Smith v. Whitman

• Decision Date: 24 June 1930
• Docket Number: 61.
• Parties: SMITH ET AL. v. WHITMAN ET AL.
• Court: Maryland Court of Appeals

150 A. 856

159 Md. 478

SMITH ET AL. v. WHITMAN ET AL.

No. 61.

Court of Appeals of Maryland

June 24, 1930

Appeal from Circuit Court, Harford County; Walter W. Preston, Judge.

Suit by Horace S. Whitman and another, against Julian C. Smith and another, surviving executors and trustees of the estate of Robert H. Smith, deceased. From a judgment for plaintiffs defendants appeal.

Reversed and new trial awarded.

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

William Stanley and Raymond S. Williams, both of Baltimore (Robert H Archer, John S. Stanley, and Hershey, Donaldson, Williams & Stanley, all of Baltimore, on the brief), for appellants.

Philip H. Close, of Bel Air, for appellees.

PATTISON J.

On the west side of the Chesapeake Bay, just south of the mouth of the Susquehanna river, in Harford county, Md., is located Spesutia Island, containing approximately 1,900 acres of land. This island was originally one farm with a single owner, but many years ago it was divided into three farms, known as the Upper, Middle, and Lower Island Farms.

The Lower Island Farm, which is at the southern end of the island, consisting of about 970 acres of land, and 35 acres on the main land west of Spesutia Narrows, through which there is a private road ending at a wharf or ferry landing, which was used in reaching the island, was in 1915 owned by one Robert H. Smith, who died in that year. By his will the lands mentioned were devised unto Julian S. Smith, Chapman S. Clark, and Frederick Von Kapff, the first two of whom are the appellants in this case, subject to the use thereof for four years from the date of his death by his daughter Nannie M. Clark, wife of Chapman S. Clark, in trust to divide, apportion, and assign, pay over, and convey to the beneficiaries named in his will. On October 6, 1917, the Congress of the United States passed an act providing for the purchase of a proving ground and the payment of damages and losses resulting from the taking of all land for such purpose, and on the 16th day of October, 1917, pursuant to said act, the President of the United States, issued a proclamation declaring certain lands in Harford county, Md., including the lands devised to said trustees, to be necessary for the establishment of a proving ground. This proclamation contained a provision that possession and title to all lands embraced therein, including all easements, rights of way, etc., that could not be procured by purchase on or before October 20, 1917, might immediately thereafter be taken on behalf of the United States by the Secretary of War or his duly accredited representatives. Thereafter officers of the United States Army went upon the island and told its owners that the government of the United States had taken over the island, and ordered them to vacate the same and deliver possession thereof to the United States on or before December 1, 1917, which order was accepted by them.

Thereafter, on the 14th day of December, 1917, the President of the United States issued a second proclamation, which, as therein stated, superseded the prior proclamation of October 16, 1917, and all provisions of the prior proclamation that were inconsistent with the latter were thereby revoked.

The lands taken over by the last proclamation did not include any part of the Lower Island Farm on Spesutia Island, but did include the mainland terminal of the ferry, consisting of said 35 acres, with the road passing through it, which was the main means of ingress and egress, other than by water, to and from the island. Immediately after taking over said lands, the owners of the Lower Island Farm were refused the right to use the private road within the limits of the proving ground, except at the will and by the permission of those in authority at the proving ground, and, when permitted, they were to use it under the severest restrictions, including an inspection of their baggage, packages, etc., by the government officials.

In the year 1918, Spesutia Narrows and a part of Spesutia Island, including a large part of the Lower Island Farm, were declared to be in the danger zone from gun and aerial bombs from the United States Proving Ground and the public, including the plaintiffs, were warned not to enter that zone, and from time to time the officers of the United States Army fired shells from anti aircraft guns, several of which burst on said land. One of these shells burst very close to the front porch of the house occupied by Mrs. Clark and her family. There were, in addition thereto, other acts of the government which interfered with the owners' free and full use and enjoyment of the Lower Island Farm.

