50 A.2d 918 | Md. | 1947
This is an appeal by William Fell Johnson, life tenant, and certain remaindermen, appellants, from a judgment on inquisition made absolute in favor of the appellants for the sum of $16,103, interest and costs, for the right to condemn certain property in Baltimore County. As provided by the inquisition, among other things was the perpetual right-of-way for an electric light and power line over the property of the appellants to be placed on three transmission towers. Each of the three towers will occupy a maximum space of 29 feet by 29 feet and have a maximum height of 117 feet and carry a 110,000-volt electric light and power line. The Consolidated Gas, Electric Light Power Company of Baltimore, the appellee, is given the right to trim and cut all trees on the said right-of-way and any trees adjacent to and within 75 feet of said right-of-way to prevent interference with the electric light and power wires. The appellants are given the right to use that part of the right-of-way which is not occupied by the transmission line towers.
Appellants contend, contrary to the ruling of the trial court in refusing certain prayers of the appellants, (1) that under the provisions of 1939 Code, Article 23, § 296, the appellee's power of condemnation is subject to the condition that its poles and wires "shall not be so constructed as to * * * interfere with the convenience of any land owner more than is unavoidable" and that appellants are thereby entitled to show by way of defense, "(a) That serious and irreparable damage will be caused by the proposed overhead transmission line through high-class residential property such as the Green Spring Valley; (b) That such damage will be *458 wholly avoided if the line is placed underground; and (c) That it is practicable and not unduly expensive to place the line underground."
(2) The second contention of the appellants is that the damage from the entire transmission line is not limited to consideration of those portions placed on their property, since the entire transmission line is a single unit, and that they are entitled to damages from the construction of the proposed transmission line across the property of others because their property would be damaged by the sight of the transmission line on the property of others.
It is stipulated in the record that the appellee has the powers conferred by Article
"Any of the corporations formed under class thirteen, section 28 of this article, as codified by the Code of 1904, shall have the power which is conferred upon telegraph companies incorporated under this article by section 296, and may construct and lay any part of its line or lines underground on any route for which it is authorized to construct such lines in whole or in part, above ground, and such corporation may acquire by condemnation any property or right whatsoever necessary for its purposes in its discretion, either in fee simple or the use thereof in fee simple, or for a less estate * * *."
The appellants contend and the appellee denies that the power of condemnation of the appellee given under Section 335 is narrowed down to the interpretation of Article 23, § 296, 23, § 1939 Code, Acts of 1868, Chapter 471, Section 128. That section provides in part as follows:
"It may construct a line or lines of telegraph through this State, or from or to any point or points within this State, or upon the boundaries thereof, and along and upon any postal roads and postal routes, roads, streets *459 and highways, or cross any of the bridges or waters within the limits of this State, by the erection of the necessary fixtures, including posts, piers or abutments for sustaining the cords or wires of such lines, without their being deemed a public nuisance, or subject to be abated by any private party; provided, the same shall not be so constructed as to incommode injuriously the public use of said postal roads or postal routes, roads, highways and bridges or injuriously interrupt the navigation of said waters, or interfere with the convenience of any land owner more than is unavoidable; * * *."
At the time of the passage of the Acts of 1868, Article 23, § 296, supra, underground electric lines were not in existence. By Article
That these corporations are liable for proper compensation for these franchise rights has been many times stated by this Court.Postal Telegraph Cable Co. v. State Roads Commission,
That the limitation that the use must not injuriously interrupt the navigation of waters or interfere with the convenience of any land owner more than is unavoidable, is a limitation on franchise rights rather than on the power of condemnation, is borne out by the following quotation from the case of State, for Use ofHoffman v. Potomac Edison Co.,
The Act of 1886, passed after the Act of 1868, in addition to other things, gave to corporations in the classification of appellee condemnation powers and added the requirements of "necessity."
