Gregg v. Mayor of Baltimore

56 Md. 256, 1881 Md. LEXIS 95

• Court: Court of Appeals of Maryland
• Decided: May 26, 1881
• Status: Published

Opinion

Bartol, C. J.,

delivered the opinion of the Court.

By the Act of Assembly of 1870, ch. 115, entitled “ An Act to authorize the Mayor and City Council of Baltimore to provide for the improvement of Jones’ Falls, within the limits of the City of Baltimore,” the appellees were “ authorized to make such improvements in connection with Jones’ Falls as in their judgment were desirable ; and for that purpose to change the course, lines and boundaries of the stream, in whole or in part; to widen and deepen the same, * ***** and generally

to do all such things, and exercise all such powers as in their judgment shall be necessary for the accomplishment of any plan of improvement that may be adopted.”

The second section of the Act authorized the appellees “ to acquire all necessary land and other property, and to provide for the ascertainment of the value of all property and rights of property which they are thus authorized to acquire; and' also to ascertain whether any, and what amount, in value, of damages will be caused by the construction of said works of improvement.”

The fourth section authorized the appellees “to make such changes in the grades of the streets in the City, as shall in their judgment, he necessary and requisite for the proper construction of the works connected with the improvement of Jones’ Falls ; and it shall not be necessary, in order to make such changes in the grades of said streets, to obtain the assent of any of the proprietors of the ground fronting on said streets, or affected by such changes.”

Under the authority of this Act, the appellees adopted Ordinance No. 131 of 1874, for the improvement of Jones’ Falls and the district flooded by the freshet of July 14, 1868.

The first section of the Ordinance directed the City Commissioner (among other things,) to regrade Centre street, between certain points, such regrading to he done in conformity with the general plan of the improvement prescribed in the Ordinance.

The eighth section provided, that “ any party or parties owning property or having rights to property within what is termed ‘ the flooded district,’ may surrender the same if it shall he so affected by any change of grade as to prevent its use for its present purposes, and it shall he the duty of the Commissioners for Opening Streets, to either purchase the said property for the Mayor and City Council of Baltimore, at an equitable price, or to condemn the same by the usual processes, for condemnation of property for public use,” &c., &c.

The appellants were the owners of a lot of ground situated on the west side of Jones’ Falls, and binding on the south side of Centre street and the east side of Holliday street. The property had for many years been. used by the appellants as a tannery, and was improved with the necessary buildings and appliances for the prosecution of that business. The improvements consisted mainly of a long two story brick house on the south side of Centre street called the “reel house,” a large bark-house on Holliday street, a beam-house, and handling-house on the Falls, — with vats, engine and other machinery: The value of. the whole property as a tannery was estimated by the witnesses at from $20,000 to $25,000.

It appears by the proof that the heavy flood of 1868, caused a temporary interruption to the tannery, which never worked to its full capacity afterwards. Sometime before the passage of the Ordinance of 1874, the appellants had determined to close up the business, and did do so in September'1875. As testified by James Gregg, one of the appellants, the discontinuance of the business was caused by the information that a part of their property would be taken, for the widening of the Falls.

The plan of improvement decided on under the Ordinance, required the taking of a portion of appellants’ lot next the Falls, on which were located two of the tannery buildings, viz., the “beam house” and the “handling house.” The necessary legal proceedings were had, and in November 1876, the amount awarded to the appellants $9464.15 — was paid. The appellants became the pur-

chasers of the old materials of the houses required to be removed from the part of the lot thus taken by the city, and removed the same, and put up the “ beam, house ” and “handling house” on another part of the premises.

When the retaining wall of the Falls had been completed, in the autumn of 1877, the City Commissioner commenced the work of regrading Centre street as prescribed by the first section of the Ordinance, and completed it in the spring of 1878. This change of grade consisted of a fill of 6-t feet at the west side of the falls, and thence descending gradually to Holliday street, the whole distance being 180 feet, and the effect was to raise the earth against the wall of the “ reel-house ” from nothing at Holliday street to 6-|- feet at the falls. At the east end of the reel-house was a gateway, which, according to the testimony, was the principal entrance to the tannery. This gateway was closed, and rendered useless by the change in the grade of Centre street. The witnesses for the appellants testified, that the effect of the change of grade, was that the earth pressing against the wall of the reel-house had hent it inward, so as -to render it unsafe, and likely to fall when using the rolling machinery in the second story, and the windows in the first story were darkened, so as to prevent the men from properly working therein; and they further testified that the property had been rendered useless as a tannery.

