Dunne v. State

• Decision Date: 08 April 1932
• Docket Number: 34.
• Citation: 159 A. 751,162 Md. 274
• Parties: DUNNE v. STATE. [a1]
• Court: Maryland Court of Appeals

159 A. 751

162 Md. 274

DUNNE v. STATE. ^[a1]

No. 34.

Court of Appeals of Maryland

April 8, 1932

Appeal from Circuit Court, Montgomery County; Robert B. Peter Judge.

Proceeding by Anna Bartsch Dunne against the State. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Affirmed.

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

E Barrett Prettyman, of Washington, D. C. (P. C. King, Jr. Butler, Pope, Ballard & Loos, and Preston B. Kavanagh, all of Washington, D. C., on the brief), for appellant.

Roger J. Whiteford, of Washington, D. C., (William P. Lane, Jr., Atty. Gen., Robert H.

Archer, Asst. Atty. Gen., and Joseph C. Cissel, of Rockville, on the brief), for the State.

DIGGES J.

This case comes before us on appeal by Anna Bartsch Dunne from an order of the circuit court for Montgomery county sustaining a demurrer interposed by the state of Maryland to a paper writing filed by the appellant in that court. While the paper writing in question is somewhat lengthy, a proper consideration as to its character and purport requires that its pertinent provisions be fully stated. They are:

"No. 18 Appearances. Nov. Term, 1931. Anna Bartsch Dunne vs. The State of Maryland. State of Maryland, Montgomery County, to wit: Anna Bartsch Dunne, by her attorneys, E. Barrett Prettyman and Preston C. King, Jr., and proceeding under the provisions of section 40 of article 91 of the Code of Maryland, sues the State of Maryland, for that, on, to wit, June 21, 1928, and for some time prior thereto, said Anna Bartsch Dunne was the owner, in fee simple, of the following described land, lying in Montgomery County, Maryland." (Then follows a detailed description of the property.) "And that the State of Maryland, through its agent, the State Roads Commission, exercising its power of eminent domain, on, to wit, June 21, 1928, took possession of and appropriated for public use the aforesaid land belonging to said Anna Bartsch Dunne for the purpose of widening certain existing roads, to wit, Brookeville and Colesville Pikes, and thereafter the State of Maryland, acting through its said agent, the State Roads Commission, laid out and opened upon the said land a public road, and that in so doing said State of Maryland completely changed the character and contour of said land by grading, excavating and covering it with concrete so that it cannot be restored to its original character and contour, and that for the purpose of widening the existing roads, and laying and opening upon the said land a public road as aforesaid, the State of Maryland, through its agent, the State Roads Commission, cut down, removed and destroyed certain fences, hedges, trees and shrubbery then being upon said land and belonging to said Anna Bartsch Dunne; that the amount of damages suffered by said Anna Bartsch Dunne by reason of the aforesaid taking and appropriation, being just compensation for the property thus taken and appropriated, was the sum of Fifty-three Thousand Five Hundred Seventy-six Dollars and Fifty-four Cents ($53,576.54); that in violation of the Constitution of Maryland and the Fourteenth Amendment of the Constitution of the United States of America, no condemnation proceedings or any other proceedings of any sort were had respecting the taking and appropriation of the aforesaid land and/or property; that said Anna Bartsch Dunne was not afforded any opportunity whatsoever to be heard in respect to the aforesaid taking and appropriation of the aforesaid land and/or property; that said Anna Bartsch Dunne did not consent or agree, in any manner whatsoever, directly or indirectly, to the aforesaid taking and appropriation of the aforesaid land and/or property without compensation therefor; that said Anna Bartsch Dunne has not been paid or tendered any compensation whatsoever in any manner by the State of Maryland or any of its agents or by any other person or persons for the taking and appropriation of the aforesaid land and/or property; that the aforesaid agent of the State of Maryland, the State Roads Commission, did not cause to be prepared any report, either preliminary or final, or any plat or plats, showing either the description, quantity and/or nature of the property taken, the amount of damages awarded therefor, the amount of benefits assessed to the adjoining land, the names of the persons interested in the property taken or benefited with their respective estates and interests therein, and/or the damages and benefits awarded or assessed to each; that said State Roads Commission did not by advertisement inserted in any newspapers published in the County where the land lies, give notice to the parties interested that such reports were open to inspection at the office of the Commission or that such reports had been deposited with the Clerk of the Circuit Court of the County in which the property taken lies; that the State of Maryland has consented to be sued in this Court in these proceedings in respect to the subject matter herein involved, such consent appearing in section 40 of article 91 of the Code of Maryland; that said Anna Bartsch Dunne has no remedy in the premises other than in this proceeding. Wherefore, the premises considered, Anna Bartsch Dunne prays that process issue from this Honorable Court directing the State of Maryland to appear herein on or before the next appearance day, and that the Court shall require the State of Maryland to pay the costs of this proceeding in this Court; and Anna Bartsch Dunne further prays that the Court shall issue its order requiring the said State Roads Commission, agent of the State of Maryland, to pay into this Court the sum of Fifty-three Thousand Five Hundred Seventy-six Dollars and Fifty-four Cents ($53,576.54), being the amount due to said Anna Bartsch Dunne, and that thereupon the Court shall order such sum to be paid from the Court to the said Anna Bartsch Dunne; and Anna Bartsch Dunne further prays that if the said State of Maryland shall upon issuance of the process of this Court fail to appear as summoned, the Court shall issue its judgment and execution thereon against the said State of Maryland for the sum of fifty-three thousand five hundred seventy-six dollars and fifty-four cents ($53,576.54); and Anna Bartsch Dunne further prays for such other and proper relief as may be necessary or desirable in the premises."

