Appeal from the Circuit Court for Montgomery County (SHURE, J.).
The cause was argued before Brune, C.J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ.
HAMMOND, J., delivered the opinion of the Court.
The Maryland-National Capital Park and Planning Commission, a municipal corporation, condemned some two hundred fifty-eight acres of a tract of approximately four hundred twelve acres (described by the experts as being heavily wooded, with rough and difficult terrain, which was zoned as rural residential) on the edge of Rockville in Montgomery County to use as a site for a dam to aid in conservation, to prevent erosion and siltation, and to provide a recreational area, all as part of the park system.
At the trial the only contested issue was the fair market value of the land being taken. Two experts who testified for the Commission felt that the highest and best use of all the land
was for park and recreational purposes. One estimated the value of the two hundred fifty-eight acres at $516,800, the other at $543,000. The one expert who testified for the property owners, the appellants, was of the view that the highest and best use of some three hundred sixty acres of the whole tract was for residential development, despite its rugged hilly character and that of the approximately fifty-three acres remaining was for park use. He put a value on the land being taken of $1,070,000.
The only real difference between the experts was whether all the land taken was best suited for park purposes or whether but a small part was. The jury, after its view of the land, evidently accepted the opinions of the experts who testified for the Commission for it brought in a verdict for the precise value of $543,000 set by one of those experts on the land taken.
Almost immediately after the trial, the Commission's lawyer sent a check for the amount of the jury's award to the order of the attorney for the property owners. The lawyer endorsed it as payee and delivered it to his clients, who deposited it to their account after writing on its back, under the lawyer's endorsement and over their signatures: "This check is accepted without prejudice to the right * * * [of appellants] to appeal from the award by the Circuit Court of Montgomery County." The appellants say the check was accepted as an accommodation to the Commission to toll interest while the appeal was pending, after the clerk of the court refused to accept the check unless ordered to do so by the court. The Commission disputed this and moved to dismiss the appeal on the ground that an appellant cannot take the inconsistent position of accepting the benefits of a judgment and then challenge its validity on appeal. This is the general rule. Stewart v. McCaddin, 107 Md. 314, 319; Bethlehem Steel Co. v. Mayo, 168 Md. 411, 413; 30 C. J. S. Eminent Domain Sec. 345, p. 23; 4 Am. Jur. 2d Appeal and Error Sec. 258; Annotation, 169 A.L.R. 985. There is an exception to this rule "where the right to the benefit received is conceded by the opposite party, or where the appellant would be entitled thereto in any event." Bethlehem Steel Co. v. Mayo, just cited, at p. 413 of 168 Md. (a compensation case). See also Lewis v. Lewis, 219 Md. 313 (alimony); Petillo v. Stein, 184 Md. 645 (workmen's compensation).
Although the general rule usually has been applied in condemnation appeals, the rationale of the exception to the rule (which this Court has recognized in compensation and divorce cases) has been accepted by strong courts where the only issue was the amount of the award. The Court of Appeals of New York, in a discriminating analysis of the opinions, held in the case of In Re Courthouse in City of New York, 111 N.E. 65, that where appeal of the condemnee does not raise any question of the right to condemn or the right of the condemnor to retain the land condemned or any other question except the fairness or correctness of the amount of the award, which an appellant accepted (but not as payment in full), the appeal will be entertained. See also Chicago Great Western R. Co. v. Kempler (Mo.), 166 S.W. 291, 293-294; Low v. Concord RR (N.H.), 3 A. 739, 742.
In the appeal before us the property owners do not challenge the right of the Commission to condemn or raise any other question except the size of the jury's award. The Commission concedes the right of the appellants to the award and the appellants did not take payment of the award in full satisfaction of the jury's inquisition. We accept the reasoning and the conclusion of the Court of Appeals of New York in the In Re Courthouse case as sound and deny the motion to dismiss the appeal.
On the merits, the appellants raise the contentions that the trial court: (1) improperly suggested to the jury that the condemned land was not suitable for residential development; (2) refused to allow one of the appellants to testify that he had applied for rezoning of the property to a residential classification four years before the condemnation; (3) allowed ...