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Smith v. Potomac Electric Power Co.

Decided: July 20, 1964.

SMITH ET AL.
v.
POTOMAC ELECTRIC POWER COMPANY



Appeal from the Circuit Court for Prince George's County (BOWIE, J.).

The cause was argued before Brune, C.J., and Hammond, Horney, Marbury and Sybert, JJ.

Brune

BRUNE, C.J., delivered the opinion of the Court.

The property owner, Thos. Somerville Co. (Somerville), and Alfred H. Smith, who, for convenience, may be called Somerville's tenant or lessee, appeal separately (both appeals being combined in one record) from judgments entered upon the inquisition of a jury in a condemnation suit instituted by Potomac Electric Power Company (PEPCO). The taking by eminent domain is for purposes of a high tension electric line, and the validity of the taking is not questioned. Somerville was awarded damages of $42,000 for the taking of the property and Smith was awarded nothing for the value of the remaining term of his "lease." The appellants complain of some of the court's rulings on evidence and of some of its instructions to the jury.

The tract in question comprises 4.624 acres of land at or near Muirkirk in Prince George's County. It is not quite rectangular

in shape, and is 250 feet in width and approximately 800 feet in length, taking the average of the two sides. One of the short sides abuts on the southeastern side of the right of way of the Baltimore & Ohio Railroad. Somerville, which acquired the property from the Washington Brick Company (the Brick Company) owned a total of about 68.5 acres on that side of the railroad, when this suit was filed, and the tract condemned cuts a band across it almost in the middle, severing the two remaining parts of the tract. To offset or minimize the effect to the severance, PEPCO proposed by its petition (and these proposals were incorporated in the inquisition) that certain rights outlined as follows be reserved to Somerville and its successors in ownership of the severed tracts: (A) that they, their officers, employees, etc., and visitors may, at their own risk cross the strip at any time and at any and all points; (B) and (C) to construct, maintain and use, and to permit others to use, one or more roads and a railroad line across the strip at approximately right angles to it, subject to limitations as to elevation; (D) to construct, operate, maintain and use, and to permit others to use, underground sewer, water, gas and other utility lines also crossing the strip at right angles; and (E) to require PEPCO and its successors, without expense to them, to dedicate to public use any such road or underground utility line.

Somerville and its predecessor had operated a brick manufacturing plant on the tract for some years prior to this suit, which was instituted in August, 1962. On May 3, 1962, Somerville's predecessor in ownership of the tract, the Brick Company (of which Thomas H. Somerville was the President), entered into an agreement with Smith (for convenience usually referred to below as "the lease") by which the Brick Company sold to Smith and Smith agreed to purchase the sand and gravel in and upon the tract here involved at a price of 15› per cubic yard (equivalent to 10› a ton). The lease required that all sand and gravel to be mined and dug thereunder be removed within two years. It also limited the depth to which Smith could dig (though the Brick Company or Somerville later permitted this depth to be exceeded by Smith) and it required Smith to grade and level the areas mined at the expiration of

the mining period. Smith could terminate the agreement when the mining of sand and gravel from the tract should no longer be profitable. This point was apparently not reached and the lease had about ten months still to run when this suit was tried and the condemnation terminated the lease.

The appellant Somerville's first contention is that the trial court was in error in declining to give the jury a definition of consequential damages and in instruction the jury that it could offset against such damages the value of the rights of user in the strip being condemned which were to be retained by the owner of the remaining property. The main thrust of this contention appears to be that the result of these alleged errors was that the jury deducted the value of these rights of user from the value of the strip taken. Though it might perhaps have been desirable to state that the only consequential damages suggested in the case were due either to severance or to what the president of Somerville described as the "nuisance" of the high tension wires with respect to the sale or leasing of the remaining property, we think that the instructions given were not misleading because of the absence of such a statement and that Somerville was not prejudiced by its absence. (Cf. City of Baltimore v. State Roads Comm., 232 Md. 145, 154, 192 A.2d 271, holding it unnecessary to have given an abstractly correct instruction, where its effect might have been to confuse the jury.) The instructions made it clear that there were claims for damages in addition to and separate from the damages payable as an irreducible minimum for the value of the fee in the 250-foot strip, and these damages were referred to as consequential. The value, if any, of these claims for severance damage and "nuisance" (the latter being rather nebulous in a heavy industrial use area) was left entirely to the jury, and the court was emphatic and explicit in telling the jury that the value of any rights of user of the strip could be set off against, but could not be allowed to an amount in excess of, the consequential damages. In one of the several passages in which the court so instructed the jury, it said, after pointing out that these might balance each other:

"It may well be that you might find that the consequential damages, if you find ...


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