Lore v. Board of Public Works

• Decision Date: 07 April 1976
• Docket Number: No. 130,130
• Parties: E. I. Rupert LORE et ux. v. BOARD OF PUBLIC WORKS of the State of Maryland.
• Court: Maryland Court of Appeals

Page 356

277 Md. 356

354 A.2d 812

E. I. Rupert LORE et ux. v. BOARD OF PUBLIC WORKS of the State of Maryland.

No. 130.

Court of Appeals of Maryland.

April 7, 1976.

Oliver R. Guyther, Leonardtown, for appellants.

Glenn B. Harten, Special Atty., Prince Frederick (Francis B. Burch, Atty. Gen., and Nolan H. Rogers, Special Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL ^*, JJ.

DIGGES, Judge.

In this case we are called upon to decide whether landowners whose property is taken through the exercise of the State's power of eminent domain are entitled to interest on the compensatory award, to be computed from the date of the entry of the judgment nisi on the inquisition to the time of payment. We conclude that they are.

The relevant facts are not in dispute and may be related in but one paragraph. G. I. Rupert Lore and Dora D. Lore, the petitioners, owned 92 acres of land located near the St. Mary's River in St. Mary's City, St. Mary's County. In order to obtain that realty for the St. Mary's City Commission, ¹ the respondent Board of Public Works of the State of Maryland, utilizing the authority granted it by Maryland Code (1957, 1975 Repl. Vol.), Art. 78A, § 9A, filed a petition in the Circuit Court for St. Mary's County to acquire the property through condemnation. Following a two-day trial, the jury, on September 24, 1974, awarded the owners $275,500 as compensation for the taking. On the same day the clerk of the court, at the direction of Judge Joseph A Mattingly, who presided at the trial, entered the following notation on the docket: 'Judgment Nisi in the amount of $275,500.00, in favor of (G. I. Rupert Lore and Dora D. Lore) and against the (State), with costs, and interest from date.' Final judgment was entered on September 30. Although authorized to abandon the condemnation proceeding at any time prior to the lapse of 120 days following entry of the final judgment, Code (1974), Real Property Article, § 12-109, the State elected not to do so. Subsequently, on February 7, 1975, the respondent paid the lores $275,000 of the award, with the $500 balance being paid on February 21 of that year. Claiming that they are entitled to receive interest on the inquisition award from the date the judgment nisi was entered until that sum was paid, the petitioners, on February 28, 1975, filed a motion to require the State to remit the additional amount.'

Preliminarily, we take not of the basic principle of constitutional law that the power of eminent domain adheres to sovereignty and requires no constitutional authority for its existence. Riden v. Phila., B. & W. R. R. Co., 182 Md. 336, 339, 35 A.2d 99 (1943). This power, however, is limited by the Constitution of Maryland, article III, §§ 40-40D, and the Fifth Amendment of the United States Constitution as extended to the states through the Fourteenth Amendment, Chicago, B. & Q. R. R. v. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586, 41 L.Ed. 979 (1897), both of which enjoin the taking of private property for public use without the payment of just compensation. ³ While these constitutional provisions prevent the State from remitting anything less than 'just compensation,' they do not prohibit the Legislature from deciding to pay more than that minimum. Joslin Mfg. Co. v. Providence, 262 U.S. 668, 676-77, 43 S.Ct. 684, 688, 67 L.Ed. 1167 (1923); Earle v. Commonwealth, 180 Mass. 579, 583, 63 N.E. 10 (1902).

Having concluded that in condemnation cases the General Assembly may grant property owners more than the constitutional minimum of 'just compensation,' we must ask whether the Maryland Legislature has done so in regard to takings such as the one now before us and, if so, whether interest on the award is one of the additional elements of damage it has authorized. We think it clear that then in 1963, as a result of an extensive study undertaken at the direction of its Legislative Council, the General Assembly completely revised this State's law pertaining to eminent domain, it specifically provided that, in addition to the payment of 'just compensation,' other elements of damage should be included in the award to be paid the property owner. ⁴ See generally Baker & Altfeld, Maryland's New Condemnation Code, 23 Md.L.Rev. 309 (1963). It seems equally obvious to us that one of the extra elements of damage this revision authorizes to be disbursed to property owners, is the very one at issue here-interest on the award, computed from the date of the entry of the judgment nisi to the time the judgment is satisfied. We say this because one section of the 1963 revision, now codified as Code (1974), Real Property Article, § 12-101, makes it clear that the award to be made should reflect not only what is specifically mentioned by the General Assembly but also what is included in Subtitle U of Chapter 1100 of the Maryland Rules; and a reading of Subtitle U makes it apparent that interest on the award should be paid. Support for the former proposition may be found in the very words the General Assembly used in § 12-101: 'All proceedings for the acquisition of private property for public use by condemnation are governed by the provisions of this title and of Subtitle U of the Maryland Rules.' (Emphasis added.) The rationale for saying that Subtitle U requires interest to be paid on an award was succinctly put by Judge Horney for this Court in Hammond v. State Roads Comm., 241 Md. 514, 517, 217 A.2d 258, 260 (1966), where he said:

