' '5.' ,:'»« y C!ti9^€^^tY ^^^ VA4 Kf=M QJnrnpU Ham ^rlynnl IGibtarg Cornell University Library KFM1650.R59 Law of municipal condemnation in Marylan 3 1924 024 683 892 J^A^^W OF Municipal Condemnation IlSr MARYI^AND. BY ALBERT CABELL RITCHIE, Ob- the Baltimore Bail. Pkess of King Bkos., Pkinteks And Publishees, 413 East Lexington Street (City Hall Plaza). Entered according to the Act ol Congress, in tlie year 1904, BY ALBERT CABELL EITCHIB, In the Ofaoe of the Librarian ot Congress, at Washington. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024683892 . TABLE OF CONTENTS. Sections. CHAPTER I. The Powee of Eminent Domain 1-18 CHAPTER II. What Constitutes a Taking op Property 19-29 CHAPTER III. Ordinances, Theie Passage, Provisions and Validity 30-55 CHAPTER IV. Proceedings of Commissioners in Opening Streets. 56-82 CHAPTER V. Appeals From Commissioners for Opening Streets TO THE Baltimore City Court 83-1 12 CHAPTER VI. Assessment of Damages and Benefits 113-148 CHAPTER VII. Appeals TO the Court of Appeals 149-153 CHAPTER VIII. Payment of Damages and Benefits 154-166 CHAPTER IX. Title of City to Property Condemned 167-171 CHAPTER X. Power of City to Abandon Proposed Improve- ment 172-188 CHAPTER XI. Jurisdiction of Equity 189-200 APPENDIX. The Burnt District Act, PREFACE. A considerable part of the land necessary for the opening, straightening and widening of streets, and for the improve- ment of the water front, in the district devastated by the recent conflagration, will doubtless have to be acquired by condemnation proceedings. The volumes of our Maryland Reports contain decisions upon almost every branch of con- demnation law, and this book is intended to present the practice and procedure in Maryland with reference to the condemnation of land by Municipal Corporations, together with all the decisions of the Court of Appeals upon the subject. ' For purposes of reference in the preparation and trial of cases involving condemnations in the burnt district, the entire "Burnt District Act," passed by the Legislature at its session just closed, as verified from the original by the Burnt District Commission, is inserted ia the Appendix. Albekt Cabell Ritchie. Baltimoke, June 15, 1904. LJV^VS^ OF MUNICIPAL CONDEMNATION IN MARYLAND. CHAPTER I. THE POWEK OF EMINENT DOMAIN. SECTION 1. Constitutional provisions. 2. Distinction between liability for taxes and liability of property to condemnation. 3. Modes in which power may be exercised. 4. Exercise of power subject to Legislature's discretion, and may be delegated. 5. Eights incident to the grant. 6. Statutes delegating power to the City. 7. Ordinances. 8. Constitutionality of Statutes. 9. Character of power delegated. 10. Definition of words. 11. Whether power is a continuing one. 12. System for opening streets different from system for grading and paving. 13. Property which is the subject of condemnation. (a) Franchises, rights of way and chax-tered or contract rights. {b) Water rights. (c) Land in County. (d) Streets laid out on Poppleton's plat. 14. Property which is not the subject of condemnation. (a) Property owned by the State. (b) Property owned by the City. (c) Property already dedicated. 15. The taking must be for a public use. 16. What constitutes a public use. 17. Whether proposed use is public or private Is a judicial question. 18. When public use abandoned or impossible, property reverts. § 1. Constitutional provisions. Article 3, Section 40 of the Constitution of 1867, provides that "the General 2 THE POWEE OF EMINENT DOMAIN. [CHAP. I Assembly sliall enact no law authorizing private property to be taken for public use, without just compensation, as agreed on between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation." This power to take private property for jDublic use is known as the power of eminent domain. § 2. Distinction betvt'ecn liability Tor taxes and liability of property to condemnation. Taxes are paid by individuals as their respective contributions to the support of the Government. Private property taken for public use is not taken as the owner's share towards the support of Government, but as something beyond his share. The Government thus becomes the debtor of the individual whose property is taken, and for this reason compensation is required to be made. As to the distinction between taxes and special assessments, see — Moale vs. City, 5 Md. 314. Greenmount Cemetery Case, 7 Md. 577. Graff vs. Frederick, 44 Md. 77. Brooks vs. City, 48 Md. 265. Gould vs. City, 59 Md. 378. City vs. Boyd, 63 Md. 10. Daly vs. Morgan, 69 Md. 460, 490. § 3. modes in which po«er may be exercised. The modes in which the power of eminent domain is executed, vary according to circumstances. Sometimes the law provides for summoning a Jurj- upon warrant, in the nature of an inquest ad quod damnum ; at others. Boards of Assessors are appointed to appraise the damages and benefits with the right of appeal to a Court of record and for review by a Jury ; but all are subject to the constitutional provision that the Legislature shall enact no law authorizing private property to be taken for public use without just compensa- CHAP. I] EXEKCISE OF POWEK. 3 tion, whether agreed upon between the parties or awarded by a Jury, being first paid or tendered. (State vs. Graves, 19 Md. 351.) For early writs, see — Baltimore Belt Eailroad Company vs. Baltzell, 75 Md. 94, 100. § 4. Exerci§e of power subject to lieglslature's dis- cretion, and may delegated. The power of eminent domain resides in the State as a portion of its inherent sovereignty. (Alexander vs. City, 5 G. 383.) It lies within the discretion of the Legislature to determine to what extent, on what occasions and under what circum- stances the power shall be exercised, and this discretion is not subject to review by the Courts. (VanWitzen vs. Gutman, 79 Md. 405 ; Moale vs. City, 5 Md. 314, 322.) This principle, however, is subject to the limitation that the power can only be exercised for the public good. Aaid while the Legislature may delegate the power of eminent domain to the City, (Alexander vs. City, 5 G. 383, State vs. Graves, 19 Md. 351), and the City may exercise the right thus delegated to it, whenever in its opinion the public welfare and convenience require, yet the City is not authorized to represent any other interest than that of the public, and is not empowered to act upon any other ground than that of the public comfort and convenience. (Steuart vs. State, 20 Md. 97. See also posi, Section 30, and compare City vs. Hanson, 61 Md. 462.) § 5. Rig^iits incident to tlie grant. The grant must be conferred in clear and unequivocal language, and while the exercise of any right necessarily incident to the grant will be sanctioned by the grant, yet the exercise of any other right will not be authorized. Thus the Union Kailway 4 THi5 POWEE OF EMINENT DOMAIN. [CHAP. I Company was held not authorized to build lateral roads connecting it with other railroads under the grant to such other railroads to use the tracks of the Union Railway Company. (Baltimore and Havre de Grace Turnpike Com- pany vs. Union Railway Company, 35 Md. 224.) In Hamilton vs. Annapolis and Elkridge Railroad Com- pany, 1 Md. 553, the railroad company was held authorized to erect a waiting room for the accommodation of passengers upon land condemned for the railroad. In State vs. Baltimore and Ohio R. R. Co., 48 Md. 49, it was held that elevators, wharves, piers and docks were necessary to the business of the railroad company. Hotels designed for the accommodation of passengers were also held necessary to the operation of the road, but hotels used primarily as summer resorts were not. In American Telephone and Telegraph Company vs. Pearce, 71 Md. 535, telephone and telegraph lines con- structed in good faith by a railroad company for its use and benefit in the operation of the road, were said to be within the scope of the original easement. § 6. Statutes deleg^ating- power to the City. The Charter, Section 6, sub-title "Streets," confers power upon the Mayor and City Council of Baltimore to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley within the bounds of the City, which in its opinion the public welfare or convenience may require. Provision is made for ascertaining the damages and benefits caused thereby, and for securing property holders in their right to a Jury trial on appeal to the Baltimore City Court. (See also Charter, Section 320.) CHAP. l] STATUTES AND OBDINANCES. 5 Charter, Section 6, sub-title " Condemnation of Property," (Act 1892, Chapter 307), provides for the condemnation of property required for school houses, engine houses, court houses, (Shanfelter vs. City, 80 Md. 483), markets, streets, bridges and their approaches, parks, (Brooks vs. City, 48 Md. 265, City vs. Eeitz, 50 Md. 574), squares, gardens or other public places, (State vs. Kirkley, 29 Md. 85, City Hall), or for any other public or municipal purpose. By the same section power of condemnation is also con- ferred upon the City in connection with the improveOient of Jones' Falls, and the construction of markets, sewers, squares, springs and monuments. (As to Jones' Falls, see Merrick vs. City, 43 Md. 219 ; City vs. Musgrave, 48 Md. 273 ; Gregg vs. City, 56 Md. 256.) The City is also authorized to condemn property for pur- poses of a water supply. (See Kane vs. City, 15 Md. 240 ; Taylor vs. City, 45 Md. 576 ; City vs. Ritchie, 51 Md. 233 ; Helfrich vs. Catonsville Water Company, 74 Md. 269.) The condemnation of land for street improvements is con- fided to the Commissioners for Opening Streets, and the proceedings in such cases are set forth in the Charter, Sections 172 to 195, and Sections 827 to 837. § 7. Ordinances. The Ordinances contained in Balti- more City Code, 1893, Article 48, have nearly all been incorporated in the present Charter, and are contained, as amended, in the provisions just referred to. Ordinance No. 60, approved March 18, 1904, prescribes the method of procedure in all municipal condemnation cases not otherwise provided for. Under this Ordinance proceedings are begun by the filing of a petition in the Baltimore City Court, the value of the property to be taken is assessed by appraisers, and the property holders are secured in their right to a jury 6 THE POWER OF EMINENT DOMAIN. [CHAP. I trial, but with no power of appeal to the Court of Appeals. It was not designed by this Ordinance to affect the pro- cedure in street cases. § 8. Constitutionality of Statutes. The Statutes conferring upon the City the power of eminent domain have been so often before the Court of Appeals, and so often held valid, especially in street cases, that there can now be no doubt of their constitutionality. Alexander vs. City, 5 G. 383. M. P. Church vs. City, 6 G. 391. Moale vs. City, 5 Md. 314. ' Steuart vs. City, 7 Md. 500. Charles St. Ave. Case, 10 Md. 536. State vs. Graves, 19 Md. 351, 369. City vs. Bouldin, 23 Md. 328. Brooks vs. City, 48 Md. 265.' City vs. Eeitz, 50 Md. 574. O'Brian vs. Baltimore County, 51 Md. 15. § 9. Cliaracter of power delegated. The powers granted by the Legislature to the City, are such as are essential to the existence and expansion of a great munici- pality. They are confided to a local legislature, selected by the citizens, for the government of the municipality. (City vs. Bouldin, 23 Md. 370.) § 10. Definition of words. "Condemned as public," is synonymous with "appropriated to the public," or "streets belonging to the public." (City vs. Bouldin, 23 Md. 367.) § 11. Whether power is a continuing one. In the case of opening, widening and closing streets, the power of the City to condemn is a continuing power, and may be exercised whenever the public welfare and convenience require. This is not always so, however, when the right of eminent domain is conferred upon private corporations. CHAP I] PEOPEKTY SUBJECT TO CONDEMNATION. 7 Thus, in Binney's Case, 2 Bl. 99, 128, the power of condem- nation given the Potomac Company having been once exer- cised, was held to be exhausted. In Brown vs. P. W. & B. E. R. Co., 58 Md. 539, however, the railroad company's power of condemnation was held to be "commensurate with the necessities of the road," and in Hopkins vs. P./W. & B. R. E. Co., 94 Md. 257, it was held that the condemnation of a strip of land seventy feet wide, did not exhaust a power to condemn land to the width of one hundred feet. The additional thirty feet could be con- demned even after the expiration of the ten years allowed for the completion of the road. (See also Ulman vs. Charles Street Avenue Comprny, 83 Md. 130, and Hamilton vs. Railroad Company, 1 Md. 553.) § 12. System for opening streets diflTerent from system for grading^ and paving. The two systems for opening and condemning streets, and for grading and paving them, are essentially different from each other. They are provided for by different laws and ordinances, executed by different officers and governed by different rules and regula- tions. (City vs. Porter, 18 Md. 284 ; Dashiell vs. City, 45 Md. 615 ; City vs. Hook, 62 Md. 371.) § 13. Property wliich is the subject of condemna- tion, (a) Franchises, rights of way and cliartered or contract rights. It rests with the Legislature»to determine when the necessity arises for making one public purpose subordinate to another which it regards as of a higher degree of utility. Therefore the Legislature may authorize the opening of streets across existing rights of way, turnpike roads or railroads, upon making just compensation. In City vs. Cowen and Murray, Receivers, 88 Md. 447, the Court said that a railroad company's right of way is 8 THE POWER OF EMINENT DOMAIN. [CHAP. I property, and if occupied by a municipality in opening and maintaining streets, without compensation, the City must pay the damages to which the railroad is subjected by that occupancy. So in Pa. E. E. Co. vs. B & 0. E. E., 60 Md. 263, it was held that the Legislature cannot give one railroad the use of the tracks of another railroad without due com- pensation. In Baltimore and Havre de Grace Turnpike Company vs. Union Eailway Company, 35 Md. 224, it was said that the grant to a railroad company of power to cross the tracks of another railroad company or turnpike road, on making com- pensation, is not the condemnation of the franchise of such latter company, nor is it the impairment of a contract within the constitutional sense. It is simply an appropria- tion of the land over which the franchise of 'the turnpike company is used, to another distinct public purpose, which is not inconsistent with the user and easement of the turn- pike company. In Baltimore and Fredericktown Turnpike Company vs. Eailroad Company, 81 Md. 247, it was held that the Legis- lature could authorize the condemnation by an electric rail- road company of an easement or right of way over the road of a turnpike company, as well as the turnpike company's property rights arising out of a contract with a horse rail- way company. For another instance of the condemnation of part of a turnpike road for a railroad crossing, see Baltimore and Havre de Grace Eailway Company vs. Northern Central Eailway Company, 15 Md. 193. When a new way or road is opened across a way or road already existing and in use, the new way or road must be so constructed as to cause as little injury as possible to the old CHAP. l] PROPEHTY SUBJECT TO CONDEMNATION. 