In such proceeding an instruction that the measure of damage was the market value established in the neighborhood for the services taken by the city, if the jury should find such market value, and based upon the ultimate caif unable to find such market value, to find pacity of the drain connected by the city, and, such an amount as would properly compensate defendants for the burden of the connection, was too general, and left the jury without a guide as of what time they were to find the value, or as to the value of a connection according to the length of the drain, or as to the maintenance of the drain. failure of the defendant to specifically deny | 4. EMINENT DOMAIN 222-PROCEEDINGS— that he executed and delivered the note deINSTRUCTIONS-DAMAGES. scribed in count 2 was, under General Statutes, § 609, an admission of the due execution and delivery of the note. The court finds that these claims were not made upon the trial. If made, they could have been met by amendment. This the court should, of its own motion, have ordered had it understood that such claim was made. Recovery would not have been permitted upon a forged note through a failure to comply with a technical rule of pleading. These were claims which the plaintiff might very properly have waived, since, if pressed, they could and ought to have been avoided. We are of the opinion that the situation presents a fair case for the enforcement of the rule that claims not made in the trial court will not be considered here. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. 88 562-567; Dec. Dig. 222.] 5. EVIDENCE 524 EXPERT TESTIMONY VALUE OF DRAINAGE RIGHT. In such proceeding a qualified expert witness was competent to state his opinion as to The motions to correct the finding are de- the value of the interest to be acquired by the city in defendant's drain, based upon his general knowledge of the subject, in connection with nied. There is no error on either appeal. The his examination of some of the contracts beother Judges concurred. (126 Md. 358) MAYOR AND CITY COUNCIL OF BALTI- In a proceeding by a city to condemn the right to connect its drain with a private drain of more than sufficient capacity to take care of the run-off from both drainage areas, the measure of compensation was not merely the damage done to the defendant, but that together with the benefits to the city. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 345-347; Dec. Dig. 126.] 2. EMINENT DOMAIN 136-COMPENSATION -MEASURE OF DAMAGES-MARKET VALUE. In the condemnation of land the usual basis of compensation is the market value of the property taken, with due allowance for the consequential damages, if any, to the remainder, together with any special value which the property may have for the purposes for which it is to be used, or for which it is susceptible of being used. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 363-366; Dec. Dig. 136.] 3. EMINENT DOMAIN -MARKET VALUE. 205-COMPENSATION In a city's proceeding to condemn a right to connect its drain with defendant's private drain, of more than sufficient capacity to take care of the run-off from both drainage areas, evidence as to the charge fixed by a number of contracts for the drainage from particular lots into the private drain, without showing any conditions or agreements embodied in the contracts, or that they were all the contracts made, or produring them before the jury, afforded no legally sufficient evidence of an established market price, though the jury might consider it in connection with their own view of the property and the other evidence. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 544; Dec. Dig. 205.] tween lot owners and the defendant, the value of which opinion could be tested upon crossexamination. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2332; Dec. Dig. 524.] 6. EVIDENCE 555 — EXPERT TESTIMONY BASIS OF OPINION. Where an expert witness had given his opinion as to the value of a right of a drainage connection with defendant's drain, he was properly allowed to state how he arrived at the figures he had given. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2376; Dec. Dig. 555.] 7. EMINENT DOMAIN 195-COMPENSATION -ISSUES AND EVIDENCE. to connect its drain with defendant's private In a city's proceeding to condemn the right drain, and to determine the compensation therefor, evidence as to the other methods available to the city for the disposal of the sewage to be emptied from its drain into defendant's drain, and the cost of such methods, was inadmissible, as not within the issues. [Ed. Note.-For other cases, see Eminent Do main, Cent. Dig. § 524; Dec. Dig. 195.] 8. EMINENT DOMAIN 201-COMPENSATION -EVIDENCE. In such proceeding, evidence as to whether the paving of an avenue had increased the flow of water in the direction of defendant's drain was immaterial, because no more water could be discharged into the defendant's drain by the city's drain than its maximum capacity, on which compensation was to be based. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 5402; Dec. Dig. 201.] 9. TRIAL 96-MOTION TO STRIKE EVIDENCE -EVIDENCE ADMISSIBLE IN PART. A motion to strike out the entire testimony of a witness, admissible in part, was properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 248; Dec. Dig. 96.] 