Graff v. Mayor of Baltimore

10 Md. 544 | Md. | 1857

Tuck, J.,

delivered the opinion of this court.

This record presents two propositions for our consideration: the right of the appellant to the money claimed, and the propriety of the remedy employed.

Upon the first we agree with the appellee’s counsel, that the case of the Balto. & Susq. Rail Road Company vs. Nesbit, 10 Howard, 395, is decisive of the present appeal, if we are to recognize that decision as authority. The charter of that company, (1827, ch. 72,) as far as concerns the present inquiry, is substantially the same with the act under which the claim of the appellant is now made. Why different constructions should be-placed upon them we do not perceive. If the title to the land condemned under the first of these laws did not vest in the company, because the valuation had not been paid or tendered, it follows, that such payment or tender was necessary to give title to the city "of Baltimore in the property of the appellant. The court say: “It can hardly be questioned that, without acceptance by the acts and in the mode prescribed, the company were not bound; that if they had been dissatisfied with the estimate placed upon the land, or could have procured a more eligible site for the location of their road', they would have been at liberty, before such acceptance, wholly to renounce the inquisition. The proprietors of the land could have no authority to coerce the company into its adoption. This being the case there could, up to this point, be no mutuality, and hence no contract, even in the constrained and compulsory character in which it was created and imposed upon the proprietors by the authority of the statute.” And, in another part of the opinion these terms are called “conditions indispensable to the vesting of a title in the company.”

' Now, if the title does not vest in the city until payment or tender, and the owner could compel payment by legal process, there would be no mutuality. The city might be required to’ pay for land that it may never use or need for the purposes of the act. This certainly would be a hardship on the citizens of Baltimore, from which, we think,-they should be relieved by adopting the interpretation of-the Supreme Court in the case cited.

This may be a severe system of legislation, as was said, because it places the property owner at the discretion, not to say caprice, of the other party, by allowing it to 'condemn and ■afterwards abandon the property. But this construction is not likely to work so much injustice as that contended for by the appellant, because, by the latter, the city is deprived of all choice of another location, after a condemnation is once made and affirmed, no matter how great the necessity might be afterwards for adopting another, even if the owner of the land condemned had not sustained any damage by the act of the city in making the condemnation. These inquisitions, too, often tax the corporation beyond the value of the land, or the damages sustained, and the only relief it has against such wrong is to decline taking the land; of this the owner cannot complain. In cases, however, where the owner has suffered loss by the ads or delay of the corporation, redress might be had in another way. 3 Bland, 386. And this is an advantage which he has over the other party. If the property be used and occupied without payment or tender, the case would stand on a different principle, independent altogether of the valuation, as the basis of recovery, for although the State may authorize the condemnation of private property for public use and convenience, those who are clothed with the power are not to exercise it capriciously, or so as to inflict wrong on the citizen who may be called on to submit to this high power. Moale vs. City of Balto., 5 Md. Rep., 314.

The inquisition allows the owner such adamages as he will sustain by the taking, use and occupation” of the premises, and this is in pursuance of the oath which the law requires to be administered to the jury. The clause, authorizing the condemnation, implies, that the city should have an election to take or reject the property, after the condemnation, in requiring the jury to ascertain and assess the sum or sums of money to be paid by the Mayor and City Council, &c., “for the land, spring, brook, or water-right, or other property which they may deem necessary to purchase and hold, or use for the purpose.”

This means, necessarily, a purchase after the inquisition, by payment or tender of the valuation of the jury, because a previous agreement with the owner, would render the functions of a jury altogether unnecessary, and involves the power to reject the location altogether. The entry for purposes of condemnation is not a taking, use and occupation, within the meaning of the act, and, as we have seen, does not devest the owner’s title, or confer it on the city. The act of Assembly has not made the inquisition and confirmation obligatory on the city; further than this, that they ascertain the damages to be paid. ■ If there be injustice in this, as alleged in the present case, the fault is in the law, and not to be imputed to those who administer it.

Our conclusions are: 1st, that the judgment of confirmation decides the value of the land, from which there is no appeal directly to this court; and, consequently, its propriety cannot be inquired into in this collateral way. 2nd, that the city is not bound by the mere inquisition and judgment thereon, and could rightfully abandon the location in question; and 3rd, that the city may be made liable, in another form of proceeding, to the appellant for any loss or damage, he may have sustained by reason of the conduct of its authorities in the premises.

For as much as the appellant has no right to the amount in dispute, on the basis of the inquisition, we need not consider the questions propounded as to the remedy.

Order affirmed.