Patterson v. City of Baltimore
| Decision Date | 26 June 1917 |
| Docket Number | 9. |
| Citation | 101 A. 589,130 Md. 645 |
| Parties | PATTERSON et al. v. MAYOR, ETC., OF CITY OF BALTIMORE. |
| Court | Maryland Court of Appeals |
Second Appeal from Baltimore City Court; Chas. W. Heuisler, Judge.
Proceeding by the Mayor, etc., of the City of Baltimore against Laura Patterson and others, to condemn and open a street. From an inadequate award, the property owners appeal. Reversed and new trial awarded.
The following is city's prayer No. 3, referred to in the opinion:
The jury are instructed that the measure of damages in this case is the market value of the property taken by the city of Baltimore, in this proceeding, at the time of the taking considered without reference to the opening of Twenty-Fifth street or any effect that such opening may have upon the property; and, in addition, such damage, if any, as may, by such opening, have been caused to the remaining property concerned. The fair market value of the property taken is the price that a purchaser, willing but not compelled to buy would pay for it, and which a seller, willing but not compelled to sell, would accept for it.
They are further instructed that the measure of benefits is the increase in the market value of the property in controversy caused by the opening of Twenty-Fifth street through the said property, and that this increase should be considered as the amount which a purchaser, willing but not compelled to buy the property, would pay for it, and which a seller, willing but not compelled to sell, will accept for it, after Twenty-Fifth street shall have been opened, graded, paved and curbed; it being proper to take into account the fact that the property owner will be burdened when the street shall be paved, with the special paving tax of 15 cents for each front foot on each side of said street for a period of 10 years as a matter of law; and that, as a matter of fact in order to utilize this property, it will be necessary for the property owner to pave the sidewalk and to grade the property back to a usable depth in connection with that street. (Granted.)
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.
Arthur W. Machen, Jr., and Raymond S. Williams, both of Baltimore, for appellants.
S. S. Field and George Arnold Frick, both of Baltimore, for appellees.
This is the second appeal by the appellants in a proceeding for the condemnation and opening of Twenty-Fifth street from the east side of Greenmount avenue to the west side of Harford avenue, under Ordinance No. 416 of the mayor and city council of Baltimore, approved December 9, 1909. The former appeal is reported in 127 Md. 233, 96 A. 458. There are 37 exceptions in the record-the last one presenting the rulings of the lower court in rejecting 11 of the appellant's 13 prayers, and granting the city's third and seventh prayers and overruling the special exception to the city's seventh prayer, and the others containing exceptions to rulings on the evidence.
The first 20 exceptions relate to damages. Undoubtedly an important element in estimating damages for land taken under condemnation proceedings may be its availability for or adaptability to certain purposes. In this case, although the tract of land owned by the appellants had not been laid out into lots, but had been held by them and those under whom they claim for many years as an unimproved and undeveloped tract of land, it was admissible to show that it was available for city lots, and to point out the special advantages for residential or industrial purposes the particular parts of it had. In the testimony of Mr. Atwood, a witness for the appellants, who was shown to be an experienced civil engineer and surveyor, and had been a commissioner for opening streets for one term and city surveyor for two terms, he was permitted to state fully his views as to the effect of locating Twenty-Fifth street according to the location made in these proceedings. The appellants, however, did not deem that sufficient, but sought to introduce two plats made by the witness. The first, second, third, fourth, fifth, sixth, eighth, ninth, tenth, twelfth, thirteenth, and nineteenth exceptions relate to those plats. The Belt Line of the Baltimore & Ohio Railroad Company runs through the tract of the appellants, dividing it into two parts of about equal areas, each part containing in the neighborhood of 50 acres. It is only the part south of the railroad which is involved in this case. Mr. Atwood testified that Twenty-Fifth street, as proposed to be located, was 100 feet wide and runs, roughly speaking, parallel with the railroad and approximately from 100 to 120 feet from it. His theory was that by thus laying out the street, the depth between the railroad and the north side of the street was not sufficient "to utilize it for most businesses of any large character," and if that side of the street was used for residences, they would run back to the railroad, which would be disadvantageous to them. He spoke a good deal about the irregularly shaped lots, and said that the proposed location of the street had the effect of forcing the irregularities to the south of the street, instead of putting them along the railroad. The lots were not actually laid out on the ground, and the plats prepared by him were simply of a plan he proposed as the best method of developing the tract. While we do not see any particular injury that would likely have been done by admitting the plats in evidence, it is possible that they might have misled and confused the jury, rather than helped them. The jurors were taken upon the ground, and could see for themselves the actual conditions there. Presumably the location of the proposed street was pointed out to them, as well as such other locations as were relevant. Considerable discretion in such matters must be left to the trial judge, and if there be room for a difference of opinion as to whether the plats offered by the appellants could have aided the jury, without the danger of misleading them, the action of the lower court was at least within the discretion that must be allowed it; especially was that so as to the plat on the blackboard referred to in the third exception. The plat used in the condemnation proceedings and one used by the appellants at the former trial were before the jury, and with a witness as intelligent as Mr. Atwood on the stand, there ought to have been no difficulty in his making his views plain to the jury with the use of the plats which were before them, for all legitimate purposes. There was therefore no reversible error in the rulings in any of those exceptions, although some of the questions possibly might have been admitted without injury.
In the seventh exception Mr. Atwood was asked to say whether he was able to state whether or not this land "possesses a special adaptability for use for the laying out through the same of streets or roads or rights of way for the purpose of constructing or making or creating building lots or lots for commercial and industrial purposes, and, if so, state to the jury what plan would be the highest utility of this property for those purposes. " He was permitted to answer the question except as to the last clause, which we have italicized. The court was clearly right in excluding that. The question for the jury was not "what plan would be the highest utility of this property," but what damages the appellants were entitled to by reason of taking the land, in the way proposed. It may be that some other plan might produce better results to the appellants than the one proposed, but, if that be so, that was one of the questions the jury could consider. The city cannot be required to adopt the plan which "would be the highest utility of the property" for the purposes named, and to permit different experts to answer such a question, we might have as many opinions as there were experts. They would soon get into the realms of speculation. This record well illustrates how conflicting the views of experts are on such questions, and, while their opinions, if kept within proper bounds, are admissible and helpful, if not, they are confusing and of no use in attaining the ends of justice. Mr. Atwood was permitted to testify to the effect this location of the street had on the property. The eleventh exception more clearly illustrates what we mean, in that Mr. Atwood was asked whether the opening of the streets, "of the width and location proposed in these proceedings would accord with the best plan for the development of the property-by best, I mean the most advantageous to the owners of said property rather than the city as a whole." The city was not laying out a plan for the development of the property. It might well be that a street of less width and differently located would cause less damage to the owners than the one proposed, but if such a rule be adopted as the question suggested, a city might be compelled to adopt plans for the benefit of the owners of the land being condemned, rather than those for the public good. We do not understand that to be the law of this state. Sometimes it happens that a public improvement of this kind is materially and injuriously affected by the effort to please or benefit some particular person, but such action by public officials should be condemned, and not sanctioned by the courts. Of course owners are generally entitled to more compensation for taking 100 feet in width than they would be if only 60 feet were taken, and if the location is specially injurious, that fact can be considered in fixing the damages. The seventh, eleventh, fifteenth, sixteenth, and eighteenth questions were properly held to be inadmissible. The fourteenth was harmless, as the witness had already said he "would not put...
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