90 A. 983 | Md. | 1914
This is an appeal from the Baltimore City Court granting a motion of the appellees to dismiss the appeal of the appellant from the action of the Commissioners for Opening *144
Streets in the City of Baltimore. The Mayor and City Council of Baltimore passed an ordinance, known as No. 387, and approved on the 16th of August, 1909, which provided for the elimination of certain crossings at grade over the tracks of the B. O.R.R. Co., between Camden and Ostend streets, for the construction and maintenance of bridges and approaches carrying Lee street, Hamburg street, Stockholm street and Cross street over the tracks of said railroad, and, amongst other things, for condemning and closing certain portions of a number of streets named, including Henrietta, between the east side of Eutaw and the west side of Howard street. It was the same ordinance which was before this Court in Walters v. B. O.R.R. Co.,
The appellant owns a property on the southwest corner of Henrietta and Eutaw streets, which fronts 155 feet on the former and 75 feet on the latter — running from Eutaw street on the east to an alley 20 feet wide on the west. The lot is improved by a church, a school house and a parsonage. The appellant contends that this property will be greatly damaged by the closing of this part of Henrietta street, and it endeavored to have the Commissioners for Opening Streets allow it damages for the injuries thereby sustained. The Commissioners refused to allow any damages and that refusal resulted in the appeal to the Baltimore City Court. Considerable testimony was taken in the lower Court by the appellant, tending to show that its property was materially depreciated in value by the closing of the part of Henrietta street — although it was in direct conflict with that offered by the appellees. The motion to dismiss the appeal, which was granted by the lower Court, was as follows: "The City contends that the appellant has not proved any damage to its property as a consequence of the closing of Henrietta street, between the east side of Eutaw street and the west side of Howard street, of such nature as to entitle it to any award in this case, and therefore prays that the appeal be dismissed." *145
The appellant's property does not abut on the portion of the street which was closed, but is on another square which is bounded on the north by Henrietta street, on the east by Eutaw street, on the south by Hamburg street and on the west by Warner street, there being also an alley 20 feet wide which runs from Hamburg to Henrietta street at the west side of the appellant's property. The part of Henrietta street which is closed is east of the intersection of Henrietta and Eutaw streets, both of which are 66 feet wide. The ingress to and egress from the property has not been affected, but the direct approach to it from the east by way of Henrietta street is cut off and requires a more circuitous route. There were 10 or 12 tracks of the B. O.R.R. Co. which crossed Henrietta street at grade, between Eutaw and Howard, before Henrietta street was closed. The access from the north, south and west have not been affected, and there will be two overhead bridges crossing the railroad tracks within a few squares of the property when the proposed improvement is completed.
When the location of the appellant's property is borne in mind, and it is also remembered that this is a condemnation proceeding into which the appellant has come, there cannot be much difficulty in reaching a correct conclusion under the decisions of this and other Courts. The provisions of section 40 of Article 3 of our Constitution that the General Assembly "shall enact no law authorizing private property to be taken for public use, without just compensation," etc., have been before this Court many times, and although the Constitution does not declare what rights shall be regarded as property, or what shall constitute a "taking" within its meaning, there are decisions which are conclusive of those questions. In the familiar case of O'Brien
v. Balt. Belt R.R. Co.,
In the case of Garrett v. Lake Roland El. Ry. Co.,
Those cases should be sufficient to dispose of this appeal, unless there be some statute upon which the appellant can rely. In each of them the act complained of was exclusively for the benefit of the railroad company proceeded against, and the municipality had no such interest as it has in the execution of this ordinance. We will not now stop to consider the distinction between this case and those, by reason of the fact that this is a condemnation proceeding by the city, for even if the railroad company was conducting the proceedings, it could not be said that there was a taking of the appellant's property.