10. EVIDENCE 543-EXPERT TESTIMONYVALUE OF DRAIN CONNECTION, In a city's proceeding to condemn a right to connect its drain with defendant's private drain, witnesses who showed no special qualification, apart from the fact that they were civil engineers by profession and had seen some contracts under which individuals or corporations had been given the right to connect with de fendant's drain, were not competent to testify For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In such case a nonexpert witness' estimate of proper compensation, based upon what he had been informed was the price paid to defendant under one contract for a connection with the drain, was inadmissible, since the value of the right taken could not be predicated upon a single isolated transaction, which may have been induced by any one or more of a wide variety of considerations. as experts to the value of the right to connect, cubic feet at 400 cubic feet, thus leaving a with defendant's drain. margin not required to carry the run-off from [Ed: Note.-For other cases, see Evidence, the respective areas of 120 and 190 cubic Cent. Dig. §§ 23562-2358; Dec. Dig. 543.] feet per second. Under these conditions the 11. EVIDENCE 474 OPINION-COMPENSA city instituted condemnation proceedings, the TION-MARKET Value. purpose of which was to enable it to connect its drain, of a maximum capacity of 59 cubic feet, with the Callaway drain, and a determination of the compensation due the companies for such connection. It is not a case where the whole of the interest of the defendant companies is sought to be taken, but only a portion of that interest. In this respect it differs materially from most of the condemnation cases where municipal corporations, railroads, and others, enjoying the right of eminent domain, seek to acquire an exclusive use of land or property which is made the subject-matter of the proceedings. There is one additional fact to be noted before considering the law applicable to the case. The Callaway drain or sewer has thus far been constructed to a length of about 2,000 feet, and there still remains to be constructed, in order to effect a junction with Gwynns Falls, about 1,335 feet. [Ed. Note. For other cases, see Evidence, James Condemnation proceeding by the Mayor and City Council of Baltimore against the Park Land Corporation of Baltimore City and others. Judgment for defendants, and plaintiff appeals. Reversed, and case remanded for a new trial. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. Robert F. Leach, Jr., Asst. City Sol., of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellant. Robert P. Graham, of Baltimore, for appellees. [1] The contention of the city is that it is liable for nominal compensation only. This | is upon the theory that the Callaway drains have a capacity more than sufficient to take care of the run-off from the area for which STOCKBRIDGE, J. In the prosecution of those drains were constructed and the runthe work of establishing a system of drainage off from the city's drainage area combined. for the city of Baltimore, the sewerage com- This position is unsound. In all such cases mission laid out and installed a system of the measure of compensation is, not merely drains from Garrison avenue to and along the injury or damage done to the party whose Liberty Heights avenue, intended to afford a property is so taken, but that together with run-off for a drainage area of approximately the benefit accruing to the concern or cor170 acres. This drainage area lay immedi-poration benefited thereby. Drainage Com'rs ately along the western boundary of the city v. Knox, 237 Ill. 148, 86 N. E. 636; Sutherof Baltimore, adjoining lands which had been land on Damages (3d Ed.) § 1064; Taylor v. or were in the process of development for Baltimore, 45 Md. 576. For this reason the suburban residences. This development had action of the city court was correct in refusbeen undertaken by some of the defendant ing the first, second, third, fourth, seventh, corporations, and for the purpose of render- and tenth prayers offered on behalf of the ing the land so developed more readily mar-city. ketable these corporations, in connection with the Development Aid Corporation, constructed a drain or sewer (which will hereafter be spoken of as the Callaway drain) designed to carry off the rainfall and sewage from the land so developed, and ultimately to convey it into the natural water course of Gwynns Falls. The conformation of the land also made this direction the natural flow for the water accumulating on and to be drained | v. Baltimore, 125 Md. 378, 93 Atl. 994, and from the area intended to be provided for by the city. The capacity of the drain or sewer installed by the city was 59 cubic feet per second; that of the defendant companies was of varying size, its smallest capacity being 308 cubic feet, and its largest, at its point of outlet, 595 cubic feet. The run-off for the drain having a capacity of 308 cubic feet is estimated by the engineers at 188 cubic feet, and for the drain at the point where its capacity is 595 [2, 3] In cases dealing with the condemnation of land, the usual basis of damages or compensation to be awarded is the market value of the property taken, with due allowance for the consequential damages, if any, to the remainder, together with any special value which the property may have for the purposes for which it is to be used, or for which it is susceptible of being used. Brock the cases there cited. But this rule is not applicable in its full force in a case like the present, where there is no exclusive and complete ownership or use to be acquired, as was well illustrated in Taylor v. Baltimore, 45 Md. 576. The term "market value" has, with regard to many kinds of property, a definite, well-understood meaning, some of the essentials for which are lacking in the present case. The witness Whitman testifies to a number of contracts, which he says were made, under which the run-off from particu- | lates to the measure of damages or compensalar lots or tracts of land, and including the tion to be awarded, and was as follows: house sewage, into the Callaway drain, were "The defendants pray the court to instruct the provided for. But he testifies only as to the jury that the measure of damage in this case amounts charged, not as to any conditions hood for the services so taken by the city, if is the market value established in the neighboror agreements which may have been em- they shall find such market value, and based upbodied in the contracts, nor does he pretend on the ultimate capacity of the drain installed, to say that the contracts so testified to were they are unable to find such market value, they or to be installed, by the city; and in event all of the contracts which were made, nor are to find such an amount as they think will were the contracts themselves produced in be proper compensation to the defendants for evidence. Those which Mr. Whitman does the burden which such drain would impose uptestify to show a wide range in the amount a quantity of water as the said drain, as conon them, and by ultimate capacity is meant such paid for the sewer connection. Thus the structed by the city through the sewerage comLentz contract was for $2.25, the Bond and mission, can, or will, be called upon to disWilliams $2.50, and the Forest Park $2.85, charge into the drain system of these defendper front foot, while the Brown and Megary contracts were $50, and the Biddle contract $75, per house, flat. The absence of anything approaching a uniform standard of value is further emphasized by Mr. Whitman, when, in an endeavor to reduce to a common basis, off of 59 cubic feet on the basis of the Lentz contract would be $14,800; the West Forest part, $20,620; the Brown, $23,600; the Bond he testifies that the value of the city's run ants." This prayer practically left it to the jury to say what they might estimate the value of the interest taken, without guide or direction as to what were proper elements to from their consideration. Thus they were be included, and what should be excluded, left without guide as of what time they were to find the value, whether as of the time the trial, or some time in the future, when by when the connection was made, the time of reason of some supposed enhancement in value the worth of the right might be sup and Williams, $36,600; the Biddle, $37,500; and the Megary, $53,000; or if the amounts be taken on the basis of the computed run-posed to have acquired a corresponding inoff per cubic foot, the Lentz contract has a value of $250, the West Forest Park of $350, the Brown of $400, the Megary of $625, and the Biddle of $635. R. R. v. Sattler, 102 Md. 595, 62 Atl. 1125, 64 Atl. 507, with regard to which this court said: "It was the duty of the court to have pointed out and limited the items of loss for which the plaintiff might recover under the testimony. This was not done by the granted prayer, but the jury was left very much at large as to the question of damage.' crease; nor were they told whether they were to consider the value of a connection with a sewer 2,000 feet long, or with one having a length of 3,335 feet; nor was the These several figures have been given, not question of the repair and maintenance of as tending to establish the value of the com- the sewer, at whose cost and expense that pensation to be paid by the city, but as show- was to be done, called to their attention. ing the inadequacy of the data for even ap- This prayer was, therefore, open to the same proximating the market value, or even show-objection as the damage prayer in Belt Line ing that there is any basis which can be regarded as tending to show a market price. It may have been that the contracts testified to contained different stipulations and conditions, which may have been important factors in determining the price, and so explaining, in some measure at least, the manifest inequalities; but, if so, they were not before the jury to aid it in reaching a proper conclusion, and certainly there is nothing before this court from which it can be said, with regard to the kind of interest to be taken under this proceeding, that there was any legally sufficient evidence of an established market price. The jury might take the sums agreed to be paid under these agreements, to be considered in connection with their own view of the property and the other evidence, for what the jury might consider them worth, but not as a controlling factor or establishing a definite market price. For these reasons, no error can be ascribed to the trial court for its refusal to grant the fifth, eighth, and ninth prayers offered on behalf of the city. So in this case the damage prayer was too general, and the granting of it in the form in which it appears in the record was error. [5] In the course of the trial 10 exceptions were reserved to rulings upon evidence. These can be very briefly disposed of. The first was to permitting the witness Whitman to give an opinion as to the value of the interest to be acquired by the city in the Callaway sewer. The witness had fully qualified as an expert, and had testified that he was familiar with some contracts for drainage in the area