D'Arago v. State Roads Commission

• Decision Date: 03 May 1962
• Docket Number: No. 182,182
• Parties: S. Miller D'ARAGO v. STATE ROADS COMMISSION of Maryland.
• Court: Maryland Court of Appeals

Page 490

228 Md. 490

180 A.2d 488

S. Miller D'ARAGO v. STATE ROADS COMMISSION of Maryland.

No. 182.

Court of Appeals of Maryland.

May 3, 1962.

Samuel Intrater, Washington, D. C. (Albert Brick, Washington, D. C., on the brief), for appellant.

T. Thornton Murray, Sp. Atty., Upper Marlboro (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, PRESCOTT and MARBURY, JJ.

BRUNE, Chief Judge.

This is an appeal by a landowner, S. Miller D'Arago, from a judgment in her favor of $37,500 for the taking of approximately 8.1 acres in fee and 0.1 acres in easements for construction of a part of new relocated Route 4, a limited access highway, in Prince George's County. The judgment was entered upon a jury's inquisition in a condemnation suit brought by the State Roads Commission ('the Commission') on December 20, 1957.

The appellant presents two contentions. The first is that she is entitled to access to the new highway cutting across her property or is entitled to damages for the denial of access thereto, and that the trial court erred in holding otherwise. Her second contention is that the trial court erred in replying to an inquiry of the jury with regard to the effect of a conditional contract, since the contract was not conditional, and she asserts that the court should have so advised the jury.

The appellant and her father, Pietro D'Arago, were the owners in 1956 of a more or less oblong tract of about 106 acres of land, which had a frontage of some 1400 feet on the south side of the Marlboro Pike (old Maryand Route 4) and which extended south for more than 3000 feet. There is evidence that in March, 1956, the D'Aragos entered into a contract (not put in evidence) with a corporation known as Parkell, Inc. for the sale of about 73.67 acres of this land, including the entire Marlboro Pike frontage. This tract was rezoned to a depth of 1400 feet from residential to commercial use in the summer or fall of 1956. On December 31, 1956, the D'Aragos conveyed approximately 24 1/2 acres of the land at the northeast corner of the D'Arago property, having a frontage of about 700 feet on the Marlboro Pike and a depth of 1400 feet, to Giant Food Properties, Inc., as assignee of Parkell, Inc., for use as a shopping center. Exactly one year later (December 31, 1957), the D'Aragos conveyed the remaining 49.15 acres (more or less) of the 73.67 acre tract to Purity Farms Shopping Center, Inc. (Purity Farms), to which the contract of sale had apparently been assigned by its parent corporation, Giant Food Properties, Inc. Purity Farms paid only a small part of the purchase price in cash and gave its note secured by a deed of trust for the balance. The 49.15 acre tract acquired by Purity Farms was 'L' shaped. The long side of the 'L' had a frontage of about 700 feet on the Marlboro Pike adjoining (to the west) the 24.5 acre tract conveyed to Giant Food Properties, Inc., and the short side lay behind the 24.5 acre tract. The 49.15 acre tract extended southward, both back of the 24 1/2 acre lot and back of its own frontage on the Marlboro Pike, to (and at one corner beyond) the southern boundary of the land taken by the Commission for the relocation of Route 4, the new limited -access highway. It included all of the land covered by this condemnation suit. A small roughly triangular corner (containing less than one acre) of the 49.15 acre tract lies to the south of the new Route 4, which it borders for about 300 feet. The Commission (at some time not shown) installed a service road running east and west, adjacent to and parallel with the new limited-access right of way, for a distance of roughly 1000 feet from the eastern boundary of the entire 1956 D'Arago tract. This service road curves southwestward approximately 300 feet from the western D'Arago boundary, and the triangular slice of less than one acre lies between the two roads. Its western side is about 125 feet long.

This service road, which apparently connects with a public road at some unspecified point, gives access to the little triangle and to the land originally owned by the D'Aragos lying to the south of the service road (and south of the new Route 4). The land south of the service road was apparently sold by the D'Aragos to a third party during the pendency of this case. The controversy over damages for non-access to the new highway does not appear to concern either that tract or the small triangle south of the new Route 4. Because of the new service road, there is, of course, no claim that the tracts are now landlocked. The denial of access of which the appellant complains pertains to the 'L' shaped tract north of the new Route 4.

At the time this suit was filed, the appellant and her father, Pietro D'Arago, were named as defendants, and Giant Food Properties, Inc., described as 'contract purchaser' of the land, was also made a defendant. On June 4, 1959, Purity Farms, assignee of Giant Food Properties, Inc., having defaulted on one or more payments secured by the deed of trust above referred to, conveyed the 49.15 acre tract to the appellant in lieu of foreclosure. Why the appellant's father was not also a grantee is not shown. As a result of a petition filed by the appellant, the names of Pietro D'Arago and Giant Food Properties, Inc. were (apparently) stricken from the case as defendants.

Turning to the appellant's first contention, it is clear that there never was any public road or right of way where the new Route 4 is now located. Hence, it is obvious that the appellant was not deprived of any easement of access to a highway which had previously been appurtenant to her land. We find her claim for damages based upon denial of access to a new, limitedaccess highway, which did not replace or supersede any previously existing road, to be untenable.

Although the origin of the right of access to public streets inhering in abutting property owners is said to be obscure (see Bacich v. Board of Control, 23 Cal.2d 343, 350, 144 P.2d 818), it is a well established right in the nature of an easement appurtenant to the abutting land on an existing highway, and a condemnee is entitled to compensation for the taking thereof. State Roads Comm. v. Franklin, 201 Md. 549, 558-559, 95 A.2d 99. See also DeLauder v. Baltimore County, 94 Md. 1, 50 A. 427; Sanderson v. Baltimore, 135 Md. 509, 109 A. 425; Brack v. M. & C. C. of Baltimore, 128 Md. 430, 97 A. 548; Webb v. Baltimore & O. R. Co., 114 Md 216, 79 A. 193; Baltimore Belt R. Co. v. McColgan, 83 Md. 650, 35 A. 59.

It has, however, frequently been held that there is no right to consequential damages to the land not taken for lack of access to a new limited-access highway built where no road existed before. The reasoning is simple. At the time of the taking, there is no easement of access to the new road inuring to the benefit of the abutting land not taken. No existing right has been taken. And, of course, none will accrue in the future because, when the new road is declared to be one of limited-access, no easement of access by implication can arise in the face of that contrary declararation. See 3 Nichols, Eminent Domain (3rd Ed., 1962 Cum.Supp.), § 10.2211, p. 65 and n. 8.9 thereto; Annotation, 43 A.L.R.2d 1072, § 6, and cases cited; Riddle v. State Highway Comm., 184 Kan. 603, 339 P.2d 301; State v. Calkins, 50 Wash.2d 716, 314 P.2d 449; Pennysavers Oil Co. v. State (Tex.Civ.App.) 334 S.W.2d 546; Lehman v. Iowa State Highway Comm., 251 Iowa 77, 99 N.W.2d 404; Schnider v. State, 38 Cal.2d 439, 241 P.2d 1, 43 A.L.R.2d 1068; Winn v. United States, 272 F.2d 282 (9th Cir.); State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57; Carazalla v. State, 269 Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276. Contra, St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683, which distinguishes cases following the majority rule on the basis of Alabama law, which appears to differ from ours. We do not find the case persuasive. Commentators have reached the same conclusion as the great majority of cases. See...