|
The Committee had a subcommittee
headed by Delegate Burgess and several
others who made a very careful study into
this. We had testimony from various people.
We discussed it at great length. This is
what we found and I pass it on to you.
You can then do with it what you like.
First of all, since colonial days the State
of Maryland has provided in its taking
provision authority for damages other than
from an actual taking. It is probably with
one or two exceptions in the northeast part
of the United States the only state to do
this; therefore, since there has been no
other legislative arrangement for a taking
or a compensation in lieu of damages, this
problem has been met in twenty-seven
states by including the word "damages" in
the constitution.
Now, let me just go back and tell you
what we are again doing. We are providing
here in a bill of rights a protection for
individuals.
The sovereign State of Maryland and any
other sovereign state has the right, if it
wants to, simply to come and take your
property. It does not even have to com-
pensate you for it. This has always been
the case. However, the Constitution con-
tains a provision that the State cannot
take your property without just compensa-
tion. What just compensation is in a taking
is a matter that is spelled out by court
decision.
The legislature to a certain extent has
a part in this. The legislature can say, for
instance, as our state legislature has done,
that if there has been a whole taking the
measure of damage is the value of the
property. The legislature can spell out how
value is determined and it does so in
Article 33-A of our Code, sections 5 and G.
However, nearly one hundred years ago,
it was recognized that there were instances
where property was damaged by a taking
of neighboring property in such a way
that while the property itself was not
touched there was a serious diminution in
value to it because of that taking, and it
was a diminution in value that was pe-
culiar to that particular property that was
damaged though not taken.
The State of Illinois back in 1870 passed
an amendment which is exactly the amend-
ment that we have in our recommendation
that was adopted by the Committee of the
Whole. This has been adopted by twenty-
six states. A twenty-seventh has adopted
it, but limited it only to where grade
levels are involved.
|
Now, there is nothing magical about
this. This does not provide a grab. It has
been very narrowly construed. I would like
for the purpose of clarity and helping you
people reach a decision on this thing, to
read to you just a little bit from what is
probably the outstanding textbook on this
subject. It is the six-volume work by
Nichols on eminent domain.
THE PRESIDENT: You have one
minute.
DELEGATE KIEFER: I am sorry that
I cannot read it to you, but if you will
read the memorandum that went around to
you, you will see the summary of what has
happened judicially.
Now, you have gotten an opinion in a
letter from the attorney general. I did not
see that until it was distributed. I submit
to you that it is based upon two telephone
conversations and apparently several pa-
pers given at some meeting of highway
officials.
I suggest to you that there are a lot of
statements in that that are not true. It is
not a very scholarly document. It is a scary
document and it is a document that I do
not think if I were the attorney general
I would be proud of having seen and shown
in public the way it has been around here.
It is not supported with any cases except
that it states a few Maryland cases on a
subject we already know about.
I do not know that this is a particularly
catastrophic situation. It is only a recom-
mendation by this Committee to bring Mary-
land in line with the majority of the states
to arrange for a damage to property when
it is a peculiar damage in a peculiar kind of
situation.
THE PRESIDENT: Your time has
expired.
DELEGATE KIEFER: If you will read
these documents, I think that you will find
that there is a logical and proper measure
of damages and I hope that you will reject
the amendment.
THE PRESIDENT: Any further dis-
cussion?
Delegate Churchill Murray.
DELEGATE E. C. MURRAY: I should
like to speak in opposition to the amend-
ment. How much time —
THE PRESIDENT: Just a second. I
thought you were rising for something
different.
|