The gateway on Centre- street was used for ingress and egress to and from the interior enclosure of the tannery, for h'auling hides and hauling away leather, also refuse bark and ashes from the millhouse ; there were also five large doors for the admission of carts and wagons on Holliday street, opening into the bark house, which was a frame structure, partially open in the rear and on the inner side, having a brick front wall on Holliday street, the roof being supported by wooden posts at the sides, and another row' down the centre of the house or shed. The millhouse at the corner of Holliday and Centre streets, also had its own entrance from the street. Testimony was offered on the part of the appellees by an experienced master-builder or carpenter, that the wall of the “reel-house ” could be entirely relieved of the lateral pressure- of the earth on Centre street, and the light in the “ reel-house” be restored, by constructing an area way along the wall, as is permitted by the Ordinances of the City, which was perfectly feasible, and that the entire cost of such an area Avould not be more than $566. The same witness also testified that he had examined the bark-house, and that it was entirely feasible for the plaintiffs to construct a roadway through it twelve feet high and twelve feet wide — that the house as it now is Avill contain 1858 cords of bark, and that such a roadway as described would take off the space of only 128 cords, that the roadway would cost the plaintiffs to build it but $650, and when built, would afford all the facilities for ingress and egress to and from the tannery, that the gate on Centre street would give.

Testimony in rebuttal was offered by the plaintiffs that the effect of making a roadway through the bark-house, as indicated by defendant’s witness, would increase the cost of filling the house one-third, and increase the cost of removing the bark from the same house to the mill one-third also. Evidence was also offered by the plaintiffs, by B. F. Deford, an experienced tanner, to the effect that the raising of Centre street had destroyed the property for the purposes of a tannery, it had closed up the gate on that street, that the tannery could not be operated without that gate, inasmuch as there was no other way of going in or out of it. The same witness also testified, that if a cartway was made through the bark-house, its capacity would be so lessened that the business could not be carried on profitably. It would require storage room for 1500 cords of bark, which the house now had, and that a cartway through it fifteen to sixteen feet wide would reduce the capacity to 1000 cords or thereabout, with which amount the tannery could not be profitably carried on ; and if a house to hold the other 50Ó cords were obtained across the street or elsewhere, it would necessitate the expense of keeping a horse and cart to haul the bark from the detached house to the tannery.

The appellants claimed that their property had been so affected by the change of grade of Centre street as to prevent its use for the purposes of a tannery, within the meaning of the eighth section of the Ordinance of 1874, and that they were entitled to surrender and be paid the full value thereof, and offered to surrender the same, but the surrender was not accepted by the City authorities, whereupon the present suit was brought by the appellants on the 6th day of July 1878.

The eighth section of the Ordinance of 1874, No. 131, was repealed on the 4th day of October 1878.

At the trial of the case in the Court of Common Pleas, the appellees contended, 1st. That under the Public Local Law applicable to the City of Baltimore, and the Act of 1870, the appellees were1 authorized to make such changes in the grades of streets, as in their judgment were necessary, for the work of improving Jones’ Falls, and that the plaintiffs were not entitled to recover in this suit for any damages sustained by them, or any injury to their tannery property consequential upon or caused by the change in the grade of Centre street. This proposition was presented by the appellees’ first prayer, which was rejected. 2nd. That the change in the grade of Centre street, and the widening of the falls being provided for in one and the same Ordinance and by the Act of 1870, were parts of the same work, and were covered by the award of damages in the condemnation proceedings. This proposition was asserted in appellees’ sixth prayer, which was refused. 3rd. That under the Act of 1870, the appellees were not authorized or empowered to adopt the eighth section of the Ordinance of 1874, No. 131, — that the provisions contained in that section were ultra vires and void, and consequently that the plaintiffs had no cause of action by reason of anything contained in that section, or because of the failure of the appellees to accept a surrender of the property from the plaintiffs. This proposition was contained in the appellees’ second prayer, which was rejected.

