LEGISLATIVE DEPARTMENT. 99

Jury trial; notice; damages.

If the law under which the condemnation is had, provides for an original assess-
ment or award and for a jury trial on appeal therefrom, this section and art 5 of
the Declaration of Rights have been complied with, and if no appeal is entered
within the time prescribed, and the compensation assessed is paid or tendered,
the property may be taken for a public use The compensation need not be paid
or tendered before a survey is made or other preparatory steps taken, but a street
cannot be opened or used, or the land entered to grade or to prepare the ground
for that purpose, until the compensation is tendered or paid Stewart v Baltimore,
7 Md 511 And see Knee v City Passenger Ry Co, 87 Md 625, Howard v First
Church, 18 Md 455 Cf Danner v State 89 Md 226

This section referred to in deciding that in a proceeding to condemn property
under art 23, sec 331 of the An Code the owner is entitled to notice before the
property is condemned and notice of the pendency of the inquisition in the court
for confirmation is not sufficient The jury meant by this section is either a com-
mon law jury or a jury summoned bv warrant Baltimore Belt Co v Baltzell, 75 Md
105 And see Pitznogle v Western Md R R Co 119 Md 682

The method for ascertaining compensation by three appraisers, provided bv the
act of 1912, ch 117, their award to be subject to exception, and the exceptions to be
tried before a jury unless a jury trial is waived, held not to violate this section
The measure of damages in condemnation cases, as in all other cases, is a question
of law, and the act of 1912 did not attempt to establish such a measure Ridgely v
Baltimore, 119 Md 572, Pitznogle v Western Md R R Co , 119 Md 677

The legislature cannot fix the compensation to be paid in condemnation cases,
as that must be passed on by a jury Pa R. R. Co v B & O R R Co 60 Md 269

On appeal from the award of the commissioners for opening streets of the city
of Baltimore the city, as well as the property owner, is entitled to a jury trill,
this is true though the appeal is taken bv the property owner History of this
section Patterson v Baltimore 127 Md 235

An award of damages for the opening of a street which did not include com-
pensation for the resulting injury to the land not taken would not constitute just
compensation within the meaning of this section Baltimore v Megary, 122 Md 28

Sec 175C of the Baltimore city charter (act of 1914, ch 125) making the return
of the commissioners for opening streets prima facie evidence of the correctness of
the amount of damages awarded, does not violate this section Bonaparte v Balti-
more, 131 Md 86

Generally.

This section referred to in justifying an injunction upon a bill alleging acts without
legal authority, done and threitened, which will cause irreparable damage and that
no compensation had been paid or tendered for the use of certain land Western
Md R R v. Owings, 15 Md 204 And see American Telegraph Co v Pearce, 71 Md
539

Title does not vest until the amount assessed is paid or tendered, the mere assess-
ment of damages does not constitute a taking and the corporation may renounce the
inquisition and abandon its enterprise at any time before actual payment Norris v
Baltimore, 44 Md 604, Merrick v Baltimore, 43 Md 231, State v Graves, 19 Md
370

Both an assessment by commissioneis with a right of appeal and the assessment of
benefits on the owners benefited are established as constitutional modes of providing
compensation to owners of land taken for public use State v Graves, 19 Md 369

The portion of the act of 1817, ch 148, providing that no one should be entitled to
damages for improvements unless the same were erected before a certain street was
laid out, held unconstitutional, where property is taken for the bed of a stieet, the
owner is entitled to compensation as if no street was opened over it Moale v Balto
5 Md 321 And see Stewart v Baltimore, 7 Md 510

The act of 1860, ch 265 (incorporating the Consolidation Coal Company and giv-
ing it all the rights of eminent domain in the construction, etc of railroads which had
been conferred upon the Baltimore & Ohio Railroad), as well as the charter of the
Baltimore & Ohio Railroad itself, must be construed in connection with and as sub-
ordinate to this section State v Consolidation Coal Co , 46 Md 6

This section referred to in holding that the warden of the Maryland Penitentiary
might be made a defendant in an ejectment suit, the immunity of the state from
suit does not prevent an action against a state official wrongfully withholding prop-
erty for state uses Weyler v Gibson, 110 Md 653