to the question why he placed the valuation of $6,000 on the part of the lot that was not taken, "Purely on account of what I think that lot will sell for, left as it will be left and the curious shape in which it will be left." When asked to explain the situation, he said: "I think the shape of the lot almost explains itself. It is an unusual shape. It is not capable of any great, high-class development, except one house, and very few people are able with advantage to improve the lot to their satisfaction, knowing this is a high-class neighborhood." Mr. Bernard, an expert produced by the city, said: "I did not make any estimate of the damage to that lot. If the lot were being taken and the purpose of cutting into that lot would be for private purpose, the lot would undoubtedly be damaged; but, when we fix(ed) our benefit assessments on that lot, we took into consideration all the damage which was done to that lot by reason of the cutting through of this street. Otherwise our benefit assessment would have been in the neighborhood or somewhere around $4,000 or $5,000." As he estimated the benefits at $1,500, he apparently thus estimated the damages to the lot to be from $2,500 to $3,500. But valuing the University Parkway front as a whole, either at $10,000, according to Mr. Appold, or $12,000, according to Mr. White, or at any other sum that might be named by the witnesses it could hardly be necessary to have expert witnesses in order to convince the court or the jury that taking off the part of this front which is taken will damage the remainder. It is apparent from the plat that what is condemned leaves that not taken in such an irregular shape and so situated that it was necessarily damaged. In our judgment it is clear that the evidence shows that the remaining lot will be considerably damaged.

Inasmuch as none of the instructions granted at the instance of the property owner directed the jury to take into consideration their view of the property in fixing the damages or assessing benefits and as three of those granted at the instance of the city did in terms so direct them and inasmuch as we think there was legally sufficient evidence to go to the jury as to damages to the remaining lot, we do not feel called upon to determine whether the fact that a jury does view the property in a proceeding of this kind will require the court to submit the question of damages vel non to...