In the case before this Court, as the property in question is private property, the only limitation therefore upon the appellee's right to condemn is whether the property right sought to be condemned is "necessary for its purpose in its discretion."
There is no contention by the appellants that an electric line at the location here contemplated is not necessary. They contend, however, that such line should be placed underground and not overhead.
The question of necessity is one for the court to decide. Ordinarily the question of public interest is legislative rather than judicial. It was said in Murphy v. State Roads Commission,
It was further said in the case of Webster v. Susquehanna PoleLine Co.,
The necessity for taking does not have to be absolute but only reasonable. The electric line here proposed is to connect with another line which has been constructed known as the "ring" line. The construction of this ring line was contested in the case ofRealty Improvement Co. v. Consolidated Gas, Electric Light Power Co.,
The appellee here, under the power of eminent domain, has no right to take private property arbitrarily or *463
utterly at variance with its delegated power and so as to inflict unnecessary damage upon the property owner. In New Central CoalCo. v. George's Creek Coal Iron Co., supra, it was emphasized, in referring to the power of eminent domain: "To justify the exercise of this extreme power, * * * the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large and almost indiscriminate delegation of the right to corporations, would likely lead to oppression, and the sacrific of private right to corporate power." Riden v. Philadelphia, B. W.R.R. Co., supra,
The court in passing upon whether the condemnation sought is reasonably necessary is limited in its inquiry as to whether the discretion exercised by the party condemning is honestly exercised. In the case of Murphy v. State Roads Commission,supra, where condemnation of a road was sought by the State Roads Commission, this Court said, at page 18 of 159 Md., at page 571 of 149 A.: "The engineers for the commission testified that the sour apple tree route was safer, more economical, and more convenient. While they were contradicted by appellant's witnesses, it is not our purpose to weigh or resolve that conflict, since our reference to the evidence has not been to decide whether the commission exercised the discretion reposed in it wisely, but whether it exercised it honestly. And as in our opinion the evidence clearly shows that the commission did not select the proposed route until it had examined and carefully considered such relevant facts as should have affected its conclusion, we find no abuse of the discretion vested in it, and it will not be reviewed."
Unless the discretion of the condemning agency as to reasonable necessity is wrongfully, arbitrarily, or oppressively exercised, that discretion cannot be controlled or reviewed by the Court,State Roads Commission v. *464 Redmiles,
The trial court, by the granting of the first prayer, passed upon the necessity of the condemnation. By that prayer the jury was instructed as follows: "The Court instructs the Jury that its verdict shall be for the Plaintiff on the right to condemn the right of way easement described in the Petition in this case, and that the only question before the Jury is the amount of damages to be awarded to the Defendants for the taking therefor."Johnson v. City of Baltimore,
The appellants claim that this proposed line will despoil a large part of the Green Spring Valley and adjacent areas of Baltimore County. Further that such an overhead line destroys the beauty of the area and is dangerous and that the development of property and the value thereof would be greatly curtailed by the presence of a steel power line on a wide right-of-way and that such damage will be wholly avoided if the line is placed underground.
The testimony of the appellee contained the following statements: The line traversed open countryside. It is an ordinary 110 kv tower line practically identical with its fifty-mile "ring" line passed on by this Court in the cases ofRealty Improvement Co. v. Consolidated Gas, Elec. Light PowerCo. of Baltimore, 1929, supra; Schnepfe v. Consolidated Gas,Elec. Light Power Co. of Baltimore, 1933,
Mr. William McLean, the general superintendent of electrical distribution for appellee, testified that the overhead line is much cheaper than the underground one. The overhead line is a much simpler problem than the underground one in assuring continuity of service. If a 110,000-volt line is placed underground it might take a matter of months to repair it while the overhead line could ordinarily be repaired within a very short time. The manufacturer does not keep underground cables in stock. These have to be built.
Of course, any large outlay in the cost of constructing this line will be reflected in higher electric rates to the public as consumers.
