State Roads Commission of Md. v. Orleans

• Decision Date: 29 June 1965
• Docket Number: No. 371,371
• Citation: 211 A.2d 715,239 Md. 368
• Court: Maryland Court of Appeals
• Parties: STATE ROADS COMMISSION OF MARYLAND v. Julius ORLEANS et al.

Page 368

239 Md. 368

211 A.2d 715

STATE ROADS COMMISSION OF MARYLAND v.Julius ORLEANS et al.

No. 371.

Court of Appeals of Maryland.

June 29, 1965.

Alger Y. Barbee, Rockville, and Joseph D. Buscher, Sp. Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., and Guy J. Cicone, Sp. Atty., Baltimore, on the brief), for appellant.

Warren Browning, Bethesda, for appellees.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, SYBERT, and OPPENHEIMER, JJ.

HAMMOND, Judge.

The bone of contention in this case is the time when the value of property taken from the appellees by the State Roads Commission for use in the major improvement of River Road in Montgomery County is to be determined.

The proceedings which the State instituted under the 'immediate taking' provisions of Code(1964 Rep. Vol.), Art. 89B, Secs. 9-20, were extended over a period of years.Then plats showing the location and length of the road reconstruction and the width of the right-of-way, as well as the property lines of the owners whose lands would be affected and the fee simple and easement areas to be acquired, prepared as required by Art. 89B, Secs. 11and13, were duly filed as directed by Sec. 14 on October 3, 1961.Several weeks before, on September 19, the Commission deposited with the clerk of the Circuit Court of Montgomery County some $22,000, its estimate of the fair value of the property to be taken, in part in fee and in part as an easement.Work on the project began on October 24, 1961, and on December 13, 1961, excavation for a box culvert was begun on or in front of the property of the appellees.All the work of rehabilitation of River Road was completed on May 25, 1963.

The Commission followed the direction of Sec. 15 of Art. 89B, that after the filing of the plats and the payment of its estimate of the fair value into court(and after, in many cases, the taking of possession), it '* * * shall proceed to negotiate with the property owners whose property is affected in an effort to obtain by amicable negotiation * * *' such right, title and interests as the plats show to be necessary.Sec. 15 goes on to provide that '[t]he value of the land and rights to be acquired shall be determined as of the date the plats or maps are recorded and the monies heretofore provided paid to the property owner or into court, and if both be not done on the same date, the value of the property shall be determined as of the date of the latter.'

The negotiations proved fruitless and on March 16, 1962, the owners availed themselves of the provisions of then Maryland Rule U16(Rules U15 to U20 forst took effect on January 1, 1962, new Maryland Rule U27 b 1) that: '* * * any party may have the case referred to the Board of Property Review by filing a notice in writing with the clerk of the court.'

The Board did not hear the case until January 10, 1963(apparently because of rapidly repeated turnovers in composition).Neither the owners not the Commission requested a postponement of or delay in the hearing and neither invoked the right given by then Maryland Rule U17 c (now U27 e) to have the case returned to the court for the filing of a condemnation proceeding by the Commission by so requesting, if the case has been unheard by the Board for three months after referral to it.

The Board decided the case on February 12, 1963, determining value as of 'the date of the filing of the plats and maps as aforesaid,' as provided by Sec. 17(f) of Art. 89B.The property owners were aggrieved by the amount of the award and on March 1, 1963, filed notice of dissatisfaction with the clerk of the Circuit Court of Montgomery County under then Maryland Rule U20 a (now Rule U27 f 1).The Commission did not meet its obligation under Maryland Rule U20 b (now Rule U27 f 2) to institute a condemnation proceeding '[w]ithin thirty days after a notice of dissatisfaction is filed * * *,' but on May 13 prepared condemnation plats and on May 21, 1963, some eighty-one days after the filing of the notice of dissatisfaction, instituted condemnation proceedings.

The case came on for trial on April 13, 1964, and it became clear after the opening statements that the Commission felt that proper date of valuation of the property was 1961 and the property owners that it was 1964.This difference of opinion flowed from the provisions of Code(1964 Rep. Vol.), Art. 89B, Sec. 18, which spells out the basic right of an owner, dissatisfied with the award of the Board, to have the Commission promptly file a condemnation case in the appropriate court, and then provides:

'If the Commission shall have failed to acquire title to the property and ascertained the amount to be paid for same within one year from the date the plats or maps are recorded, as aforesaid, or have failed to file a condemnation suit in the proper court, as aforesaid, then, and in such case, the value of the property shall no longer be determined as of the date the plats or maps were recorded but shall be determined as of the time of acquisition unless the value be less at the time of acquisition and then, in such cases, the value shall be determined as of the recordation date.'

