Citation Numbers: 93 A. 425, 125 Md. 78, 1915 Md. LEXIS 197
Judges: Boyd, Briscoe, Burke, Constable, Pattison, Stockbridge, Thomas
Filed Date: 1/14/1915
Status: Precedential
Modified Date: 10/19/2024
Otto Bregenzer, the appellee on this record, filed a bill of complaint in the Circuit Court No. 2 of Baltimore City in which he prayed that the Mayor and City Council of Baltimore and the Baltimore and Ohio Railroad Company be restrained from erecting in front, against, and upon his property the approach mentioned in the bill, to a bridge which it was proposed to erect over Eutaw street. Both defendants answered the bill, and testimony was taken in open Court under the Statute. Upon the facts in evidence the lower Court determined that "at least as to Nos. 424, 426, 428 and *Page 80
430 West Cross street, the construction of the proposed viaduct on Cross street according to the approved plans offered in evidence, even as explained, or modified by the witness. Ogier, would amount to a taking of the plaintiff's property, under the decision of the Court of Appeals of Maryland in the case ofWalters v. B. O.R.R.,
The following statement embraces all the material and essential facts in the record: The appellee is the owner of seven leasehold lots of ground with improvements thereon situate on the north side of Cross street between Warner and Eutaw streets in Baltimore City, and known as Nos. 424, 426, 428, 430, 432, 434 and 436 West Cross street. Each lot has a front on Cross street of twelve feet with an even depth of sixty feet to a three footalley, except No. 426 West Cross street, which has a front of fifteen feet with a like depth of sixty feet. The improvements consist of two-story brick houses, in fair condition, with cellars about seven feet high and fourteen feet long. Each house has two sunken cellar windows, 24 inches high and 27 inches wide, except house No. 436. This house has an areaway and one cellar window.
The first floor of each house is elevated above the pavement, and the entrance to each house is by means of steps leading from the street — the number of steps varying from four to six. The houses are rented to colored tenants. For some of the houses the appellee receives seventeen dollars per month each, and for others he receives three and three dollars and a half per week.
Under the provisions of Ordinance No. 387, as amended by Ordinance No. 320, approved July 16, 1913, the Mayor *Page 81 and City Council of Baltimore, was about to change the grade of Cross street in front of the plaintiff's property, and the Baltimore and Ohio Railroad Company, under the terms of said ordinance, was about to begin the construction of a bridge over Eutaw street and also the construction of an approach to said bridge — the approach to be located in the bed of Cross street adjacent to the houses mentioned. The purpose of this work was to carry the traffic over Eutaw street and to eliminate the dangerous grade crossing on that street. The Baltimore and Ohio Railroad Company in its answer to the bill filed in this case said: "That unless prevented by the writ of injunction it intends to and in fact is compelled by the provisions of Ordinance No. 387 of the Mayor and City Council of Baltimore, approved August 16, 1909, a copy of which is filed herewith, marked ``Defendant's, the Baltimore and Ohio Railroad Company, Exhibit No. 1,' and within the time set out in said ordinance and in accordance with plans and specifications which have been approved by and are on file with the city engineer of Baltimore City, to change the grade of Cross street between Sharp and Warner streets, by means of the construction of a steel girder bridge over the present railroad tracks in Cross street, with the necessary stairways and approaches thereto, as will more particularly appear by reference to said ordinance and plans."
The approach will be of concrete construction, with a width of 25 feet for a drive way and 10 feet for a footway, and it is proposed to construct it on the building line in front of the plaintiff's property and in contact therewith. It is to be built upon what is practically a five per cent grade, and the effect of the construction upon the plaintiff's houses would be as follows, viz: First, it would necessitate the removal of the steps to which we have referred; secondly, it would completely obstruct the cellar windows and the areaway mentioned and shut off the light and air from the cellars of the houses; thirdly, the relation of the footway, adjacent to the property would be as to the respective houses as follows, *Page 82 viz: the surface of the footway in front of house No. 424 would be 20 inches above the first floor; in front of house No. 426 it would be 8 inches above the first floor level; in front of house No. 428, it would be one inch above the first floor level; in front of house No. 430, the first floor level would be 5 1/2 inches above the surface of the approach; No. 432 would be 14 inches above; No. 434, 22 inches above, and No. 436, 30 inches above. It would therefore require a less number of steps to enter four of the houses after the construction than is now required. As to house No. 424 it would require two steps down from the proposed footway to reach the first floor, and one step down to reach the first floor at No. 426. The first floor of No. 428 would be practically level with the footway. During the construction of the approach very great inconvenience as to ingress and egress to and from the houses would be suffered by the occupants thereof. The approach would be built wholly within the limits of the street and there would be no actual or physical invasion or appropriation of any part of the plaintiff's lots.