drained by the Callaway sewer. As an expert upon a subject, knowl edge of which was peculiarly within the province of an engineer such as Mr. Whitman was, it was competent for him to express an opinion, the value of which could be tested upon cross-examination. If the effect of the question had been to limit his opinion solely to the knowledge which he might have ac No error is perceived in the action of the court in the granting of the defendants' first and third prayers, or in overruling the city's special exception to the third prayer, for reasons already sufficiently indicated. capacity of the drain, and in estimating the tracts, the objection would have been well sewer than 59 cubic feet per second, the taken; but the court understands the question to have been broader than that, and to call for an expression of opinion of the witness as formed from his general knowledge of the subject, taken in connection with an examination of some of the contracts in re lation to this specific drain. The position is analogous to that of an expert called to testify to the value of real estate. He may use the sales of which he has knowledge of other property in the same vicinity in forming his opinion, even if there have been other sales of which he has no knowledge. There was no error committed by the judge of the city court in permitting the witness to answer the question. [6] After having given the opinion as to the value of the right to be acquired, the witness was asked to state how he arrived at the figures he had given. This gave rise to the second exception. The ruling of the court on this was clearly right. In no way could the jury be better informed as to the weight to be given to the valuation which had just been testified to. Belt Line v. Satt ler, 102 Md. 602, 62 Atl. 1125, 64 Atl. 507. [9] The sixth exception was reserved to the refusal of the trial court to strike out the entire testimony of the witness Whitman. This motion was too broad. Much of the testimony of the witness was pertinent to the issue involved, and the court was correct in its refusal to strike out all of his testimony. It [10] The seventh, ninth, and tenth exceptions were to the action of the court in permitting the witnesses Sucro and Sutton to give evidence as to the value of the right to enter the Callaway sewer. Each of these witnesses was placed on the stand as an expert, but neither showed any special qualification to so testify, apart from the fact that they were civil engineers by profession, and [7] After having testified to his opinion had had exhibited to them some contracts as to the compensation proper to be made under which individuals or corporations had to the defendants by the city, the witness been given the right to enter the sewer. was asked as to the other methods available may fairly be questioned whether any questo the city for the disposal of the sewage to tion of valuation is more difficult of proper be emptied from the city's drain into the and just solution than the one presented in Callaway sewer, and the cost of such meth- this case. Any witness, to be regarded as an ods. The answers to these questions the expert, should be shown to possess more than court was asked to strike out, and the ruling on this motion constitutes the third ex- ed. While with regard to the necessary quala general knowledge of the matters involvception. This evidence was clearly inadmis-ifications to entitle a witness to testify as an sible. The issue before the court was, not expert much must be left to the discretion of the cost of doing something else, but the proper compensation for the connection which the city was condemning. "The word 'compensation' imports that a wrong or injury has been inflicted and must be redressed in money. Money must be paid to the extent of the injury. This may be less or more than the value of the property taken." Sutherland on Damages (3d Ed.) § 1063. The cost of doing an entirely different thing could shed no light upon the injury done or the just compensation to be paid. The fourth exception was substantially the same as the second, and need not be further discussed. [8] The fifth exception was reserved to permitting the witness Whitman to answer the question whether the paving of Garrison avenue had increased the flow of water in the direction of the Callaway drain. The evidence which an answer to this question would elicit was immaterial, because no greater quantity of water could be discharged from the drain of the city into the Callaway the trial judge, it is impossible to see that either of these witnesses had shown himself possessed of that technical knowledge which would have entitled him to testify to value, other than that possessed by any civil engineer. The objection in each of these exceptions should have been sustained. [11] And for the same reason the motion to strike out the testimony of Sucro as to value, which constitutes the eighth exception, should have been sustained, and for the further reason that he based his estimate of proper compensation upon what he had been informed was the price paid under one contract, that with Lentz. No value for any right, such as the one at issue here, can be predicated upon a single, isolated transaction, which may have been induced by any one or more of a wide variety of considerations. For the reasons indicated, the judgment appealed from must be reversed. Judgment reversed, with costs to the appellant, and case remanded for a new trial. (126 Md. 318) (No. 21.) (Court of Appeals of Maryland. June 22, 1915.) 