By the appellees’ fourth prayer, which was granted, the jury were instructed that if they should find for the plaintiffs, they could only include in their verdict compensation for such injury to the plaintiffs’ property as was the direct and necessary consequence of the change in the grade of Centre street; and that they were not at liberty to include in the amount of damages to be awarded, compensation for any injury to the plaintiffs’ property, or any inconvenience, disadvantage, or increased expense to which the plaintiffs may have been subjected, in consequence of the condemnation and taking of a portion of their property for the purpose of improving the Falls, and in consequence of the necessary removal of the buildings located on the property so taken, and the necessity of locating them elsewhere ; and that for all such inconvenience and additional expense consequent upon such condemnation and taking, the plaintiffs must he presumed to have been sufficiently cempensated in the condemnation proceedings. This instruction was clearly right, and no objection has been made to it by the appellants.

The second prayer of the appellants was granted, in connection with the third, fourth and fifth prayers of the appellees, which were also granted, and the error assigned by the appellants is to the granting of the third and fifth prayers of the appellees, and also to the ruling of the Court below, on the question of the measure of damages.

The theory of the appellants’ second prayer, and the ground on which they sought to maintain the suit, was that their property had been so affected by the change in the grade of Centre street, as to prevent its use as a tannery ; and that in consequence thereof, they had a right to surrender the same to the appellees, and to claim to be paid an equitable price therefor under the 8th section of the Ordinance, notwithstanding that section had been repealed. That prayer was granted by the Court of Common Pleas, as qualified however by the third and fifth prayers of the appellees, which seem to have been intended to instruct the jury, 1st, that it was the duty of the appellants to use reasonable care and precautions to prevent, or diminish the injury to their property from the act of the city authorities; and secondly, that to entitle the plaintiffs to recover, the jury must find that the property had been in point of fact, so affected by the regrading of Centre street, as to prevent its use as a tannery.

This last proposition we understand, was intended to he expressed by the appellees’ fifth prayer; though its phraseology renders its meaning somew'hat obscure.

The theory upon which the case was placed below, by the ruling of the Court, was that the eighth section of the Ordinance was passed in the lawful exercise of the powers of the City, and was therefore valid and binding.

After a careful consideration of this question, we are of opinion that the Mayor and City Council had no power under the Act of 1870, to pass the eighth section of the Ordinance, and the same was ultra vires. It is very clear that the Act of 1870 conferred no express power upon the city to acquire title, either by purchase or by condemnation, to any property except such as might be required for the purpose of the contemplated improvement. Without such a grant of power from the Legislature, the corporation had no lawful right to acquire property, even by the consent of the owner, not required for public use. The eighth section of the Ordinance provides for taking by condemnation, property not so required. Which it is clear the city had .no power to do. Kane vs. M. & C. C. of Balto., 15 Md., 240.

The provisions of the 8th section of the Ordinance under consideration have been likened to those contained in the Ordinances for opening and condemning streets, in which it has been provided that where it is necessary that a part only of a lot, &c. shall be taken for the bed of the street, the owner may surrender the whole, and claim compensation therefor, &c. The validity of those provisions has been upheld by judicial decisions, but upon the express ground that in such case the.property is taken hy the consent of the owner, and that the surrender by the owner of the fragments or portions of the lot, not required for the bed of the street, and the sale thereof by the city was not a taking of the same under the power of eminent domain; but was simply a mode devised by the Ordinance, for ascertaining the just compensation to be paid to the owner for the property actually taken for the public use. M. & C. C. of Baltimore vs. Clunet, 23 Md., 449.

The provisions of the eighth section of the Ordinance of 1874, cannot he supported on this principle. By that section the city asserted the right of acquiring, either by purchase or condemnation property not required for the public use, or essential for making the improvement authorized by the Act of 1870.

That section was therefore ultra vires and void. It gave to the appellants no right to surrender their lot to the city; nor was the latter bound, or competent to accept the same, and the refusal of the city authorities to accept the same, conferred on the appellants no right of action.

Their right to maintain the suit, rests upon other grounds. They seek to recover damages for injury to their property caused by regrading Centre street. Are they entitled to maintain such action ? This depends upon the provisions of the Act of 1870.

