United States v. CERTAIN PARCELS OF LAND, ETC.

• Decision Date: 31 March 1944
• Docket Number: No. 1814.,1814.
• Parties: UNITED STATES v. CERTAIN PARCELS OF LAND SITUATED IN FAIRFIELD, BALTIMORE, MD., et al.
• Court: U.S. District Court — District of Maryland

54 F. Supp. 667

UNITED STATES v. CERTAIN PARCELS OF LAND SITUATED IN FAIRFIELD, BALTIMORE, MD., et al.

No. 1814.

District Court, D. Maryland.

March 31, 1944.

Wilmer H. Driver, Sp. Asst. to the Atty. Gen., for the United States.

Allen A. Davis, of Baltimore, Md., for Mayor and City Council of Baltimore.

COLEMAN, District Judge.

This is a condemnation proceeding instituted under various Acts of Congress, including the Second War Powers Act of March 27, 1942, 50 U.S.C.A.Appendix § 632, involving a large amount of property, improved and unimproved, located in that part of Baltimore known as Fairfield and taken by the Government for the construction of facilities to be used for the construction and repair of ships, and the operation of such facilities in connection with the Bethlehem-Fairfield Ship Yard, Inc.

Numerous private lot owners were affected by this proceeding. They have either settled their claims with the Government for their respective interests taken, or have litigated their claims and been awarded compensation after jury trials in this Court. The Mayor and City Council of Baltimore were also made defendants in this proceeding because of the ownership by the municipality of certain public alleys running through parts of the land condemned, which was laid out some years ago as a residential development, intersected by both streets and alleys, which were dedicated and accepted by the City. Both the streets and the alleys were, however, merely "paper" improvements, because never actually laid out, although under the beds of some of the would-be streets the City had actually constructed some sewer and water lines, and by agreement with the City no part of the bed of any of the streets was condemned, contrary to what was done with respect to the bed of certain of the alleys. No sewage or other lines or any improvements had ever been constructed under or upon these alleys. The land constituting the beds of these alleys, which are 20 feet wide, has an area of approximately 1½ acres, or, roughly, 67,900 square feet. None of these proposed alleys was ever abandoned by the City. The City has filed an answer to the Government's petition, claiming compensation for this area which has been taken. In the various jury awards made to property owners whose parcels bordered on these proposed alleys as well as upon the proposed streets, the effect of the public easement created by these rights of way was taken into consideration by both the Government and the property owners in presenting, at the trial of the various cases, the values placed by the respective parties upon the parcels of land involved. However, the question of what, if any, compensation the City is entitled to, by virtue of the condemnation of the beds of these alleys, was deferred and heard separately by the Court, by agreement between counsel for the Government and for the City, jury trial being waived.

It is the contention of the Government that these alleys had, at the time of the taking, in and of themselves, no market value,—that all their value has gone into the abutting lots, and that, therefore, the City is entitled to recover for the taking of these alleys no more than nominal damages. On the other hand, the City claims that at the time of the taking, the owners of the abutting lots possessed, according to Maryland law, only what is called a naked fee, whereas the City possessed the entire beneficial use of the land embraced in the alleys; that the lot-owners suffered no pecuniary damage by the taking, whereas the City has lost pecuniarily the value of the land embraced in the beds of these alleys; that it has lost not only its highway rights therein but also its rights to lay sewer and water pipes and other subsurface or surface structures therein or thereon; that if and when the general area embraced in this condemnation proceeding is devoted to either private industrial or residential purposes, the City will be called upon to provide and maintain such structures, and will be required to pay the then owners of the land for re-acquisition of the right to do so; and that, therefore, since just compensation for the taking of private property for a public use must be the full and perfect equivalent of the property taken, so that the owner shall be put in as good a position pecuniarily as he would have occupied if his property had not been taken, the City is entitled to be paid the fair market value at the time of the taking of these alleys which, according to the Government real estate expert who testified and the fairness of whose testimony, on a purely appraisal basis, is not questioned by the Government, is 8¢ per square foot, or the sum of $5,432.

