Gregg v. City of Baltimore

• Decision Date: 26 May 1881
• Citation: 56 Md. 256
• Parties: JOHN GREGG and JAMES GREGG v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

56 Md. 256

JOHN GREGG and JAMES GREGG v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

May 26, 1881

APPEAL from the Court of Common Pleas.

The case is stated in the opinion of the Court.

Exception.--At the trial the plaintiffs offered the three following prayers:

1. That in deciding on the matters submitted for their determination the jury are not to consider the proceedings of the Commissioners for Opening Streets, in reference to the condemning, widening and straightening Jones' Falls between Monument and Gay streets, offered in evidence, as in any way affecting the right of the plaintiffs to the use of the passage way, opening on Centre street, except as to the portion thereof actually taken.

2. That if the jury find from the evidence that the plaintiffs were the owners in the year 1876, of the property known as the "Maryland Tannery," situated at the S.E. corner of Centre and Holliday streets, in the City of Baltimore, and still continue to be the owners thereof; that prior to the time of the taking of a portion thereof by the defendant in November, 1876, for the purpose of improving Jones' Falls, said property was improved with all the buildings necessary and proper to conduct a first-class tannery, and had been used for many years theretofore as a tannery; that by said defendant a portion of the land of said property and two of the said buildings, known as the "Beam House and Handling House," located on said portion, were taken away--the said houses were sold by said defendant; that at said sale the said plaintiffs became the purchasers of the materials contained in said houses, with the view and for the purpose of re-erecting them on another portion of said property; that there was sufficient unoccupied space on which to re-erect on said property the said two houses so taken away and sold, and that when so re-erected, the said tannery property would have been perfect in all its appointments, and could have been used as theretofore; and further believe that the defendant, in the fall of 1877, by the regrading and filling up of Centre street, in the mode testified to by the witnesses, closed up the plaintiffs' gateway on said street, and thereby prevented the use of said property for the purpose of a tannery; and further find, that thereafter and before the institution of this suit, the said plaintiffs surrendered, or offered to surrender the same to the defendant, as provided for by the 8th section of the Ordinance of the Mayor and City Council of Baltimore approved November 9th, 1874, and designated No. 131, then the plaintiffs are entitled to recover such damages as the jury may believe from the evidence the said plaintiffs have sustained by the said conduct of the defendant notwithstanding they may find from the evidence that the said 8th section of said Ordinance was repealed on the fourth day of October, 1878, by Ordinance approved on that day, numbered 86.

3. If the jury shall find for the plaintiffs under the Court's instruction, then the measure of damages which they are entitled to recover, is such sum as the jury may find from the evidence will compensate the plaintiffs for the injury inflicted on the tannery property of the plaintiffs by the act complained of.

And the defendant, offered the eight prayers following:

1. That under the provisions of the Public Local Law, applicable to the City of Baltimore, and of the Act of the General Assembly, passed in 1870, ch. 115, entitled "An Act to authorize the Mayor and City Council of Baltimore to provide for the improvement of Jones' Falls, within the limits of the City of Baltimore," the said Mayor and City Council are authorized and empowered to make such changes in the grade of the streets in said city, as shall in their judgment be necessary and requisite, for the proper construction of the works connected with the improvement of said Falls, which said Mayor and City Council may determine to construct, and that the plaintiffs are not entitled to recover in this action for any damage sustained by them, or any injury to their tannery property, mentioned in the declaration, consequential upon or caused by the change in the grade of Centre street, made by virtue of the provisions of the Ordinance of said Mayor and City Council, approved November 9th, 1874, and designated as No. 131, of the Ordinances of said year, and that the verdict of the jury must be for the defendant.

