Norris v. Mayor of Baltimore

44 Md. 598, 1876 Md. LEXIS 65

Opinion

Miller, J.,

delivered the opinion of the Court.

On the 18th of March, 1872, an Ordinance was passed hy the Mayor and City Council of Baltimore, providing for the condemnation and opening of Laurens street from Pennsylvania avenue to Madison avenue. The appellants were the owners of a vacant lot through which this improvement extended, hut the whole of it was not needed for the bed of the proposed street. In this state of case the owners surrendered the whole lot to the Commissioners for opening streets, and claimed compensation for the whole of it, as they had a right to do under the existing Ordinances of the City. Baltimore City Code of 1869, Art. 43, sec. 7, page 831. The Commissioners then proceeded to value the lot and assess the damages, and from their, assessment the owners took an appeal to the City Court, and upon trial, the jury, on the 22nd of January, 1874, found an inquisition assessing the damages for the lot at $22,567.50. From this no appeal was taken hy either party to this Court. This amount was paid hy the City to the owners on the 4th of December, 1874. At the tim.e of this payment the owners claimed interest on this sum from the 22nd of January to the 4th of December, 1874, which the City refused to pay, and the questions now arising and to he decided are,

1st. Are the owners entitled to this interest or its equivalent by way of damages, and can they recover it from the City in any form of action ?

2nd. If so entitled can they enforce its payment by mandamus, the process they have resorted to in this case ?

It is insisted on the part of the appellants, that interest in such a case .when payment is thus delayed, is a necessary ingredient of the “just compensation ” provided by the Constitution for taking private property for public use.

We cannot, however, so regard it. It has long been the settled law of Maryland, that both private and municipal corporations, when authorized to exercise the power of eminent domain, have the right to renounce the inquisition and select a more eligible route, or to wholly abandon the improvement or enterprise, at any time before actual payment of the amount assessed, either by commissioners or jury, and until that time no title to the property condemned vests in the corporations. Balto. & Susq. R. R. Co., vs. Nesbitt, 10 How., 395 ; Graff vs. Mayor & C. C. of Balt., 10 Md., 544; State, ex rel. of McClellan vs. Graves, 19 Md., 351 ; and Merrick, Adm’r of Warfield vs. Mayor & C. C. of Balt., 43 Md., 219.

But when this sum is paid or tendered, the title vests, and the constitutional requirement is gratified. Nothing more than this sum can, in any case, be demanded by the property owner, as and for the compensation which the Constitution secures to him. This we consider to be the firmly established law of this State. No other answer than this need therefore be made to the very able argument of the appellants' counsel, as to what constitutes a taking of property under this provision. We may remark, however, that we have seen no case, a.nd think none can be found, which has- gone to the extent of deciding that the mere assessment of damages by commissioners or a jury constitutes such taking. Such assessment is simply a mode prescribed by law, for ascertaining the value of the property to he taken, or the damages that will he sustained hy the taking. It is a step preliminary to the taking, and not the taking itself. It has also been argued, that the terms in the Ordinance, regulating proceedings for opening streets. (City Code, Art. 43, sec. 9, page 834,) which declares that the assessment of the commissioners, or the inquisition of the jury unappealed from, “shall be final and conclusive in every respect,” give a peculiar potency to this finding, and that the facts shown hy the docket entries, that this inquisition was confirmed hy an order of Court, and judgment entered thereon, which has never been stricken out or appealed from, entitle the appellants to interest on the amount thus ascertained, as upon a judgment for like sum regularly rendered. But what we understand is meant hy the terms referred to, in the connection in which they are used, is that the assessment or inquisition shall he conclusive between the parties, as to the value of the property or the damages to be sustained hy taking it, and as to the regularity of the proceedings by which that ascertainment was reached. As to the order of confirmation and entry of judgment, we are satisfied they add no strength to the appellants’ claim. By examining this 9th section of Article 43 of the City Code, under which alone the City Court was authorized to act in taking the inquisition, we find no provision whatever, for any order of confirmation, or for any judgment to he entered. These entries were, therefore, wholly unauthorized hy law, and are inoperative and ineffectual. The Act of 1870, ch. 371, has no application to such proceedings. That Act was thoroughly examined and construed hy the learned Judge of the City Court in Merrick’s Case, and shown to he inapplicable to a case like this, and his construction of it was adopted hy this Court. We are therefore clearly of opinion, the appellants are not entitled to a mandamus, to recover this interest, either as forming part of the just compensation secured by the Constitution, or as in the nature of interest on a judgment.

