Mayor of Baltimore v. Smith & Schwartz Brick Co.

31 A. 423, 80 Md. 458, 1895 Md. LEXIS 18

Opinion

Boyd, J.,

delivered the opinion of the Court.

In this case we are called upon to review the rulings of the Baltimore City Court at the trial of an appeal by the Smith & Schwarz Brick Company, from an award of the Commissioners for Opening Streets in the city of Baltimore, assessing benefits to said company in the matter of opening Madison street from Patterson Park avenue to Grove alley in said city. There are nine bills of exceptions in the record which we will consider in their order. The first presents one of the most important questions to be determined by us. The Mayor and City Council of Baltimore moved the Court to direct the clerk to swear the jury to inquire both as to benefits and damages awarded to the company. The Court overruled the motion and instructed the clerk to swear the jury as to benefits only, which was accordingly done. The city contends, that notwithstanding the company only entered an appeal from the assessment of benefits, the whole action of the Commissioners ought to have been reviewed and the jury required to inquire into the assessment of damages as well as benefits.

That proposition is disputed by the company, which contends that the Court was right in limiting the inquiry of the jury to the benefits assessed to it, that alone being the subject and cause of the appeal. It is necessary for us to examine the statutes and ordinances under which these proceedings were conducted.

By section 806 of Article 4 of the Code of Public Local Laws, it is enacted that “The Mayor and City Council of Baltimore shall have full power to provide for laying out, opening * * * * any street * * * ' * * to provide for ascertaining whether any and what amount in value of damage will be caused thereby, and what amount of benefit will thereby accrue to the owner or possessor of any ground or improvements within or adjacent to said city, for which such owner or possessor ought to be compensated, or ought to pay a compensation; and to provide for assessing and levying, either generally on the whole assessable property of said city, or specially on the property of persons benefited, the whole or any part of the amount of damages and expenses which they shall ascertain will be incurred in locating, opening, * * * * any street * * * in said city; to provide for granting appeals to the Baltimore City Court from the decisions of any Commissioners, or other persons appointed in virtue of any ordinance, to ascertain the damage which will be caused or the benefit which will accrue * * °* * and for securing to every such owner and possessor the right * * to have decided by a jury trial whether any damage has been caused or any benefit has accrued to them, and to what amount,” etc.

The ordinance of the city passed in pursuance, of that statute provides for the appointment of three Commissioners for Opening Streets. They are required to ascertain whether any and what amount of damages the owners of the property will sustain by the opening of the street, for which they ought to be compensated.

Having ascertained the whole amount of damage for which compensation ought to be awarded and the probable expenses in the proceeding, they are then required to assess all the ground and improvements within and adjacent to the city, the owners of which they decide and deem to be directly benefited by the opening of the street. If the direct benefits assessed do not equal the damages awarded and expenses incurred, the difference is to be paid by the city and provided for by a general levy. An opportunity is then given to interested persons to appear before the Commissioners, who can review their own proceedings, and when they make their final award of damages and benefits they file them with the Register of the City, who gives notice through the newspapers of the right of parties affected by such awards to appeal to the Baltimore City Court.

Section io of Article 48 of the Baltimore City Code provides for an appeal by “ any person or persons or corporations who may be dissatisfied with the assessment of damages or benefits, etc.,” by petition in writing to the Baltimore City Court. That Court is then required to fix a day to hear any such appeal and to direct the Clerk to issue a subpoena duces tecum to the Register of the City, requiring him to deliver to the Court the record of proceedings of the Commissioners, and all maps, plats, documents and papers connected with such record, and the Court is given “full power to hear and fully examine the subject and decide on the said appeal.” Provision is made for trial by jury of any question of fact, and if necessary for them to' view any property in the city or adjacent thereto, to ascertain and decide on the amount of damages or benefits under the direction of the Court. The Court is also vested with the power to amend and supply defects and omissions in the record of the proceedings of the Commissioners and to increase or reduce the amount of damages and benefits assessed. It is contended by the attorneys for the city that this section of the ordinance brings the whole case before the Court, and therefore it was proper to direct the jury to review the action of the Commissioners in assessing the damages as well as the benefits. But we do not find anything in that section or the other provisions of the law to sustain that contention.

