German Evangelical Lutheran Saint Lucas Congregation of Baltimore City v. City of Baltimore
| Decision Date | 19 March 1914 |
| Docket Number | 34 |
| Parties | GERMAN EVANGELICAL LUTHERAN SAINT LUCAS CONGREGATION OF BALTIMORE CITY v. MAYOR AND CITY COUNCIL OF BALTIMORE et al. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; H. Arthur Stump, Judge.
"To be officially reported."
Street closing proceeding by the Mayor and City Council of Baltimore and others. From an order dismissing its appeal from the action of the commissioners for opening streets, the German Evangelical Lutheran Saint Lucas Congregation of Baltimore City appeals. Affirmed.
Edward L. Ward, of Baltimore, for appellant. Joseph S. Goldsmith and Duncan K. Brent, both of Baltimore (S. S. Field and Benjamin H. McKindless, both of Baltimore, on the brief), for appellees.
This is an appeal from the Baltimore city court granting a motion of the appellees to dismiss the appeal of the appellant from the action of the commissioners for opening streets in the city of Baltimore. The mayor and city council of Baltimore passed an ordinance, known as No. 387, and approved on the 16th of August, 1909, which provided for the elimination of certain crossings at grade over the tracks of the Baltimore & Ohio Railroad Company, between Camden and Ostend streets, for the construction and maintenance of bridges and approaches carrying Lee street, Hamburg street, Stockholm street and Cross street over the tracks of said railroad, and, amongst other things, for condemning and closing certain portions of a number of streets named, including Henrietta, between the east side of Eutaw and the west side of Howard street. It was the same ordinance which was before this court in Walters v. B. & O. R. R. Co., 120 Md. 644, 88 A. 47, 46 L. R. A (N. S.) 1128, but a wholly different question is now presented.
The appellant owns a property on the southwest corner of Henrietta and Eutaw streets, which affronts 155 feet on the former and 75 feet on the latter, running from Eutaw street on the east to an alley 20 feet wide on the west. The lot is improved by a church, a schoolhouse, and a parsonage. The appellant contends that this property will be greatly damaged by the closing of this part of Henrietta street, and it endeavored to have the commissioners for opening streets allow it damages for the injuries thereby sustained. The commissioners refused to allow any damages, and that refusal resulted in the appeal to the Baltimore city court. Considerable testimony was taken in the lower court by the appellant, tending to show that its property was materially depreciated in value by the closing of the part of Henrietta street, although it was in direct conflict with that offered by the appellees. The motion to dismiss the appeal, which was granted by the lower court, was as follows:
"The city contends that the appellant has not proved any damage to its property as a consequence of the closing of Henrietta street, between the east side of Eutaw street and the west side of Howard street, of such nature as to entitle it to any award in this case, and therefore prays that the appeal be dismissed."
The appellant's property does not abut on the portion of the street which was closed, but is on another square which is bounded on the north by Henrietta street, on the east by Eutaw street, on the south by Hamburg street, and on the west by Warner street, there being also an alley 20 feet wide which runs from Hamburg to Henrietta street at the west side of the appellant's property. The part of Henrietta street which is closed is east of the intersection of Henrietta and Eutaw streets, both of which are 66 feet wide. The ingress to and egress from the property has not been affected, but the direct approach to it from the east by way of Henrietta street is cut off and requires a more circuitous route. There were 10 or 12 tracks of the Baltimore & Ohio Railroad Company, which crossed Henrietta street at grade, between Eutaw and Howard, before Henrietta was closed. The access from the north, south, and west have not been affected, and there will be two overhead bridges crossing the railroad tracks within a few squares of the property when the proposed improvement is completed.
When the location of the appellant's property is borne in mind, and it is also remembered that this is a condemnation proceeding into which the appellant has come, there cannot be much difficulty in reaching a correct conclusion under the decisions of this and other courts. The provisions of section 40 of article 3 of our Constitution that the General Assembly "shall enact no law authorizing private property to be taken for public use, without just compensation," etc have been before this court many times, and although the Constitution does not declare what rights shall be regarded as property, or what shall constitute a "taking" within its meaning, there are decisions which are conclusive of those questions. In the familiar case of O'Brien v. Balt. Belt R. R. Co., 74 Md. 363, 22 A. 141, 13 L. R. A. 126, Chief Judge Alvey, in delivering the opinion of the court, said:
"In such case as this, therefore, it would seem to be clear, both upon principle and authority, that there is no such taking of private property for public use as is contemplated by the Constitution of the state; and hence there is no ground for any preliminary proceeding by way of condemnation."
O'Brien was the owner of a lot of ground, and improvements thereon, situated on the east side of Howard street, between Camden and Lee streets, and conducted there a livery stable business. His bill alleged that the railroad company was about to dig up the west half of the bed of Howard street, in front of his property, to a depth of from 10 to 24 feet, below the then surface of the street; that it was an open cut, and, when made, Howard street, between Camden and Lee, would be destroyed as a public highway to the extent of the cut, and devoted to the exclusive use of the railroad company. The plaintiff sought to enjoin the defendant, and the case was before this court on an appeal from an order refusing to grant the injunction. The court referred to the unquestioned right and power of the Legislature, through the agency of the municipal government, to change and alter the grades of existing streets, without liability to the abutting owners of property for the mere consequential damages that may be suffered by reason of the changed condition of the streets, but said that that reason, applicable to the change of grade and the improvement of streets for municipal purposes, did not apply in the case of a grant of power to change the grade of and occupy the street with steam railroad tracks, by a railroad company, having no connection with the municipal government. Notwithstanding the fact that that improvement was exclusively by and for the railroad company, the court announced the conclusion stated above. In considering the question it said:
In the case of Garrett v. Lake Roland El. Ry. Co., 79 Md. 277, 29 A. 830, 24 L. R. A. 396, the same principles were announced by Judge McSherry. Mr. Garrett was the owner of unimproved lots fronting 436 feet on the west side of North street, which was 36 feet wide between the curbs and 60 feet between the building lines. The railroad company erected in front of Mr. Garrett's property a stone abutment, forming an inclined plane, to carry on its highest side the iron superstructure for an elevated road, and to serve on its surface as the northern approach to that elevated road. It was 83 feet 2 1/2 inches in length, and 15 8/10 feet in width. It started at the street grade and gradually rose to a height of 9 feet, leaving a space between its western face and the curb line contiguous to Mr. Garrett's property of 9 feet 8 1/4 inches. The erection of that structure was held not to be a taking of private property for public use within the meaning of the Constitution. See, also, Poole v. Falls Road Ry. Co., 88 Md. 533, 41 A. 1069.
Those cases should be sufficient to dispose of this appeal, unless there be some statute upon which the appellant can rely. In each of them the act complained of was exclusively for the benefit of the railroad company proceeded against, and the municipality had no such interest as it has in the execution of this ordinance. We will not now stop to consider the distinction between this case and those by reason of the fact that this is a condemnation proceeding by the city, for even if the railroad company was conducting the proceedings, it could not be said that there was a taking of the appellant's property.
Section 6 of article 4, entitled City of Baltimore, of Code of Public Local Laws, gives the mayor and city council power "to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within the bounds of said city, which in its opinion the public welfare or convenience may require," and then continues:
"To provide for ascertaining whether any, and what amount in value, of damage...
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