But while we are of opinion the appellants cannot recover this amount as interest, it by no means follows they are without remedy in the premises, or that they cannot recover an equivalent sum in an action for damages. It has not been decided that the property owner is without remedy in such a case, and must poctet his loss. On the contrary, this Court while sustaining the right of the City to abandon the improvement, and repeal the Ordinance authorizing it, has very explicitly decided, that where the owner has suffered loss by the acts or delay of the corporation, the City majr be made liable, and he may have his redress in another form of proceeding for any loss or damage he may have sustained by the conduct of the city authorities in the premises. Graff vs. Mayor & C. C. of Balt., 10 Md., 544. Looking to the Ordinances, which prescribe the mode of making these improvements, as to the right of the City to abandon the work, we find there must be some unavoidable delays for which the City cannot be made liable, and if loss results to the property owners therefrom, they are without remedy. Thus the election to abandon cannot be faii’ly made until all assessments of damages are finally settled, thereby placing before the City Council a definite ascertainment of the whole cost of the work ; nor can the work of opening a street from one point to another be properly comnrenced until the City has thus acquired the right to take all the property through which it may pass. In doing this some of the owners may be satisfied with the valuation made by the commissioners, while others may exercise the right of appeal and have the amount ascertained by a jury. For delay thus authorized by law and necessarily preventing an immediate certain ascertainment of the entire cost, it would he unjust to hold the City responsible. It must also be observed in this connection that before an Ordinance authorizing an improvement of this character can. be passed, application for it must be made and notice of such application given. 2 Code, (Public Local Laws,) Art. 4, secs. 837, 838. These applications are usually made and the action of the City authorities in most cases invoked by parties interested in property to be taken or enhanced in value by the proposed improvement. In view of these considerations we are of opinion the City is not responsible for any loss occasioned by delays of this character. But when the assessments have all been finally settled, the City can then fairly exercise its election to abandon the enterprise or pay the assessments and proceed with the work. For losses to owners occasioned by delay, subsequently occurring, through failure of the City authorities thus to abandon or’ pay, it is, we think, just and right the City should be held liable, and this is what we understand to be the effect of the decision in Graff’s Case. It is obviously unjust for the City to hold a condemnation over property for years, neither paying the assessment nor abandoning the improvement. The effect of so doing is in most cases to inflict loss and injury upon the owner, and it would be a reproach to the law if he was denied a remedy therefor. It was therefore a just and proper decision that gave him his action in such a case. As to what the measure of damages should be, no general rule applicable to all cases can be laid down. But where the property, as in this case, consists of a vacant and unimproved lot from which the owner derived neither rents nor profits, it is not difficult to fix a just standard. The inquisition in contemplation of law establishes what was the actual marhet value of the property to be taken al the time of the condemnation. Tide Water Canal Co. vs. Archer, 9 G. & J., 479 ; Moale vs. Mayor, & C. C. of Balto., 5 Md., 314. This alone is what the jury are authorized to assess as damages in such cases, and the jury in this particular case were instructed to that effect. After this inquisition, thus fixing the then actual marhet value of the property, the condemnation hung over it, and the assessment was not paid for more than ten months thereafter. The practical effect of this condemnation was to deprive the owners of all beneficial use of the property. They could not thereafter improve it except at the risk of having their improvements taken by the City without compensation, at any time it might choose to proceed with the work of opening the street. They could not avail themselves of its enhanced value in the market by a sale of it, because no one would buy it at an advance so long as the City held the right to take it at the valuation fixed by the inquisition. Under such circumstances, the true measure of damages for the injury and loss occasioned by the delay in payment, is interest upon the market value of the property as ascertained by the inquisition, for the time the delay was without justifiable excuse. If it be then assumed, (facts however, which the record does not clearly disclose,) that on the 22nd of January, 1874, all assessments of damages for this improvement had been finally settled, and no appeal to this Court from any of them had then been taken, or if taken had then been abandoned, and all assessments for benefits had in like manner been settled and adjusted, we have no doubt that in an .action to be brought by the appellants against the City for loss and injury to them, the standard of damages should be interest on the sum ascertained by the inquisition until the same was paid. But they are not entitled to a mandamus to enforce its payment until in such an action the jury have ascertained the amount by their verdict, and a judgment thereon has been rendered against the City. For these reasons the order dismissing the petition for a mandamus must be affirmed.

(Decided 14th June, 1876.)

Order affirmed.