Pumphrey v. Tabler

• Decision Date: 01 December 1938
• Docket Number: 62.
• Citation: 2 A.2d 668,175 Md. 498
• Parties: PUMPHREY et ux. v. TABLER et al., State Roads Commission. [*]
• Court: Maryland Court of Appeals

2 A.2d 668

175 Md. 498

PUMPHREY et ux. v. TABLER et al., State Roads Commission. ^[*]

No. 62.

Court of Appeals of Maryland

December 1, 1938

Appeal from Circuit Court, Anne Arundel County; Linwood L. Clark Judge.

Condemnation proceeding by Homer E. Tabler and others, constituting the State Roads Commission of Maryland, acting for and on behalf of the State, against Charles L. Pumphrey and wife. From a judgment awarding $300 for the appropriation of .19 acres of land, the landowner appeals.

Reversed and remanded.

Walter V. Harrison, of Baltimore, and R. Tilghman Brice, III, of Annapolis, for appellants.

George W. Haley, of Annapolis (Herbert R. O'Conor, Atty. Gen Thomas M. Jenifer, Sp. Asst. Atty. Gen., and William J McWilliams and McWilliams & Duckett, all of Annapolis, on the brief), for appellees.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, MITCHELL, SHEHAN, and JOHNSON, JJ.

OFFUTT Judge.

This is the landowner's appeal from a judgment of the Circuit Court for Anne Arundel County, entered in a condemnation proceeding instituted by the State Roads Commission of Maryland, in which he was awarded $300 for the appropriation of .19 acres of land located at the intersection of the Annapolis Boulevard and the Jumper Hole Road near Lipin's corner, in Anne Arundel County.

The trial of the case was concluded on July 6th, 1938, the appeal taken on July 13th, 1938, and the Bill of Exceptions filed on July 19th, 1938. The April Term of the Circuit Court for Anne Arundel County expired on July 18th, 1938, and by Rule 29 of the Law Rules of that court all exceptions noted during the trial of a case in that court must 'unless otherwise expressly allowed by the court' be prepared and submitted to the Court during the term at which the trial occurred.

Upon the docketing of the case in this court the appellee moved to dismiss the appeal on the ground that the Bills of Exception were not signed during the term at which they were noted, that under the rules of the Circuit Court for Anne Arundel County, they could not validly be signed after the expiration of that term unless the time for signing them had been expressly extended, and that there had been no extension.

In other words it contends that the appellate procedure is governed by the common law and the Law Rules of that court. But that is not the case. Code, Art. 33A, sec. 12, prescribing the procedure for an appeal to this court from any judgment entered in a condemnation case tried under the provisions of that Article, provides that 'any such appeal shall be entered in writing within ten days from the date of said judgment, and all bills of exceptions desired by such appealing party shall be prepared and presented to the Court to be signed, on or before the expiration of twenty days from the date of said judgment, unless such time for settling and signing said bill of exceptions shall for good cause be extended by the Court, but the record of such case and appeal in any event shall be filed with the Clerk of the Court of Appeals of Maryland, within thirty days from the date of the entry of such appeal.'

In view of these explicit and mandatory directions, it is manifest that Rule 29 of the Law Rules of the Circuit Court for Anne Arundel County has no application to an appeal taken under the provisions of Code, art. 33A. The power of that court to try a case under the provisions of that Act was not a part of its general jurisdiction as a common law court, but a special statutory jurisdiction, and unless expressly granted by the Legislature, no appeal from its judgment therein to this court would lie. Since the legislature had the power to grant or withhold the right, if it granted it, it necessarily had the power to prescribe the manner in which it should be exercised. It has done that in unmistakeable terms, and since the appeal was taken and the exceptions signed in conformity with the provisions of the statute, the motion to dismiss is overruled.