9 way or road. In the absence of statute or ordinance, what- ever structural changes are made necessary by the crossing must be erected and maintained at the expense of the City, or other party under whose authority and direction the con- demnation is had. (Northern Central Eailway Company vs. City, 46 Md. 425 ; Eyler vs. County Commissioners, 49 Md. 257 ; Bellona Company's case, 3 Bl. 442, 452.) Only structural changes, however, — such as the removal of switches, the planking of the road-bed, the construction of culverts and viaducts, and the like, — must be paid for. For the maintenance of guards, gates and other things per- taining to the public safety and falling within the police power, compensation cannot be recovered. (City vs. Co wen and Murray, Eeceivers, 88 Md. 447.) It was said in Central Railway Company vs. P. W. & B. R. E. Co. 95 Md. 428, that in addition to paying for struct- ural changes, the owner of the new way must make compen- sation to the owner of the old way for the property or ease- ment appropiated for the occupancy of the new way. In B. & O. E. E. Co. vs. Scott, Daily Record, March 29, 1904, (decided January 15, 1904), it appeared that the opening of Scott street across the railroad company's right of way would necessitate having planking between the rails. The Court held that not only the cost of constructing this planking must be borne by the City, but that the cost of maintaining it must also be awarded to the company as part of its damages. (See post, Section 118.) In this case it was also held that if the safety of the public required the removal of a certain switch, the cost of this would have to be borne by the City, but the company could not be required to remove the switch, unless the same constituted a dangerous obstruction. 10 THE POWEK OP EMINENT DOMAIN. [CHAP. I (b) Water rights. The right of a riparian owner to make reasonable use of the stream upon which his property binds, such as pasturing his cattle therein, is a property right of which he cannot be deprived without just compensation. (Helfrich vs. Catonsville Water Company, 74 Md. 269.) Under the statutory authority to condemn water rights for the purpose of introducing water into a City, the supply of water appurtenant to a mill may be condemned. (Moores vs. Bel Air Water and Light Co., 79 Md. 391.) As to the condemnation of water rights of proprietors of land bordering on the Patapsco river, and as to the title of such proprietors to land covered by the water, see the fol- lowing cases : Wharf Case, 3B1. 461. Giraud vs. Hughes, 1 G. & J. 249. Dugan vs. City, 6 G. & J. 357. E. R. Co. vs. Stump, 8 G. & J. 479. Wilson vs. Inloes, 11 G. & J. 351. Casey vs. Inloes, 1 G. 430. City vs. White, 2 G. 444. Broadway, etc. Co. vs. Hankey, 31 Md. 346. Page vs. Citj^, 34 Md. 558. Hazelhurst vs. City, 37 Md. 199. Williams vs. Baker, 41 Md. 523. Goodsell vs. Lawson, 42 Md. 348. E. E. Co. vs. Chase, 43 Md. 23. City vs. St. Agnes Hospital, 48 Md. 419. Garritee vs. City, 53 Md. 422. McMurray vs. City, 54 Md. 103. Linthicum vs. Coan, 64 Md. 439. Hess vs. Muir, 65 Md. 586. Horner vs. Pleasants, 66 Md. 475. Sollers vs. Sollers, 77 Md. 148. Classen vs. Chesapeake Guano Co., 81 Md. 258. Spencer vs. Patten, 84 Md. 414. Tome Institute vs. Crothers, 87 Md. 569. Tome Institute vs. Davis, 87 Md. 591. CHAP. 1] PKOPEBTY NOT SUBJECT TO CONDEMNATION. 11 (c) Land in County. The Legislature may authorize the condemnation by the City of property adjacent to, as well as within the limits of, the City, and may authorize benefits to be assessed and levied upon such property. (Brooks vs. City, 48 Md. 265. See post, Section 136.) It is held, however, that the City has no power to grade and pave land in the County, without express legislative authority. (City vs. Porter, 18 Md. 284. Compare Charter, Section 838.) (d) Streets laid out on Poppleton's plat. Poppleton's plat was made pursuant to the Act of 1317, Chapter 148. The fact that a street had been designated on this plat does not render condemnation proceedings unnecessary. Whenever the City opens such a street, the owner of the soil is entitled to damages precisely as if the street had never been so designated. Moale vs. City, 5 Md. 314. Steuart vs. City, 7 Md. 500. Northern Central Railway Co. vs. City, 45 Md. 425. City vs. Hook, 62 Md. 371. City vs. White, 62 Md. 362. City vs. Coates, 85 Md. 531, 534. ^ee, post, Section 46. See Charter, Sections 193 and 194, authorizing the Mayor, under certain conditions, to accept on behalf of the City, deeds from the owners of streets in the Annex laid out on Poppleton's plat. § 14. Property wliicli is not the subject of condem- nation, (a) Property owned by the State. The property referred to in the Charter as subject to the right of eminent domain is private property. Property owned by the State is ordinarily not liable to condemdation. (See County Com- 12 THE POWER OF EMINENT DOMAIN. [CHAP. I missioners vs. Maryland Hospital for the Insane, 62 Md. 127, and post, Section 140.) (b) Property oioned by the City. In Gist vs. Owings, 95 Md. 302, it was held that the Baltimore County road law does not authorize the opening of a road through land already owned by the County. The statute furnishes two ways of obtaining lands through which roads are to be opened — one by contract, and the other by proceedings in the nature of a condemnation. The statute does not con- template the County Commissioners making a contract with themselves, nor did it intend that the other method should be adopted to obtain property already owned by the county. The Court declined to decide whether or not the County Commissioners could, without express legislative authority, open a road through County property. (c) Property already dedicated. In City vs. Bouldin, 23 Md. 367, the Court said that to require the process of con- demnation to be resorted to when the property is already in the public, would be such an anomaly as the law could not intend. Accordingly, if the fee is in the City, condemnation is unnecessary. If, however, the street is simply dedicated to the public for purposes of a highway, and the fee remains in the owners of the land, it is proper to award nominal damages. Moale vs. City, 5 Md. 322. Page vs. City, 34 Md. 558. Hazelhurst vs. City, 37 Md. 199. McCormick vs. City, 45 Md. 512. City vs. White, 62 Md. 362. City vs. Coates, 85 Md. 531. Northern Central Railway Co. vs. City, 88 Md. 427. See also post, Section 119. CHAP, ij THE TAKING. 13 If a street has once bfecome a public highway, whether by dedication or otherwise, individuals cannot acquire title to any part of it by adverse possession. (City vs. Coates, 85 Md. 531 ; Ulman vs. Charles Street Avenue Co., 83 Md. 130 ; City vs. Frick, 82 Md. 77.) See, however, Baldwin vs. Trimble, 85 Md. 396, where an abandonment by the public of a highway was held to create an equitable estoppel against the subsequent assertion of a right to use the highway. (Compare post, Section 18.) § 15. The taking must be lor a public use. By the construction placed upon the constitutional provision that the Legislature shall enact no law authorizing private prop- erty to be taken for public use without just comjjensation, the Legislature is, by implication, prohibited from taking private property for any private purpose whatever, without the consent of the owner. The use for which property may be taken must be a public use. The State has no more right to take one man's land and confer it upon another, than that other has to take it for himself without the owner's consent. (Hoj'e vs. Swann's Lessee, 5 Md. 237 ; State vs. Graves, 19 Md. 351 ; Kane vs. City, 15 Md. 240 ; O'Brien vs. Baltimore Belt E. K Co., 74 Md. 363, 373.) As said in the case of Van Witzen vs. Gutman, 79 Md. 405, it should appear that the taking of private property is for the public service, or that it will tend to the relief of some public necessity, or to promote some public interest, or will subserve some public purpose, or be connected with something used by the public. In short, it must have some relation to the public convenience and welfare. In Van Witzen vs. Gutman, 79 Md. 405, Mrs. Gutman owned property on both sides of the southern extremity of 14 THE POWER OP EMINENT DOMAIN. [CHAP. I Jew alley. An Ordinance providing for the closing of the portion of this alley between Mrs. Gutman's lots, the result of which closing would have been to debar all the other adjacent lots from access to the alley from the south, was held to constitute a taking of property, not for the use of the public, but for Mrs. Gutman's private use, and the ordi- nance was, therefore, declared void. In Gregg vs. City, 56 Md. 256, 272, the Act of 1870, pro- viding for the improvement of Jones' Falls, only authorized the City to take property required for the proposed improve- ment. An ordinance authorizing property holders to sur- render damaged property, the same to be then purchased or condemned, was held void, because it authorized the City to acquire property not wanted for making the authorized improvement, and therefore, not required for public use. It is, however, competent to authorize the owner, when part only of his land is to be taken, to surrender the whole lot and claim compensation for the whole. (Post, Section 67.) § 16. fViiat constitutes a public use. It is not nec- essary that the private property taken be applied imme- diately, directly and exclusively to some public use, as to the making of a highway and the like. It is enough if it clearly appears that the application of the private property to the proposed new use will be attended by a material public benefit which would not otherwise be so immediately and effectually produced. If it be shown that such a public good must necessarily be the result of a taking of private property, then the use will be public. In such case it is immaterial that the public benefit may be coupled with private objects of gain and emolument. CHAP. 1] WHEN PUBLIC USE ABANDONED. 15 In the Bellona Company's Case, 3 Bl. 442, 450, the con- denmation of private property for purposes of a raihoad was held to be a taking for public use. In new Central Coal Company vs. George's Creek Coal and Iron Company, 37 Md. 537, 559, the coal company was held authorized to condemn land for the construction of a railroad to be used for the transportation of coal from its mines, such use being of a public nature. Moreover, the public use for which private property may be taken, is not merely a use for the State of Maryland. It embraces as well a use for the government of the United States. Thus the appropriation by the United States of lands in Maryland for the purpose of supplying the City of Washington with water, was held to be a taking for public use. (Eeddall vs. Bryan, 14 Md. 444, 476 ; Code 1888, Article 96, Section 1-12.) § 17. fV^hettier proposed use Is public or private is a judicial question. Whether the use for which private property is to be taken is public or private, is always a judicial question. Otherwise the constitutional restraint would be nugatory, and the Legislature could make any use public by simply declaring it so. (New Central Coal Co. vs. George's Creek Coal and Iron Co., 37 Md. 537, 559 ; Van Witzen vs. Gutman, 79 Md. 406 ; City vs. Johns Hopkins Hospital, 56 Md. 1, 43.) § 18. fVhen pubUc use abandoned or Impossible, property reverts. When a corporation, under condemna- tion proceedings, acquires for public purposes a mere ease- ment in land, its right and title to the property are dependent upon the use of the property for public purposes. There- fore, when such public use for any reason becomes impos- sible or is abandoned, the corporation's right to hold the 16 THE POWER OF EMINENT DOMAIN. [CHAP. I land ceases, and the property reverts to its original owner. (Canton Company vs. B. & O. E. E. Co., Daily Eecord, May 28, 1904, decided March 23, 1904.) It was held, however, in this case that neither the fact that the railroad company did not transport its cars over the land in question, but used a different roiite, nor the fact that the road over the land was never fully completed, amounted to an abandonment. To constitute an abandonment there must be more than a mere change of route and non-user, there must be some positive evidence of an intent to abandon. (Compare, ante, Section 14c.) CHAP, n] WHAT CONSTITUTES A TAKING OP PBOPEETY. 17 CHAPTER n. WHAT CONSTITUTES A TAKING OF PKOPEETY. SECTION 19. General principle. 20. Preliminary proceedings. 21. Entry or taking before payment or tender unlawful. 22. Consequential damages due to grading, etc. 23. Destruction of right of way due to grading. 24. Legislature may provide for damages due to grading. 25. Constitution may require payment of damages. 26. City liable for negligence. 27. Actual Invasion of property. 28. Law as to private corporations. 