After the issuance of the proclamation of December 14, 1917, which by its terms did not include the land upon the island, the trustees of Robert H. Smith sold all the Lower Island Farm on Spesutia Island for $50,000. Five hundred acres of it, consisting of marshlands, were sold to Converse and Monnell for $35,000, and the remainder, 470 acres, upon which the buildings and improvements were located, were sold to Nannie M. Clark for $15,000, and thereafter, on May 17, 1926, Mrs. Clark sold 162.5 acres of it to Arthur H. Stump for $9,200, leaving Mrs. Clark the owner of approximately 307.5 acres upon which the buildings were located, which she, on June 1, 1929, sold for $90,000.

The President of the United States, acting through the Aberdeen Proving Ground Land Purchasing Commission, on February 14, 1918, made an award of compensation of $3,000 for the aforesaid taking of the 35-acre tract, which amount was unsatisfactory to the trustees, and no compensation was paid to them.

About this time the trustees of Robert H. Smith sought and obtained the services of Mr. Stevenson A. Williams, a prominent attorney of Bel Air, in an effort to obtain from the government what they thought was a just compensation for the taking of the 35 acres upon the mainland and the damages resulting therefrom to their land upon the island, or, if it should be found that by the acts of the government there had also been a taking of their land upon the island, then to obtain just compensation for the taking of that land. Thereafter Horace S. Whitman, an attorney of Washington, D. C., the other appellee in this case, was employed to serve with Mr. Williams in an effort to obtain such compensation for the trustees, and, not being able to effect a satisfactory settlement with the government, they brought suit against the United States in the United States Court of Claims for the recovery of said compensation, which was prosecuted to a successful conclusion, whereby the defendant received from the government $63,500, with interest thereon at 6 per cent., per annum from December 14, 1917, to February 14, 1918, together with interest on a part thereon, $61,250, from February 4, 1918, date of award, until paid, which interest amounted at the time of its payment to $42,572.29 making the amount received by the trustees $106,072.29. Of the $63,500, awarded to the trustees, $15,000, was for the taking of the 35 acres on the mainland, and $48,500 as damages to the remainder of their land upon the island resulting from the taking of the 35 acres.

The voucher for the compensation awarded, $106,072, was made payable to the trustees, and, when it came to a settlement with the attorneys for their services, there was a disagreement as to the amount owing them, which it seems they were unable to reconcile; whereupon the sum of $20,624.93 was paid to the attorneys, Messrs. Williams and Whitman, and the balance which they claimed was owing them, $13,561.25, was by agreement "deposited in bank in escrow" subject to joint order of the trustees and Messrs. Williams and Whitman, until such time as the court might decide what additional amount the said attorneys were entitled to receive for their services.

The attorneys, Messrs. Williams and Whitman, thereupon, on the 7th day of November, 1929, brought suit against the trustees for the balance of the fee claimed to be owing them, then on deposit in bank. The declaration contains four of the common counts and one special count in which it was alleged that the defendants employed them to prosecute and collect their above-mentioned claim against the United States, "and agreed with the plaintiffs, in consideration of such services to pay them * * * a fee of compensation therefor equal to one third of the amount which they as attorneys might recover for said estate from the United States, after deducting the amount of the original award to the said trustees made by the Commission, appointed by the President and War Department for the purpose of valuing the lands taken for the Aberdeen Proving Ground, * * * and the plaintiffs accepted the said employment upon the said terms and endeavored, for a long period of time, to negotiate a settlement for said claim with the War Department, but failing in said effort and with the approval of the defendants, brought suit against the said United States in the United States Court of Claims * * * and rendered all necessary and proper services in the conduct of said suit, and thereby recovered the sum of $106,072.29, and collected the said sum of money by a voucher or check of the Treasury Department of The United States drawn to the order of the defendants, and delivered said voucher to the defendants who received the money therefor, whereby the defendants as the representatives of said estate, became indebted to the plaintiffs to an amount equal to one third of the amount so recovered as aforesaid, but the defendants refused and declined to pay the plaintiffs the said amount so agreed to be paid them and still refused to pay the same though requested so to do." The...