Petroli v. Mayor and City Council of Baltimore

• Decision Date: 09 February 1934
• Docket Number: 14.
• Parties: PETROLI ET UX. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

171 A. 45

166 Md. 431

PETROLI ET UX. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 14.

Court of Appeals of Maryland

February 9, 1934

Appeal from Court of Common Pleas of Baltimore City; Joseph N Ulman, Judge.

Action by Filippo Petroli, otherwise known as Philip Petroli, and Rosalia Petroli, his wife, against the Mayor and City Council of Baltimore. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Argued before PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Linwood L. Clark and J. Britain Winter, both of Baltimore, for appellants.

Frank Driscoll and Lawrence B. Fenneman, Asst. City Sols., both of Baltimore (R. E. Lee Marshall, City Sol., of Baltimore, on the brief), for appellee.

OFFUTT Judge.

On December 23, 1929, the mayor and city council of Baltimore hereinafter called the city, being thereto enabled by chapter 229 of the Acts of 1924 by Ordinance 902, authorized the commissioners for opening streets, hereinafter called the commissioners, to condemn, open, and grade the Orleans Street Viaduct as an improved east and west highway in that city. In the exercise of the power thus conferred and in accordance with the procedure prescribed by article 4, Code P. L. L the commissioners awarded damages and assessed benefits incident to the proposed improvement, and their action in that respect was ratified and approved by Ordinance 1206 adopted December 20, 1930.

Among other properties condemned was 308 East street, owned by the appellants in this case, which lay in the path of the proposed improvement, for which the commissioners awarded the owners thereof $3,300. No appeal from that award was taken, the owners were satisfied, and tendered themselves ready and willing to transfer the property to the city, but it neither paid nor tendered the amount of the award, nor did it accept the landowners' offer to transfer it, but it did attempt to induce them to accept therefor 85 per cent. of the valuation fixed by the commissioners. All assessments of benefits and awards of damages incident to the proposed improvement have been finally completed, property other than that of the appellants has been acquired, the condemnation has not been abandoned, the city has elected to proceed with the improvement, but although appellants' property is indispensable and essential to it the city has failed, either to physically accept it, or to pay the appellants the damages awarded to them as compensation therefor, although frequently requested so to do.

On July 21, 1933, the appellants brought in the court of common pleas of Baltimore City an action against the city to recover damages for loss occasioned to them by the city's delay in "carrying out the provisions of the award." A demurrer to their amended declaration filed in the case was sustained, with leave to the plaintiffs to file a second amended declaration within fifteen days. Subsequently, after proceedings which are not material here, judgment for the defendant for costs was entered upon the failure of the plaintiffs to file such amended nar. From that judgment the landowners appealed.

Appellants' contention appears to be that upon the facts alleged in the nar, the city's delay in paying the ward was unreasonable, that the condemnation of their property for an improvement to which it is essential, and which will be completed, rendered it unsalable and destroyed its market value, and that therefore they are entitled to recover damages in this action.

Appellee's contention is that whatever appellants' abstract rights may be, they have failed in the declaration to allege concrete facts sufficient to warrant a recovery.

While not universally recognized, Nicholas on Em. Dom. § 420, 20 C.J. 1086, the law of this state long has been that a condemning corporation is responsible to a landowner for special damages actually suffered through its unreasonable delay in electing either to abandon the condemnation of his property, or to pay the award therefor, Graff v Baltimore, 10 Md. 553; Norris v. Baltimore, 44 Md. 606; Baltimore v. Musgrave, 48 Md. 282, 30 Am. Rep. 458; Black v. Baltimore, 50 Md. 241, 33 Am. Rep. 320; Baltimore v. Black, 56 Md. 338; Record Bldg. & Loan Ass'n of Baltimore City v. Safe Deposit & Trust Co. (Md.) 171 A. 43; but to justify a finding that the delay was unreasonable there must be some showing that it was due to bad faith,...