29. Construction of electric and elevated railroads. §19. Cteiieral principle. The Constitution does not declare what shall constitute a taking. This is a question of definition left to be determined by a proper construction of the terms employed. (O'Brien vs. Balto. Belt K. E. Co., 74 Md. 363, 373.) The broad distinction, however, is between an actual physical taking of property, and acts which, while not directly encroaching upon private property, yet, in their con- sequences, impair its use. The former constitutes a taking within the meaning of the constitutional provision. The latter do not. (Garrett vs. Lake Roland Elevated R. R. Co., 79 Md. 277, 281.) § 20. Preliminary proceeding's. The Constitutional prohibition against taking private property for public use without just compensation, means taking the property from the owner, and actually applying it to the use of the public. It does not mean the preliminary measures necessary in such cases, such as the making and reporting of the survey and 18 WHAT CONSTITUTES A TAKING OF PROPEETY. [CHAP. II the assessing of damages and benefits. (Steuart vs. City, 7 Md. 500, 516.) In Graff vs. City, 10 Md. 544, it was held that an entry for purposes of condemnation is not a taking. In Norris vs. City, 44 Md. 598, it was held that the mere assessment of damages by commissioners or a jury does not constitute a taking. Such an assessment is a step preliminary to the taking, and not the taking itself. In Shanfelter vs. City, 80 Md. 483, it was held that the passage of the ordinance pro- viding for the new Court House, and the selection of plain- tiff 's lot as part of the Court House site, was not a taking of plaintiff's property, and gave plaintiff no right of action against the City for failing to proceed with the acquisition of his land. § 21. Entry or taking' before payment or tender unlawful. Property owners must, however, be secured in the use and enjoyment of their property until the damages are constitutionally ascertained, and paid or tendered, or, in case of disability, properly invested. Until then, the street cannot be opened or used, and an entry to grade or to prepare the ground for that purpose, would be illegal, and the person so entering would be liable to an action for damages. (Steuart vs. (!ity, 7 Md. 500, 516.) In Moale vs. City, 5 Md. 314, an act was held unconstitu- tional which provided that no person should be entitled to damages for any improvement unless the same had been made and erected before the laying out or locating of the street. In City vs. St. Agnes Hospital, 48 Md. 419, the Hospital owned land on the Patapsco River, and the City constructed a dock across the land, thus depriving the Hospital of the water front. The City claimed title to the improvement CHAP. II] ENTHY BEFORE PAYMENT. 19 thus made because it was at the foot of a public street. The Court held, however, that since there had never been any condemnation of the street in question, the dock belonged to the riparian owner. In City vs. Hook, 62 Md. 371, it was held that until pay- ment or tender of the damages awarded, the City cannot lawfully enter upon the land and assess the adjoining owners for the expense of grading, paving and curbing. Such assessments are void and cannot be validated by a subse- quent offer to pay the damages which should have been paid anterior to the entry on the land. In Balto. and Ohio E. R Co. vs. Boyd, 63 Md. 325, the ordinance for the condemnation of certain streets provided that the Baltimore and Ohio EaUroad Company should pay all damages that might be awarded in excess of benefits. It appeared that the company paid such excess to the City, but that the City had not paid the amounts to the property holders. It was held that an entry upon the land for the purpose of constructing the railroad, without payment or tender of the damages to the property holders, or invest- ment for their benefit, constituted a trespass, and that an investment of the money after the institution of the suit was immaterial. In American Telephone and Telegraph Co. vs. Pearce, 71 Md. 536, 547, it was held that the Legislature could not authorize the construction of telegraph lines over private property, m the first instance, and require property owners to seek compensation afterwards in an action at law for damages. It was held, however, in Kelly vs. City, 65 Md. 171, that the establishment of grade lines is a matter wholly inde- 20 WHAT CONSTITUTES A TAKING OP PROPERTY. [CHAP. II pendent of the condemnation or opening of streets, and may be done at any time before such condemnation or after it. § 22. Consequential damages due to gradlng^, etc. A municipal corporation, acting under authority conferred by the Legislature to make and repair, or to grade, level and improve streets, if it exercises reasonable care and skiU in the performance of the work, is not answerable to the adjoining owner whose lands are not actually taken, for consequential damages to his premises, even though in grading and levelling the streets a portion of the adjoining lot, in consequence of the removal of its natural support, falls into the highway. The same immunity exists if the street be raised or embanked so as to cut off or render more diiScult the access to the adjacent property, and this, too, although the grade of the street has been before established, and the adjoining property owner has erected buildings or made improvements with reference to such grade. Property thus injured is not in the constitutional sense taken for public use. In Cumberland vs. WHlison, 50 Md. 138, where this doc- trine was announced, it was held that although the grading and paving of streets causes an increased flow of water, thus carrying debris into a mill race and destroying the water power of the mill, this does not constitute a taking of property. In Offutt vs. Montgomery Co., 94 Md. 115, it was held that where a municipal corporation, in pursuance of its statutory authority, authorizes a change in the grade of a public road by a passenger railway company, an abutting owner, whose land is not actually taken, is not entitled to recover damages because such change renders access to his land more difficult. CHAP, n] DESTEUCTION OF WAY. 21 In County Commissioners vs. Godwin, Daily Record, January 11, 1904, (decided December 3, 1903,) it was held that, in the absence of negligence, the County Commis- sioners of Kent County were not liable for damages to the plaintiff's land caused by the raising of the grade of a public road, incidental to its proper drainage and repair, whereby the flow of the surface water was obstructed. See also the following cases : Tyson vs. Balto. Co., 28 Md. 510. Horn vs. City, 30 Md. 218, 224. Balto. & Potomac R. E. Co. vs. Eeaney, 42 Md. 117. O'Brien vs. Balto. Belt E. E. Co., 74 Md. 363, 374. Green vs. City & Suburban Ey. Co., 78 Md. 294. Garrett vs. Lake Roland Elevated E. E. Co., 79 Md. 277, 284. City vs. Cowen and Murray, Eeceivers, 88 Md. 447, 456. Poole vs. Falls Eoad Electric Ey. Co., 88 Md. 533. Guest vs. Church Hill, 90 Md. 689, 693. DeLauder vs. Balto. Co., 94 Md. 1, 7. Compare Fahnestock vs. Feldner, Daily Eecord, January 26, 1904, (decided January 15, 1904). § 23. Destruction or rig^ht of ivay due to grading. Where a municipal corporation, in improving a public road, constructs a culvert and an embankment leading to it some feet above the adjoining ground, and builds guard rails along the same, so that it is impossible for plaintiff to exercise his easement of way from the road over adjoining land, even if the land adjacent to the road were graded up to the level of the road, there is a taking of property in the constitu- tional sense. In such case the use of the right of way is not merely rendered inconvenient or expensive, but its use is destroyed altogether, and this destruction is a taking of 22 WHAT CONSTITUTES A TAKING OF PKOPEKTY. [CHAP. II property. (DeLauder vs. Balto. Co., 94 Md. 1. Compare Garrett vs. Lake Roland Elevated E. R. Co., 79 Md. 277, and dissenting Opinion of Judge Bryan.) § 24. l.e^islature may provide for damages due to g^rading-. Tlie Legislature has the power to provide for awarding damages to property holders, resulting from changes in grade. Where the Legislature confers upon the municipality power to award damages in such a case, it becomes the duty and obligation of the City to do so. (Gregg vs. City, 56 Md. 256 ; O'Brien vs. Balto. Belt. E. E. Co. 74 Md. 363, 376.) § 25. Constitution may require payment of dam- ages. The constitutions of many states are sufficiently broad to require compensation for incidental injuries due to changes in grade. Thus, for example, in Pennsylvania, compensation must be made for property take,n, injured or destroyed. (Garrett vs. Lake Eoland Elevated E. E. Co., 79 Md. 277, 283.) § 26. City liable for negligence. Where damage results to property from the negligent, careless or improper manner in which the work is done, an action for such injury can always be maintained. (County Comms. vs. Godwin, Daily Eecord, January 11, 1904, decided December 3, 1903 ; Horn vs. City, 30 Md. 218, 224 ; see generally, cases cited under Section 22, ante, and also Ortwine vs. City, 16 Md. 387.) Compare the following cases in which the City has been held liable for the overflow of sewers : Kranz's Case, 64 Md. 491. Kitchens Bros. vs. Frostburg, 68 Md. 100. Prostburg vs. Hitchens Bros., 70 Md. 56. Frostburg vs. Dufty, 70 Md. 47. Schnitker's Case, 84 Md. 34. CHAP. II] ACTUAL INVASION. 23 As to liability in such cases for damages caused by vis major, see Eailroad Co. vs. Davis, 68 Md. 281 ; Sentman vs. Eailroad Co. 78 Md. 222. § 27. Actual invasion of property. Where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed upon it, so as to elfectually destroy or impair its usefulness, there is a taking of private property within the meaning of the constitutional prohibi- tion. (Cumberland vs. Willison, 50 Md. 138.) In City vs. Merryman, 86 Md. 584, the City, under legislative authority, had constructed a large dam across a stream below plaintiff's farm, and negligently allowed debris and mud to accumulate and remain above the dam. This caused the stream to fill up and overflow on plaintiff's farm, and the water in the stream was raised a foot or more higher than formerly on the bank along plaintiff's property. It was held that the raising of the water and consequent covering of part of plaintiff's bank, was a taking of property. In Guest vs. Church Hill, 90 Md. 689, it was held that where a municipal corporation, by a change in the grade of streets and the construction of drains, diverts the surface water from its natural flow, concentrates it in volume, and throws it upon the land of an abutting owner, this is an invasion of the adjoining property for which the City is liable, and in such case it makes no difference whether the drains were constructed negligently or not. In Cahill vs. City, 93 Md. 233, it was held that where the municipality changes the surface drainage adjacent to plain- tiff's land, and causes the same to empty into a stream alongside of plaintiff's marine railway, depositing there mud and refuse matter, filling up the stream at the point, and going over and upon plaintiff's ways, so as to destroy 24 WHAT CONSTITUTES A TAKING OF PROPERTY. [CHAP. H their use, there is an invasion of plaintiff's property rights for which the City is liable, although there may have been no negligence in the construction or location of the drain. (As to negligence in location, see Harford Co. vs. Wise, 71 Md. 43. Compare County Commissioners vs. Godwin, Daily Eecord, January 11, 1904.) § 28. Liaw as to private corporations. While, how- ever, there is no right of action for consequential damages against a municipal corporation in the careful exercise of its power to grade, change and improve streets, when there has been no actual taking or invasion of property, the rule with respect to private corporations is different. Such corpora- tions are responsible for all the natural consequences of their acts, and while the distinction between an actual taking of private property and consequential injuries to it when not taken, is applicable, yet a private corporation is liable in damages to property holders incidentally injured, though the act complained of and occasioning the injury is in itself lawful. In B. & P. E. E. Co. vs. Eeaney, 42 Md. 117, the Eail- road Company was held liable for damages to plaintiff's house resulting from the construction of a tunnel which undermined the foundations of the house next door — upon which plaintiff's house was lawfully dependent for its stability — entirely irrespective of any question of negligence in the construction of the tunnel or of legislative authority for doing the work. (See also Douglass vs. Turnpike Co., 22 Md. 219.) In Balto. Breweries Co. vs. Eanstead, 78 Md. 501, the Company was held liable for collecting upon its premises large quantities of water, to be used in its business, and dis- charging the same upon the bed of a street, in consequence of which a near-by lot was flooded. CHAP. II] PRIVATE COEPOKATIONS. 25 It was held, however, in O'Brien vs. Baltimore Belt Rail- road Company, 74 Md. 363, that where an abutting property holder had no estate in the bed of the street, the fact that the construction of the railroad in an open cut opposite his property would deprive him of the full use of the street as it formerly existed, and would result in depre- ciating the value of his property, did not constitute a taking in the constitutional sense. For any damages sustained, however, an action would lie. In Green vs. City and Suburban Ey. Co., 78 Md. 294, it was held that where a turnpike company changed the grade of its road, under authority conferred by its charter, abutting property holders were not entitled to compensation for an alleged interference with the ingress to and egress from their properties. (See also Peddicord vs. Railway Co., 34 Md 463.) § 29. Construction of electric and elevated rail- roads. In Garrett vs. Lake Roland Elevated R. R Co., 79 Md. 277, it was held that the erection in the centre of a street of a stone abutment to carry the iron superstructure of, and to serve as an approach to, an elevated railroad, was not a taking of the property of an abutting land owner. In such case, however, the property holder may recover damages caused to his property by reason of the elevated structure. (See also Lake Roland Elevated R. R. Co. vs. Webster, 81 Md. 529, and Lake Roland Elevated R. R. Co. vs. Frick, 86 Md. 259.) In Poole vs. Falls Road Electric R. R. Co., 88 Md. 533, it was held that the constmotion of an electric railway, under legislative authority, upon a street which is so narrow that there is not sufficient space for vehicles to pass, or stand between the curbstone and the tracks, is not a taking of the property of an abutting property holder, who owns the bed of the street subject to the public easement. 