Section 6 of Article 4, entitled City of Baltimore, of Code of Public Local Laws (Baltimore City Code, 1906, section 6, sub-section 26), gives the Mayor and City Council power "To provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any *148 street, square, lane or alley within the bounds of said city, which in its opinion the public welfare or convenience may require," and then continues: "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 said owner or possessor oughtto be compensated, or ought to pay a compensation, and to provide for assessing or 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 damages and expenses which it shall ascertain will be incurred in locating, opening, extending, widening, straightening or closing up the whole or any part of any streets," etc. Then section 175 (Baltimore City Charter) provides that whenever the Mayor and City Council shall by ordinance direct the Commissioners for Opening Streets to lay out, open, extend, widen, straighten or close up, in whole or part, any street, etc., the Commissioners "shall ascertain whether any and what amount of value in damages will thereby be caused to the owner of any right or interest in any ground or improvements within or adjacent to the City of Baltimore, for which, taking into consideration all the advantages and disadvantages, such owner ought to becompensated."
Section 175 and the succeeding sections provide the procedure by which streets, squares, lanes or alleys can be laid out, opened, etc., and cannot be construed as intended to allow damages which were not previously allowed. The part of section 6 which is quoted above was passed in 1838, Chapter 226, and was codified as section 837 of Article 4 of Code of Public Local Laws of 1860. The same language was continued in section 806 of that Article of Code of 1888. The Mayor and Council of Baltimore had, under the authority so given, passed an ordinance prescribing the manner of proceeding in opening, closing, etc., streets, as early as 1841, *149
(Alexander v. Baltimore, 5 Gill, 383), and when the present charter was adopted, the provisions of section 175 were in that ordinance; Baltimore City Code of 1893, Article
As illustrating how other Courts have regarded the provisions of statutes in such cases, we will refer to some of their decisions. Smith v. City of Boston, 7 Cush. 254, Castle v.County of Berkshire, 11 Gray, 26, and Davis v. CountyCommissioners,
The appellant contended that what was said in Mayor, c., ofBaltimore v. Smith and Schwartz,
As the decisions are so numerous it will be convenient to refer to the text books which are one way, and it can be safely said that except in cases controlled by some special constitutional or statutory provision the decisions are practically unanimous against the appellant's contention. Where the vacation of the street is in front of the plaintiff's property or in the same block, so that his access is cut off entirely, the decisions hold either that it is a taking of the property, or at least that the owner is entitled to damages, and if under those circumstances his access is cut off in one direction, so as to put his property in a cul de sac, perhaps most authorities holds that he is entitled to damages. In 1 Lewis on Em. Dom. (3rd Ed.), sec. 203, that author, after having considered the other classes of cases, said: "The case now to be considered is where the vacation is in the next or some remoter block and the plaintiff has left access in both directions to the system of streets. To reach certain points in the direction of the vacation, the plaintiff must make a detour and this fact and the diversion of travel and the loss of a thoroughfare depreciate the value of his property. The decisions are nearly unanimous to the effect that in such case the plaintiff's property is not taken or damaged and that he cannot prevent the closing of the street or recover damages therefor. While this conclusion may be correct so far as the question *153 of a taking is concerned, its correctness may be questioned when, by virtue of the Constitution or a statute, compensation is given for property damaged or injured." In 2 Elliott on Roadsand Streets (3rd Ed.), sec. 1181, it is said: "Owners of lands abutting on neighboring streets or upon other parts of the same street, at least when beyond the next cross street, are not, however, entitled to damages notwithstanding the value of their lands may be lessened by its vacation or discontinuance." In 3McQuillin on Mun. Cor., sec. 1410, the rule is thus stated: "If the street directly in front of one's property is not vacated, but the portion vacated is in another block, so that he may use an intersecting cross street, although perhaps it is not quite so short a way nor as convenient, it is almost universally held that he does not suffer such a special injury as entitles him to damages. And this is so notwithstanding the new route is less convenient or the diversion of travel depreciates the value of his property."
