Appeal from the Circuit Court for Baltimore County (LINDSAY, J.).
The cause was argued before Brune, C.J., and Hammond, Prescott, Marbury and Sybert, JJ.
SYBERT, J., delivered the opinion of the Court.
The appellant, Baltimore County, Maryland, filed a petition for condemnation of certain land of the appellees, James White and Oral B. White, his wife, for highway purposes, together with a request for prior entry thereon, as authorized by Baltimore County Code (1962 Cum. Supp.), sec. 2-1.1, infra, enacted pursuant to the authority contained in Art. III, sec. 40A, of the Maryland Constitution. In accordance with the ordinance, an appraiser was appointed by the Circuit Court for Baltimore County, the land sought was appraised at $8,821.90, and a prior entry check in that amount was filed with the court clerk. The Whites answered the condemnation petition, and, as permitted by the ordinance, withdrew the prior entry deposit. Subsequently, the Whites filed a petition asking the lower
court to dismiss the condemnation suit, which had not yet been tried, on the basis that the court-appointed appraiser had established the fair market value of the property; that they were satisfied with the sum of $8,821.90; and that they were ready, willing, and able to execute a deed to the County for the property. On the same day, without a hearing, the court signed an order directing the County to dismiss its petition for condemnation and to accept a deed from the Whites. The County appeals from the order.
The principal question presented is whether, after requesting prior entry pursuant to the ordinance, and paying the appraised value of the land into court, the County is in a position to insist upon a trial to determine the fair market value of the land taken, over the objection of the condemnees who are satisfied with the amount fixed by the court-appointed appraiser.
Section 2-1.1 of the County Code, containing the prior entry provisions, reads in pertinent part, as follows:
"Whenever proceedings are instituted under the provisions of Article 33A, 'Eminent Domain', of the Annotated Code of Maryland, 1957 edition, and any amendments thereto, by Baltimore County, Maryland for the acquisition of any private property situate in Baltimore County, needed for any public purpose, the county may file with its Petition for Condemnation a request for the appointment by the Circuit Court for Baltimore County * * * of an appraiser to value such property. The Court may thereupon appoint as appraiser one citizen of the county of Baltimore, not in any wise interested in the property to be condemned, * * *. The appraiser shall * * * return said valuation to the Court * * * by filing the same in said proceedings with the clerk of the Circuit Court. The appraisal and valuation of the court-appointed appraiser shall not be admissible evidence in the trial of the condemnation case, nor shall the said appraiser be allowed to testify for or against any party to the case. Immediately upon the return by the appraiser of his valuation to the Court, the county may pay to the
owner or owners of such property * * * the amount of such valuation, or the county may pay said amount into the Circuit Court for Baltimore County, into the hands of the clerk thereof, and to be thereafter paid over by such clerk to said owner or owners at any time such owners will accept and receive the same. Upon such payment to the owner or owners or into Court, the county may take possession of the property and proceed with the improvement for which the same is sought to be acquired. Thereafter the proceedings shall continue, and the jury may fix the damages as if said payment had not been made. * * * The acceptance by the property owner of the sum fixed by the appraiser shall not prejudice his contention, if the makes such contention, that he should be allowed a larger sum * * *. If, however, the amount awarded by the jury shall be less than the amount fixed by the appraiser, the property owner shall be liable to the county for such excess. * * *" (Emphasis supplied).
The County contends that the exercise of its right to enter upon properties after depositing the amount of the court-appointed appraiser's estimate of value, in accordance with the ordinance, does not prevent it from later having fair market value determined in accordance with normal trial procedures. On the other hand, the appellees contend that if the County pays into court the amount of the appraiser's valuation, the property owner has the option, under the ordinance, to elect either to accept the amount of the deposit as just compensation for the land to be taken, thereby terminating the condemnation proceedings, or to contest the case further. If the County disagrees with the amount fixed by the appraiser, they argue, it may elect not to pay the sum into court and enter upon the property, still having the right to try its case without prior entry. But if the County deposits the appraiser's figure in court, they say, it ...