26 ORDINANCES, THEIE PASSAGE AND VALIDITY. [CHAP. HI CHAPTER m. ORDINANCES, THEIR PASSAGE, PROVISIONS AND VALIDITY. SECTION 30. Power granted to the City and its exercise. 31. Power cannot be delegated by the City. 32. Application for ordinance to condemn. 33. Who is the owner of property. 34. Petitions and remonstrances must state location of property and number of front feet. 35. Signatures to petition. 36. Estoppel of applicant. 37. Notice of application. 38. Notice a condition precedent. 39. When notice must be given. 40. Publication of notice. (a) Number of newspapers. (6) Number of insertions, (c) Proof of publication. 41. Presumption that notice given. 42. Burden of proof as to notice. 43. Notice need not be recorded. 44. Effect of proper notice. 45. Form of notice. 46. Reference to Poppleton's plat. 47. Present law as to notice. 48. Ordinance must be in substantial conformity to notice. 49. Ordinance need not refer to power. 50. Ordinance referring to plat. 51. Ordinance must not authorize a taking for private use. 52. Ordinance may take effect upon the happening of a contingency. 53. Ordinance to be construed with reference to existing conditions. 54. Confirmatory ordinances. 55. Repayment when ordinance declared void. § 30. Power granted to the City and its exercise. The power conferred by the Legislature upon the City of Baltimore is "to provide for laying out, opening, extending, widening, straightening or closing up, in whole or in part, any street, square, lane or alley, within the bounds of said City, which in its opinion the public welfare or convenience may require." (Charter, Section 6, sub-title, "Streets.") CHAP, m] EXERCISE OF POWEE. 27 Property holders cannot, as a matter of right, ask that any particular street shall be opened. (White vs. Flannagain, 1 Md. 525, 550.) The power is conferred upon the Mayor and City Council, and must be executed by them in the manner in which all their powers are executed, namely, by an ordinance duly passed for that purpose. (City vs. Porter, 18 Md. 284) The power, moreover, must be exercised for the public good, and only when, in the opinion of the Mayor and City Council, "the public welfare and convenience require." The determination of the question of when the public welfare and convenience require the opening of streets, rests in the discretion of the Mayor and City Council, and their judg- ment upon the question, whether right or wrong, is final, and cannot be reviewed by the Courts, except in case of a palpable abuse of the discretion confided to them. (M. P. Church vs. City, 6 Gill, 391 ; White vs. Flannagain, 1 Md. 525, 549 ; City vs. Clunet, 23 Md. 462 ; City vs. Hanson, 61 Md. 462 ; Blundon vs. Crosier, 93 Md. 355. See also ante, Section 4.) Thus, for example, if it should appear that an ordinance of the Mayor and City Council was manifestly not passed in the exercise of their discretion, looking to the public inter- ests alone, but was based upon other considerations, such as a bargain with individuals interested in the work, or was dependant for its efficacy upon matters wholly extraneous to the subject of legislation, and altogether unconnected with the question of whether or not the public convenience required the street to be opened, such an ordinance would be void, notwithstanding it might profess on its face to have been passed for the public welfare. (City vs. Clunet, 23 Md. 462.) 28 OKDINANCES, THEIE PASSAGE AND VALIDITY. [CHAP. Ill § 31. Power cannot be delegated by the City. The power being confided to the Mayor and City Council, it must be exercised by them, and cannot be delegated to others. M. P. Church vs. City, 6 Gill, 391. City vs. Clunet, 23 Md. 462. City vs. Scharf, 54 Md. 499. City vs. Johns Hopkins Hospital, 56 Md. 1. City vs. Scharf, 56 Md. 50. Moale vs. City, 61 Md. 224. Alberger vs. City, 64 Md. 1. Kelly vs. City, 65 Md. 171. Ulman vs. City, 72 Md. 587. City vs. Stewart, 92 Md. 535. § 32. Application for ordinance to condemn. Application for an ordinance to authorize the opening, widening or closing of streets may be made at the instance of the City itself, or at the instance of the property holders. When application for the opening of streets, or for the grading and paving of streets, is made by private parties, the question arises as to who is the owner of property entitled to make such application. § 33. IfVho is tlie o^vner of property. The Charter, Section 830, provides that for the purpose of making appli- cation for the passage of an ordinance to open, widen, extend or close any street, " a tenant for ninety-nine years, or for ninety-nine years, renewable forever, or the executor or administrator of such tenant, or the guardian of an infant owner or mortgagee in possession," shall be deemed and taken as the owner of property. It was held in the Bellona Company's Case, 3 Bl. 442, that a corporation, as well as an individual, was the owner of property within the meaning of a condemnation act. (See CHAP, m] PETITIONS AND REMONSTRANCES. 29 to the same effect, Turnpike Eoad vs. Railroad Company, 81 Md. 247.) In Holland vs. City, 11 Md. 186, it was held that where the statute required the assent of property owners for paving, the lessee for ninety-nine years, and not the owner of the fee, was the owner or proprietor to assent. In City vs. Bouldin, 23 Md. 328, it was held that the owner qualified to apply for the paving of streets need not be the owner of the absolute, legal and equitable, estate in fee. The holder of an equitable estate in possession, or of an interest equivalent to that of a tenant for ninety-nine years renewable forever, an executor or administrator of such tenant, a mortgagee or mortgagor in possession, or a vendee under a deed of trust, who subsequently acquires title to the fee, would be the owner or proprietor of property. In City vs. Boyd, 64 Md. 10, a tenant for life was held not to be the owner of property, and it was also held that a signature erroneously made as a "trustee" could not be converted by the Court to a signature as "guardian," although the signer may in fact have been guardian, and as such entitled to make the application. In Galloway vs. Shipley, 71 Md. 243, a married woman was held to be the owner of property within the contemplation of a statute requiring application of property holders for the extension of a county road. (See also as to married women, Capron vs. Devries, 83 Md. 220.) § 34. Petitions and remonstrances must state location or property and number of front feet. The Mayor and City Council will not entertain any petition for or remonstrance against the opening, widening, straight- ening or closing of any street, lane or alley, unless the signers of such petition or remonstrance shall state the location of the property they represent, together with the number of front feet of the same. (Charter, Section 195.) 30 ORDINANCES, THEIB PASSAGE AND VALIDITY. [CHAP. HI § 36. S^lgnatures to petition. In the County, where the validity of the proceedings is made dependant upon the petition of property holders, it is held that when the petition has been duly sworn to, the names of the petitioners recited, and th6 petition subsequently adopted as the act of the petitioners, the fact that the petitioners omitted to sign their names at the end of the petition is a mere irregularity which does not render the petition or the subsequent pro- ceedings void. (Smith vs. Goldsborough, 80 Md. 49.) As to signature by the Treasurer of a Corporation, and signature by attorney, see City vs. Bouldin, 28 Md. 328. §36. Estoppel of applicant. Charter, Section 830, provides that the application of any owner shall bind the property represented by him for any assessment or taxes made under an ordinance subsequently passed. It would seem, however, that the ordinance must be a valid ordiaance, and that a party who has made application for the opening of a street would not be estopped from subsequently filing a bill for an injunction in case the work was not being done according to law. (City vs. Porter, 18 Md. 284. See also Brown vs. Eailroad Co., 58 Md. 539.) §37. Blotlce of application. Under the old charter, before the Mayor and City Council were authorized to pass any ordinance for the opening, widening or closing of streets, they were required to give at least sixty days' notice of the application for the passage of such ordinance, in at least two of the daily newspapers of the City. (Code P. L. L., 1888, Article 4, Section 807.) There have been a number of decisions under this section, and although the law, as we will shortly see, has been recently amended, yet the principles of these decisions are applicable to the present statute. CHAP, m] NOTICE. 31 § 38. IVotlce a condition precedent. The purpose sought to be attained by the notice is to give to property holders, whose interests will be affected by the assessments of benefits and damages, notice of what is proposed to be done, and thus secure to them the opportunity of promoting or resisting the contemplated improvement by the expression of their views for or against it before the City Council. The notice is a condition precedent to the valid exercise of the power in any given case, and the ordinance subsequently passed will be inoperative and void unless it substantially conforms to the notice. (City vs. Grand Lodge, 44 Md. 436 ; Dashiell vs. City, 45 Md. 615 ; Central Savings Bank vs. City, 71 Md. 615 ; Baltimore Belt Eailroad Company vs. Baltzell, 75 Md. 94; Burk vs. City, 77 Md. 469. See also post. Section 48.) § 89. W^lien notice must be given. The notice may be given before the application has been made to the Mayor and City Council. (City vs. Little Sisters of the Poor, 66 Md. 400 ; Steuart vs. City, 7 Md. 500.) Moreover, while a sixty day notice must be given, it was held in City vs. Little Sisters of the Poor, 56 Md. 400, that notice for a longer time, — in that case, ninety days, — did not render the ordi- nance invalid. § 40. Publication of notice. (a) Number of News- papers. It was necessary that the notice be published in two daily newspapers. A notice published in only one daily newspaper was not a substantial compliance with this requirement. (City vs. Johnson, 62 Md. 225; City vs. Little Sisters of the Poor, 56 Md. 400. See also Railroad Company vs. Pumphrey, 74 Md. 86 ; and compare City vs. Eaymo, 68 Md. 569, 572.) 32 OEDINANCES, THEIK PASSAGE AND VALIDITy. [CHAP. HI (b) Number of insertions. The Statute did not direct that the notice should be published any specified number of times. It only required one publication in two daily news- papers as a condition precedent to the valid passage of the ordinance. If a period of sixty days elapsed after the publication of the notice, if there was but one insertion, or after the first publication, if there was more than one inser- tion, then the law was complied with. The fact that the interval between the last publication and the passage of the ordinance was less than sixty days was immaterial, provided sixty days elapsed between the first publication and the passage of the ordinance. (City vs. Little Bisters of the Poor, 56 Md. 400 ; Central Savings Bank vs. City, 71 Md. 515 ; P. W. & B. Eailroad Company vs. Shipley. 72 Md. 88.) (c) Proof of puhlication. The printer's directions usually found at the foot of advertisements may be taken as evidence of the number of insertions. Thus the words at the bottom of a notice "June 6, 5ts" were held to show that the notice had been published once a week for five weeks. (Gaither vs. Watkins, 66 Md. 576.) § 41. Presumption that notice given. When there is no proof to show that the necessary notice was not given, it will be presumed that the requirements of the law in this respect have been complied with. (Page vs. City, 34 Md. 558. Compare, however, post. Section 59.) § 42. Burden of proof as to notice. In Dashiell vs. City, 45 Md. 615, it was held that even if the validity of a condemnation ordinance can be attacked at all in an action to collect a paving assessment, for any reason dehors the ordinance itself — as for an alleged defect in the notice — the burden of proof is on the party attacking the ordinance. CHAP, ni] NOTICE. 