'In eminent domain cases, Maryland Rule U19 a requires the trier of fact to render a special verdict in the form of an inquisition, which, pursuant to subsection g of U19, should set forth the amount of damages. Rule U12 a provides for the entry of a judgment nisi for the amount of the damages awarded and the clerk of court, pursuant to subsection d of U21, is directed to enter a final judgment as of course three days later. Rule 1 a 1 states that the rules in Chapter 1 and 100 through 600, except as otherwise expressly provided or necessarily implied, apply to the special proceedings dealt with in Chapter 1100, of which 'Subtitle U. Eminent Domain' is a part. There is nothing to indicate that the general rules of procedure are not applicable to condemnation proceedings. Rule 642 (Interest on Judgment) provides that a judgment nisi entered by the court following the return of a special verdict by a jury pursuant to Rule 560 (Special Verdict) or trial by the court without a jury pursuant to Rule 564 (Trial by Court) shall be so entered 'as to carry interest from the date of the entry of judgment nisi." ⁵

Accordingly, we hold that by legislative mandate interest on the jury's inquisition award, accounting from the date of the entry of the judgment nisi on September 24, 1974, until it was satisfied, became a part of the compensation required to be paid for the taking. ⁶

ORDER OF THE CIRCUIT COURT FOR ST. MARY'S COUNTY REVERSED AND CASE REMANDED TO THAT COURT FOR THE SIGNING OF AN ORDER DIRECTING THE PAYMENT OF INTEREST. COSTS TO BE PAID BY THE STATE OF MARYLAND.

MURPHY, Chief Judge (dissenting):

The Court holds that landowners whose property is taken through the exercise of the State's power of eminent domain, whether by conventional or quick-take procedures, and without regard to the actual date of taking, are entitled to interest on the compensatory award to be computed from the date of the entry of the judgment nisi on the inquisition to the date of payment. I respectfully dissent from the application of this holding to the conventional condemnation award involved in this case.

The majority charts a course through the statutes and rules to reach what appears to be, at first blush, a straight-forward result. However, the bedrock upon which I believe it founders is that, in the absence of payment of the judgment by the Board, there was no actual 'taking' within the meaning of the eminent domain statutes, Maryland Code (1974), Title 12 of the Real Property Article. Consequently, there was no basis for awarding interest, since the property owners were not deprived of the beneficial use of their property from the date of inquisition until the time payment was made. On the contrary, the record affirmatively shows that the property owners continued to receive rents from the tenants occupying the property until the judgment was paid, and that the State did not receive any benefit from the property until after it had satisfied the judgment and taken possession.

That it was not the purpose of the statute to authorize the payment of interest on compensatory awards prior to a 'taking' is indicated by the framework and provisions of Title 12 of the Real Property Article. That title plainly distinguishes the eminent domain procedures used by the Board of Public Works in this case from the 'quick-take' procedures authorized by Article III, §§ 40A-40D of the Constitution of Maryland, which permit payment by the State of the estimated value of the property at the commencement of the proceedings and the right to take immediate possession. Section 12-102 specifies when property is deemed to be 'taken' under each procedure. In a 'quick take,' the property can be taken before trial. See § 12-102(1). In the conventional condemnation proceeding involved in this case, the property is not deemed 'taken' until 'the . . . (State) pays the judgment and costs pursuant to Subtitle U of the Maryland Rules.' § 12-102(2). Nor does the right to possession or title vest in the State until the judgment and costs are paid. § 12-108(a). Section 12-106(b), in listing the 'costs' to be included in an eminent domain award, does not include interest; rather, § 12-106(c),...