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or an elimination of air right or something
of that sort, you are not entitled to dam-
ages even though your property has been
diminished in value.
The purpose of this addition is to pro-
vide compensation when your property has
been damaged.
Now, what are damages? Damages in
this area is not a new uncharted field.
There has been in state constitutions since
1870 language involving damage. Illinois
started this thing back in 1870. Now, let
me read to you what is the basic concept
of damages as covered and conceived of in
this area to try to be helpful to you, and
then after I have told you this I am not
going to try to answer any specific cases.
It is, and this I quote from Nichols' "On
Eminent Domain", which is a leading au-
thority :
"A physical disturbance of a right —
now, remember the word 'right' as
against physical property itself — "either
public or private which the owner of a
parcel of land enjoys in connection with
his property or which gives it additional
value and that by reason of such dis-
turbances he has sustained a special
damage with respect to his property in
excess of that sustained by the public
generally."
Now, there have been hundreds of cases
on this matter. I will just give you a couple
of cases on this, and I will just give you a
couple of quick illustrations. I am not
going to try to go beyond that.
If a man has a house or a store on a
highway and the highway is relocated he
is not entitled to damages because this is
not a physical hurt to the property, but
there may be circumstances under which
a peculiar loss to him has diminished the
value of his property in other ways.
There have been cases in Maryland
where a highway has been lowered or
raised adjacent to the property, or a free-
way built through right next to it where
under the present law there are no clam-
ages. But if a freeway is built right next
to your $60,000 home and your property is
considerably diminished by that immediate
noise, immediate smell, immediate every-
thing else, it is not the smell and noise you
get damage for but the diminution and
damage to your property.
I cannot go into more detail on that.
This would not apply to the property on
the other side of you and beyond. It is not
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a concept that makes the sky the limit,
that gives everybody the right to rush in
and get damages, but it does recognize in
this day and age when the government is
taking more and more property for public
improvement that people are entitled to
some kind of compensation and more than
they have been able to get because of the
rather conservative attitude taken by our
courts over the last two hundred years.
If that is helpful to you, all right, but
please do not press us for details.
DELEGATE J. CLARK (presiding):
Delegate Byrnes.
DELEGATE BYRNES: I would say
that is very helpful, as is the memorandum
prepared by Delegate Burgess.
Could you suggest to me how many other
states give this broad coverage?
DELEGATE J. CLARK (presiding):
Delegate Kiefer.
DELEGATE KIEFER: I think it is
about 25, somewhere between 25 and 30,
and it has gone on. The first state was
Illinois and I know that was in 1870.
DELEGATE BYRNES: Did your Com-
mittee analyze the possible cost of this to
the State?
DELEGATE KIEFER: No.
DELEGATE J. CLARK (presiding):
Are there any further questions on this
section?
Delegate Hargrove.
DELEGATE HARGROVE: Chairman
Kiefer, in view of the discussion between
yourself and Delegate Byrnes, what form
of action would be taken under B? In each
instance where there is damage as well as
the actual taking, would it be in the form —
DELEGATE KIEFER: It would prob-
ably be in the form of some kind of action.
I do not know what the mechanics would
be, but the mechanics would be easily
determinable.
DELEGATE J. CLARK (presiding):
Delegate Hargrove.
DELEGATE HARGROVE: In view of
that, I would like to ask you this question.
If the General Assembly should provide
some sort of a tort action against the
State such as the federal Government had,
could you see a conflict between the dam-
age provision here and that particular act?
I would like to explain because, under
the Federal Tort Claims Act, what we
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