City of Baltimore v. Musgrave

• Decision Date: 26 March 1878
• Citation: 48 Md. 272
• Parties: THE MAYOR AND CITY COUNCIL OF BALTIMORE v. JAMES MUSGRAVE.
• Court: Maryland Court of Appeals

48 Md. 272

THE MAYOR AND CITY COUNCIL OF BALTIMORE v. JAMES MUSGRAVE.

Court of Appeals of Maryland

March 26, 1878

APPEAL from the Superior Court of Baltimore City.

This action was brought by the appellee, the owner of a tannery on Jones' Falls, in the City of Baltimore, to recover from the appellant for the loss and damage occasioned by the suspension of his business under circumstances set out in the opinion of the Court.

Exception.--The evidence on both sides being closed the plaintiff offered the following prayer, which the Court (DOBBIN, J.,) granted:

If the jury shall find that the property of the plaintiff on Front street was within the lines of the Jones' Falls improvement, as laid down, provided for, or contemplated in the Ordinance of 1872, No. 51, and that the proceedings of the Commissioners, under said ordinance, were had, as appears by the record thereof, and as proven and admitted; and shall further find that the Commissioners in good faith notified the plaintiff on the 6th of January, 1873, that they had condemned his said property under the said ordinance, and would require possession thereof as early as possible, for the prosecution of said improvement, and for the purposes thereof, and notified and requested the plaintiff on said 6th of January, in view of the nature of his business as a tanner, to regulate his said business so as to be able to deliver up the said property to them, for the purposes aforesaid, as soon as possible; and that one of said Commissioners afterwards repeated and urged such request on the plaintiff, as testified to by Mr. Adams, and the plaintiff and his son, Thos. H. Musgrave, and never modified or revoked said notice or request at any time, nor was the same ever modified or revoked by the defendant. And if the jury shall find that the plaintiff, in consequence of and relying upon the premises, and upon said notice and request and for the purpose of being able to give up said property to the Commissioners when required, did in good faith so regulate and contract his business as speedily as he reasonably could, and finally suspend the same until April 21st, 1874, and that said Ordinance of 1872, was not repealed until May 27th, 1874, then the plaintiff is entitled to recover damages to the amount to which the jury may find that he was injured in and prevented from earning the ordinary and usual profits of his business, by reason of the reduction and suspension thereof aforesaid, together with the loss, if any which he may have suffered by reason of the deterioration or destruction of his tanning liquors, which has been given in evidence.

The defendant offered four prayers, which need not be set out. These prayers the Court rejected. The defendant moved to exclude certain evidence which the Court had allowed to be given subject to exception, but the Court refused to exclude such evidence. To the action of the Court in granting the plaintiff's prayer, and its refusal to grant the defendant's prayers, and to exclude the evidence admitted subject to exception, the defendant excepted; and the verdict and judgment for $12,172.39, being for the plaintiff, the defendant appealed.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, J.

James A. Buchanan, for the appellant.

The Court below erred in granting the plaintiff's prayer. Every hypothesis of the prayer might have been found by the jury to be sustained by the evidence in the cause, and yet the plaintiff was not entitled to recover in this action, as there was no proof whatever that there was any unnecessary delay in the condemnation proceedings for the then contemplated Jones' Falls improvement, and in the absence of such proof the appellee could not recover. Baltimore and Susquehanna R. R. Co. vs. Nesbitt, 10 Howard, 395; Graff vs. Mayor & C. C. of Balt., 10 Md., 544; State, ex rel. McClellan vs. Graves, 19 Md., 351; Merrick, Adm'r of Warfield vs. M. & C. C of Balt., 43 Md., 219; Norris, et al. vs. M. & C. C. of Balt., 44 Md., 598.

An examination of the laws and ordinances under which said condemnations were originally instituted, and finally abandoned, together with the evidence in the record, will satisfy the Court that there was no unnecessary delay on the part of the appellant or its officers in carrying on or abandoning said condemnation proceedings for the Jones' Falls improvement.

Said proceedings were instituted under an ordinance passed and approved April 24th, 1872. (See Ordinances of 1872, No. 51, pages 57-70.) This ordinance was supplementary to the ordinance of 1870, approved January 31st, 1870. (See Ordinances of 1870, No. 12, pages 27 and 29.)

Said ordinances were passed under the authority conferred upon the city by the Acts of 1870, chapters 113 and 115. See Supplement to Baltimore City Code, 1869-1874, pages 148-151.