In reaching that conclusion the court is not unmindful of the fact that the record fails to show that any judgment was entered on the verdict, but since the appeal is from 'the judgment rendered in the above entitled case', in the absence of a motion to dismiss on that ground, it will be assumed that the judgment was entered prior to the appeal. It is settled that no appeal lies from a verdict in cases where a judgment on the verdict is necessary to a final disposition of the case, 4 C.J.S., Appeal and Error, p. 331, § 153; 3 C.J. 600, note 35. Code, Art. 33A, § 11, directs that if in cases tried under its provisions, there shall in any case be a verdict for the petitioner which becomes final, the court shall 'forthwith' enter a judgment in favor of each defendant for the compensation awarded and costs. Unless therefore there was a judgment when the appeal was taken it was premature. But the entry of the judgment was a mere ministerial act, it does not appear that any motion or other proceedings was taken to stay its entry, and it was the clear duty of the court under those circumstances to enter it. And in the absence of any showing or suggestion to the contrary it will be assumed that it performed that duty. Kendall Lumber Co. v. State, 132 Md. 93, 100, 103 A. 141; Sweeney v. Hagerstown Trust Co., 144 Md. 612, 622, 125 A. 522.

The only exceptions submitted relate to rulings on evidence, but before dealing with them seriatim, some reference may be made to the nature of the case, as shown by the undisputed facts, and to the precise issue which the jury were required to decide.

The purpose of the proceeding was to acquire title to two lots of ground owned by appellant needed by the appellee for the improvement of a state road from the New Annapolis Boulevard to Lipin's corner in Anne Arundel County. Appellants own lot No. 1 in fee, and they own the reversion of Lot No. 2, which is occupied by the old Annapolis Boulevard. Both lots are contiguous, are on the southwest corner of the Old Annapolis Boulevard and the Elvaton or Jumper Hole Road, and are part of a larger tract containing about one acre of land.

The larger lot is improved by a small building which appellant uses as a real estate office, and a frame garage. The office building is about sixteen feet from the paved part of the present State road on which it fronts. Between a point back of that building and the Jumper Hole Road there is an advertising sign board which also faces the Annapolis or Mountain Road. Running from the front of the side of the building nearest the Jumper Hole Road in the direction of that road is a paling fence. The space between that fence and the Boulevard is graded and is used for parking automobiles. The effect of the taking will be to bring the highway nearer to the office building, and also to the sign, to change in some degree the relation of the road to the lot and to lower the grade of the road, so that it will be about one foot lower than the present grade of that part of the lot which will abut on the improved road. Back of the paling fence the ground slopes downward in a westerly direction. The appellant contends that the taking will require him to move his office farther back, to resod and regrade his parking space and to relocate the sign board.

The appellee denies that the taking will adversely affect that part of the lot not taken, that the only damages appellant is entitled to recover, are the fair market value of the part taken and the expense of making minor changes in the contour of the remaining land to restore it to the same relative situation in respect to the new road that it has to the present road.

The right of the State to acquire the land for road purposes was not seriously questioned, so that the only issue in the case was the amount of compensation which the landowner should receive for the loss which he will sustain as a result of the taking.

The measure of that loss is the value of the land taken, and since the land taken is part of larger tract, the diminution in value of the larger tract, if any there be, caused by the taking of the particular segment thereof. Ordinarily that measure is ascertained by comparing the fair market value of the whole lot before the taking with the fair market value thereof after the taking, excluding from consideration any enhancement in value resulting from the utilization of the land taken for the purpose for which it was taken. In determining the fair market value of the land, consideration may be given to any utility to which it is adapted and for which it is immediately available. Market value is defined as the price which an owner willing but not obliged to sell would accept for the property and which a buyer willing but not obliged to buy would pay therefor. 20 C.J. 727; 10 R.C.L. 128, 153; Realty Imp. Co. v. Consolidated Gas Electric Light & Power Co., 156 Md. 581, 587, 144 A. 710; Baltimore City v. Garrett, 120 Md. 608, 87 A. 1057; Baltimore City v. Megary, 122 Md. 20, 89 A. 331; Patterson v. Mayor and City Council, etc., 124 Md. 153, 160, 91 A. 966; Brack v. Mayor and City Council, etc., 125 Md. 378, 93 A. 994, Ann.Cas.1916E, 880; Brack v. Mayor and City Council, etc., 128 Md. 430, 97 A. 548; Consolidated Gas E. L. & P. Co. v. Mayor and City Council, etc.,

130 Md. 20, 99 A. 968; Patterson v. Mayor and City Council, etc., 130 Md. 645, 101 A. 589.

Where as in this case, the size and shape of the land taken preclude the theory that it has any market value, the owner is entitled to be awarded its actual value, and in such a case where the part so taken is a segment of a larger tract, the fairest and indeed the only method of determining the compensation to be awarded the landowner is to compare the fair market value of the whole tract before the...