Among other witnesses the appellants offered testimony of Dr. John D. Whitehead, Emeritus Professor of Electrical Engineering at Johns Hopkins University and consultant of many electrical companies, "that as voltage of a line goes up greater dangers are involved unless peculiar precautions are taken." The appellants also made a proffer to prove by Dr. Whitehead that practicable and thoroughly tested methods are available *466 by which power can be transmitted at high voltage in underground cables and that the Pennsylvania Railroad maintains an underground cable line three miles long in Baltimore City at a voltage of more than 110,000 volts. They also offered by this proffer, to prove by Dr. Whitehead, that the total cost of the proposed line constructed overhead would be $200,000 including the estimated costs of rights of way and that the cost of the same line underground would be $229,000 assuming that free rights of way are available. This proffer of Dr. Whitehead's testimony was refused by the court.
As to the refusal of the trial judge to accept that proffer, that testimony was to the effect that this power line could have been transmitted underground, and that some lines of this voltage are underground. This was wholly immaterial. The other part of Dr. Whitehead's testimony which was refused was to the effect that the underground line would not cost much more than the one overhead. As economy is one of the elements to be considered by the appellee in its discretion in determining the type of line to be constructed, we think the appellants were not injured by the refusal of this proffer, the necessity being a question for the court and not for the jury. As to the refusal to allow this testimony of Dr. Whitehead to be given the jury, in the case ofCity of Baltimore v. Park Corporation,
As in the case of Murphy v. State Roads Commission, supra, reference being here made to the quotation supra from page 18 of 159 Md., page 571 of 149 A., testimony was here given that the proposed overhead route was safe, more economical, the best selection and that the expense and delay in making repairs would not justify the underground route. While this testimony was contradicted in some details by appellant's witnesses, it is not the province of this Court to weigh or resolve that conflict. Our reference to the evidence has only been to decide whether the appellee exercised its discretion honestly and not to decide whether that discretion was exercised wisely. The evidence here shows that the appellee is not selecting the proposed route until it has examined and carefully considered the alternate underground route proposed by the appellants. We find no abuse of the discretion vested in the appellee by the Legislature and this discretion will not be reviewed by this Court. The trial judge was therefore correct in instructing the jury that its verdict should be for the appellee on the right to condemn the right-of-way easement.
(2) As to the second contention of the appellants, raised here by the refusal of the trial judge to admit evidence on the point, that they should be allowed damages for the transmission line constructed on seven steel towers on the property of others across the Falls Road which borders appellants' property, as far as we are able to determine no such contention has ever been made before in any of the cases in this Court. It appears to be agreed by all parties to this suit that the landowners are entitled to consequential damages to the remainder of their land caused by the taking of the easement over a part of their land.
The Maryland Constitution, Article 3, § 40, provides: "The General Assembly shall enact no Law authorizing *468 private property to be taken for public use, without just compensation as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation." It is further provided by the Constitution of Maryland, Article 3, Section 40-A, in part and as follows: "The General Assembly shall enact no law authorizing private property to be taken for public use without just compensation, to be agreed upon between the parties or awarded by a jury, being first paid or tendered to the party entitled to such compensation, * * *."
The statutes in this State providing for the measure of damages in condemnation cases are Code, 1939, Article 33A, § 7, Acts of 1914, Chapter 463, Section 8, and Article 33A, § 9, Acts of 1914, Chapter 463, Section 9. These provide in part as follows: Section 7: "As soon as said jury is selected * * * they shall be sworn to justly and impartially value the damages which the defendant owner or owners will sustain by the taking, useand occupation of the property described in the petition, by thepetitioner, for the purposes therein set out, and after being so selected and sworn, the Court shall direct the sheriff to take the jury upon the grounds and premises sought to be condemned, to view the same in the usual way in condemnation cases." Section 9: "After said view, and the jury has returned to said Court, the trial of the issues of law and fact in the case, relative to theright to condemn said land, and the damages which will beoccasioned to the defendant owner or owners thereof by thetaking, use and occupation thereof by the petitioner, and the amount of just compensation therefor to each defendant, * * *." (Italics supplied here.)