Both of said ordinances were repealed by the subsequent Ordinance of 1874, No. 40, approved May 27th, 1874. (See Ordinances of 1874, page 55.) And said repeal is legal and binding. Merrick, Adm'r vs. Mayor, &c., of Baltimore, 43 Md., 232, 233, 245 and 246; Norris, et al. vs. Mayor, &c. of Baltimore, 44 Md, 598; Hampton vs. Commonwealth, 19 Penn., 329.

The prayer of the appellee is further objectionable, because even if the jury found from the evidence in the cause that the Commissioners for the improvement of Jones' Falls, gave the notices and did the acts therein stated, and that the appellee was injured because of what he did in pursuance thereof, still he was not entitled to recover in this action, as the notices so given by the Commissioners were clearly ultra vires. See 1 Dillon on Mun. Corps., 471, sec. 381; 2 Dillon on Mun. Corps., 854, sec. 749, and 877, secs. 766, 767, 768; Mayor, &c. of Albany vs. Cunliff, 2 Comstock, 165; Anthony vs. Adams, 1 Metcalf, 384; Cugler vs. Rochester, 12 Wendell, 165; Mayor, &c., of Baltimore vs. Eschbach, 18 Md., 276; Mayor, &c., of Balt. vs. Porter, 18 Md., 284; State, ex rel. Mayor, &c., of Balt. vs. Kirkley, et al., 29 Md., 85, 86; Reynolds vs. Mayor, &c., of Balt., 20 Md., 1.

If the notices given by the Commissioners were ultra vires, no subsequent ratification thereof by the Mayor and City Council could give them validity. Horn vs. Mayor, &c., of Baltimore, 30 Md., 218, 219.

And if the action of the Jones' Falls Commissioners in giving the notices mentioned in appellee's prayer was ultra vires, the appellee in obeying the same, acted under a mistake of law, and is not entitled to recover any damages he sustained in consequence of obeying such notice. Mayor, &c., of Balt. vs. Lefferman, 4 Gill, 425; Norris vs. Mayor, &c., of Balt., 5 Gill, 244; Lester vs. Mayor, &c., of Balt., 29 Md., 415, 419.

And the prayer of the plaintiff is further objectionable, because the rule of estimating the damages which he was entitled to recover, as therein stated, is not correct, and under said instruction, the jury could award the plaintiff remote and speculative damages. Such an instruction was calculated to, and doubtless did, mislead the jury. It is submitted, that in this case the appellee had no right to recover for the loss of the profits of his business. Pierce on American Railroads, 187; 10 Cushing, 385; 16 Barbour, 100, 105, 106 and 273; The Tide Water Canal Co., vs. Archer, 9 Gill & John., 533, 534; King vs. London Dock Company, 5 Adol. & Ellis, 163; Abbott vs. Gatch, 13 Md., 314.

W. Hall Harris and S. Teackle Wallis, for the appellee.

It is the well established law of this Court that the city has a right to abandon any contemplated improvement, and repeal at its pleasure any ordinances providing for the same. Graff vs. Mayor, &c. of Balt., 10 Md., 544; State vs. Graves, 19 Md., 351; Norris vs. Mayor, &c. of Balt., 44 Md., 606.

There is, consequently, no room for dispute as to the correctness of the general doctrine set forth in the appellant's third prayer, that no action lies against the appellant for the mere abandonment of the Jones' Falls improvememt.

It is, however, equally well established by the same decisions, that when the owner of property has suffered loss in any such case by the acts or delay of the city corporation, he is entitled to redress for the same. Norris vs. Mayor, &c. of Balt., 44 Md., 606.

That there was great loss to the appellee from the acts of the corporation and its agents in the present case, is not denied. That it was incurred in perfectly good faith, and from a conviction of duty and necessity, is equally indisputable. The only question is, whether it was incurred under circumstances which fix a liability for it on the city.

The Act of 1870, ch. 113, authorized the city to issue bonds to an amount not exceeding $2,500,000 for the construction of the works connected with the improvement of Jones' Falls, provided for by Ordinance No. 13, of January 31st, 1870, the bonds to be issued as provided in Ordinance No. 12 of the same date, (Supplement to City Code, p. 163,) when the latter should be approved by the people. The latter ordinance authorized the proceeds of the bonds to be applied in accordance with the preceding ordinance, or any supplement thereto, and was itself approved by the people in due course.

The Act of 1870, ch. 115, conferred upon the city the broadest possible powers for the improvement of the Falls, according to any plan or plans which had been or might be adopted. Its third section gave special power "to define and locate the limits of Jones' Falls within the city of Baltimore," and to condemn and acquire property, &c &c., with all the usual machinery of assessments, &c. By sec. 7, the existing Ordinance No. 13, of January 31st, 1870, was confirmed in all particulars. That ordinance, however, was not put into successful operation, and the supplementary...