It was expressly decided in Mayor & C. C. of Cumberland vs. Willison, 50 Md., 138, 148, that in the absence of legislative provision, “municipal corporations acting under authority conferred by the Legislature to make and repair, or to grade, level and improve streets, if they exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to the adjoining owner whose lands are not actually taken, for consequential damages to his premises, even though in grading and leveling the street, a portion of the adjoining lot, in consequence of the removal of its natural support, falls into the highway, and the same immunity exists if the street be embanked or raised so as to cut off, or render difficult the access to the adjacent property, and- this too, although the grade of the street had been before established, and the adjoining property owner had erected buildings, or made improvements with reference to such grade.”

That case has been relied on by the appellees to support the proposition contained in their first prayer before referred to, which it is contended, ought to have been granted, and which denied to the appellants all right of action.

In • our opinion the improvement contemplated and authorized by the Act of 1870, was by the express provisions of that Act taken out of the rule established by the decided cases, and laid down in Willison’s Case above cited. Before the passage of the Act, the city had not the power to change the grade of a street without the assent of the owners of property abutting thereon. The Act of 1870 removed that restriction, and by its fourth section authorized changes in the grade of streets, necessary for the proposed improvement of the Falls, to be made “without the assent of any of the proprietors fronting on said streets or affected by such change.” But the Legislature being aware that very great and important changes might be necessary in order to complete the proposed improvement, provided by the first section of the Act, that the Mayor and City Council should have power “ to ascertain tali ether any and what amount, in value, of damages will he caused hy the construction of the aforesaid worlts of improvement in connection with Jones’ Falls, or any of them, to the owner or possessor of any property, or rights of property, within the said City, for which said owner or possessor ought to he compensated,’’ and to provide for the payment of such damages.

The power thus conferred upon the appellees, imported duty and obligation as was decided in Marriott’s Case, 9 Md., 160: In carrying out the- provisions of the Act, it was the duty of the appellees to provide by Ordinance for ascertaining the damages suffered by the proprietors whose property fronted on the streets, or was affected injuriously by- the change of grade, and to make provision for awarding compensation for such damage. Their failure to make suck provision in the Ordinance of 1874, No. 131, does not prevent the appellants from maintaining their ■suit.

It follows that they were entitled to recover compensation for the damage caused to their property hy the change in the grade of Centre street, without regard to the provisions of the eighth section of the Ordinance, and it was error to grant the fifth prayer of the appellees, which, apart from the ohjection to its phraseology, was clearly erroneous in instructing the jury that the plaintiffs “could only recover in this action, hy virtue of the eighth section of the Ordinance of 1874, and that before the jury could find a verdict in their favor, they must find that the tannery property was in fact so affected hy the change in the grade of Centre street, as to prevent its use as a tannery,” &c.

As to the third prayer of the appellees, which was ■ granted, we may observe that while the appellants are entitled to recover for the injury and damage to their property, caused hy the change in the grade of Centre street, it was their duty to use reasonable and proper precautions to prevent or diminish the injury, and to incur reasonable expense for that purpose, and while they would he entitled to recover for such reasonable or proper expense thus incurred or rendered necessary, they are not entitled to recover for any injury which the jury might find, could have been thus obviated or prevented.

This proposition was no doubt intended to be expressed in the appellees’ third prayer, hut its phraseology is not free from ohjection ; its defects may however he corrected upon a second trial of the case.

No ohjection has been suggested hy the appellants to the fourth prayer of the appellees, which was granted.

As to the measure of damages, the instruction given to the jury, seems to have been based on the theory that the rights of the parties were to be determined hy the provisions of the eighth section of the Ordinance. We think the difference in the value, of the property before and after the injury complained of, is not a safe or correct test of the measure of damages, as the value of the property might be affected by other causes. The correct instruction on this subject, is that asked for in the appellants’ third prayer, taken in connection with and modified by the legal proposition before stated, in disposing of the appellees’ 'third prayer, with reference to the obligation and duty resting upon the appellants to use reasonable precautions to diminish or prevent the damage.

(Decided 26th May, 1881.)

Being of opinion that there was error in the rulings of the Court below, in the particulars before stated, the judgment will he reversed and a new trial ordered.

Reversed and new trial.