City of Baltimore v. Gamse & Bro.

• Decision Date: 12 April 1918
• Docket Number: 98.
• Citation: 104 A. 429,132 Md. 290
• Parties: MAYOR, ETC., OF BALTIMORE et al. v. GAMSE & BRO.
• Court: Maryland Court of Appeals

104 A. 429

132 Md. 290

MAYOR, ETC., OF BALTIMORE et al. v. GAMSE & BRO.

No. 98.

Court of Appeals of Maryland

April 12, 1918

Motion for Modification of Opinion Denied August 3, 1918.

Appeal from Baltimore City Court; Carroll T. Bond, Judge.

Proceeding by the Mayor and City Council of Baltimore and others against Gamse & Bro., to condemn a leasehold under the right of eminent domain. An award was affirmed by the city court after a jury trial, and the City appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BURKE, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.

S. S Field, City Sol., and Benjamin H. McKindless, Asst. City Sol., both of Baltimore, for appellants.

Edgar Allan Poe, of Baltimore (James Fluegel, of Baltimore, on the brief), for appellees.

PATTISON J.

This is a proceeding by the mayor and city council of Baltimore to condemn, under the right of eminent domain, the leasehold interest of the appellees in a lot of land and the improvements thereon, situated on the northwest corner of Saratoga and Courtland streets, and occupied by them in the conduct of their business of lithographing and printing. The said lot of land, which fronts 50 feet on Saratoga street with a depth of 100 feet on Courtland street, is improved by a brick building of three stories and a basement. The premises were first leased unto the appellees, Herman Gamse and Benno E. Gamse, trading as H. Gamse & Bro., by the Owners' Realty Company, by deed of lease dated the 9th day of December, 1910, for the term of five years, commencing on the 1st day of April, 1911, and ending on the 31st day of March, 1916, at and for the annual rental of $3,000. The said lease contained the following provision:

"That at the expiration of the lease, and upon a previous notice of six months by H. Gamse & Bro., this lease shall continue in force for another period of five years, subject to the same conditions as herein set forth, but subject to an increased rental of $3,300 per annum."

Before the expiration of the lease it was agreed by the parties thereto that upon a renewal of it the lessors should make certain improvements upon the leased property, for which the lessees were to pay to the lessors, as rent, the sum of $210 per year, in addition to the said rental of $3,300 provided for by the original lease, making a total rental therefor of $3,510; and on the 27th day of March, 1916, a renewal lease was executed by the parties, in conformity with the agreement so made, for the term of five years, commencing on the 1st day of April, 1916, and ending on the 31st day of March, 1921. This lease contained no provision for its renewal.

It was to condemn the leasehold interest of the appellees in said property that these proceedings were instituted. The commissioners for opening streets awarded to the appellees $1,000 compensation therefor, and the appellees, being dissatisfied with said award, appealed therefrom to the Baltimore city court, where a trial by jury was had, which resulted in an award of $9,250 to the appellees, as compensation for the taking of their leasehold estate. From that award the city has appealed to this court.

At the conclusion of the evidence, both the city and the appellees asked for instructions to the jury as to the measure of damages applicable to the facts before them. The appellees' first and third prayers were refused, and its second was granted as modified. The appellant's first, fourth, fifth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth prayers were refused. Its second was granted, and its fourth A and sixth prayers granted as modified. In addition to the prayers granted, the court granted an instruction of its own.

The city, prior to the institution of these proceedings, had acquired the reversionary interest of the Owners' Realty Company in said property by a conveyance from it, and, as we have said, the controversy here relates only to the amount the appellees are entitled to be paid for their leasehold interest, taken from them under these proceedings. The appellees, as owners of the leasehold, and the city, as owner of the reversion, acquired from the Owners' Realty Company, together held the fee-simple estate, and the sum of the values of these interests is the value of the property taken. Gluck v. M. & C. C. of Baltimore, 81 Md. 321, 32 A. 515, 48 Am. St. Rep. 515. The value of the property is not enhanced by the fact that the entire title or estate in the property is not held by one and the same party. Lewis on Eminent Domain (3d Ed.) § 716.

In proceedings instituted to condemn the reversionary interest, as well as the leasehold interest, the rule is to ascertain the entire compensation to be allowed as though the entire title or estate in the property belong to one person, and then apportion the sum between the holders of the different interests, according to their respective rights. Baltimore City v. Latrobe, 101 Md. 629, 61 A. 203. As was said by this court, speaking through Chief Judge Boyd, in the case last cited:

"The condemning party, as a rule, ought not to be required to pay for the two interests more than the portion taken would be worth if owned by one person. *** The jury, or other tribunal authorized to make the award, should always keep the value of the entire property in mind, and should limit the whole amount to be paid to that value, unless it is clearly shown that the lessee is entitled to more than the difference between what they allowed the reversioner and what the whole property would be worth in the market, if there had been no ground rent."

When the entire property included in a lease is taken, the question is one of comparatively easy solution, although there may be, as in this case, two separate estates therein, held by different parties. In such case the rule stated above may ordinarily be applied without difficulty.

By the weight of authority, the rule as to the measurement of compensation in cases like the one before us is, generally speaking, precisely the same, whether the assessment of damages be to the tenant in fee, for life, or for years. The tenant should be allowed the market value of his estate. See note to Baltimore v. Latrobe, 4 Ann. Cas. 1005. In Baltimore City v. Latrobe, supra, Judge Boyd said:

"The reversioner is undoubtedly entitled to what his interest is worth in the market and prima facie the leasehold is charged with that value." Gluck v. Baltimore City, supra.

In Baltimore City v. Rice, 73 Md. 307, 21 A. 181, the city was granted a prayer, by which the jury were instructed that they could award the owner of the leasehold estate "only the fair market value of his interest in the brickyard, less the fair market value of his interest in so much thereof as would remain after the opening of Clare street." This court held that prayer good, and said of it that it covered the whole question. It would thus seem that, in this state, at least, the measurement of compensation for the appropriation of an estate, in cases of this character, is ordinarily the market value of the estate. The court's prayer instructed the jury:

"That they are to estimate and allow to the lessees the value of the right to continue in undisturbed possession of the premises for the remainder of the term fixed in the lease now existing, and that this value so to be estimated is represented by the price at which a lessee in the situation of the present lessees

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