First, it is well settled that the acquisition of a city street or highway by the Federal Government through condemnation proceedings is within the protection of the Fifth Amendment with respect to just compensation. Wayne County, Kentucky, v. United States, 53 Ct.Cl. 417, affirmed 252 U.S. 574, 40 S.Ct. 394, 64 L.Ed. 723; United States v. Wheeler Township, 8 Cir., 66 F.2d 977; Town of Bedford v. United States, 1 Cir., 23 F.2d 453, 56 A.L.R. 360. We come, therefore, immediately to the question: How is just compensation, that is, the amount of damages, to be determined in such cases? The correct answer to this question depends upon a determination, first, of the precise character of the municipality's interest in the property taken from it.

In Maryland, it has been settled for nearly a hundred years that while owners of property abutting upon a city street, own the fee in the bed of the street, this is merely a naked fee since it is held subject to the public easement to use the street; that is to say, the City possesses, for the benefit of the public, the entire use of the street. Such being true, the abutting property owners are entitled to only nominal damages for the condemnation of their naked fee interest. Moale v. Mayor, etc., of Baltimore, 5 Md. 314, 61 Am.Dec. 276. See also McCormick v. Mayor, etc., of Baltimore, 45 Md. 512; Pitts v. Baltimore, 73 Md. 326, 21 A. 52; Mayor & City Council of Baltimore v. Frick, 82 Md. 77, 33 A. 435; Mayor, etc., of Baltimore v. Broumel, 86 Md. 153, 37 A. 648; Broumel v. White, 87 Md. 521, 39 A. 1047. When we turn, however, to a consideration of the measure of damages to which the City is entitled by reason of the taking of the easement with which it is vested in trust for the public, we do not find that the law may be said to be settled, at least in its application to facts such as exist in the present case. There is no announcement in the Maryland decisions squarely upon the point. See United States v. Certain Parcels of Land, D.C., 43 F.Supp. 687; United States v. Prince William County, D.C., 9 F.Supp. 219, affirmed 4 Cir., 79 F.2d 1007, certiorari denied 297 U.S. 714, 56 S.Ct. 590, 80 L.Ed. 1000. The first named case arose in this District; the second, in the Eastern District of Virginia, but Judge Chesnut decided both cases. The Supreme Court, however, has held that the owner of the easement and the owner of the bed of a street are not jointly entitled to compensation for the whole but that their respective interests must be separately valued. Boston Chamber of Commerce v. Boston, 217 U.S. 189, 30 S.Ct. 459, 54 L.Ed. 725. See also Fitzhugh v. United States, 59 App. D.C. 285, 40 F.2d 797. Thus, the sum of the respective values may be more or less than the value of the entire tract taken if considered as an entity. The same rule has been followed in Maryland with respect to valuation of the interests of a landlord and his tenant, it being the law that the sum of these interests in property taken by condemnation may be more than the value of the property as a whole in one ownership. Baltimore City v. Latrobe, 101 Md. 621, 61 A. 203, 4 Ann.Cas. 1005; Gluck v. City of Baltimore, 81 Md. 315, 32 A. 515, 48 Am.St.Rep. 515.

Relying upon the aforegoing principles, the City maintains that just compensation to it can be nothing short of the fair market value on a square foot basis of the alleys at the time of the taking by the Federal Government.

In Town of Bedford v. United States, supra, the United States took by eminent domain for a veterans' hospital in the town of Bedford, Massachusetts, a tract of land which included part of a roadway owned by that town. As set forth in that case, in Massachusetts, just as is the case in Maryland, towns do not own the fee in their streets or highways, but merely a public easement. The lower court denied recovery to the town but the Court of Appeals reversed the lower court and allowed the amount that was stipulated as the extent of the damages to the town, if the town should be found entitled to recover, namely, $10,000. However, the ground upon which recovery was allowed was that actual loss had accrued to the town in that the taking of part of the road by the Federal Government cut off about a half mile of the road, this severance rendering other portions unavailable and requiring new roads to be built. In other words, the Court found that there was destruction of tangible municipal facilities. The Court said (page 454 of 23 F.2d, 56 A.L.R. 360):

"Towns are permitted to recover for damages done town ways, for the simple reason that thus additional burdens are imposed upon the taxpayers required by law to maintain such ways. * * * Towns cannot discontinue highways without becoming liable for damages to landowners injured thereby. * * *

"To take the furnished means of meeting a liability imposed by law has the same effect as taking property technically vested; loss accrues. Bedford's right in Springs road was as real a property right as a leasehold of the same land, or as an abutting owner's right of access to the street. * * *

"The road was, as already noted, a furnished means for the performance of a legal duty. While the town had not the right of exclusive user, it did have the right to exclude all not...