William A. Moale vs. The Mayor and City Council of Baltimore, 5 Md. 314

Le Grand, C. J., delivered the opinion of this court. We deem it but necessary to briefly state the principles which we think should govern the decision of this and all similar cases. • In the case of Alexander and other, vs. The Mayor and City Council of Baltimore, 5 Gill, 383, the principle was distinctly enunciated, that it is a portion of the inherent sovereignty of the State, to appropriate to a public use the' property of individuals when public necessity or utility requires it, upon securing to the party a just compensation' for any injury he may sustain.

This is hot an exercise of the taxing power, but an exer-" cise of the right of eminent domain as contradistinguished from it. These two powers although somewhat alike aré not the' same. The distinction between them is clearly pointed out in a very able opinion of Justice Ruggles, in the case of The People, vs. Mayor &c. of Brooklyn, 4 Comstock, 423, 425. He says: “Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public bur-then.

Private property taken for public use by right of eminent domain, is taken not as the owner’s share of contribution to a public burthen, but as so much beyond his sharer Special compensation is therefore to be made’in the latter case, because the government is a debtor for the property so taken; but not in'the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise than in the proper application of the tax.” The case of Alexander vs.

The Mayor and City Council of Baltimore, also establishes the constitutionality of a law providing for the opening of a street or road, which imposes alT the costs on those who are the more immediately bénefitedinstead of the community at large. These principles, together with those recognized in the case of White vs. Flannigain, 1 Md. Rep., 540, furnish us with all that is necessary for the decision of this.

In that case it was laid down, that where a party sells property lying within the limits of a city, and in the conveyance, bounds such property by streets designated as such in the conveyance, or on a map made by the city, or by the owner of the property, such sale implies, necessarily, a covenant that the purchaser shall have the use of such streets. We proceed to apply these principles to the Case before us. The appellant claims damages for the bed of Biddle street, according to its value, having reference to contiguous lots.

On the other hand, it is said, he is entitled to but nominal damages, on the ground that the first proviso of the 16th sec. of the act of 1817, ch. 148, provides, “that no person shall be entitled to damages for any improvement, unless the same shall have been made or erected before the laying out or locating of such street, lane or alley, or part thereof respectively.” And it was in conformity to this view, that the court below instructed the jury that the appellant was only to be allowed for his lots in the bed of the street as unimprovable lots.

This ruling of the court brings before us directly the constitutionality of the proviso to which we have adverted. While it is clear that the sovereign power has the right to impose a tax in such amount as to it may seem meet, and also to appropriate private property to public uses, yet it cannot do the latter without making just compensation for it. The sacredness of the rights of property, is everywhere recognized by the spirit of the common law, Magna Charta and our Bill of Rights. Under our present Constitution, there could be no question, for it distinctly provides in its 3rd article,

section 46, that compensation shall be made before the property is taken. Although the language of the Bill of Rights of 1776, is not so distinct, its spirit is equally as comprehensive so far as the right to indemnification is involved. We hold, therefore, that it was not competent to the legislature to confiscate the property of the citizen, and we regard the provision- of the act of 1817. which denies to the proprietor the use' of his land, as nothing short of

an act of confiscation, it has been said in reply to this view, that the owner of the bed of a street liable to be opened, would be more benefited by the enhanced value of his adjoining property, than he would be damaged by the appropriation of his property in the bed of the street. This view assumes as a fact that which in many eases is- not so. A person may not own any adjoining lot's; and if his property lying in the street can be taken without compensation, then it is confiscation and nothing else.

It has now been thirty-seven years since the passage of the act-of 18Í7, and many of the streets designated on the plot of the city, have not as yet been opened. How many years may elapse before they are all opened, it is impossible to say; for aught we can see fifty or a hundred years may roll by before it is done. Besides, since the act of 1838, ch. -226, it is not incumbent on the city authorities to adhere to the line of the streets as laid down on the city plot. The power to widen, open or close up any street in the city, rests entirely in the discretion of the corporation.

Under these two acts, those of 1817 and 1838, a person for an-indefinite space of time may be deprived of the use of his property, because it lies on the bed of a street designated on the plot of the city, and eventually find that whilst he has paid taxes, and been denied- the advantages to which he was entitled from the proper use of his land, that the street laid down on the plot has been abandoned. Such a state of things is repugnant to every notion of justice- and cannot obtain our consent.

We hold that a person owning a lot lying on the bed of the street which is taken for the public use, is entitled to be compensated for it precisely- as if no street was opened over it. Of course this view is wholly independent of all question of dedication. In such a case there could- be no claim interposed for damages, for the party having given the ground to the community can set up no-just claim to be compensated for it.

The evidence in the cause shows, that the lots designated on the plot filed in. it as Nos. 1, 5. and 4, were sold at pub-lie auction on the 14th day of October 1848, tbe first two to the appellant and the other to Judge Frick, In the advertisement, Biddle street is distinctly referred to in the description of all three of these lots; and lot No. 4, the one purchased by Judge Frick, is described as “a small triangular lot commencing at the north-east corner of Cathedral and East Biddle streets, running on the latter about one hundred and fifty-one feet northerly twenty-five and-a-half feet, and thence to the beginning.” This sale was reported to the chancellor and by him confirmed, in conformity to the descriptions of the advertisement, which were embraced in the report of the trustee.

Lot No. 2, was not purchased by the appellant until after the sale to Judge Frick of lot No. 4, and therefore, subject to any rights which Judge Frick acquired by his previous purchase, among which, according to the principles we have indicated, was the right to the use of Biddle street, as a street, between Cathedral and Decker streets.

So far therefore as lot No. 3, which is the bed of Biddle street, is concerned, we think the appellant only acquired by his purchase tbe naked fee in it, subject to an easement or right of way, not only in Judge Frick, but in the public, and this being so he is entitled to but nominal damages for its condemnation. in regard to lot No. 9, vre think the case different.

Prior to his purchase of lot No. .10, the appellant was the owner of the lot on the south-west corner of Charles and Biddle streets, and when, therefore, he purchased lots Nos. 9 and 10, he acquired a complete title to the three lots, and is just as much entitled tobe compensated for lot No. 9, as would have been the original proprietor of it in the absence of all dedication. In regard to it there is no supervening or conflicting rights as there is in regard to lot No. 3.

The appellant owns the entire line of the three lots bounding on Charles street, whilst in relation to lot No. 3, before it became the property of the appellant, Judge Frick had acquired a title to lot No. 4, from the same grantor as appellant obtained his to lot No. 2, which gave him a right to lot No. 3, as a public street. No subsequent act of the common grantor of both, could affect the rights which had been previously conferred on Judge Frick. The prayers offered on behalf of the appellee, and the instruction granted by the court are erroneous, inasmuch as they are equally applicable to lots Nos. 3 and 9.

The true rule, where there has been no dedication, of assessing damages, is to value the lot precisely as though no street was to be opened. With a view to get at this, the neighboring and contiguous lots may be looked to, but they do not furnish an unerring standard to measure the value of the lot condemned. The one condemned may be more or less valuable than the adjoining lots. It or they may be in ravines or covered with, or free from rocks, making them more or less valuable according to the characteristics of the peculiar locality.

Nor in estimating the value of the lot to be condemned, ought the circumstance of a street to be opened to be considered, for it is the street which enhances the adjacent property; the estimate should be made as if no street was to be opened. With these views we remand the case to the court below. Judgment reversed and procedendo awarded.