In 27 Am. Eng. Ency. of Law 116, it is said: "It is generally held that owners of property not abutting on the street vacated have no such property in the street as entitles them to damages for its vacation where there is still left means of communication with other streets, and whatever detriment or inconvenience they may suffer by the closing of the street they must bear in common with the community at large for the public convenience and welfare." In 37 Cyc. 193, it is said: "On the other hand many cases hold that the vacation of a highway in such a manner as to deprive an abutting owner of access to his property is a `taking' of property within the Constitutional prohibition, for which compensation must be made. This right to damages does not extend to owners of land not abutting on the highway vacated, and accessible by other ways, unless the statute allowing damages is broad enough to include such persons." The summary of a note to the case of Enders v. Friday,
The cases cited by the above authors are very numerous. Whatever apparent conflict there is between them is more apparent than real. There can be no doubt that most of the *155
decisions rendered in cases where the facts are similar to those before us hold that the owner is not entitled to damages. InDavis v. County Commissioners,
If the appellant's right to recover be on the theory that the closing of this part of Henrietta street has caused it to lose some of its church members, it would be extremely difficult, if not impossible, to fix such damages in dollars and cents by any known rule of law. A church member who would leave his church merely because he had to go a square or two further to get there than he formerly did would not, as a general rule, be a very serious loss to the church, but if any one did absent himself for that reason, how could the financial loss be estimated? Even if it could be proved that he had been paying so much per year, his death, removal or other change might deprive the church of that income at any time. Such loss would be of the most speculative character, and it is not perceived how the loss in membership could in other respects be considered as ground for damages. Moreover, it is an established fact in this case, that there are conditions existing in that part of the city which would necessarily affect this congregation. The uncontradicted evidence is that a considerable *158 part of the territory, on both sides of the railroad, from which this church would naturally have derived a good deal of its membership, is now mainly, and in some squares exclusively, occupied by colored people. It may be that the improvements made under this ordinance, of which this closing of Henrietta street is a part, is to some, possibly a large extent responsible for the change in the class of residents living there, but surely no one will contend that in assessing damages for closing a block of Henrietta street, all that is done or to be done under this ordinance is to be taken into consideration. We speak of such matters to show how impossible it would be to allow damages to cover such injuries as the appellant claims to have sustained, if we are to be governed by established rules of law and not be led off into what is pure speculation and beyond definite ascertainment. So far as affecting the value of appellant's property is concerned, it may be different in degree, but is not different in kind, from that of the owners of other properties situated in this neighborhood. If the appellant is entitled to damages, every owner on both sides of Henrietta, from Eutaw to Warner street, and from Howard to Sharp, would be, and if they are those on cross streets, or a little further off on Henrietta or some parallel street might claim damages on the same ground. As said by the Supreme Court of Massachusetts, supra, the line must be drawn somewhere, and unless there be some very unusual and extraordinarily peculiar conditions, we think that drawn by the great weight of authority, which we have stated above, is the safe and correct one.
In determining how far a dedication of an unimproved street extends, so as to relieve a municipality from paying damages, in a proceeding for opening etc., such a street, we said in Hawley
v. Mayor, c., of Baltimore,
We had intended to refer at some length to the cases cited by the appellant, but this opinion is already too long to admit of that, and we must be content with saying that we have *160
examined them carefully and find that they are for the most part, if not altogether, easily distinguishable from those which sustain the rule we have announced. The case of Howell v.Morrisville Borough, supra, sufficiently explains that of Inre Melon Street, supra, to avoid the necessity of further comment, and that of Dantzer v. Railway Co.,
We do not see the relevancy of the questions in the first and second bills of exception, but whatever the answers might have been they could not have affected our conclusion on the main question. So although it is greatly to be regretted if the property of the appellant has depreciated as indicated by the evidence of the witnesses produced by it — whatever maybe the real cause or causes for the depreciation, — we are convinced that under the overwhelming weight of authority it is not entitled to damages in this case, and the action of the Court in granting the motion to dismiss the appeal taken to the Baltimore City Court must be affirmed.
Order affirmed, the appellant to pay the costs. *161