The demurrer admits, for the purpose of this appeal, the statement of facts above alleged, but not any conclusions of law therein contained. It will be seen that the appellant alleges that the proceeding is instituted under the provisions of section 40 of article 91 of the Maryland Code; that she sues the state of Maryland; that she was on June 21, 1928, and had been for some time prior thereto, the fee-simple owner of the land described; that the state of Maryland, through its agent, the state roads commission, exercising its power of eminent domain, on June 21, 1928, took possession of and appropriated for public use the said land of the appellant for the purpose of widening certain existing roads; that the state, acting through said agent, laid out and opened upon said land a public road, and by so doing changed the character and contour of the land by grading, excavating, and covering it with concrete, so that it cannot be restored to its original character and contour, and further cut down, removed, and destroyed certain fences, hedges, trees, and shrubbery then being upon said land belonging to the appellant; that the amount of damages suffered by the appellant by the taking and appropriation, being just compensation for the property taken, was the sum of $53,576.54; that in violation of the Maryland Constitution and the Fourteenth Amendment of the Constitution of the United States, no condemnation proceedings or any other proceedings of any sort were had respecting the taking and appropriation of said property; that the appellant was not afforded any opportunity to be heard in respect to the appropriation of said property, and that she did not consent or agree in any manner whatsoever, directly or indirectly, to the taking and appropriation without compensation therefor; that she has not been paid or tendered any compensation by the state or its agents for the taking of said property. It is further alleged that the state roads commission, as agent of the state, did not do any of the acts prescribed by section 40 of article 91; that the state has consented to be sued in these proceedings in respect to the subject-matter therein involved, such consent appearing in said section 40 of article 91 of the Code; and that the appellant has no remedy other than in this proceeding. The writing then goes on to pray that certain things be done, substantially in the form of the prayers of a bill in equity, which are: (1) That the court issue process directing the state of Maryland to appear in the proceedings before the next appearance day, and that the court require the state to pay the costs of the proceeding in that court; (2) that the court issue its order requiring the state roads commission, agent of the state of Maryland, to pay into the court the sum of $53,576.54, being the amount due to the appellant, and thereupon the court shall order such sum to be paid from the court to the appellant; (3) that if the state shall, upon the issuance of the process of this court, fail to appear as summoned, the court shall issue its judgment and execution thereon against the state for the sum of $53,576.54; and (4) such other and proper relief as may be necessary or desirable in the premises.

This is certainly a novel proceeding in this state, and we have been referred to none elsewhere in any way analogous....