5 Md. 314 | Md. | 1853
delivered the opinion of this court.
We deem it but necessary to briefly state the principles which we think should govern the decision of this and all similar cases.
• In the case of Alexander and other, vs. The Mayor and City Council of Baltimore, 5 Gill, 383, the principle was distinctly enunciated, that it is a portion of the inherent sovereignty of the State, to appropriate to a public use the' property of individuals when public necessity or utility requires it, upon securing to the party a just compensation' for any injury he may sustain.
This is hot an exercise of the taxing power, but an exer-" cise of the right of eminent domain as contradistinguished from it.
These two powers although somewhat alike aré not the' same. The distinction between them is clearly pointed out in a very able opinion of Justice Ruggles, in the case of The People, vs. Mayor &c. of Brooklyn, 4 Comstock, 423, 425. He says: “Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public bur-then. Private property taken for public use by right of eminent domain, is taken not as the owner’s share of contribution to a public burthen, but as so much beyond his sharer Special compensation is therefore to be made’in the latter case, because the government is a debtor for the property so taken; but not in'the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise than in the proper application of the tax.”
The case of Alexander vs. The Mayor and City Council of Baltimore, also establishes the constitutionality of a law providing for the opening of a street or road, which imposes alT the costs on those who are the more immediately bénefitedinstead of the community at large.
We proceed to apply these principles to the Case before us.
The appellant claims damages for the bed of Biddle street, according to its value, having reference to contiguous lots. On the other hand, it is said, he is entitled to but nominal damages, on the ground that the first proviso of the 16th sec. of the act of 1817, ch. 148, provides, “that no person shall be entitled to damages for any improvement, unless the same shall have been made or erected before the laying out or locating of such street, lane or alley, or part thereof respectively.” And it was in conformity to this view, that the court below instructed the jury that the appellant was only to be allowed for his lots in the bed of the street as unimprovable lots. This ruling of the court brings before us directly the constitutionality of the proviso to which we have adverted. While it is clear that the sovereign power has the right to impose a tax in such amount as to it may seem meet, and also to appropriate private property to public uses, yet it cannot do the latter without making just compensation for it. The sacredness of the rights of property, is everywhere recognized by the spirit of the common law, Magna Charta and our Bill of Rights. Under our present Constitution, there could be no question, for it distinctly provides in its 3rd article, section 46, that compensation shall be made before the property is taken. Although the language of the Bill of Rights of 1776, is not so distinct, its spirit is equally as comprehensive so far as the right to indemnification is involved. We hold, therefore, that it was not competent to the legislature to confiscate the property of the citizen, and we regard the provi
The evidence in the cause shows, that the lots designated on the plot filed in. it as Nos. 1, 5. and 4, were sold at pub-
in regard to lot No. 9, vre think the case different. Prior to his purchase of lot No. .10, the appellant was the owner of the lot on the south-west corner of Charles and Biddle streets, and when, therefore, he purchased lots Nos. 9 and 10, he acquired a complete title to the three lots, and is just as much entitled tobe compensated for lot No. 9, as would have been the original proprietor of it in the absence of all dedication. In regard to it there is no supervening or conflicting rights as there is in regard to lot No. 3. The appellant owns the entire line of the three lots bounding on Charles street, whilst in relation to lot No. 3, before it became the property of the appellant, Judge Frick had acquired a title to lot No. 4, from the same grantor as appellant obtained his to lot No. 2, which gave him a right to lot No. 3, as a public street. No
The prayers offered on behalf of the appellee, and the instruction granted by the court are erroneous, inasmuch as they are equally applicable to lots Nos. 3 and 9.
The true rule, where there has been no dedication, of assessing damages, is to value the lot precisely as though no street was to be opened. With a view to get at this, the neighboring and contiguous lots may be looked to, but they do not furnish an unerring standard to measure the value of the lot condemned. The one condemned may be more or less valuable than the adjoining lots. It or they may be in ravines or covered with, or free from rocks, making them more or less valuable according to the characteristics of the peculiar locality. Nor in estimating the value of the lot to be condemned, ought the circumstance of a street to be opened to be considered, for it is the street which enhances the adjacent property; the estimate should be made as if no street was to be opened.
With these views we remand the case to the court below.
Judgment reversed and procedendo awarded.