The Commissioners for Opening the Streets, in assessing damages, are required to value the property to be taken for the bed of the street as if no street was to be opened, and in estimating the value of the property to be condemned are not to consider the fact that a street is to be opened. Moale v. Mayor, etc., of Baltimore, 5 Md. 334. They are required to fix the compensation to be paid to the owners for the ground or improvements to be taken from them without regard to the use to be made of them. They then ascertain the aggregate of such damages or compensation, and having added the estimated expenses of the proceedings, they are prepared to furnish the city with the cost of opening the street. That part of their work is completed (subject, of course, to their right of revision, appeal, etc., as provided by the ordinance.) The next step taken is to determine where the money is to come from. They .then decide whether there is any ground or improvements in or adjacent to the city, the owners of.which will be directly; benefited by the opening of the street. Such as they find will be so benefited they assess to the extent of such direct benefits, and if the aggregate of the benefits so assessed is not sufficient to pay for the opening of the street, the balance is made up by the city by a general levy. In other words, they take such property as is needed for the bed of the street and allow the respective owners compensation for it according to its then market value; they then direct that A, B and C, as owners of ground or improvements some where in or adjacent to the city, will be directly benefited after the street is opened, determine how much, and so assess them. If there is a shortage in the benefit column the account is balanced by the city. It matters not whether A’s property thus to be benefited is adjoining to or a part of the property taken for the bed of the street, or whether it is on another square on the street to be opened or in some other locality; if it will be directly benefited he is assessed accordingly and called upon to contribute to the payment for said street to the extent he is so benefited.' It seems clear that the two transactions of fixing damages or compensation, and of assessing benefits, are separate and distinct. If, therefore, A is satisfied with the damages allowed him, but is dissatisfied with the assessment of benefits (to use the language of the ordinance), why should his appeal from the latter necessarily carry with it the consideration of the former? By limiting his appeal to the one, as was done in this case, he notifies the city he is satisfied with the other. Both have been made by the city through its officers, and if it is not satisfied with either it can now appeal, notwithstanding the assessment was made by those of its own selection. There is therefore no reason why the jury should review the action of the Commissioners in fixing damages on an appeal from the assessment of benefits, and we do not think a proper construction of the ordinance would have justified the Court in granting the city’s motion.

There is nothing in the fact that the whole record of the proceedings of the Commissioners must be brought before the Court to sustain the city’s contention. It might disclose, such defects and omissions as the Court could amend or supply, which should be corrected, and it would be very difficult, if not impossible, to properly review the action of the Commissioners in either fixing damages or assessing benefits, without having the whole record before the Court. If an appeal is taken by a person whose property is assessed for benefits, but has no claim for damages, none of his property being taken, the whole record and all proceedings are brought before the Court. If some other company had owned the ground included in the bed of the proposed street, the Court could not have permitted the jury on the appeal of the Brick Company to increase or reduce the amount of damages allowed the other company, except by consent of the parties; and we see no reason why the jury should be permitted to increase or reduce the damages allowed the Brick Company when it has only taken an appeal from the benefits assessed against its property.

The jury is authorized by the ordinance to ascertain and\ decide on the amount of damages or benefits, clearly meaning that it can ascertain the amount of the one before it by appeal, but not of both, unless an appeal has been taken from both. The Court therefore committed no error in overruling this motion of the city.

The second and third bills of exceptions can be considered together. The evidence shows that a number of the lots of the company which will front on the proposed street, and have been assessed for benefits, were below the established grade of the street. The company offered to prove the amount of filling necessary to bring them to that grade, to fit them for use for building purposes. • The city objected, but the Court overruled the objection and permitted the company to prove the estimated amount of filling necessary in each of the lots. In such cases jurors are entitled to have before them any facts that will aid them in reaching proper conclusions. The opening of the street having been determined to be a direct benefit to these lots, the next inquiry was how much will they be benefited. Different modes may be adopted for determining that question. A lot which would be left eight feet below the grade of the street after it is opened, would not be benefited, as much as it would be if on the level of the proposed street.

Hence, in ascertaining the amount of benefits, testimony tending to show the cost of filling the lots to the level of the established grade will be relevant. The jury was authorized by the ordinance to view the premises, and did so in this case. When they went upon the property the ground to be included upon the bed of the street might appear to be level, or nearly so, with that adjoining it on either side, and hence, in assessing benefits, they might have been misled, unless they were informed how much filling would be required to bring the adjoining property to the level of the established grade and what the cost would be. If a lot was worth one thousand dollars before the opening of the street and would be worth two thousand dollars after it was opened, without any work being done on it, the benefit to it would manifestly be one thousand dollars; but if it would cost five hundred dollars ' to bring it to the grade of the street, so as to give it the value of two thousand dollars, it is equally clear it would really only be benefited five’ hundred dollars. Some of the witnesses testified that the proper way of determining how much the lots would be benefited ’ is to ascertain the market value of the ground fronting on the line of the street in its present' condition before the street is condemned, to which add the cost of placing the lots and the street in such condition as that the lots could be disposed of with a front on Madison street, graded, curbed and paved, and determine what the market value of the lots would then be. Then subtract from that the cost of grading the lots, and of grading, paving and curbing the street, added to the present market value of the lots, and the difference would closely approximate the benefit to be derived from the opening of the street. If that be correct, which was for the jury to determine, they were entitled to be informed on all these subjects. The Court could not say, as a matter of law, that the jury could not consider that method of reaching a conclusion in the face of the testimony of experienced and competent men’ that it was the correct method. It may be much more difficult to fix a value on lots fronting on ungraded and unpaved streets than it is to determine the value of those on a graded and paved street, and inasmuch as city lots are not generally disposed of for building purposes until the streets on which they front are graded and paved, it would reflect some light on the question at issue, by giving the jury some information on these subjects. The city had the privilege of having the jury instructed as to what they should be guided by in making up their verdict, and we do not see how it could have been injured by the rulings' of the Court on this question.

