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D'arago v. State Roads Commission of

Decided: May 3, 1962.

D'ARAGO
v.
STATE ROADS COMMISSION OF MARYLAND



Appeal from the Circuit Court for Prince George's County; Parker, J.

Brune, C. J., and Henderson, Hammond, Prescott and Marbury, JJ. Brune, C. J., delivered the opinion of the Court.

Brune

This is an appeal by a landowner, S. Miller D'Arago, from a judgment in her favor of $37,500 for the taking of approximately 8.1 acres in fee and 0.1 acres in easements for construction of a part of new relocated Route 4, a limited access highway, in Prince George's County. The judgment was entered upon a jury's inquisition in a condemnation suit brought by the State Roads Commission ("the Commission") on December 20, 1957.

The appellant presents two contentions. The first is that she is entitled to access to the new highway cutting across her property or is entitled to damages for the denial of access thereto, and that the trial court erred in holding otherwise. Her second contention is that the trial court erred in replying to an inquiry of the jury with regard to the effect of a conditional contract, since the contract was not conditional, and she asserts that the court should have so advised the jury.

The appellant and her father, Pietro D'Arago, were the owners in 1956 of a more or less oblong tract of about 106 acres of land, which had a frontage of some 1400 feet on the south side of the Marlboro Pike (old Maryland Route 4) and which extended south for more than 3000 feet. There is evidence that in March, 1956, the D'Aragos entered into a contract (not put in evidence) with a corporation known as Parkell, Inc. for the sale of about 73.67 acres of this land, including the entire Marlboro Pike frontage. This tract was rezoned to a depth of 1400 feet from residential to commercial use

in the summer or fall of 1956. On December 31, 1956, the D'Aragos conveyed approximately 24 1/2 acres of the land at the northeast corner of the D'Arago property, having a frontage of about 700 feet on the Marlboro Pike and a depth of 1400 feet, to Giant Food Properties, Inc., as assignee of Parkell, Inc., for use as a shopping center. Exactly one year later (December 31, 1957), the D'Aragos conveyed the remaining 49.15 acres (more or less) of the 73.67 acre tract to Purity Farms Shopping Center, Inc. (Purity Farms), to which the contract of sale had apparently been assigned by its parent corporation, Giant Food Properties, Inc. Purity Farms paid only a small part of the purchase price in cash and gave its note secured by a deed of trust for the balance. The 49.15 acre tract acquired by Purity Farms was "L" shaped. The long side of the "L" had a frontage of about 700 feet on the Marlboro Pike adjoining (to the west) the 24.5 acre tract conveyed to Giant Food Properties, Inc., and the short side lay behind the 24.5 acre tract. The 49.15 acre tract extended southward, both back of the 24 1/2 acre lot and back of its own frontage on the Marlboro Pike, to (and at one corner beyond) the southern boundary of the land taken by the Commission for the relocation of Route 4, the new limited-access highway. It included all of the land covered by this condemnation suit. A small roughly triangular corner (containing less than one acre) of the 49.15 acre tract lies to the south of the new Route 4, which it borders for about 300 feet. The Commission (at some time not shown) installed a service road running east and west, adjacent to and parallel with the new limited-access right of way, for a distance of roughly 1000 feet from the eastern boundary of the entire 1956 D'Arago tract. This service road curves southwestward approximately 300 feet from the western D'Arago boundary, and the triangular slice of less than one acre lies between the two roads. Its western side is about 125 feet long.

This service road, which apparently connects with a public road at some unspecified point, gives access to the little triangle and to the land originally owned by the D'Aragos lying to the south of the service road (and south of the new Route 4). The land south of the service road was apparently sold by

the D'Aragos to a third party during the pendency of this case. The controversy over damages for non-access to the new highway does not appear to concern either that tract or the small triangle south of the new Route 4. Because of the new service road, there is, of course, no claim that the tracts are now landlocked. The denial of access of which the appellant complains pertains to the "L" shaped tract north of the new Route 4.

At the time this suit was filed, the appellant and her father, Pietro D'Arago, were named as defendants, and Giant Food Properties, Inc., described as "contract purchaser" of the land, was also made a defendant. On June 4, 1959, Purity Farms, assignee of Giant Food Properties, Inc., having defaulted on one or more payments secured by the deed of trust above referred to, conveyed the 49.15 acre tract to the appellant in lieu of foreclosure. Why the appellant's father was not also a grantee is not shown. As a result of a petition filed by the appellant, the names of Pietro D'Arago and Giant Food Properties, Inc., were (apparently) stricken from the case as defendants.

Turning to the appellant's first contention, it is clear that there never was any public road or right of way where the new Route 4 is now located. Hence, it is obvious that the appellant was not deprived of any easement of access to a highway which had previously been appurtenant to her land. We find her claim for damages based upon denial of access to a new, limited-access highway, which did not replace or supersede any previously existing road, to be untenable.

Although the origin of the right of access to public streets inhering in abutting property owners is said to be obscure (see Bacich v. Board of Control, 23 Cal. 2d 343, 350, 144 P. 2d 818), it is a well established right in the nature of an easement appurtenant to the abutting land on an existing highway, and a condemnee is entitled to compensation for the taking thereof. State Roads Comm. v. Franklin, 201 Md. 549, 558-59, 95 A.2d 99. See also De Lauder v. Baltimore County, 94 Md. 1, 50 A. 427; Sanderson v. ...


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