State Roads Com'n v. Franklin

• Decision Date: 11 March 1953
• Docket Number: No. 113,113
• Citation: 95 A.2d 99,201 Md. 549
• Parties: STATE ROADS COMMISSION v. FRANKLIN et ux.
• Court: Maryland Court of Appeals

Page 549

201 Md. 549

95 A.2d 99

STATE ROADS COMMISSION v. FRANKLIN et ux.

No. 113.

Court of Appeals of Maryland.

March 11, 1953.

Joseph D. Buscher, Sp. Asst. Atty. Gen., and Edwin T. Steffy, Jr., Sp. Atty., Baltimore (Edward D. E. Rollins, Atty. Gen., and Frederick A. Puderbaugh, Sp. Atty., Baltimore, on the brief), for appellant.

Edward H. Burke, Baltimore (Jenifer & Jenifer, Towson, and Bowie, Burke & Leonard, Baltimore, on the brief), for appellees.

Before DELAPLAINE, COLLINS, and HENDERSON, JJ.

COLLINS, Judge.

This is an appeal from a judgment entered as the result of the Circuit Court for Baltimore County granting appellees' motion for a directed verdict.

On October 6, 1952, the State Roads Commission of Maryland (the Commission), appellant here, filed an amended petition to condemn for the construction and maintenance of the highway system of the State and for an 'expressway', land in Baltimore County, the property of General John M. Franklin and wife, appellees here, as the petitioner alleged that it had been unable to make an agreement to purchase with the appellees. After an answer was filed by the appellees, by stipulation certain depositions were taken in the office of the Commission in Baltimore. Testimony was also taken in open court before the trial judge. The jury viewed the property and extensive argument was heard, after which a directed verdict was rendered in favor of the appellees. From the judgment entered thereon, the appellant appeals.

The appellees contend that the Commission has no power to condemn for the Baltimore-Harrisburg expressway here contemplated. The basic power of the Commission to condemn land and other property rights in order to construct highways is contained in Section 7 of Article 89B, 1951 Code, which gives it the power to '* * * adopt and employ such means, methods or system of road construction, improvement and development as may, in its judgment, be best calculated to promote the objects of this Article; condemn, lay out, open, establish, construct, extend, widen, straighten, grade and improve, in any manner, any main road, of the system, in any county of this State * * *; acquire for the State of Maryland, by agreement, gift, grant, purchase or condemnation proceedings * * * any private road or roads whatsoever, or private property or rights of drainage for public use, * * * and including any avenues, roads, lanes or thoroughfares, rights or interests, franchises, privileges or easements, that may be, in its judgment desirable or necessary to complete said system of roads to carry out the purpose of this Article'. (Emphasis supplied here.)

An expressway is defined by subsection (C) of section 18 of Article 89B, 1951 Code, as follows: 'The term 'expressway' shall mean a major thoroughfare of two or more traffic lanes in each direction, designed to eliminate principal traffic hazards, and shall embrace all bridges, tunnels, overpasses, underpasses, interchanges, entrance plazas, approaches, and other structures which the Commission may deem necessary to the operation of the expressway, together with all property, rights, easements, franchises and interests acquired by the Commission for the construction and operation thereof, and having the following characteristics: (a) a median divider separating opposing traffic lanes to eliminate head-on collisions and side-swiping; (b) grade separation structures to eliminate the conflict of cross streams of traffic at all intersections; (c) points of access and egress limited to predetermined locations; (d) vertical curves of lengths sufficient to provide long sight distances; and (e) shoulders of widths adequate to permit vehicles to stop or park off traffic lanes.'

In subsection (e) of section 20 of Article 89B it is provided:

'* * * that no expressway shall be constructed to serve a traffic volume of less than an average of 5,000 vehicles per day, and no controlled access arterial highway shall be constructed to serve a traffic volume of less than an average of 3,000 vehicles per day, such traffic volumes to have been determined over a period of one year prior to the initiation of the project by procedures heretofore used by the State Roads Commission to establish densities of traffic.'