33 § 43. IVotice need not be recorded. It was held in Dasliiell vs. City, 45 Md. 615, that the law did not require the notice and its publication to be recorded as part of the condemnation proceedings. § 44. EflTect of proper notice. If the notice has been properly given, want of actual notice can form no objection to the validity of the assessment. The law will then impute notice, and will admit no testimony to disprove it. When the law is complied with, ignorance on the part of any property holder is his misfortune or his fault. It can furnish no ground of relief either in equity or on an appeal to the Baltimore City Court. (M. P. Church vs. City, 6 GiU, 391.) § 45. Form of notice. Under the old law the notice of the application for an ordinance was not required to specify with technical precision the objects for which the application was made. It was sufficient if it described, with reasonable accuracy and distinctness, the street designed to be opened. (City vs. Bouldin, 23 Md. 367.) The fact that a different use of capital letters might have attracted more attention has been held immaterial to the sufficiency of the notice. (Central Savings Bank vs. City, 71 Md. 515. A notice "that application will be made to the Mayor and City Council of Baltimore, at its next session, to open and condemn Baltimore street from the east side of Fulton street to the City limits," has been held sufficient. (Steuart vs. City, 7 Md. 500.) A notice that " application will be made to the Mayor and City Council to widen Belair avenue, or North Gay street, as laid down on Poppleton's plat, from Point lane to the 3 34 ORDINANCES, THEIB PASSAGE AND VALIDITY. [CHAP. HI North avenue," has been held sufficient. (City vs. Bouldin, 23 Md. 367.) § 46. Reference to Poppletoii's plat. The published notice of the application for an ordinance to condemn and open a street designated on Poppleton's plat, need not refer in terms to the plat. In the absence of anything to the contrary, the notice implies that the opening or extension is to be made according to the designation thereof on Popple- ton's plat. (City vs. Little Sisters of the Poor, 56 Md. 400. See also ante, Section 13 d, a.nd post, Section 48.) § 47. Present law as to notice. It being found that the provisions of the old law did not affijrd sufficient pro- tection to property holders, the statute was repealed and re-enacted by the Act of 1896, Chapter 328, which latter Act is now Section 828 of the Charter, and constitutes the present law on the subject. By this Act, the notice of the application must be published " once a week for six consec- utive weeks in two of the daily newspapers in the City." The notice is required to state with particularity the length and width of the proposed improvement and a map must be filed, for the inspection of the public, in the office of the Commissioners for Opening Streets, showing the course and lines of the projected improvement, and the property thereby affected. § 48. Ordinance must be in substantial conformity to notice. This principle is settled (Burk vs. City, 77 Md. 469), and is illustrated by two cases. In City vs. Grand Lodge, 44 Md. 436, the opening and extension of Lexington street, as contemplated by the notice, was to begin at HoUiday street, and to continue Lexington street from that point to Douglas street. The ordinance provided that the opening should begin at Gay street and CHAP. Ill] MUST CONFORM TO NOTICE. 35 extend to Douglas street. Between Holliday street and Gay street no condemnation or opening was provided for in the ordinance. The Court held the ordinance void as not being in substantial conformity with the notice. See the strong dissenting opinion of Judge Stewart in this case, on the theory that the Council may in its discretion open part of a proposed street, if it does not consider that the public welfare requires the whole to be opened. In City vs. Little Sisters of the Poor, 56 Md. 400, the notice provided that application would be made for the opening of McKim street, from Eager to Hoffman. The ordinance provided for the opening of McKim street from Eager to Hoffman street, " as laid down on Poppleton's plat." The fact that the notice did not state that the application was to open McKim street from Eager to Hoffman as laid down on Poppleton's plat, was held immaterial, because in the absence of anything to the contrary, the notice implied that the proposed extension was to be made according to the desig- nation thereof on Poppleton's plat. (See ante, Section 46.) §49. Ordinance need not refer to power. It is not essential to the validity of the ordinance, that it should indicate the power in execution of which it is passed. If it states no power, it will be regarded as emanating from that power which would warrant its passage. If two such powers exist, it will be imputed to that one in conformity to which its provisions and prereqvisites show that it has been adopted. (M. P. Church vs. City, 6 Gill, 391.) § 50. Ordinance referring to plat. It has been held entirely proper for the ordinance, instead of giving a minute and accurate description of the street to be opened, to refer to a plat, and to provide for opening the street "as located on said plat." In such case, although the description of the 36 ORDINANCES, THEIE PASSAGE AND VALIDITY. [CHAP. Ill street contained in the ordinance may be so vague as, stand- ing alone, to render the ordinance void, yet, if the plat gives the exact direction, location and width of the proposed street, the defect will be cured. And if there should be any variance between the courses, distances and measurements contained in the ordinance, and those set forth in the plat, the latter will govern. (Burk vs. City, 77 Md. 469.) The fact that the plat is recorded in the County, and not in the City, is immaterial. (Id.) § 51. Ordinance must not authorize a taii.ing^ for private use. It was said in Kane vs. City, 15 Md. 240, that the Legislature cannot confer upon the City a larger power than the Legislature itself possesses. The right of eminent domain granted to the City cannot be more exten- sive than it existed in the State before the grant. Therefore, since the State cannot take private property for any but a public use, it cannot authorize the City to do so, and any ordi- nance purporting to do this is void. (See ante, Section 15.) §52. Ordinance may take efTect upon tlie liappen- ing of a contingency. It is no objection to an ordinance that it is not to take effect until certain pending mandamus proceedings have been dismissed, or until certain cases grow- ing out of the repeal of a prior ordinance have been settled or abandoned. An ordinance may be validly passed to take effect upon the happening of a future event. (City vs. Clunet, 23 Md. 462 ; State vs. Kirkley, 29- Md. 85 ; Bradshaw vs. Lankford, 73 Md. 428 ; Hamilton vs. Carroll, 82 Md. 326.) §53. Ordinance to be construed ii'itli reference to existing conditions. In Hazelhurst vs. City, 37 Md. 199, it appeared that Light Street had been made a public high- way by statute to the width of sixty feet, but that, as a matter of fact, only twenty-six feet had been paved and used CHAP, ni.] KE-PAYMENT WHEN VOID. 37 exclusively as a public street, the remainder being held and used by the wharf proprietors. Subsequently an ordinance was passed for the widening of Light street twenty feet. The Court said that this ordinance was jiassed with reference to the state of things then existing, and that it must be thereby construed and applied. It was, therefore, held that the Commissioners were right in beginning widening under the new ordinance at the edge of the twenty-six feet which had been actually opened and used. § 54. Conllriiiatory ordinances. (See post. Section 80.) § 55. Re-payment tvtien ordinance declared void. Charter, Section 180, provides for the re-payment of ail sums of money paid the City on account of any condemnation ordinance which is subsequently declared null and void by either the Baltimore City Court or the Court of Appeals. The same section also provides for the payment of all expenses in such cases. 38 PEOCEEDINGS OF COMMISSIONEBS. [CHAP. IV CHAPTER IV. PROCEEDINGS OF COMMISSIONERS IN OPENING STREETS. SECTION 56. Appointment of Commissioners. 57. Clerk. 58. Jurisdiction of Commissioners. 59. Necessity for proceedings to stiow jurisdiction affirmatively. 60. Technical pleading not required. 61. Power of Commissioners to agree. 62. Laud acquired by deed from person not the owner may after- wards be condemned. 63. Notice of first meeting. 64. Oath of Commissioners. 65. City Surveyor. 66. Proceedings. 67. Where part only of lot taken owner may claim compensation for the whole. 68. Actual surrender a condition precedent. 69. Where owners are under a disability. 70. Service of notices of assessment. 71. Subsequent proceedings. 72. Notice of right to appeal. 73. Expenses and estimate of probable expenses. 74. Damages awarded in error. 75. Completion of proceedings. 76. Changes in Board. 77. When Commissioners interested. 78. Removal of obstructions. 79. Conditions attached to condemnation. 80. Validating defective proceedings. 81. When no appeal is taken. 82. When statute repealed before work completed. § 56. Appointment of Commissioners. The Commis- sioners for Opening Streets compose what is known as the second sub-department of Review and Assessment. They are three in number, appointed by the Mayor in the manner prescribed in Section 25 of the Charter. They are charged with the duty of opening, extending, widening, straightening or closing any street, lane, alley, or part thereof, in Baltimore CHAP, rv] JTrRISDICTION. 39 City, whenever the same shall have been directed by ordi- nance to be done. (Charter, Section 172.) § 57. Clerk. The Commissioners are authorized to appoint a clerk, whose duties are prescribed in Sections 172 and 173 of the Charter. §58. Jurisdiction of Comniissioiicrs. The Street Commissioners have a special duty and jurisdiction assigned to them, to be executed in a prescribed form. Their pro- ceedings are of a legal character, and must be regarded as subject to all the incidents of proceedings in the nature of a writ or inquisition ad quod damnum, being but means to the same end. (State vs. Graves, 19 Md. 351.) Their jurisdiction, however, being special and limited, they must conform strictly to the authority granted, or their proceedings will be null and void. In Barrickman vs. Harford County, 11 Gr. & J. 50, it was held that a verbal contract made by the road commis- sioners with a property holder, and subsequently assented to by the County Commissioners, would not control the Commissioners' formal report that no damage had been sustained by the property holder. The Court said that there existed no power to ascertain damages, except upon the report of the Commissioners appointed to value and assess them, or by a jury. In City vs. Musgrave, 48 Md. 272, it was held that the commissioners had no power to notify a property owner, before his property was actually paid for under condemna- tion, to close out his business, and prepare to deliver pos- session, and such notice, if given and complied with, would not bind the City for any loss thereby accruing to the prop- erty holder. (See also Heaver vs. Lanahan, 74 Md. 493 ; Lanahan vs. Heaver, 79 Md. 413.) 40 PEOCEEDINGS OF COMMISSIONERS. [CHAP. IV In O'Brian vs. Baltimore County, 51 Md. 15, it was held that the determination of the County Commissioners, sitting as a board of review, that an Act of Assembly was uncon- stitutional, could have no binding force as a judicial decision upon the question. (See also State vs. Baltimore County, 46 Md. 621.) In Friedenwald vs. City, 74 Md. 220, it was held that an estimate required to be filed by a county examiner of the "cost of opening, grading and constructing" a road, was fatally defective, if it did not contain the items making up the aggregate estimate. In not stating these items, the examiner failed to conform strictly to the limited jurisdiction conferred upon him, and his proceedings were, therefore, null and void. See also the following cases : Henderson vs. City, 8 Md. 352. City vs. Porter, 18 Md. 284. City vs. Eschbach, 18 Md. 276. City vs. Reynolds, 20 Md. 1. State vs Kirkley, 29 Md. 85. Horn vs. City, 30 Md. 218. P. W. & B. Eaih-oad Co. vs. Shipley, 72 Md. 88. § 59. Wecessity for proceedings to show jurisdiction aflirniatively. It has been held that every fact necessary to the exercise of the special jurisdiction conferred, should appear upon the face of the proceedings. In Winchester vs. Cecil County, 78 Md. 266, the Statute provided that no public road should be opened through the buildings, gardens, yards or burial grounds of any person, without the owner's consent in writing. The Court held that the judgment of the Commissioners ratifying the Examiner's report was not binding, because it did not appear upon the face of the proceedings that the owner's consent in writing had been obtained. (See Kane vs. State, 70 Md. 546 ; Friedenwald CHAP. IV.] POWER TO AGREE. 41 VS. Shipley, 74 Md. 220. Compare cwfe, Section 41, and post. Section 150.) § 60. Tcclinical pleading^ not required. The Com- missioners are ordinarily not lawyers, and not accustomed to or acquainted with technical pleadings. No technical pleading is required or contemplated in matters before them, and while their jurisdiction is limited. Courts should not be inclined to interfere with their control over matters intended for them, because the proceedings have not been conducted in the regular and orderly way that is to be expected in Courts of record, where the business is transacted by those specially trained for the purpose. (Smith vs. Goldsborough, 80 Md. 49. ) § 61. Power of" Coniinlssioiiers to agree. The Charter confers no authority upon the Street Commissioners to negotiate and agree with property holders as to the price to be paid by the City for land. The property to be taken must be acquired through condemnation proceedings. Sometimes, however, special ordinances or statutes authorize an agreement with property owners, and make an attempt to agree a condition precedent to the right to con- demn. This was the case with the Building Committee of the new Court House. (Shanfelter vs. City, 80 Md. 483. See also the Bellona Company's Case, 3 Bl. 442, 448.) For instances in which the City officials may accept deeds to land and streets, see Charter, Sections 193, 194, 836, 837 and 840. See also City vs. Turnpike Company, 80 Md. 535. § 62. liand acquired by deed from person not tlie owner may after^vards be condemned. If possession of land has been taken under a deed from one supposed to be the real owner, but who afterwards is determined not to be 42 PEOCEEDINGS OF COMMISSIONERS. [CHAP. IV the owner, the land can then be condemned. (Moores vs. Bel Air Water and Light Co., 79 Md. 391 ; Brown's Case, 58 Md. 539 ; Algire's Case, 65 Md. 337. Compare |Jos«, Section 74.) § 63. Notice of llrst meeting-. The Commissioners are required to give notice in at least two of the daily news- papers in the City of Baltimore of the object of the ordi- nance under which they propose to act, at least thirty days before the time of their first meeting to execute the same. (Charter, Section 829.) Where only twenty-nine days' notice of the first meeting was given, this was held to be a mere irregularity, which might be availed of on an appeal from the proceedings of the Commissioners, but not in an action to recover a paving assessment. (Dashiell vs. City, 45 Md. 615.) § 64. Oath of Commissioners. Baltimore City Code, 1893, Article 48, Section 2, provides that the Commissioners shall take and subscribe a certain oath in each and every case before they proceed to act as a board. This provision was construed in Page vs. City, 34 Md. 558, to require the Commissioners do take and subscribe the oath in each and every case in which they act. In Page's Case it was also held that the Commissioners had authority to give the thirty days' notice of their first meeting before taking the oath. The same was held to apply to the Clerk and Surveyor. The above provision of the Code of 1893, is not incorpo- rated in the new Charter. (Compare, however, Charter, Section 187.) § 65. City Surveyor. Whenever the Commissioners for Opening Streets require the services of a surveyor, they are required to notify the City Surveyor, and it is then the duty of the City Surveyor to perform all such work as may CHAP. IV] PAET OF LOT TAEEN. 