Lore v. Board of Public Works

Murphy, C. J.,

dissenting:

The Court holds that landowners whose property is taken through the exercise of the State’s power of eminent domain, whether by conventional or quick-take procedures, and without regard to the actual date of taking, are entitled to interest on the compensatory award to be computed from the date of the entry of the judgment nisi on the inquisition to the date of payment. I respectfully dissent from the application of this holding to the conventional condemnation award involved in this case.

The majority charts a course through the statutes and rules to reach what appears to be, at first blush, a straightforward result. However, the bedrock upon which I believe it founders is that, in the absence of payment of the judgment by the Board, there was no actual “taking” within the meaning of the eminent domain statutes, Maryland Code (1974), Title 12 of the Real Property Article. Consequently, there was no basis for awarding interest, since the property owners were not deprived of the beneficial use of their *362property from the date of inquisition until the time payment was made. On the contrary, the record affirmatively shows that the property owners continued to receive rents from the tenants occupying the property until the judgment was paid, and that the State did not receive any benefit from the property until after it had satisfied the judgment and taken possession.

That it was not the purpose of the statute to authorize the payment of interest on compensatory awards prior to a “taking” is indicated by the framework and provisions of Title 12 of the Real Property Article. That title plainly distinguishes the eminent domain procedures used by the Board of Public Works in this case from the “quick-take” procedures authorized by Article III, §§ 40A-40D of the Constitution of Maryland, which permit payment by the State of the estimated value of the property at the commencement of the proceedings and the right to take immediate possession. Section 12-102 specifies when property is deemed to be “taken” under each procedure. In a “quick take,” the property can be taken before trial. See § 12-102 (1). In the conventional condemnation proceeding involved in this case, the property is not deemed “taken” until “the . . . [State] pays the judgment and costs pursuant to Subtitle U of the Maryland Rules.” § 12-102 (2). Nor does the right to possession or title vest in the State until the judgment and costs are paid. § 12-108 (a). Section 12-106 (b), in listing the “costs” to be included in an eminent domain award, does not include interest; rather, § 12-106 (c), entitled “Interest on award,” clearly applies only to “quick-take” cases:

“In proceeding under Article III of the Constitution of the state,-or any amendment to it, the . . . [State] shall pay interest... on any difference between the amount of money initially paid into court for the use of the defendant and the jury award as stated in the inquisition, . . . [from] the date the money was paid into court. . . [to] the date of the inquisition or final judgment, whichever is later.”

*363The limitation of interest payments to “quick-take” cases, viewed in conjunction with the State’s right under § 12-109 and Rule U26 to abandon the proceeding within 120 days from the date of final judgment, and the fact that in this case there was neither a “taking” nor a vesting of title in the State until after the judgment and costs were paid, plainly indicates that granting interest in these circumstances is improper.

Moreover, it is the general rule that one whose property is being condemned is not entitled to interest during the time he retains possession or use thereof. See 27 Am. Jur. 2d Eminent Domain § 303 (1966). Dicta in Schreiber v. Baltimore City, 248 Md. 425, 236 A. 2d 732 (1968) is supportive of the general rule. In that case, the property owners claimed interest on a condemnation award from the date of judgment nisi to the date of closing. The lower court concluded that the property owners were not entitled to interest on the judgment and they appealed. While the appeal was dismissed on the ground that it had been taken before the entry of final judgment, we stated that had we decided the case on its merits, “our conclusion would not be different from that of . . . [the trial judge].” 248 Md. at 428.

The majority’s reliance upon Hammond v. State Roads Comm., 241 Md. 514, 217 A. 2d 258 (1966), to support its holding that the Maryland Rules require interest to be paid is misplaced. That case involved a “quick-take” proceeding by the State Roads Commission, where “possession had already been taken by the State and payment of the balance of the judgment was not paid promptly.” (emphasis added) 241 Md. at 518. As Hammond recognized, the weight of authority supports the payment of interest on a condemnation award where payment is withheld beyond the time the property is actually taken. In the present case, there had been no taking during the interest accrual period, since the Board had not yet paid the judgment and costs. See § 12-102 (2). The property owners continued to collect the rents from the property, and enjoyed its other benefits. Thus, Rule 642 should not be applied in conjunction with Subtitle U where the rationale for its application does not *364exist. Indeed, Hammond itself recognized that the payment of interest accruing prior to the taking of property was properly disallowed in Maryland. See 241 Md. at 520-21, distinguishing Norris v. Mayor and City Council of Baltimore, 44 Md. 598 (1876).

For the reasons stated, I would affirm the judgment of the lower court denying the claim of the property owners for the payment of interest on the compensatory award.