2. That there is nothing in the Act of the General Assembly of 1870, ch. 115, authorizing and empowering the Mayor and City Council of Baltimore to provide for the improvement of Jones' Falls, within the limits of said city, and to require any property, which, in the judgment of said Mayor and City Council, it may be necessary and advisable to acquire for the purposes of said improvement, which authorizes said Mayor and City Council, either to purchase at an equitable price, or to condemn by any process of condemnation, any property not required in the judgment of said Mayor and City Council, for the purposes of said improvement, but which may be so affected by any change in the grade of any of the streets of the city, which the said Mayor and City Council are by said Act authorized to make, as to prevent its use for the purposes for which then used; and that the 8th section of the Ordinance of the Mayor and City Council, approved November 9th, 1874, referred to in said declaration, is therefore ultra vires and void, and that the plaintiffs have no cause of action against the defendant, by reason of any of the provisions of said 8th section of the Ordinance of November 9th, 1874, or because of the failure or refusal of the Commissioners for Opening of Streets, to purchase at an equitable price or to condemn by any process of condemnation, the plaintiffs' property mentioned in the declaration, or because of the refusal or failure of the corporate authorities, or any of them, to accept a surrender of said property from the plaintiffs, as provided in said 8th section.

3. That the plaintiffs are not entitled to recover in this action for any injury to their property mentioned in the declaration, caused by the change of grade and raising the bed of Centre street, as therein stated, which injury the jury shall find might be obviated or prevented by the exercise of reasonable care on the part of the plaintiffs, that is to say, by such reasonable steps and expense on their part, as a prudent owner of property would take and incur for the protection and preservation of his property, threatened with or exposed to similar injury.

4. That if the jury shall find for the plaintiffs, they can only include in their verdict compensation for such injury to the plaintiffs' property, as they shall find to be the direct and necessary consequence of the change in the grade of Centre street, mentioned in the declaration, and that they are not at liberty to include in the amount of damages to be awarded, compensation for any injury to the plaintiffs' said property, or any inconvenience or disadvantage, or increased expense, to which the plaintiffs may be subjected in making use of their said property in consequence of the condemnation and taking of a portion of said property for the purposes of improving Jones' Falls, or in consequence of the necessary removal of part of the plaintiffs' buildings situated on said property, and the necessity of locating them elsewhere on account of said condemnation and taking, and that for all such damage, injury, inconvenience and additional expense, consequent upon such condemnation and taking, the plaintiffs must be presumed to have been sufficiently compensated in the condemnation proceedings, and are not entitled to claim to be compensated again in this present action.

5. That the plaintiffs can only recover in this action by virtue of the provisions of the 8th section of the Ordinance of the Mayor and City Council, approved November 9th, 1874, referred to in the declaration, and that in order to entitle the plaintiffs to claim the benefit of said section, and before the jury can find a verdict for the plaintiffs, the jury must find that the tannery property of the plaintiffs, and which the plaintiffs offered to surrender to the city, was in fact so affected by the change in the grade of Centre street, mentioned in the declaration, as to prevent its use as a tannery, and that it will not be sufficient to entitle the plaintiffs to a verdict, that the jury shall find that the value of said property for the purposes of a tannery has been simply lessened; (provided that said property is reasonably sufficient for that purpose;) or that it cannot be advantageously or conveniently operated as a tannery; (provided it is reasonably sufficient for that purpose;) or that in order to admit of the continued and profitable use of said property as a tannery, the plaintiffs would be put to the expense of making alterations and of providing a new mode of ingress and egress to and from said property, unless the jury shall further find that the cost of said necessary alterations is greater than the value of said property would reasonably justify.

6. That if the jury shall find that in the proceedings of the Commissioners for Opening Streets for the opening of Jones' Falls, between Monument and Gay streets, by virtue of the Ordinance of November 9th, 1874, No. 131, and the powers therein vested in the Mayor and City Commissioner, as Commissioners for the improvement of said Falls, the sum of $9464.15, was awarded by said Commissioners for Opening Streets, as damages to the plaintiffs for the fee simple interest in the strip or portion of the plaintiffs' property immediately on the line of the Falls, condemned and taken for the purposes of said improvement,...