43 be required of him by the Commissioners. (Baltimore City Code, 1893, Article 49, Section 3.) § 66. Proceedings. The Commissioners are directed to meet at the time and place named in the notice, and from time to time thereafter, for the purpose of ascertaining the whole amount of damages which will be caused to the owner of any right or interest in any ground or improvements, within or adjacent to the City, for which, taking into con- sideration all the advantages and disadvantages, such owner ought to be compensated. Having ascertained these dam- ages, and having added thereto an estimate of the total amount of expense which will be incurred by them in the performance of their duties, and also of the expenses incurred by the City Register, the Commissioners proceed to assess all the ground and improvements within and adja- cent to the City, the owners of which the Commissioners shall decide and deem to be directly benefited by the pro- posed improvement. Should the direct benefits not be equal to the damages and expenses incurred, the balance of said expenses and damages are paid by the City Register and provided for in the general levy. (Charter, 175.) For a review of the proceedings of the Commissioners in opening streets, see City vs. Smith and Schwartz Brick Company, 80 Md. 458. § 67. Where part only of lot taken, owner may claim compensation for the whole. Section 176 of the Charter (Act 1900, Chapter 109) provides that whenever it is necessary that a portion only of a lot or improvements, or both, shall be taken, and the owner shall claim to be compensated for the whole, the Commissioners may, if they deem best, but not otherwise, accept a surrender in writing of the whole lot and improvements. In such case, the 44 PKOCEEDINGS OF COMMISSIONERS. [CHAP. IV Commissioners ascertain the full value of the property as if the entire lot and improvements were necessary to be taken, and the whole amount of such valuation is paid the owner. The Commissioners then sell at auction any material which it may be necessary to remove, and also the portion of the lot not needed. The manner of such sale and conveyance is prescribed by the statute, and in Bernei vs. City, 56 Md. 331, it was said that the amount of the bid, together with such sum as should thereafter be assessed upon the pur- chaser for benefits, was apparently a correct bid to be received for the property sold. In City vs. Clunet, 23 Md. 462, it was contended that this provision (then an ordinance) was invalid, in that it author- ized the City to take private property not required for public use. The Court, however, held that the provision was not open to this objection, because the City is only authorized to take the portion of the lot not actually needed, upon the consent of the property holder, and the property holder thus has the option of retaining the portion not needed by the City, or of surrendering such portion and claiming compen- sation for the whole. Compare Gregg vs. City, 56 Md. 256, 272, where an ordinance authorizing property holders to surrender their property if damaged by certain grade changes, and in such case requiring the City to either purchase or condemn such property, was held void. (Compare ante, Section 15.) For instances of a surrender under this provision, see Norris vs. City, 44 Md. 598, and Black vs. City, 50 Md. 235, and 56 Md. 333. § 68. Actual surrender a condition precedent. The surrender must be in fact made, as this is a condition CHAP. IVJ SUBSEQUENT PBOCEEDINGS. 45 precedent to the right of the City to take and sell the prop- erty. (Bernei vs. City, 56 Md. 351.) § 69. Where ownerN are under a diNabllily. Since the validity of the proceedings is made to depend upon the consent of and surrender by the owner, which is equivalent to a sale or grant of the property to the City, the owners must be sui juris. If some of the owners are infants, the surrender cannot be made, and in such case, the law confers no power upon the guardian to bind his ward by making such a disposition of his estate. If a surrender is made in a case where some of the owners prove to be under a legal disability, and there is no one capable in law of act- ing for and binding them, the entire proceeding is invalid, and no title to the part surrendered passes at the sale thereof by the City. The purchaser in such case can recover the purchase price. (Bernei vs. City, 56 Md. 351.) § 70. Service of notices of assessment. After the Commissioners have assessed the damages, it is the duty of the clerk to serve written or printed notices thereof upon each and every party or parties so assessed. It is expressly provided, however, that the service of such a notice shall not be construed to be one of the prerequisites to the con- demnation and opening of any street. (Charter, Section 178.) § 71. Subsequent proceedings. When the Commis- sioners have completed their valuation of damages, they make out a statement thereof, together with an explanatory map or maps showing the various lots damaged, the names of the owners, the amount of the damages, etc., and showing also the lots deemed to be benefited, the names of the owners, and the amounts assessed for benefits. (Zion Church vs. City, 71 Md. 524. As to necessity for accurate descrip- tion of land taken, see Shipley vs. Western Maryland Tide- 46 PROCEEDINGS OF OOMMISSIONEBS. [CHAP. IV water Eailroad Company, Daily Record^ January 27, 1904, decided January 22, 1904.) Notice is then given for four successive days in two daily newspapers of the City, stating the extent of the ground covered by the assessment, and that the statement and maps are ready for inspection. The com- missioners meet at a day named in the notice, which must be within ten days after the first publication thereof, for the purpose of review. After hearing and considering all testimony from parties claiming to be interested in relation to the matter, and after giving every one an opportunity to be heard, the Commissioners close their review, and make all such corrections and alterations in the valuations, assess- ments, estimates, statement and maps as are proper. All the proceedings are then deposited in the office of the City Eegister. §72. IVotice of riglit (o appeal. Within five days thereafter the City Eegister notifies all persons interested, by advertisement inserted once a week for four successive weeks in two of the daily newspapers of the City, that the assessments and maps have been placed in his office, and that parties affected thereby are entitled to appeal therefrom by petition in writing to the Baltimore City Court. (Charter, Section 177.) §73. Expenses and estimate of probable expenses. The estimate of expenses contained in the Commissioners' statement should, it seems, contain the particulars making up the aggregate estimate. (Friedenwald vs. Shipley, 74 Md. 220.) See Charter, Section 190, directing Commissioners' per diem to be estimated as part of the expenses, and Section 191, providing for the payment of all expenses incurred by the Commissioners. CHAP, iy] changes in boaed. 47 § 74. Dania$^e!ii awarded In error. If the Commis- sioners award a sum for the fee to AB "or such persons as may be legally entitled thereto," and it afterwards appears that part of the land has been previously dedicated, then AB is not entitled to the whole of the award, and the Commis- sioners may subsequently make a valid award for the part of the lot not dedicated. (City vs. Gardiner, 96 Md. 361. Compare ante, Section 62.) § 75. Completion of proceedings. Formerly the Commissioners were required to complete any proceedings commenced by them within ninety days, and upon failure to do so, they were required to suspend all work until other- wise directed by the Mayor and City Council. (Hazelhurst vs. City, 37 Md. 199, 219.) This provision, however, is not incorporated in the present Charter. § 76. Chang-es in Board. The fact that the Board which is in office when' the proceedings are completed is a different Board as to its personnel from the Board which commenced the proceedings, does not affect the validity of the proceedings in any way. Nor do the provisions of Baltimore City Code, 1893, vLrticle 48, Section 19, (not now a part of the Charter), directing the Commissioners to close all their work, notwithstanding they may not be re-appointed, within six months after the expiration of their terms of office, render such proceedings invalid if in other respects they are unobjectionable. (Central Savings Bank vs. City, 71 Md. 515. See also Carman vs. Franklin Bank, 61 Md. 467 ; and compare Taylor vs. Forest, 96 Md. 529, holding that tax sales must be reported and the deed executed by the collector who made the sale, and not by his successor in office.) 48 PEOCEEDINGS OF COMMISSIONERS. [CHAP. IV § 77. 'Wlieii Commi^isioners interested. Chaiier, Section 187, provides for the temporary appointment of special Commissioners, in ease it happens that one or more of the regular Commissioners are- interested in any particular case. § 78. Removal of Obstructions. Charter, Section 189, provides for the removal of obstructions remaining in any street, lane or alley, for the space of sixty days after the proceedings of the Commissioner have been returned to the City Register. (See also Section 176.) § 79. Conditions attaclied to condemnation. In the case of condemnations by quasi-public corporation, conditions are sometimes attached to the corporation's user of the prop- erty taken. In Pennsylvania Railroad Company vs. Reichert, 58 Md. 261, the obligation was imposed upon the Company of constructing a trestle, and the maximum rates to be charged for hauling coal were also fixed. These conditions were pre- scribed by the inquisition, and having entered into the estimate of damages, were held binding upon the Company. In Spencer vs. Palls Turnpike Road, 70 Md. 136, damages were awarded on condition that the Company should erect and maintain upon the land condemned a close board fence. In Ogle vs. Cumberland, 90 Md. 59, the Company agreed to keep open a certain road for the use of the public. § 80. Validating- defective proceedings. Where the only manner in which a street can be legally graded and paved, is pursuant to a certain statute, and the requirements of that statute, and the conditions there prescribed for doing the work, are not observed by the City, all the proceedings are void, and an ordinance afterwards passed, confirming the grading done, is of no binding force. (City vs. Porter, 18 Md. 284; Horn vs. City, 30 Md. 218.) CHAP. IV] VALIDATING DEFECTIVE PROCEEDINGS. 49 It is, however, a general principle, that when the Legisla- ture possesses power to authorize an act to be done in the first instance, it can, by a retrospective act, cure the evils which exist because the power thus conferred has been irregularly executed. In Annapolis vs. State, 30 Md. 112, it was held that where the corporation of Annapolis had, ^athout authority of law, closed up an alley, an Act subsequently passed by the Legis- lature, ratifying the defective proceedings, was valid. In Citj- vs. Eeitz, 50 Md. 574, an Act was upheld which made valid all proceedings taken by the City for the con- demnation of land for a public square or park under a cer- tain ordinance. In O'Brian vs. Baltimore County, 51 Md. 15, an Act pro- viding for the opening of Wilkins Avenue had been repealed without any saving clause for work in fieri. It was held that the Legislature had the power by subsequent Act to ratify and confirm the proceedings of the County Commissioners taken under the original Act prior to its repeal, and to make valid contracts entered into by them while the original Act was in force. (See post, Section 82.) See further as to curative acts : Madigan vs. Building Association, 73 Md. 317 ; Remington vs. Metropolitan Sav- ings Bank, 76 Md. 546. § 81. When no appeal is taken. If no appeal is prayed, then, within ten days after the time limited for taking the appeal, the Citj' Register is required to transfer the Commissioners' return to the City Collector, and the City Collector thereupon proceeds with the collection of benefits assessed in the manner prescribed by law. (New Charter, Section 181, etc. See post , Chapter VIII.) i 50 PROCEEDINGS OF COMMISSIONERS. [CHAP. IV § 82. "Wlien statute repealed before ^vork com- pleted. When tlie statute under which Commissioners are proceeding to condemn and open a highway, is repealed before the completion of the work, without any saving clause, the Commissioners have no authority to continue the proceedings. (Wade vs. St. Mary's Industrial School, 43 Md. 178.) See O'Brian vs. Balto. County, 51 Md. 16, for construction of subsequent act authorizing the completion of the highway involved in Wade's Case. (See also ante, Section 80.) CHAP. V] APPEALS TO BAI/riMOEE CITY COUET. 51 CHAPTER V, APPEALS FROM COMMISSIONERS FOR OPENING STREETS TO THE BALTIMORE CITY COUET. SECTION 83. What Court lieai-s appeals. 