It is pertinent to note that under the Constitution and statutes of this State the damage in cases of eminent domain is limited to the taking, use and occupation of the defendant property, and not to "damage and taking." It is also pertinent to note that the statute, Article 33A, § 7 and 33A, § 9, by which the jury is bound in awarding *469 damages, confines the damages by Section 7 to "the taking, use and occupation of the property described in the petition," and by Section 9, to "the damages which will be occasioned to the defendant owner or owners thereof by the taking, use and occupation thereof by the petitioner."
Although, as above stated, this second contention of the appellants has apparently never before been made in any of the cases in this Court, it appears that this contention is answered in a number of cases where the Court has definitely set out the method which the jury must follow in determining the measure of damages in condemnation cases. As above stated, in the case ofRealty Improvement Co. v. Consolidated Gas, Elec. Light PowerCo. of Baltimore, 1929,
In the later case of Pumphrey v. State Roads Commission,
1938,
Therefore this second contention of the appellant seems to be answered by these direct and broad statements by this Court as to the measure of damages in its interpretation of the statute, Code, Article 33A, and in none of those statements has any intimation been made that the owner of the property condemned is entitled to damages by reason of the taking, use, and occupation of property owned by other persons.
In spite of these direct statements by this Court, appellants contend that out-of-State authorities hold that since the entire transmission line is a single unit, "that *471 the use made of adjoining land is to be considered `so far as it is due to proximity secured by means of taking a part of the petitioner's land, and would not have resulted but for such taking'." This second contention of the appellants has been ably argued by both the appellants and the appellee and we have been furnished elaborate briefs and many citations by both sides. We cannot comment on all the cases cited. To do so would lead to almost endless discussion.
The case of Campbell v. United States of America,
The Fifth Amendment to the Constitution of the United States provides in part, "nor shall private property be taken for public use, without just compensation." Damages are thereby limited to "the taking" as in the Constitution of Maryland, supra, and Article 33A of the Code of Maryland, supra. The Supreme Court of *472 the United States in that case said that Campbell was entitled to have the just compensation safeguarded by the Fifth Amendment of the Constitution; that is, the value of the land taken and the damages inflicted by the taking. The proposed use of the land taken from others did not constitute a taking of Campbell's property. He had no right to prevent the taking and use of land of others. The condemnation did not deprive him of any right in respect to the land of others. The Court said further, at pages 371 and 372 of 266 U.S., at page 116 of 45 S.Ct., in affirming the judgment of $3,000:
"And, if the land taken from plaintiff had belonged to another, or if it had not been deemed part and parcel of his estate, he would not have been entitled to anything on account of the diminution in value of his estate. It is only because of the taking of a part of his land that he became entitled to any damages resulting to the rest. In the absence of a taking, the provision of the Fifth Amendment giving just compensation does not apply; and there is no statute applicable in this case that enlarges the constitutional right. If the former private owners had devoted their lands to the identical uses for which they were acquired by the United States or to which they probably will be put, as found by the court, they would not have become liable for the resulting diminution in value of plaintiff's property. The liability of the United States is not greater than would be that of the private users. Plaintiff cites and relies upon Blesch v.Chicago N.W. Ry. Co.,
In the instant case, as in the case of Campbell v. UnitedStates of America, supra, the damages resulting to the remainder of the land not taken were separable from those caused by the use to be made of the land acquired from others, because appellants own witnesses in their testimony were able to separate such alleged damages. We must therefore conclude that the trial judge was correct in refusing the proffered testimony as to the damage caused to the appellants' land by the use of adjoining land of others on which the proposed overhead electric line is to be constructed. As we find no error the judgment will be affirmed.
Judgment affirmed, with costs. *474