Ordinance No. 387 was considered by this Court in the Walterscase, supra, and in Baltimore and Ohio Railroad Company v.Kane,
It is declared by Section 40, Article 3 of the Constitution that, "The General Assembly shall enact no law authorizing private property to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation." The jurisdiction of a Court of Equity to prevent by injunction the taking of private property for public use in disregard of that section of the organic law is well established in this State. Western Md. R.R. Co. v. *Page 83 Owings,
It is proper to say, in view of certain remarks of counsel at the hearing, that the Court does not understand that it announced a new legal principle in the Walters case, or that it impaired in the slightest degree the settled principles of law upon the subject it was dealing with. It merely applied these principles to the facts of that case.
The section of the Constitution quoted does not define property, nor does it declare what shall be a taking. It leaves those questions to the determination of the Courts upon the facts of each particular case. The general rule applicable to the subject was stated in Garrett v. Lake Roland R.R. Co.,
In discussing the contention that the facts alleged would constitute a taking of the plaintiff's property for public use *Page 84
in contravention of the constitution, JUDGE McSHERRY said: "Whilst the Constitution of the State has prohibited the taking of private property for a public use without compensation being first paid or tendered, it has not undertaken to define or declare what shall be a taking within its terms. True, there is some conflict among adjudged cases as to what amounts to such a taking, but the overwhelming weight of authority accords with the conclusions which this Court announced in two cases that will be fully referred to later on. Apart from the decisions of the Supreme Court of Ohio (Crawford v. Village of Delaware,
In DeLauder v. Baltimore County,
In Walters v. B. O.R.R. Co., supra, JUDGE STOCKBRIDGE, after a clear and succinct statement of the facts, said, "that the effect of this structure was to effectually bar all ingressto and egress from the premises, unless by means *Page 87 of a ladder from the second floor window to the newly constructed footway." This was tantamount to saying that the plaintiff's right of access to the property was in effect destroyed. In the judgment of the Court the facts brought the case within the principles announced in the DeLauder case, and that case was followed and its principles applied.
In none of the cases is it held that mere inconvenience of access resulting from acts done, or mere diminution of light and air constitute a taking of private property. The injury complained of must amount to a substantial destruction of these rights before the provisions of the Constitution can be invoked.
The facts of this case show that the construction of the proposed viaduct in its effect upon the property of the plaintiff would be widely different from the effect produced in theWalters case. We have stated all the essential facts in the earlier part of this opinion as strongly and as favorably to the plaintiff as they will warrant, and when considered in the light of the principles we have stated we are of opinion that the construction of the proposed approach will not be a violation of the section of the Constitution relied on, — the plaintiff's property will not be taken. Access to and egress from the property will not be destroyed. Light and air will not be wholly shut out. The property will undoubtedly be injured; but for all depreciation in its value, — for all losses of every description which the plaintiff may suffer as a direct result of the construction he may recover in an action at law, and being of opinion that the construction will not constitute a taking of the plaintiff's property, but that the apprehended injuries are in legal contemplation merely indirect and consequential, the decree appealed from must be reversed.
Decree reversed and the bill dismissed, the appellee to paythe costs. *Page 88
Chicago v. Taylor , 8 S. Ct. 820 ( 1888 )
DeLauder v. County Commissioners , 94 Md. 1 ( 1901 )
Walters v. Baltimore & Ohio Railroad , 120 Md. 644 ( 1913 )
Baltimore & Ohio R. R. v. Kane , 124 Md. 231 ( 1914 )
B. O.R.R. Co. v. Kahl , 124 Md. 299 ( 1914 )
Taylor v. Mayor of Baltimore , 130 Md. 133 ( 1917 )
Sanderson v. Mayor of Baltimore , 135 Md. 509 ( 1920 )
Krebs v. State Roads Commission , 160 Md. 584 ( 1931 )
Feldman v. Star Homes, Inc. , 199 Md. 1 ( 1986 )
Stevens v. City of Salisbury , 240 Md. 556 ( 1965 )
Maryland Port Administration v. QC Corp. , 310 Md. 379 ( 1987 )
Ridings v. State Roads Commission , 249 Md. 395 ( 1968 )