84. No right of removal. 85. Who may appeal. 86. Duty of City Solicitor to try street cases. 87. Time of taking appeal. 88. Foi'm of appeal. 89. Amendment of petition for appeal. 90. What may be considered on appeal. 91. When appeal will be heard. 92. Notice of hearing. 93. Production of record and plats. 94. Motions to quash. 95. Consolidation of appeals. 96. Witnesses. 97. Right to jury trial. 98. Legislature cannot fix compensation. 99. Parties must be secured iu their right to jury trial before property is taken. 100. Common law jury not necessary. 101. Sufficient if jury trial secured on appeal. 102. Failure to appeal constitutes waiver of right. 103. Applying damages in discharge of benefits may also constitute waiver. 104. Right of each property owner to separate jury trial. 105. Jurors must be disinterested. 106. Right of jury to view the property. 107. Taking street book to jury room. 108. Matters of form or substance. Authority of court. 109. Both benefits and damages open for review on appeal. 110. But only appellant's benefits and damages can be considered. 111. Assessment of Commissioners, or inquisition of jury, unappealed from, final and conclusive. Judgment improper. 112. Costs. § 83. What Court hears appeals. Originally, the street appeals were all heard by the Baltimore City Court. The Constitution of 1851, Article IV, Section 13, conferred jurisdiction in street cases upon the Criminal Court. The 62 APPEALS TO BALTIMORE CITY COURT. [CHAP. V Act of 1851, Chapter 451, conferred concurrent jurisdiction in street cases upon the Superior Court and the Criminal Court. (See Code P. G. L. 1860, Article 29, Section 50 ; Code P. L. L. 1860, Article 4, Section 837 ; City vs. Clunet, 23 Md. 449, 465.) The Constitution of 1864, Article IV, Sections 33 and 36, deprived the Criminal Court of jurisdiction in street appeals, and conferred such jurisdiction upon the Superior Court. The Constitution of 1867, Article IV, Section 28, conferred upon the Baltimore City Court exclusive jurisdiction in cases of appeals "arising under the ordinances of the Maj'or and City Council of Baltimore." The Baltimore City Court has now, therefore, exclusive jurisdiction to hear street appeals. (See Charter, Section 6, sub-title "Streets," and Sections 179 and 320.) § 84. Wo riglit of removal. Since the law provides that appeals shall be heard by the Baltimore City Court, and no provision is made for the removal of such cases to other courts no right of removal exists. (Chappel vs. Edmondson Avenue, etc. Company, 83 Md. 512.) § 85. Who may appeal. Formerly, the City had no right to apjjeal from the award of damages made by the Street Commissioners. (Gardiner vs. City, 96 Md. 361, 381.) This right has, however, recently' been conferred by statute, and at present "the Mayor and Giij Council of Baltimore, or any pei'son or persons, or corporations, who may be dis- satisfied with the assessment of damages or benefits " made hj the Commissioners, may appeal therefrom. (Charter, Section 179. See also Section 320, Act 1892, Chapter 186.) § 86. Biil.v of (Mty 8olicitoi- to try street cases. It was held in City vs. Ritchie, 51 Md. 233, that the trial of CHAP. V] PETITION FOE APPEAL. 53 proceedings on inquisitions for the condemnation of property rights in the county taken for purposes of a temporary water supply, were within the official duties of the City Solicitor, under an ordinance making it his duty "to try all cases in which the City is interested in any of the Courts of the City of Baltimore, except the Superior Court, and in all other Courts of the State of Maryland." Such proceedings constitute a case in court. §87. Time ol' taking appeal. The appeal must be taken within thirty days after the return by the Commis- sioners to the City Register, and the first publication thereof by the Register. (Charter, Section 179.) § 88. Foi'in of appeal. Charter, Section 179, provides that the parties interested may appeal from the assessments of the Commissioners "by petition in writing." In jDractise, this petition simply consists of a brief recital that the petitioner appeals from the assessments of damages or benefits, or both, and prays the Court to review the same. § 89. Ainendineut of petition for appeal. In Farrell vs. City, 75 Md. 493, it appeared that the property holder had appealed from the decision of the Commissioners in assessing benefits. As a matter of fact no benefits had been assessed the appellant, but damages had been awarded her. It was held that the property holder should have been allowed to amend her appeal by substituting the word "damages" for "benefits." (Compare posi. Section 109.) § 90. IVIiat may be considered on appeal. The Baltimore City Court, upon appeal from the Street Commis- sioners, is not confined to a review of the assessments made by them, but has power and authority to review any irregu- larity in the proceedings of the Comissioners, and to inquire into the validity of all their acts, and into the legality of the 54 APPEALS TO BALTIMORE CITY COURT. [CHAP. V ordinance itself. (Page vs. City, 34 Md. 558 ; Gaither vs. Watkins, 66 Md. 576 ; Greenland vs. County Commissioners, 68 Md. 59.) The following are instances of what may be considered by the Court on appeal : (a) Failure of Commissioners to give required notice of application for ordiaance ; failure of Commissioners to take oath before acting ; condemnation of street already dedicated. Page vs. City, 34 Md. 558. (b) Objections apparent on face of proceedings, as where corporation exceeds its charter powers. Western Maryland Eailroad Company vs. Patter- son, 37 Md. 125. (c) Damages inadequate or benefits excessive. Alexander vs. City, 5 GiU, 383. Hazlehurst vs. City, 37 Md. 199. Brooks vs. City, 48 Md. 265. (d) Failure of Commissioners to give required notice of first meeting. Dashiell vs. City, 45 Md. 615. (e) Premature ratification by County Commissioners of Examiner's Report, and failure of applicants to sign petition. Smith vs. Goldsborough, 80 Md. 49. (/) Misconduct of sheriff; irregularities in taking inqui- sition and inadequacy of damages. New Central Coal Company vs. George's Creek Coal and Iron Company, 37 Md. 537, 559. (g) Variations between preliminary notice and ordinance, and vagueness of ordinance. Burk vs. City, 77 Md. 469. § 91. ^t^lien appeal wrlll be heard. The Court appoints a day for hearing the appeal not less than five. CHAP. V] NOTICE OF HEARING. 55 or more than thirty, days after the expiration of the thirty days limited for taking apjieals. (Charter, Section 179.) § 92. Notice of hearing. It has been held, in cases of condemnation by private corporations, that no one can be deprived of his property for public use without notice and an opportunity to be heard. The notice to which the prop- erty owner is entitled, in such as will afford him the oppor- tunity of submitting to the jury such evidence as he may deem necessary in regard to the value of his property. (Baltimore Belt Eailroad Company vs. Baltzell, 75 Md. 94.) The Court in Baltzell's Case refused to decide as to the manner of notifying persons under a disability. In Shipley vs. Western Maryland Tide Water Railroad Company, Daily Record, January 27, 1904, (decided January 22, 1904), the Court, however,' said that under the Maryland Statute govern- ing condemnations by private corporations the property of infants, those who are non compos mentis, and the property of non-residents, can be condemned, and in the case of the latter notice can be given by publication of the meeting of the jury of inquisition. See also, as to notice : City vs. Scharf, 54 Md. 499. City vs. Johns Hopkins Hospital, 56 Md. 1. City vs. Scharf, 66 Md. 50. Alberger vs. City, 64 Md. 1. Ulman vs. City, 12 Md. 587. Monticello Distilling Company vs. City, 90 Md. 416. City vs. Steuart, 92 Md. 535. Carstairs vs. Cochran, 95 Md. 488. § 93. Production of record and plats. The Court directs the clerk to issue a subpoena duces teen in to the 56 APPEALS TO BALTIMORE CITY COURT. [CHAP. V City Register, requiring him to produce the record of the proceedings of the Street Commissioners, and all maps, plats, documents and papers connected with such record. (Charter, Section 179.) § 94. Motions to qiiasli. . Objections to the validity of the ordinance, or to alleged fatal irregularities on the part of the Commissioners in executing it, may be presented by motion to quash the proceedings. (Page vs. City, 34 Md. 558 ; Burk vs. City, 77 Md. 469.) Where, however, the objections are to the alleged inade- quacy of the damages awarded, or to the excessiveness of the benefits assessed, the appeal proceeds much like ordinary trials by jury. § 95. Consolidation of appeals. Section 179 of the Charter provides that the Court "may cause all such appeals to be consolidated, or may hear and decide them separately." It was held in Friedenwald vs. City, 74 Md. 116, that, under a similar power conferred by ordinance, the Court could not order several appeals to be tried together before the same jury, against the protest and objection of the owners of property assessed for benefits. Each party was entitled to a separate jury trial if he claimed it. In this connection, it should be noted that Section 320 of the Charter (Act 1892, Chapter 186), now provides that, "in case there should be more than one appeal in reference to the same piece of property, they may all be heard together, in the discretion of the Court, before one jury, provided a sufficient panel of jurors be furnished, so that the City and the owners or representatives of each separate interest or estate in such property may strike four names from such panel." CHAP. V] BIGHT TO JURY TEIAL. 67 § 96. Wltncs!i. The Court is authorized to require the Street Commissioners, their clerk, surveyor, or other agents and servants, or any of them, and all such other persons as the Court shall deem necessary, to attend and be examined as witnesses. (Charter, Section 179.) See Tide Water Canal Company vs. Archer, 9 C & J. 479, deciding that, on appeals from inquisitions in condem- nations by private corporations, the jurors vt^ho signed the inquisition may be examined as witnesses, as to the grounds and motives of their finding. § 97. Rig-lit to jury trial. Section 179 of the Charter provides that the persons appealing shall be secured in the right of a jury trial. (See also Charter, Section 320.) This is also the requirement of Article III, Section 40, of the Constitution. § 98. Legislature cannot fix compensation. The Legislature, in exercising the right of eminent domain, cannot in the law itself fix the compensation to be paid. Such compensation, in case of disagreement between the parties, must be awarded by a jury. (Pennsylvania Rail- road Company vs. B. & O. Railroad Company, 60 Md. 263.) In O'Brian & Co. vs. Baltimore County, 51 Md. 15, a road had been jjartially constructed under legislative authority when the statute was repealed. A subsequent Act, providing for the completion of the road, allowed as part of the costs the amounts paid hj the County Commissioners when the original Act was in force. The Court held that these amounts having been ascertained under the law as it stood at the time, the Legislature did not arbitrarily declare them to be a charge, and assess them against the property holders when no judicial or other properly constituted tribunal had ascertained them to have been properly expended. 58 APPEALS TO BALTIMOBE CITY COURT. [CHAP. V § 99. Parties must be secured In tlieir right to jury trtal before property is (aii^eii. It was held in American Telephone and Telegraph Company vs. Pearce, 71 Md. 535, 547, that the Legislature could not authorize the construc- tion of telegraph lines over private property in the first instance, and require the property owners to seek compen- sation afterwards by an action at law for damages. § 100. Common law jury not necessary. While the Constitution declares that the compensation shall, in case of disagreement, be assessed by a jury, it at the same time leaves the Legislature free to provide whether such assess- ments shall be by a common law jury, or by a special jury summoned on warrant. (Baltimore Belt Railroad Company vs. Baltzell, 75 Md. 94 ; Tidewater Canal Company vs. Archer, 9 G. & J. 479.) § 101. Sufficient if jury trial secured on appeal. The fact that the law provides for the ascertainment of damages in the first instance by Commissioners, is no viola- tion of the Constitution. It is sufiicient if the property holder is secured in his right to a jury trial upon an appeal from an assessment of the Commissioners. (Steuart vs. City, 7 Md. 500 ; Brooks vs. City, 48 Md. 265.) § 102. Failure to appeal constitutes waiver of right. The Legislature may provide that the appeal shall be taken within some specified reasonable time (See Charter, Section 0, sub-title "Streets.") If the owner should not appeal within the time prescribed (ante, Section 87), and the compensation should be paid or tendered, the property will be taken for public use. The neglect or refusal to appeal may be considered as a waiver or abandonment of the right to have the damages assessed CHAP. V] JUBOBS MUST BE DISINTEEESTED. 