Consolidated Gas, Elec. Light & Power Co. of Baltimore v. City of Baltimore
| Decision Date | 10 January 1917 |
| Docket Number | 63. |
| Citation | 99 A. 968,130 Md. 20 |
| Parties | CONSOLIDATED GAS, ELECTRIC LIGHT & POWER CO. OF BALTIMORE v. MAYOR AND CITY COUNCIL OF BALTIMORE et al. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.
"To be officially reported."
Proceedings by the Mayor and City Council of Baltimore to open a street. On appeal by the Consolidated Gas, Electric Light & Power Company of Baltimore from the award of damages by the Commissioners for Opening Street, a verdict was rendered charging the company with net benefits above the amount of damages, and the company appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, STOCKBRIDGE, and CONSTABLE, JJ.
E. M Sturtevant, of Baltimore, for appellant.
George Arnold Frick, of Baltimore (S. S. Field, of Baltimore, on the brief), for appellee.
The Consolidated Gas, Electric Light & Power Company of Baltimore is the owner of a tract of land, containing several acres located on the city water front and partly occupied by an extensive plant which is used in the production and distribution of electrical current. A portion of this trict is required for the opening of a new thoroughfare known as McComas street, for which the mayor and city council of Baltimore have provided by ordinance. The commissioners for opening streets made an award of damages from which the corporate owner appealed to the Baltimore city court. The trial on that appeal resulted in a verdict charging the company with net benefits of $5,835 over and above the amount of the damages. That result is the occasion of a further appeal, which brings to this court for review a ruling of the trial court upon a question of evidence, and its action in granting certain instructions to the jury.
By section 176A of the Baltimore City Code, as enacted by chapter 125 of the Acts of 1914, it is provided:
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At the trial in the Baltimore city court the witnesses on both sides agreed in valuing the appellant's entire tract of land before the opening of the street, at $90,000, independently of buildings and other improvements worth $225,000. The estimate thus placed on the land was at the rate of 20 cents per square foot for the total of 450,000 square feet which the tract contained. The part of the land to be taken for the street has an area of 26,600 square feet, and, on the basis of valuation just mentioned, is worth $5,320. According to the testimony on behalf of the appellant, no benefit or increase of value would accrue to the property as a whole from the opening of the street, and its value would consequently be reduced to the extent of the amount estimated for the part condemned. The witnesses for the city, on the other hand, testified that the opening of the street would increase the value of the remaining land to $96,590, as compared with the previous valuation of $90,000 for the entire tract. Upon this theory the appellant would be chargeable for net benefits to the amount of $6,590. An allowance, however, was to be made to the appellant for the cost of removing a water tower from the ground required for the street, and it was agreed that $755 was a proper estimate for this expense. The effect of such allowance was to reduce the net benefit claimed by the city to $5,835, which was the amount awarded by the verdict.
The appellant company offered in evidence a lease under which it acquired the land and electrical plant in question, with a distribution system and franchise, from the Baltimore Electric Company on November 20, 1907, for the term of 999 years. It was the object of this proffer to show, from the provisions of the lease, that the use of the property was limited to the special purposes of the particular industry then in operation on the leased premises, and that the land was therefore not susceptible to the benefits which might otherwise result from the opening of the proposed street. The lease was excluded by the trial court upon the ground that the object of the offer was legally inadequate, and that the interest conveyed by the lease was for all practical purposes a fee simple estate. This ruling is the subject of the first exception.
It appears from the terms of the lease that no rent was reserved for the demised property, and that the consideration for the transfer was the payment of the nominal sum of $5 and the covenant of the lessee to pay the principal and interest of a bond issue of $7,500,000 secured by mortgage of the property and franchise of the lessor company executed by it prior to the lease, and in further consideration of the lessee's covenant to pay semiannual dividends, at the rate of 5 per cent. annually, to the holders of the preferred stock of the lessor company issued to the par value of $1,250,000, and also to pay all taxes, assessments, and public dues of all kinds levied against the leased property. There was a covenant that the lessee would maintain the premises in good order and condition, and make all necessary repairs, and at the expiration of the term surrender the property in the same condition as at the beginning "ordinary wear and tear excepted." The lessee company further obligated itself to perform the contracts of the lessor company for the supply of electrical current to various consumers.
The lease to which we have thus referred undoubtedly assumed that the demised plant and premises would continue to be used for the purposes of an electric light plant, but such user was not prescribed as an absolute and permanent obligation. There is no expression of a purpose to bind the lessee to the maintenance and operation of an electrical plant on the leased land during the whole term of 999 years for which it was conveyed. The performance of the covenants for the payment of the bonds and dividends on the preferred stock and for the fulfillment of the existing contracts of the lessor, does not necessarily involve the exclusive and perpetual appropriation of the ground to its present use. In view of the practically unlimited duration of the leasehold estate, the covenant to keep the property in repair and to surrender it in good condition at the end of the term, except for ordinary wear and tear, can only be regarded as a nominal provision without reasonable possibility of performance and without any effect as a continuing limitation upon the uses to which the property may rightfully be applied. But if it be assumed that the land can have no other use than as a site for an electric light plant, it may nevertheless have a market value which the opening of the new street will enhance. The court below was clearly correct in its ruling that for the purposes of a condemnation proceeding this...
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