Lord Calvert Theatre v. Mayor and City Council of Baltimore

• Decision Date: 11 January 1956
• Docket Number: No. 67,67
• Citation: 119 A.2d 415,208 Md. 606
• Parties: LORD CALVERT THEATRE, Inc. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 606

208 Md. 606

119 A.2d 415

LORD CALVERT THEATRE, Inc. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 67.

Court of Appeals of Maryland.

Jan. 11, 1956.

Herbert L. Grymes, Baltimore, for appellant.

J. Lacy Bradley and Lloyd G. McAllister, Asst. City Sols., Baltimore (Thomas N. Biddison, City Sol., and Edwin Harlan, Deputy City Sol., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This appeal is from a judgment in favor of the defendant entered after the court sustained a demurrer to an amended declaration without leave to amend. The action, in two counts, filed October 14, 1953, sought to recover from the City damages caused by unreasonable delay in widening Washington Boulevard in Baltimore City, along the front of the appellant's property.

The allegations show that in July, 1928, Ordinance 514 was adopted whereby the Commissioners for Opening Streets were 'authorized and directed to condemn, open, widen and grade Washington Boulevard from its present width of sixty feet to a width of eighty feet', in accordance with a plat filed in the Commissioners' office which included the 2400 block of Washington Boulevard. Under Ch. 125, Acts of 1914, the Commissioners for Opening Streets had been designated as the proper authority to 'execute' ordinances of this character and they were directed to meet within three months after the passage of any such ordinances and 'to proceed diligently thereafter in the further execution of such ordinance', and to report annually the status of their proceedings. Ordinance 514 of 1928 has never been repealed, but no condemnation proceedings have yet been instituted to accomplish the proposed widening in the 2400 block or in any other portion of the highway in that vicinity.

In 1935 the appellant secured the passage of Ordinance 22, granting it the right to erect a moving picture theatre at 2444 Washington Boulevard, which lot it acquired on May 8, 1936. The lot had a frontage of fifty feet and a depth of one hundred thirty-four feet. Under the terms of this ordinance appellant was authorized to erect a building 'to be approximately fifty feet wide and one hundred thirteen feet long and to cover all of said premises after the proposed widening of Washington Boulevard, but in all other respects, said building shall be erected under the supervision of the Bureau of Buildings of Baltimore City in accordance with the Building Laws of said City.'

The appellant erected its theatre at a cost of some $40,000 in conformity with the authority granted and constructed a marquee extending to the existing building line. It complains that it has been deprived of the use of the twenty foot strip fronting on Washington Boulevard, an area of one thousand square feet, that its business has been adversely affected by the setback, and that it lost a tenant in 1951 because of the failure of the City to go forward with the widening project. The declaration alleges that some other structures extended to the existing building line in 1935, and that in 1953 the City permitted a store to be erected at 2452 Washington Boulevard extending to the old building line. The appellant complains that this last extension caused its theatre to be 'boxed in', so that prospective patrons could not see it when passing along the highway. The first count seeks damages for loss of use of the one thousand square feet along the front of its property for building purposes, due to the failure of the City either to institute condemnation proceedings or to repeal the 1928 ordinance. The second count seeks damages based on its loss of a tenant in 1951, loss of business in 1952, and loss of interest on its investment since 1953, when it tried unsuccessfully to sell the building, as well as the estimated cost of extending the main structure to the street, and the recovery of taxes paid on the strip in question. The claim for damages is on the ground that the City 'has been guilty of unreasonable, unnecessary, willful and negligent delay in failing to diligently complete or repeal the pending condemnation proceedings referred to above'. There are allegations of repeated protests by appellant urging the City to proceed with the widening.

It is well settled that a property owner cannot compel a condemning authority to proceed with a condemnation proceeding, and that such an authority may abandon the proceeding even after a jury has made an award without liability for payment of the inquisition. State v. Ambrose, 191 Md. 353, 62 A.2d 359. Prior to an actual 'taking', a property owner is not deprived of possession or use, and whatever incidental loss he may sustain by reason of the uncertainty is generally held to be damnum absque injuria, Shanfelter v. City of Baltimore, 80 Md. 483, 494, 31 A. 439, 27 L.R.A. 648. See also Nichols, Eminent Domain (3d ed.) § 26.45 and Notes 31 A.L.R. 352, 364; 121 A.L.R. 12, 85. Even after a 'taking', damages merely incidental to the relocation of a highway are not allowable. Krebs v. State Roads Commission, 160 Md. 584, 593, 154 A. 131.

While not universally recognized, it has been held in this State that an independent action will lie to recover special damages actually suffered from unreasonable delay in electing either to abandon a condemnation proceeding or to pay the award therefor. The cases are fully reviewed in Friendship Cemetery of Anne Arundel County v. Mayor and City Council of Baltimore, 200 Md. 430, 90 A.2d 695. See also Note 92 A.L.R. 379. In some states the matter is covered by statute, but in Munroe v. City of Woburn, 220 Mass. 116, 107 N.E. 413, it was held that a statute providing "indemnity for loss or expense incurred by the proceedings," did not cover claims for the loss of rentals on the property, inability to sell the land, sums paid to an architect to make the building conform to the proposed line, or the recovery of taxes paid on the area proposed to be taken.

The rule stated in the Maryland cases is applicable to situations where condemnation proceedings have actually been started and then abandoned. Thus, in Petroli v. Mayor and City Council of Baltimore, 166 Md. 431, 434, 171 A. 45, 47, it was said that special damages may be recovered for 'unreasonable delay in electing either to abandon the condemnation of his property, or to pay the award therefor,' where there is 'some showing that it was due to bad faith, negligence, or default in some legal duty * * *, and ordinarily whether it was unreasonable is a jury question'. In that case, however, it was held that a case of unreasonable delay had not been stated. But in Shanfelter v. City of Baltimore, 80 Md. 483, 493, 31 A. 439, 27 L.R.A. 648, it was squarely held that the mere passage of an ordinance, although it affects the tenure and business of a property owner, does not give rise to a right of action. Cf. Eckhoff v. Forest Preserve Dist., 377 Ill. 208, 36 N.E.2d 245. This Court said, however [80 Md. 483, 31 A. 441]: 'We do not mean to say that an owner of property cannot, under any circumstances, have relief, unless the company or municipality has actually commenced condemnation proceedings. It may be possible that a case might occur which would show such a deliberate effort and determination to depreciate the value of property for the purpose of subsequently acquiring it by condemnation at a reduced and insufficient price as to render the company or municipality liable on the ground of fraud.'

Such a case was found in Friendship Cemetery of Anne Arundel County v. Mayor and City Council of Baltimore, supra. (See also the first appeal in that case, reported in 197 Md. 610, 81 A.2d 57.) There the City had been granted the authority to condemn land for an airport by an Act of the Legislature, and had acquired all of the properties surrounding the plaintiffs' property. It had engaged in protracted negotiations for the purchase of the plaintiffs' property. In holding that a case for damages had been stated, this Court noted that the case was not one of 'mere governmental inertia', but that the allegations were sufficient to...