69 by a jury, and as an agreement on the part of the owner to accept the compensation fixed by the Commissioners. (Steuart vs. City, 7 Md. 500.) § 103. Applying dainag-efii in dii^cliarge of benefits may also conslitute waiver. The application of a por- tion of the damages awarded to the payment of benefits assessed, is also evidence of an agreement to accept the damages awarded by the Commissioners, and this is so even though such application is made for the purpose of saving the property from sale for benefits. (Steuart vs. City, 7 Md. 500, 515.) § 104. Rig-iit of each property owrner to separate jury trial. (See ante, Section 95, "Consolidation of Appeals.") §105. Jurors must be disinterested. Under Section 179 of the Charter, the sheriff is directed by the Court to summon twelve or more persons qualified as jurors, and to "empanel any twelve disinterested persons so summoned, or attending the Court." It was held in Moores vs. Belair Water and Light Com- pany, 79 Md. 391, 399, that when the statute provides that jurors shall not be related to the property holders, or identi- fied with their interests, the projaerty holder should inquire into any supposed disqualification of jurors on this ground at the time the jury is sworn. The sheriff's return need not negative such relationship or interest. In Tide Water Canal Company vs. Archer, 9 G. & J. 479, it was also held that objection that a juror is related to the parties, or interested in the land to be condemned, should be taken by way of challenge before the juror is sworn, and comes too late upon a motion to vacate the inquisition. The same case held that the fact that the sheriff who 60 APPEALS TO BALTIMOEE CITY COURT. [CHAP. V summoned the jury may have been partial to, or prejudiced in favor of, one of the parties to the controversy, is not, per se, suificient to set aside the inquisition if it appears that no injustice has been done. § 106. Rl^lit of jury to view tlie property. Section 179 of the Charter provides that the jury may, if necessary, view the property in order to ascertain and decide on the amount of damages and benefits. It was held in Tide Water Canal Company vs. Archer, 9 G. & J. 479, that the jury, in condemnation proceedings, is not, like juries in ordinary civil and criminal cases, bound by the weight of the evidence, but they may be governed greatly by the view which they may take of the lands to be valued by them. (See also Baltimore Belt Railroad Company vs. Baltzell, 75 Md. 94, 107.) 107. Taking street book to jury room. The Court cannot be required to permit the book of proceedings for the opening of a street to be taken by the jury to the jury room. (City vs. Smith and Schwartz Brick Company, 80 Md. 458.) 108. Matters of form or substance. Authority of Court. The Charter provides that the Court shall not reject or set aside the record of the proceedings of the Street Commissioners for any defect or omission in either form or substance, but shall amend or supply all such defects and omissions, and increase or reduce the amount of damages and benefits assessed, and alter, modify and correct the return of the proceedings, in all or any of its parts, as the Court shaU deem just and proper. (Charter, Section 179.) § 109. Botb benefits and damages open for review on appeal. Formerly, on an appeal from an assessment CHAI^ V] ASSESSMENTS FINAL AI?0 CONCLUSIVE. 61 of benefits by the Street Commisaioners, the amount of damages awarded to the appellant for opening the same street was not open to review, and vice versa. {VAtj vs. Smith and Schwartz Brick Company, 80 Md. 458. Compare ante, Section 89.) Now, however, Section 179 of the Charter provides that upon everj' appeal to the Baltimore City Court from any action of the Commissioners, both the damages and benefits assessed by the Commissioners to the appellant shall be open for review and correction by the said Court. § 110. Bui only appellinil's benefits and dainaives can be considered. A person assessed for benefits who appeals from the return of the Commissioners, can only question the propriety of his own assessment, and cannot disturb or question the return in reference to any other per- son who is assessed for benefits, or allowed for damages. (Hawley vs. City, 33 Md. 270.) § 111. Assessment of Commissioners, or Inquisition of jury, unappealed from, final and conclusive. .Tudg-ment impi-oper. The Charter, Section 179, provides that the proceedings, when entered in the street book, certi- fied by the clerk, under the seal of the Court, and trans- mitted to the City Register, " shall be final and conclusive in every respect, unless an appeal be taken to the Court of Appeals." It has been held that this refers only to the proceedings and decisions of the Court in the determination of the value of property. The meaning is that the assess- ment or inquisition shall be conclusive between the parties as to the value of the property, or the damages to be sus- tained by taking it, and as to the regularity of the proceed- ings by which that ascertainment was reached. 62 APPEALS TO BALTIMOKE CITY COURT. [CHAP, V The provision does not authorize any order of confirmation by the Court, or the entry of any judgment, and the entry of judgment on the jury's inquisition would be without authority, and should be stricken out. Code 1888, Article 26, Section 29, providing for the rendering of judgments in condemnation proceedings, does not authorize a judgment by the Baltimore City Court on appeals from the Commis- sioners for Opening Streets, as this provision applies only to cases where there is an inquisition by a jury which must be confirmed by the Court. (See Code 1888, Article 23, Section 248, etc. ; Merrick vs. City, 43 Md. 219 ; Norris vs. City, 44 Md. 598.) As to entry of judgment in proceedings to condemn land for water supply, see City vs. Ritchie, 51 Md. 233. See also post, Section 125. § 112. Co§ts. The Court has authority to add the reasonable costs of appeal, or any part thereof, to the damages to be collected, or to require such costs, or any part thereof, to be paid by all, or by either, of the appellants, as the circumstances 'of each appeal, in its opinion, shall justify. CHAP. VI I AWSEHSMENT OP DAMAGES AND BENEFITS. 63 CHAPTER VI. ASSESSMENT OF DAMAGES AND BENEFITS. SECTION 113. Statutory prox-isions as to damages. 114. Measure of damages a question of law. 115. Measure of damages. 116. Damages for diversion of streams. 117. Future profits. 118. Speculatix'e damages. 119. When land dedicated. 120. Opening streets across existing riglit of way. 121. Construction of bridges as incident to opening streets. 122. Damages to contractor for worlc done, materials provided, etc. 123. Leasehold estates. (a) Statutory provisions. (6) Bight of lessee to damages. (c) Lessee's measure af damages. (d) Lessee's liability for entire rent as an element of his damage. (e) Cost of necessary repairs as element of lessee's damage. 124. Life estates. 125. Interest on damages not recoverable. 126. Proof as to estate lor which damages have been allowed. 127. Statutory provisions as to benefits. 128. Burden of proving benefits. 129. Only direct benefits can be assessed. 130. What are direct benefits. 131. Standard for measuring benefits. 132. Speculation and conjecture. 133. Cost of filling in to conform to grade a proper element. 134. Benefits not affected by interest in property. 135. Property assessed for benefits need not adjoin or be part of property taken. 136. Benefits may be assessed on property adjacent to City. 137. Property exempt from tax or public imposition. 138. Manner of determining benefits. 139. Benefits common to all cannot be considered. 140. Property owned by the State. 141. Setting off benefits against damages. 142. Evidence of damages and benefits. General character of. 143. Expert testimony. 144. Competency of expert for the court. 145. Expert's experience in other cases. 146. Sales of neighboring land. 147. Surmise and conjecture. 148. Message of Mayor. 64 ASSESSMENT OP DAMAGES AND BENEFITS. [CHAP. VI § 113. statutory provisions as to damages. Section 175 of the Charter provides that the Street Commissioners "shall ascertain whether any and what amount of value in damages will 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 advantages and disadvantages, such owner ought to be com- pensated." § 114. Measure of dainag'es a question of lavr. The rule by which damages are to be estimated is a ques- tion of law, but the application of the rule is for the jury. (Tidewater Canal Company vs. Archer, 9 G. & J. 479, 526.) § 115. Measure of dainag-cs. In Shipley vs. Western Maryland Tidewater Railroad Company, Daily Record, Jan- uary 27, 1904 (decided January 22, 1904), the Court stated the general rule to be that "the measure of damages is the difference between the value of the whole tract before the taking, and the value of the remainder after the taking." The Court further said that "damages must be assessed once for all, and that once assessed, according to law, they include all the injuries resulting from the particular appro- priation and from the construction and operation of the works in a reasonable and proper manner for all time to come." The true rule for assessing damages to the owner of a lot lying in the bed of an unopened street, is to value the land taken for the street, precisely as if no street was to be opened over it. (Moale vs. City, 5 Md. 314 ; McCormick vs. City, 45 Md. 512.) The Commissioners are to fix the compensation to be paid the owners for the ground . or improvements to be taken from them, without regard to the use to be made of the land. Therefore, in estimating the CHAP. VI] MEASURE OF DAMAGES. 65 value of property to be condemned, the Commissioners are not to consider the fact that a street is to be opened. (City vs. Smith and Schwartz Brick Co., 80 Md. 458.) In Norris vs. City, 44 Md. 598, the Court said that the inquisition, in contemplation of law, establishes what is the actual market value of the property to be taken at the time of condemnation, and this is what the jury are authorized to assess as damages in such cases. In Tidewater Canal Co. vs. Archer, 9 G. & J. 479, 526, the Court said that in estimating the value of property con- demned for public use the jury should give the proprietor what, in their judgment, the land would actually at the time sell for, and not what it might bring at some future period. See C. & 0. Canal Co. vs. Grove, 11 G. & J. 398, where in condemning land for the Canal Company, the jury were held authorized to take into consideration the increased height of the Patapsco river, in times of freshets, in the pool of a dam to be built, and the liability of the land to be overflowed. § 116. Damages for diversion of streams. The right to divert a stream flowing across the line of a prof)osed improvement may be acquired by the condemnation of the land, and in such case the attention of the jury should be directed to the intended diversion, and damages be awarded therefor. (B. & P. Railroad Company vs. Magruder, 34 Md. 79 : Shipley vs. Western Maryland Tidewater Railroad Company, Daily Record, January 27, 1904; decided Jan- uary 22, 1904.) § 117. Future profits. Profits which may possibly or probably result from the enjoyment of the property, are not to be considered by the jury in making up their verdict. The jury is limited to the direct loss sustained by the owner 66 assesskeSnt of damagKs and benefits, [chap. VI or other persons interested. (Tidewater Canal Company vs. Archer, 9 G. & J. 479, 526.) § 118. Speculative damag'es. Remote, indefinite or speculative damages cannot be recovered. (B. & O. EaUroad Co. vs. Scott, Daily Eecord, March 29, 1904; decided Jan- uary 15, 1904.) It was held, however, in this case, that the cost of maintaining certain planking between the tracks of the railroad company, was not too remote to constitute an element of the company's damage. What this element of damage amounts to, is to be determined by evidence of the wear and tear and decay of the planking, which will inevitably demand that it be repaired or renewed, and this can be reasonably approximated by those having experience in such matters. (See ante. Section 13 A; post, Section 132.) § 119. 'V¥beii land dedicated. When the street to be opened has already been dedicated, there can be no claim for damages. The owners having already given the ground to the public can set up no just claim to be compensated for it. In such case therefore, only nominal damages should be awarded. (Moale vs. City, 5 Md. 314 ; McCormick vs. City, 45 Md. 512 ; Tinges vs. City, 51 Md. 600 ; Hall vs. City, 56 Md. 187 ; see also ante, Section 14 c.) § 120. Opening street across existing riglit of way. When a street is opened across an existing road or right of way, it must be done with the least possible damage to the existing road or way. If railroad tracks are to be crossed by means of viaducts and raised ways, damages must be assessed with reference to this particular mode of crossing the land and tracks. (Northern Central Railroad Company vs. City, 46 Md. 425.) The cost of constructing and maintaining all structural changes in the existing way made necessary by the opening CHAP. VI] DAMAGES TO CONTEACTOK. 67 of the street, must be borne by the City. (See ante, Section 13 a; Section 118.) §121. Construction of bridges as incident to open- ing streets. It was held in Friedenwald vs. Shipley, 74 Md. 220, that in assessing damages and costs for " opening, grading and constructing" streets, the county examiners cannot include in their assessment the cost of building bridges over railroad tracks. As to erection of bridges by County, see County Commis- sioners of Queen Anne's County vs. Countj' Commissioners of Talbott County, Daily Eecord, May 24, 1904; decided February 25, 1904. As to power of railroad to construct bridges across navi- gable streams, see Dundalk, etc. Bailroad Company vs. Smith, 97 Md. 177. § 122. Damages to contractor for worli done, materials provided, etc. In Lanahan vs. Heaver, 79 Md. 413, it appeared that Heaver had contracted to erect twenty-seven houses for Lanahan, and before the work was completed, proceedings were commenced for the opening of a street through five of the lots. When the Commissioners assessed Heaver's damages, he had already proceeded to grade the lots, had excavated the cellars, and had partially built the foundation walls. On an appeal from the Commis- sioners to the Baltimore City Court, Heaver " claimed and was allowed damages for all the work done and materials used by him upon the five houses in the bed of the street, and for losses sustained by him upon sub-contracts with mechanics and material men for work to be done on, and material to be furnished for, those houses, as well as for materials actually purchased by him, but not used." The propriety of this 68 ASSESSMENT OF DAMAGES AND BENEFITS. [CHAP. Vl allowance of damages, however, was not before the Court of Appeals. (See also. Heaver vs. Lanahan, 74 Md. 493, an earlier appeal in tlie same case.) § 123. L,easehol