Perkins v. State Roads Commission of the State Highway Administration

465 A.2d 1175, 55 Md. App. 639, 1983 Md. App. LEXIS 353
CourtCourt of Special Appeals of Maryland
DecidedOctober 6, 1983
DocketNo. 1762
StatusPublished
Cited by1 cases

This text of 465 A.2d 1175 (Perkins v. State Roads Commission of the State Highway Administration) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perkins v. State Roads Commission of the State Highway Administration, 465 A.2d 1175, 55 Md. App. 639, 1983 Md. App. LEXIS 353 (Md. Ct. App. 1983).

Opinion

Lowe, J.,

delivered the opinion of the Court.

[640]*640Maijorie R. Perkins, who appeals the judgment of the Circuit Court for Prince George’s County, owned a piece of property which lay between parallel highways; the Capital Beltway (1-495) and St. Barnabas Road (Md. Rte. 414). Because access to the Beltway was denied, the property could be entered only from St. Barnabas Road, along which Ms. Perkins owned 172 feet. There was, however, an alley which appellee refers to as a "paper public alley” perpendicular to St. Barnabas Road and adjoining appellant’s property for approximately 180 feet but ending short of reaching 1-495.

As part of a Beltway access improvement plan, the State through its Roads Commission, proposed a semicircular access ramp between the Beltway and St. Barnabas Road. This necessitated the taking of a substantial strip of appellant’s land along the entire border of the Beltway, and more pertinently here, two small pieces from the St. Barnabas Road end of her property which reduced her accessible frontage there from 172 feet to 138 feet. The State also had closed or intended to close the "paper public alley” which ran from St. Barnabas Road for 180 feet along appellant’s property line at the corner from which the State had taken the parcel that reduced appellant’s access to St. Barnabas Road. Also, apparently as part of this program, St. Barnabas Road was to become a divided highway which would provide direct access to appellant’s land for traffic going only in one direction.

— reduction of damages by benefit to the remainder —

Initially appellant complains that:

"The trial court erred in failing to instruct the jury that it must determine whether the remainder received a general or special benefit by virtue of the condemnation and of the law relating to general and special benefits.”

[641]*641Not only are we unable to find where appellant objected to such failure to instruct, as required by Md. Rule 554 d, but we find that the issue was not relevant for consideration by the jury in light of other instructions given in the case. Appellant requested

"the Court to instruct the jury that she will not in any manner benefit from this condemnation, and therefore, in arriving at the damages the jury is to take into consideration no benefit whatsoever.”

But that request is a far cry from asking a jury to determine which type of benefit appellant received from the condemnation.

More significantly we note that the judge on three separate occasions instructed the jury that it should exclude from its damages determinations any increment in value to the remaining land caused by the public improvement. Even if appellant had asked for an instruction that the jury should determine which type of benefit appellant received (which is only relevant in reducing her damages), she is far better served by the instruction that no enhancement or benefit from the improvement could be considered in the before and after the taking evaluation of appellant’s property.

Appellant’s authority that some instruction on the special vs. general benefits is required is only apposite when the jury is instructed that damages may be reduced by the value of the benefit of the improvement to remaining land. Even then an appellant must have complied with Md. Rule 554 d 1 as is clearly set forth in Md. Rule 554 e.

"Upon appeal a party in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular [642]*642omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no other errors or assignments of error in the instructions shall be considered by the appellate court.”

— enhancement of damages by diminished access to remainder —

Obviously chagrined with the amount of damages allowed her, Ms. Perkins next complains that:

"The trial court erred in ruling that evidence of damage to the remainder caused by the diminution of access on St. Barnabus [sic] Road and total loss of access on a preexisting public alley was inadmissible.”

Appellant again seeks to raise an issue where none was raised or preserved below. The record is obscure as to whether evidence was offered or excluded regarding damages to Ms. Perkins’ remaining property caused by a diminution of access to St. Barnabas Road.

A far more troublesome and substantially related issue was preserved when the court excluded the elimination of the "paper public alley” as an item of compensable damages. Initially, we note that appellee’s appellation of the alley as a "paper public” one is not clarified by brief or extract, but is obviously intended to cause us subconsciously to denigrate the significance of the issue. We will not be so suggestively persuaded.

Because of the facts of this case, the issue is not as clear cut as either party would have us believe. The problem arose when, relying upon Goldstein v. City of Baltimore, 273 Md. 85 (1974), the judge sustained an objection by the State

"that evidence concerning the denial of access to the 18 foot wide alley is not relevant to these proceedings . ...”

[643]*643The rule of Goldstein, distilled by Judge Singley from myriad cases was that:

"Because Maryland Constitution Art. Ill, § 40 provides that compensation must be paid for private property taken for public use, and not for damage or injury to such property, in the absence of statutory relief, there ordinarily can be a recovery when access to a public street is destroyed, but not when access is simply limited or regulated ...273 Md. at 89.

Appellant contends that there is a distinction between the Goldstein rule and the cases from which it was distilled, and the case at bar. She points out that in all the Maryland cases 2 which support the Goldstein rule, there was no concomitant taking of the landowner’s property. The distinction is set forth by appellant in a quotation from Nichols on Eminent Domain, Vol. 2A, § 6.45 (Rev. 3d ed. 1981).

"There is a distinction, however, to be noted between the assessment of compensation in the case of a taking and in the case of a damage when no land is taken. In the former case the mere fact that there has been a taking entitles the owner to recover for all damages to his remaining land, whether special or shared by the public generally, provided they ftow from the taking, since he is constitutionally entitled to be made whole for all injuries resulting from the taking of his land; but when there is no taking he is entitled only to such damages as the constitution or statutes provided, and as the damages usually provided for are held to be only those which are special and peculiar, the mere fact that an owner is entitled to recover such damages is no ground for allowing damages of a different character, although resulting from the construction of the same work.” (Emphasis added).

[644]

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Related

State Roads Commission of State Highway Administration v. Brannon
473 A.2d 484 (Court of Special Appeals of Maryland, 1984)

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Bluebook (online)
465 A.2d 1175, 55 Md. App. 639, 1983 Md. App. LEXIS 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-state-roads-commission-of-the-state-highway-administration-mdctspecapp-1983.