The fourth and fifth bills of exceptions relate to the mode of proving the market value of the property assessed for benefits. It is denied by the city that prices received at particular sales for lots of ground in the neighborhood of land, being valued by the jury are admissible in evidence. In a case of this kind the evidence should be directed (a) to the proof of the market value in the present condition of the property, and then (b) to how much will the present market value be increased by opening the street. The difficulty generally presented is how to determine 'the market value. The authorities on this subject are by no means uniform.

It is generally conceded that the opinions of witnesses having sufficient knowledge on the subject and acquainted with the land in question, are admissible to prove such value; and that the question as to whether a witness is qualified to give an opinion must be left, in a large measure, to the discretion and judgment of the trial Court, but of course ■ that discretion is not without limit. If such a witness be produced, the weight of his testimony must depend largely upon the reasons he assigns for his opinion. If he be unable to give some intelligent reasons for his opinion as to value, a jury will not likely be much influenced by it. If he knows of recent sales of similar properties, unaffected by a condition of affairs peculiar to them, the prices realized at such sales would almost necessarily influence his judgment ; and if called upon to give his reasons for naming the value of property fixed by him, the first one likely to be assigned by him is that such other properties brought certain prices. We all know, from observation, if not from experience, that if inquiry is made as to the value of a lot on a certain street in a city or town where other sales have been recently made, it is generally answered by naming the prices realized at such sales. If twelve jurors are taken upon land to ascertain its value, with which they are unacquainted, the first question that is suggested to them is, “ What does land in this neighborhood sell for?” As was said in Moale v. Mayor, etc., of Baltimore, 5 Md. 324, “ with a view to get at this (the value of the lot), the neighboring and contiguous lots may be looked to, but they do not furnish an unerring standard to measure the value of the lot condemned.” The property sold may, owing to peculiar circumstances, have brought more or less than the real market value, but those circumstances can be explained, and if it is similar in character, location, etc., and the sale was of a sufficiently recent date and was not made under unusual conditions, the price realized would help a jury to reach a just and proper conclusion. They are not required to adopt a price fixed by other sales, but they consider it in connection with their own view of the land and the other evidence in the case. We think, therefore, that the prices realized at sales of the land in question and of similar' land in its vicinity, made within a reasonable period of time theretofore, being voluntary and not forced sales, are admissible in evidence, either on direct or cross-examination of witnesses conversant with the facts. This view is sustained by Moale's case, supra; Pierce on Railroads, 224; Lewis on Eminent Domain sect. 443, &c.; Wyman’s case, 13 Metc. 316; Paine v. Boston, 4 Allen, 168; Sawyer v. Boston, 144 Mass. 470; Provision Co. v. Chicago, 111 Ill. 651; Cherokee v. S. C. Co., 52 Iowa, 279; March v. P. & C. R. R. Co., 19 N. H. 372; Washburn v. M. & L. W. R. R. Co., 59 Wis. 364; Randolph on the Law of Eminent Domain, sec. 236, and other authorities that might be cited. As the evidence objected to was admissible, under the principles above announced, there was no error in the Court’s rulings in the fourth and fifth exceptions.

Our views expressed on the second and third bills of exceptions avoid the necessity of discussing the sixth.

In regard to the testimony of Patrick Reddington, presented by the seventh exception, there may be some question whether the Court ought to have permitted him to testify in chief as to what rate he did the grading on the Union Railroad. He may have made special arrangements with the company, and it did not necessarily follow that, because he did the work at a certain price, it was a fair or the usual price for grading. But, as his answer corresponded with the prices established by all. the witnesses who testified on that subject, the appellant could not have been injured by that portion of his evidence.

The company offered two prayers, which were granted, and the city three, the first and second of which were granted and the third rejected. The first prayer of the company and the third of the city present the same question raised by the first bill of exceptions and require no further comment. The second of the company instructed the jury that the burden of proof rests upon the Mayor and City Council of Baltimore to show to the satisfaction of the jury the extent of the increase of the market value of the lots of said property owner binding on Madison street, as the result of the opening of said street. We think this prayer was unobjectionable. The burden was on the city to establish the benefits this property was to be charged with. It certainly could not be said that the burden was cast on the company to prove that it was not benefited as much as the city claimed it was. There is no presumption of law in these cases that the assessment of the Commissioners is correct, but under the very terms of the ordinance the jury is “to ascertain and decide on the amount of damages or benefits,” and in this case, as we have already decided, was confined to the amount of benefits.

No authority has been cited, and we think none can be found to require the Court to permit the book of the proceedings for the opening of Madison street to be taken by the jury to their room on the motion of the city. The refusal of the Court, to' do this is the subject of the ninth and last exception.

(Decided February 28th, 1895.)

We have thus considered all the bills of exceptions in the record. Some points that were argued we might have discussed more at length, but we have given them all careful consideration and are of the opinion that the rulings of the .Court below must be affirmed. .

Rulings affirmed with costs to the appellee.