Section 154 of Article 89B provides: 'Any project involving construction of one or more sections of expressway, or one or more sections of controlled access arterial highways, shall be continuous and shall have each of its terminii (a) at or within the limits of a city or town of the State, which city or town is recognized by the Commission as a principal traffic generating center, or (b) at a connection in this State or at the State boundary with a route recognized by the Commission as a principal traffic distribution, collection or dispersal artery. No expressway shall be constructed to serve a traffic volume of less than an average of 5,000 vehicles per day, and no controlled access arterial highway shall be constructed to serve a traffic volume of less than an average of 3,000 vehicles per day, such traffic volumes to have been determined over a period of one year prior to the initiation of the project by procedures heretofore used by the State Roads Commission to establish densities of traffic.' The appellees specifically contend that the requirements as to terminii in Section 154, supra, have not been met. It appears that the contemplated southern terminus of the expressway will be the circumferential Beltway in Baltimore County which is to be the East-West Expressway. It is true that at the time of the hearing before the trial judge the exact location of the Beltway had not been decided upon. However, we are informed that prior to the decision of the trial judge this location had been decided upon and published in the public press. It is contemplated that the northern terminus will be the point where the expressway, to be built south from Harrisburg by the State of Pennsylvania, strikes the Maryland line in the vicinity of the present U. S. Route 111. It is true that very little has been done by the State of Pennsylvania to construct this proposed expressway. It is contemplated in the building of roads that it sometimes becomes necessary to change slightly the exact location of the road. This is recognized by Article 89B, section 53, which provides: 'It shall be lawful for the State Roads Commission to make, from time to time, such changes as it may seem desirable in the projected locations of any road authorized to be constructed hereunder.' If appellees' argument were sound it would be necessary for Maryland to wait until the Pennsylvania end of the expressway at the Maryland line was completed before starting the Maryland expressway. There is nothing in Section 154, supra, which specifies that the terminii be actually located at the time the building of the expressway is begun. All of the proposed expressway could not be built at the same time. It was said by the Supreme Court of the United States in Rindge Co. v. County of Los Angeles, 262 U.S. 700, at page 707, 43 S.Ct. 689, 693, 67 L.Ed. 1186: 'Public road systems, it is manifest, must frequently be constructed in instalments, especially where adjoining counties are involved. In determining whether the taking of property is necessary for public use not only the present demands of the public, but those which may be fairly anticipated in the future, may be considered.' Appellees further contend that the requirement of 'an average of 5,000 vehicles per day' in Section 154, supra, has not been met here. We think that the language 'No expressway shall be constructed to serve a traffic volume of less than an average of 5,000 vehicles per day' does not mean that the traffic volume shall be that great at the time the expressway is begun. Mr. George N. Lewis of the Commission's Traffic Department testified in detail as to the survey and analysis started in the fall of 1945 and compiled into four volumes which were published in 1947, and brought up to date in the early spring of 1951, which showed that the Commission estimated that the volume of traffic on this contemplated expressway upon its completion would be 'in the vicinity of 7000 vehicles per day'. There is nothing here to show that this study and estimate was erroneous.

The appellees further contend that the Commission has no right, under the guise of condemning for an expressway, to condemn the access rights sought to be condemned in this case. Section 8(a) of Article 89B, 1951 Code, enacted by Chapter 608 of the laws of 1951, now provides: '8(a) The State Roads Commission may acquire by gift, purchase, condemnation or otherwise, real property or any interest in such property for highway construction purposes and real property along or near any State highway, parkway or freeway, or any interest in such property, in order to protect the highway, parkway, or freeway, or scenery along or near it, or to provide parking and service areas along said highway, parkway, freeway and for similar purposes, provided, however, the State Roads Commission shall not have the right to acquire such property other than by purchase or gift unless the Commission, by appropriate resolution, shall determine that such property is necessary in its judgment for immediate or proposed construction of a State highway, parkway, freeway or parking or service areas in connection therewith; provided, however, that any such property acquired for such service areas shall only be adjacent to controlled or denied access highways as such highways are defined in Article 89B of the Code of General Laws of Maryland. If the State Roads Commission shall determine by resolution that it is necessary to acquire such property by...