Mayor of Baltimore v. Black

56 Md. 333 | Md. | 1881

Bartol, O. J.,

delivered the opinion of the Court.

This suit was instituted by the appellees in May 18P7, to recover damages for injury done them by the alleged wrongful delay, default and negligence of the appellant in the matter of opening and condemning Presstman street. The case was before this Court on a former occasion, upon the plaintiffs’ appeal, reported in 50 Md., 235,. where will be found a statement of the facts which gave rise to the suit. They need not be repeated here. On that appeal the judgment was reversed because of error in granting the prayer of the defendant, which denied to the plaintiffs the right to recover because “ no assessment of damages or benefits had been made by the Commissioners, and the City had never taken actual possession of the plaintiffs’ property.”

In the case then before the Court the following propositions were decided:

1st. Where a property owner has suffered actual damage by the culpable or unreasonable delay of the City authorities in prosecuting a work of this kind, or in determining to abandon it, he is entitled to be indemnified for his loss, whether the delay complained of occurs before-or after the assessment of damages and benefits has been completed.

2nd. The question whether such culpable or unreasonable delay has occurred, or in other words the question of negligence on the part of the defendant, is one for the jury to decide,- under the instruction of the-Court. i

3rd. Where an Ordinance for condemning and opening a street has been passed, and remains unexecuted, or but partially carried into effect, and the property owner acquiesces in the delay, he cannot maintain an action for damages caused thereby. In order to entitle him to maintain an action against the City for alleged negligence in such case, he must prove that some action has been taken on his part, whereby the City has been put in default; such as a remonstrance, or application made to the' proper City authorities to go on with the work or to repeal the Ordinance. In the absence of some action of this kind on the part of the property holder, the City authorities would be justified in concluding that no person is suffering loss or damage by the delay, and negligence cannot he imputed to the City.

4th. As to the measure of damages, the rule was declared that the plaintiffs can only recover for such special damages as they actually suffered from the default and negligence of the defendant.

Under this ruling the case has been again tried and a verdict and judgment recovered by the plaintiffs, from this judgment the present appeal has been taken.

Three bills of exception were taken by the appellant, two of them raising questions of evidence, and the third presenting for review the ruling by the Court below upon the prayers.

The prayers will first be considered. Of these two offered by the plaintiffs were granted, and those offered by the defendant, four in number, were refused.

In our opinion, the facts enumerated in the first prayer of the plaintiffs, if found by the jury, entitled them to the verdict. The prayer distinctly left to the jury to determine whether the delay complained of was unnecessary and negligent. The plaintiffs’ second prayer also required the jury to find that the delay in executing the Ordinance was not unavoidable, and claimed to recover such damages as the jury should find from the evidence, the plaintiffs sustained hy reason of such delay.

These prayers seem to us to state the law correctly, and in accordance with the decision rendered on the former appeal.

The first and second prayers of the defendant rest upon the theory that the remonstrance and complaint hy the plaintiffs ought to have been addressed to the Mayor and City Council, or that they ought to have mode application to that body to go on with the work, or to repeal the Ordinance; and that in the absence of proof of such remonstrance or application addressed to the Mayor and City Council, the plaintiffs are not entitled to recover.

This proposition is not in accordance with the rule announced in 50 Md. The principle upon which that decision rests, is, that in order to maintain a suit of this kind, the plaintiffs must show that they have not tacitly and voluntarily acquiesced in the delay. The presumption of such acquiescence on their part, must he rebutted by proof of remonstrance or complaint addressed hy them to the proper authorities of the City. An application to the Mayor and City Council, is not the only mode hy which the presumption may be rebutted, and the City put in default. The repeated remonstrances and applications made hy the plaintiffs to the City Commissioners, charged with the duty of executing the Ordinance, and also to the City Solicitor, their official legal adviser, and to individual members of the City Council, proved in the case, and set out in the plaintiffs’ prayer, were sufficient to remove the presumption of acquiescence in the delay, and put the City in default.

The defendant’s third prayer was also properly refused. The evidence in the case is, that the plaintiffs did not attempt to sell the property during the period mentioned in the prayer, although they wished to sell it, for the reason that the situation in which it had been placed, rendered a sale impracticable. It was almost entirely vacant ground, available only for building purposes, and no one would be willing to buy, or lease it for the purpose of improving it, because if the opening of the street should be completed under the Ordinance, the parties who had purchased from the City, would be entitled to claim it; and although any improvements made in the meantime would be appraised and paid for, it is obvious that no one would be willing to buy and improve under such circumstances. The fact that no attempt- was made by the plaintiffs to sell, when such an attempt would be futile, cannot deprive them of the right to recover, or operate to impair their rights in any manner.

The fourth prayer of the defendant sought to limit the measure of damages to the “loss of rent of the dwelling house caused by the default of the defendant, and not resulting from a general financial trouble affecting all suburban property.”

The objection to this prayer stated in the appellees’ brief is well taken.

“ There was no evidence that the rent of suburban property was affected by a general financial trouble. The evidence was that the rent, of the mansion house was greatly diminished, because it could not be rented for any term fixed, and that the vacant ground could not be leased for the same reason.”

The prayer was therefore properly refused.

We have next to consider the questions of evidence raised by the first and second bills of exception.

First Exception. — The witness Black having proved that the property had cost §30,000 in the early part of 1871, proved that he still owned parts of the property, about 100 feet on Gilmor street, on which stands the old mansion, that he disposed of the residue, about 180 feet. The plaintiffs’ counsel then asked the witness what he got for the 180 feet ? the witness- answered “ that he built and created ground rents of $80, and sold them at 9 per cent.” To this question and the answer thereto, the defendant objected; but the Court overruled the objection, and the defendant excepted.

(Decided 28th June, 1881.)

No point has been made on this bill of exception in the appellant’s brief, and in our opinion there is no valid objection to the admissibility of the testimony. The evidence tended to prove an element of damage caused by the default of the City. It was competent for the defendant to prove that the depreciation in the selling value of the property resulted from other causes besides the action of the City, such as from a general depreciation in the value of property caused by financial depression, and to ask an instruction that for such depreciation the plaintiffs could riot recover. No prayer or instruction of that kind was asked by the defendant.

We think there was no error in the ruling of the Court below, stated in the second bill of exception.

It was competent for the City Solicitor to testify to any pertinent facts within his knowledge, but his legal opinions were inadmissible. The offer of the defendant to prove by the witness, the legal difficulties in the way of executing the Ordinance, was prop.erly overruled and excluded.

Finding no error in the rulings of the Court below, the judgment will be affirmed.

Judgment affirmed.