Mayor and City Council of Baltimore v. United States

• Decision Date: 09 February 1945
• Docket Number: No. 5318.,5318.
• Citation: 147 F.2d 786
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

147 F.2d 786 (1945)

MAYOR AND CITY COUNCIL OF BALTIMORE v. UNITED STATES.

No. 5318.

Circuit Court of Appeals, Fourth Circuit.

February 9, 1945.

Allen A. Davis, of Baltimore, Md. (Simon E. Sobeloff, City Sol., of Baltimore, Md., on the brief), for appellant.

Roger P. Marquis, Atty., Department of Justice, of Washington, D. C. (J. Edward Williams, Acting Head, Lands Division, of Washington, D. C., Wilmer H. Driver, Sp. Asst. to the Atty. Gen., and Vernon L. Wilkinson, Atty., Department of Justice of Washington, D. C., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

The District Court, sitting by consent of the parties without a jury in a condemnation proceeding, awarded the City of Baltimore $1 as full and just compensation for the taking by the United States of the City's interest in one and a half acres of land on which were located public alleys in a real estate development in the City known as Fairfield, and taken by the United States for use as a shipyard for the building of ships. The City appealed on the ground that for all practical purposes it owned the land in the bed of the alleys and was entitled to the market value thereof in the sum of $5,432 less $1 for the value of the naked fee owned by the abutting owners.

The situation confronting the Judge is described in the following passage from his carefully considered opinion:

"Numerous private lot owners were affected by this proceeding. They have either settled their claims with the Government for their respective interests taken, or have litigated their claims and been awarded compensation after jury trials in this Court. The Mayor and City Council of Baltimore were also made defendants in this proceeding because of the ownership by the municipality of certain public alleys running through parts of the land condemned, which was laid out some years ago as a residential development, intersected by both street and alleys, which were dedicated and accepted by the City. Both the streets and the alleys were, however, merely `paper' improvements, because never actually laid out, although under the beds of some of the would-be streets, the City had actually constructed some sewer and water lines, and by agreement with the City, no part of the bed of any of the streets was condemned — contrary to what was done with respect to the bed of certain of the alleys. No sewerage or other lines or any improvements had ever been constructed under or upon these alleys. The land constituting the beds of these alleys which are 20 feet wide, has an area of approximately 1½ acres, or, roughly, 67,900 square feet. None of these proposed alleys was ever abandoned by the City. The City has filed an answer to the Government's petition, claiming compensation for this area which has been taken. In the various jury awards made to property owners whose parcels bordered on these proposed alleys as well as upon the proposed streets, the effect of the public easement created by these rights of way was taken into consideration by both the Government and the property owners in presenting, at the trial of the various cases, the values placed by the respective parties upon the parcels of land involved. However, the question of what, if any, compensation the City is entitled to, by virtue of the condemnation of the beds of these alleys, was deferred and heard separately by the Court, by agreement between counsel for the Government and for the City, jury trial being waived."

The alleys had not been graded or paved or improved in any way by the City but they were used to some extent, as abutting owners had built on the back of their lots adjacent to the alleys a number of garages which were poor in character and dilapidated in condition when the land was taken. The contentions of the parties are summarized as follows in the judges opinion: "It is the contention of the Government that these alleys had, at the time of the taking, in and of themselves, no market value — that all their value has gone into the abutting lots, and that, therefore, the City is entitled to recover for the taking of these alleys no more than nominal damages. On the other hand, the City claims that at the time of the taking, the owners of the abutting lots possessed, according to Maryland law, only what is called a naked fee, whereas the City possessed the entire beneficial use of the land embraced in the alleys; that the lot-owners suffered no pecuniary damages by the taking, whereas the City has lost pecuniarily the value of the land embraced in the beds of these alleys; that it has lost not only its highway rights therein but also its right to lay sewer and water pipes and other sub-surface or surface structures therein or thereon; that if and when the general area embraced in this condemnation proceeding is devoted to either private industrial or residential purposes, the City will be called upon to provide and maintain such structures, and will be required to pay the then owners of the land for re-acquisition of the right to do so; and that, therefore, since just compensation for the taking of private property for a public use must be the full and perfect equivalent of the property taken, so that the owner shall be put in as good a position pecuniarily as he would have occupied if his property had not been taken, the City is entitled to be paid the fair market value at the time of the taking of these alleys which, according to the Government real estate expert who testified and the fairness of whose testimony, on a purely appraisal basis, is not questioned by the Government, is 8¢ per square foot, or the sum of $5,432."

We are in accord with the District Judge in his conclusion that the contention of the City should not be sustained, for it is based upon the thesis that the City is entitled to the same compensation as the owner of unencumbered land would be entitled to receive for the taking of his property by condemnation. The nature of the interest owned by the municipality in public streets and alleys, as contrasted with the interest of the abutting owners, has been defined by the courts of Maryland, and the decisions show that the view maintained by the City is untenable. The interest of the City in public streets and alleys is not for all practical purposes equivalent to a fee. It is true that when land is dedicated to the City for street purposes, the City acquires as trustee for the public not only the easement of passage but also the right to grade and improve the surface, and to lay drains, sewers and pipes for various utilities beneath the surface of the land. But, on the other hand, the person in whom the fee resides, e.g., the abutting owner, retains substantial rights notwithstanding the dedication. He may maintain trespass or ejectment or waste for the invasion of his rights, such as the unauthorized deposit of material or rubbish upon the soil, Murray v. McShane, 52 Md. 217, 36 Am.Rep. 367; Thomas v. Ford, 63 Md. 346, 52 Am.Rep. 513; he may demand compensation for an additional servitude, for example, the erection of telephone poles, Chesapeake & Potomac Telephone Co. v. Mackenzie, 74 Md. 36, 21 A. 690, 28 Am.St.Rep. 219, and he retains riparian rights in adjacent waters even when the public authority acquires an easement for a highway along the shore, Tolchester Beach Improvement Co. v. Boyd, 161 Md. 269, 156 A. 795, 81 A.L.R. 895; see, also, Chesapeake & Potomac Telephone Co. v. Goldsborough, 125 Md. 666, 94 A. 322, Ann. Cas.1917A, 1; Public Service Comm. v. Maryland Gas Transmission Corporation, 162 Md. 298, 159 A. 758; North Beach v. North Chesapeake Beach Land & Improvement Co., 172 Md. 101, 191 A. 71. In other words, the interest of the abutting owner is not a contingent interest but a present subsisting ownership of the fee, subject only to the easement in favor of the public; and if, for any reason, the easement is abandoned, the entire beneficial interest in the land reverts to him. Libertini v. Schroeder, 149 Md. 484, 496, 132 A. 64; 18 A.L.R. 1010; 70 A.L.R. 565 and cases cited.

These decisions demonstrate that the City is not entitled to compensation as if it were the owner of an unqualified interest in the land. It seems that the precise question in issue in the pending case has not been decided by the Maryland courts but decisions elsewhere point the way. We are not dealing merely with property in which the ownership is divided among a plurality of...