1 CONSTITUTIONAL LAW association, was defective, justifying denial of relief. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 296-316; Dec. Dig. 154.] Appeal from Circuit Court of Baltimore 63-GAME ~4 County; Allan McLane, Judge. GAME WARDEN-APPOINTMENT VALIDITY Laws 1914, c. 338, § 17, providing that the county commissioners of Baltimore county shall appoint, as game warden for the county, the person recommended by the County Game and Fish Protective Association, was not invalid as a delegation of legislative power to the county commissioners, since such body, under Code Pub. Civ. Laws, art. 25, § 1, providing that the county commissioners of each county are a corporation and shall have the fullest power to appoint all officers, agents, and servants required for county purposes, not otherwise provided by law or the Constitution, is clothed with a limited and special jurisdiction, deriving its authority only from statute, and charged with the execution of the powers which the statute confers upon it. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 108-114; Dec. Dig. 63; Game, Cent. Dig. § 3; Dec. Dig. 4.] Mandamus by Alexander C. McCurdy against George Jessup, Chief Game Warden, and the County Commissioners for Baltimore County. From a judgment refusing the writ, petitioner appeals. Affirmed, and cause remanded. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Henry H. Dinneen and Harry M. Benzinger, both of Baltimore, for appellant. T. Scott Offutt, of Towson (Edward H. Burke, of Baltimore, on the brief), for appellees County Commissioners. Noah E. Offutt and William Grason, both of Towson, for appellee Jessup. BRISCOE, J. By section 17 of chapter 338 of the Acts of 1914, it is provided that 2. GAME 4-GAME WARDEN-APPOINTMENT the county commissioners of Baltimore county -VALIDITY OF STATUTE. Laws 1914, c. 338, § 17, providing that the shall on or before the 1st day of May, A. D. county commissioners of Baltimore county shall 1914, and every two years thereafter, appoint appoint as game warden for the county, the a game warden for Baltimore county, who person recommended to them by the County shall be recommended to them by the BaltiGame and Fish Protective Association, was not an invalid exercise of legislative power, more County Game and Fish Protective Asrepugnant to the Constitution of the state, association, incorporated March 16, 1911, subrequiring the county commissioners to appoint ject to the constitution and by-laws of said to office a person recommended by a private association, and who shall hold office for two corporation, since the Legislature, in the absence of constitutional provision, may determine the method of filling offices, and provide that they shall be filled by private corporations chartered by the state, or by voluntary associations of individuals. [Ed. Note.-For other cases, see Game, Cent. Dig. § 3; Dec. Dig. 4.] 8. CONSTITUTIONAL LAW TION-CONSTITUTIONALITY. 48-CONSTRUC Acts of a state legislature will be held constitutional, unless so manifestly in conflict with some provision of the Constitution that no discretion is left to the courts but to state their invalidity. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. 48.] 4. MANDAMUS 154-PETITION. A petition for mandamus must state all facts necessary to the granting of the writ. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 296-316; Dec. Dig. 154.] 5. MANDAMUS 154-PETITION. son years, or until his successor shall have been appointed and qualified, whichever shall first occur. The person so appointed chief game warden for Baltimore county shall have been less than four years next preceding his apa resident and voted in said county for not pointment. The act further provides the powers and duties of the game warden, fixes his salary, requires him to give bond in the penalty of $4,000, and, before entering upon the duties of his office, to take and subscribe the oath prescribed by the sixth section of the first article of the Constitution of the state. He may be removed by the county commissioners, upon written charges upon neglect or improper discharge of the duties of the office. On or about the 1st of May, 1914, the Baltimore County Game and Fish Protective Association presented and recommended to the Under Laws 1914, c. 338, § 17, providing county commissioners of that county the that the county commissioners of Baltimore name of Dr. Alexander C. McCurdy, of Balticounty shall appoint, as game warden, the per- more county, the appellant here, for appointrecommended by the Baltimore County Game and Fish Protective Association, sub-ment for chief game warden of the county, ject to the constitution and by-laws of such under the provisions of the act. The county association, where such constitution provided commissioners refused to appoint him, but that no member should be eligible for recom- appointed one George Jessup, the appellee, mendation for game warden unless a bona fide resident of Baltimore county and for more than who had not been recommended or suggested three years past a member in good standing in by the association, and this is an application the association, the petition of the person by the petitioner for a writ of mandamus to recommended for appointment for mandamus to secure his induction to office, which failed compel the appellee county commissioners to to allege that he had for more than three years appoint and commission him as such game past been a member in good standing in the warden. |