Appeal from the Circuit Court for Prince George's County; Powers, J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Brune, C. J., delivered the opinion of the Court.
The appellant landowners, James W. Rogers and wife, appeal from a judgment in their favor for $3,000 for the taking of 1.46 acres of land abutting on Route 202 in Prince George's County. The judgment was entered upon the inquisition of a jury in a condemnation suit brought in 1960 by the appellee, the State Roads Commission (the Commission).
A tract of about 4 1/2 acres, apparently acquired by the Commission in or before 1945, in connection with the improvement of Route 202, was sold by the Commission to the Rogers in 1952 after negotiations extending over seven years. The deed from the Commission to the Rogers was executed by both the grantor and the grantees and contained this clause:
"Subject to the conditions and restrictions that no part of the property hereby conveyed shall ever be used for any commercial purposes whatsoever, this covenant to run with and bind the land hereby conveyed and shall bind the grantees herein, their heirs and assigns, forever."
The land here involved is a part of the above 4 1/2 acre tract. About .90 acre is being taken in fee and .56 acre for easements. The Commission had reserved an easement in about 1/2 acre of the portion being taken in fee, and the fee therein subject to that easement had little or no value.
Evidence was introduced to show that the land in the neighborhood of the tract in question was residential when the Rogers acquired it in 1952, but that since then property across the road had become commercial in use and some adjacent land had been rezoned as light industrial and had been sold. It was also shown that other nearby land was zoned for industrial or commercial use; and there was testimony that the highest and best use of the land was for light industrial purposes. Its value for such use was greater than its value for residential purposes. After the institution of this suit the son
of the owners applied for a rezoning of the property and the Maryland-National Capital Park and Planning Commission recommended that it be reclassified for light industrial use.
In giving his instructions, the court read the above quoted restriction and told the jury that it was "a valid, subsisting covenant running with the land and binding on the land at the date of the taking, and therefore your consideration of value must take into consideration that restrictive covenant. And in determining its highest utility you must not consider any use other than residential use, although you are not restricted to the existing zoning that it was, rural residential, at the time. You may consider, based on evidence * * * that it might be feasible to zone the property to a more intensive residential use * * *. But you may not consider an industrial or commercial potential because that is forbidden under the restrictive covenant which the Court instructs you was valid and binding at the date of the taking."
The appellants excepted to the instruction that the restrictive covenant pertaining to commercial use was valid and subsisting, and asked the court "to instruct the jury to the effect that such covenant is no longer valid and subsisting by reason of the substantial change and deterioration in the character of the surrounding neighborhood, and to instruct the jury that they can find in light of such change that the property could be used for an industrial or commercial purpose." The appellants' contention in this court would seem to shift the determination of the enforceability of the restriction from the judge to the jury. They say in their brief that "the lower Court should have instructed the Jury that a substantial change in the surrounding area is a basis to have a restrictive covenant declared null and void and if they find that such a change has taken place, then, in that event the covenant would not be binding."
Under either form of their contention the appellants apparently at least tacitly concede that if the restrictive covenant remained valid and enforceable without any prospect of becoming unenforceable in the immediate or near future, it would ...