80 CONSTITUTION OF MARYLAND [Art. 3]

Where a part only of leased property is condemned, no portion of the rent is abated,
and hence the tenant is entitled to compensation. Gluck v. Baltimore, 81 M. 321.

Under this section a mortgagee of condemned land must be compensated to the ex-
tent of his interest. Hagerstown v. Groh, 101 Md. 563.

Eminent domain and taxing power distinguished.

This section has no reference whatever to the taxing power. The right of eminent
domain and the taxing power distinguished. The act of 1870, ch. 314, extending the
corporate limits of the city of Frederick, held not to violate this section. Graff v.
Frederick City, 44 Md. 77. And see Moale v. Baltimore, 5 Md. 320.

Since an ordinance imposing an assessment upon adjacent property for the repaying
of a street, is the exercise of the taxing power and not of the right of eminent domain,
this section has no application; hence such ordinance need not contain provisions for
notice for a hearing or for a jury trial on appeal. Baltimore v. Johns Hopkins Hospital,
56 Md. 30 (cf. dissenting opinion).

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 com-
pensation 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. Banner v.
State, 89 Md. 226.

This section referred to in deciding that in a proceeding to condemn property under
art. 23, sec. 329, 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 common law jury or a jury
summoned by 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 by 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 mea-
sure 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 trial; this is
true though the appeal is taken by the property owner. History of this section. Pat-
terson v. Baltimore, 127 Md. 235.

An award of damages for the opening of a street which did not include compensation
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. 231 of the Baltimore city charter (1938 ed., 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 threatened, 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 commissioners 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 street, 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 giving
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