Davis v. Board of Educ. of Anne Arundel County

• Decision Date: 17 January 1934
• Docket Number: 95.
• Citation: 170 A. 590,166 Md. 118
• Parties: DAVIS v. BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY.
• Court: Maryland Court of Appeals

170 A. 590

166 Md. 118

DAVIS v. BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY.

No. 95.

Court of Appeals of Maryland

January 17, 1934

Appeal from Circuit Court, Anne Arundel County; Francis Neal Parke Judge.

Condemnation proceeding by the Board of Education of Anne Arundel County against Gertrude Lee Davis. Order sustaining a demurrer to defendant's plea in bar, and defendant appeals.

Appeal dismissed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and SLOAN, JJ.

John S Strahorn, Jr., of Baltimore (Douglas H. Gordon, and John S Strahorn, both of Annapolis, on the brief), for appellant.

George E. Rullman, of Annapolis, for appellee.

OFFUTT Judge.

The board of education of Anne Arundel county on November 3d 1931, by deed of that date, took title to a tract of land containing, exclusive of the alleyway described below, more than ten acres located on the south side of the Baltimore and Annapolis boulevard between Glen Burnie and Annapolis, in Anne Arundel county, Md., subject to the right of Gertrude Lee Davis to use an alley 20 feet wide which crosses the property.

After acquiring the property, the board of education improved it by erecting thereon a schoolhouse which for a distance of 162.4 feet completely covered the alley, thereby depriving the owner of the easement of the use thereof.

On April 1, 1933, the board of education filed in the circuit court for Anne Arundel county a petition, which was later amended, against Gertrude Lee Davis for the condemnation of that easement. In the amended petition, the petitioner described the property to be taken, alleged that it was necessary and desirable for school purposes, that it had not been able to agree with the owner for the purchase, use; and occupation thereof, and accordingly prayed that it be condemned under the procedure prescribed by Code, art. 33A.

Gertrude Lee Davis answered, admitted the allegations of the petition, but alleged as a bar to further proceedings that the petitioner had no legal power to condemn because the tract which the petitioner owned subject to the easement exceeded ten acres in area. A demurrer to the plea was sustained, and from that ruling this appeal was taken.

The right of the petitioner to condemn rests upon chapter 157 of the Acts of 1931 which provides: "When land shall be required for the site of a school-house, or for enlarging a school-house lot, or for playgrounds or other school purposes, and the county board of education shall for any cause be unable to contract with the owner or owners thereof upon what they deem to be a fair valuation thereof, the county board of education may institute proceedings for the acquisition of such lands, in accordance with Article 33A of the Annotated Code; but no lot so taken or enlarged shall exceed, in the whole, ten acres, including the land occupied by the school building."

The contention of the appellant appears to be that, as the tract subject to the easement sought to be condemned, and which the petitioner owned at the time the petition was filed, contained more than ten acres, it was not entitled to the benefit of the statute, because the acquisition of the easement would "enlarge" the schoolhouse lot beyond the limitation of the statute.

But the force of that contention is not apparent. It may be conceded that the general rule is that statutes of eminent domain are to be strictly construed, but, while such statutes are in derogation of common right, they are not in derogation of the common law, and not subject to the same rigid strictness of construction applicable to such statutes. Lewis' Sutherland on Stat. Const. § 559; 20 C.J. 597. But, while they should be strictly construed, the purpose and intention of the Legislature when clearly manifested in the statute should not be defeated by any narrow, strained, forced, or artificial construction of its language. Lewis' Sutherland, Stat. Constr. 518; Citizens' Bank v. Parker, 192 U.S. 73, 24 S.Ct. 181, 48 L.Ed. 346; Cutty v. Carson, 125 Md. 25, 93 A. 302; Brenner v. Brenner, 127 Md. 189, 96 A. 287; Frazier v. Leas, 127 Md. 575, 96 A. 764; Criswell v. State, 126 Md. 107, 94 A. 549; Mitchell v. State, 115 Md. 360, 80 A. 1020; Brenner v. Brenner, 127 Md. 189, 96 A. 287; Graham, etc., v. Wellington, 121 Md. 661, 89 A. 232; Healy v. State, 115 Md. 379, 80 A. 1074; Purnell v. Shriver, 125 Md. 270, 93 A. 518; Overton v. Harrington, 126 Md. 34, 94 A. 325; Merrill v. Military Dept., 152 Md. 477, 136 A. 897; Northern Securities Co. v. U. S., 193 U.S. 197, 24 S.Ct. 436, 48 L.Ed. 679; Moore v. W. U. Tel. Co., 164 Mo.App. 165, 148 S.W. 157. Nor should the rule which requires strict construction in certain cases be confused with the definition of the term itself.

An inspection of the statute indicates that its purpose was to empower county boards of education to exercise the state's power of eminent domain to acquire "land" needed for school purposes either to establish a new school or to enlarge one already established, provided the lot "so taken or enlarged" did not exceed in the whole ten acres including the site of the school buildings.

The power thus granted to condemn land necessarily included the right to condemn every right, interest, and incident necessary to a perfect and complete title to the land taken. Having the power to condemn land, the board had also the power to condemn an outstanding easement in land which it owned wherever the destruction of the easement was essential to the utilization of the land for school purposes. These conclusions are self-evident and necessarily flow from the nature of the power granted as well as from the language of the statute. A private right of way is an easement and is land, 20 C.J. 593; U.S. v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L. R. A. (N. S.) 385, 19 Ann. Cas. 680, so that the power to condemn land is also the power to condemn an easement in land.

But ...