The Commission reads the phrase 'time of acquisition' to mean the time of actual taking of possession and the property owners read it to mean the time of acquisition of legal title.Judge Pugh, in June 1964, acting under Maryland Rule 502, ruled preliminarily as a matter of law that the time of valuation intended by the statute was the time of the trial, that is, the time of the acquiring of legal title.

When the case was tried on the merits in November 1964, the jury heard expert testimony that entirely apart from any appreciation caused by the improvement of River Road the property involved had at least doubled in value between 1961 and 1964, and heard various estimates of 1964 value from realtors who had been employed by the property owners and the State, respectively, including the opinion that a rezoning of part of the property from residential to commercial would have been likely if there had been no taking.The State says that allowing this opinion was error as was the striking of the testimony of an expert for the State of 1961 value, which had come in without objection.

The jury's verdict reflected the views of the owners' experts as to 1964 values, and the Commission has appealed.

We think the legislative purpose revealed by the history and wording of Secs. 9-20 of Art. 89B was that if the Commission took too long to acquire title and pay the full amount of compensation due for the taking, the valuation date of the property taken was not to be the time the maps and plats were recorded, as ordinarily it would be, but rather the date legal title was acquired.

Secs. 10-20 of Art. 89B were originally enacted by Ch. 59 of the Laws of 1956.They require the filing of plats and the payments or deposits of the estimated value of property for an entire section of a road project so as to freeze simultaneously the value of all properties in the path of such a project.They call for negotiation thereafter with the owners and, if there is failure to agree within six months after the plats are recorded and the money provided for, for certification to the Property Review Board(such certification was originally provided for by Sec. 16 of Art. 89B, and now is under Maryland Rule U27 b 1).

The Board first had to decide the case within five months after certification under Sec. 17(f) of Art. 89B but now, by virtue of amendments made by Ch. 36 of the Laws of 1962 and the promulgation of Maryland Rule U27 c 1, it has only three months for a hearing and an additional month to make an award (Rule U27 d).If the case is not heard by the Board within three months or if an award is not made within thirty days after the hearing, either side may order the matter sent to court for the filing of a condemnation petition, under Maryland Rule U27 e. Under Sec. 18 of Art. 89B, as originally enacted, either the Commission or the property owner could 'appeal' within thirty days to the Circuit Court from an award of the Board and, upon appeal, the case was to be heard and determined under the procedures of Articles 89B and 33A of the Code.If the property owner sought the appeal, he was to notify the Commission in writing and thereupon it became the duty of the Commission to file the condemnation suit in the proper court.(It was held in Volz v. State Roads Commission, 221 Md. 209, 156 A.2d 671, that the statute meant simply that either side may bring about the filing of a condemnation suit in the Circuit Court and have it heard as a new and independent action and that the 'appeal' was the condemnation case.)Sec. 18, as originally enacted, then used the words quoted above and here to be construed that, if title were not acquired within one year or a condemnation suit not filed, 'as aforesaid,' the valuation date was not to be the recordation date but the 'time of acquisition.'

After the Court of Appeals put Rules U15 to U20 in effect on January 1, 1962, the Legislature, by Ch. 36 of the Laws of 1962, effective June 1, 1962, repealed those procedural parts of Sec. 18 of Art. 89B which were covered by Rules U15 to U20, leaving the provisions here in question as to failure to acquire title or file suit unaffected.Rule U20 gave any party dissatisfied with an award of the Board the right within thirty days to require the filing of a condemnation petition in court and required the condemnor, unless it previously had done so, to file a condemnation case within thirty days after notice of dissatisfaction has been filed with the clerk.

There are at least two possible interpretations of what the Legislature meant in Sec. 18 of Art. 89B by the phrase '* * * or have failed to file a condemnation suit in the proper court, as aforesaid * * *' following the words '[i]f the Commission shall have failed to acquire title to the property and ascertained the amount to be paid for same...