Can a Maryland town condemn land owned by the county to build a sewage treatment site?

Plain-English summary

The town of Berlin needed a site for a spray irrigation sewage disposal system to satisfy a consent order with the State, and the best available tract was land owned by Worcester County. The County Commissioners had voted the land surplus and agreed the town's need was a public need, but then hesitated after nearby property owners objected, leading the town's attorney to ask whether Berlin could simply condemn the county's land under its statutory power to acquire property "inside or outside the municipality" for its sewerage system. The Attorney General agreed with the town's own attorney that it could not: the condemnation statute's reference to taking property from an "owner" was not read to reach the county itself absent some clear legislative signal that political subdivisions were meant to be covered, and Maryland case law, while mixed, leaned toward treating publicly owned land as off-limits to condemnation by another government body without express authorization.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland town use eminent domain to take land the county owned?
Not under this statute, according to the opinion. Section 9-705(5) of the Environment Article let a municipality condemn "any property" needed for its sewerage system, including land outside its own borders, but the opinion concluded the word "owner" in that provision did not extend to the State or its political subdivisions absent a clear indication the legislature meant to include them.

Did it matter that the county had already called the land surplus and agreed the town's need was legitimate?
The opinion noted this made the underlying policy question closer, since some out-of-state authority treats publicly owned land that is not actually being used as more like private property for condemnation purposes. But it found Maryland's own case law "mixed, too mixed" to predict that the state's highest court would let the town condemn county property on that basis.

Was there any prior Maryland case directly deciding whether one government could condemn another government's land?
No. The opinion said the question had not been squarely addressed in any reported Maryland decision, and relied instead on older cases suggesting political subdivisions generally lack power to condemn each other's property, plus a single unpublished 1985 AG opinion that had not addressed this specific situation.

Background and statutory framework

Berlin was under a consent order with the State requiring it to submit plans for a land application treatment system, and the site under discussion was a tract owned by the County Commissioners of Worcester County, outside Berlin's town limits. The County Commissioners had, by formal resolution, declared the land excess property not needed for county purposes and found that Berlin's need for it was a public need, meaning the land would not have to go to the highest bidder in a sale. But after hearing objections from nearby property owners, the commissioners hesitated to go through with a voluntary transfer, prompting the question whether the town could condemn the land instead under Section 9-705(5) of the Environment Article, which lets a municipal authority acquire property connected to its water or sewerage system "by purchase, in fee or as an easement, from any owner, or if the owner objects, by condemnation, any property inside or outside the municipality."

The opinion read the statute's use of "owner" against a body of Maryland case law holding that similar general terms are not presumed to include the State or its political subdivisions without a clear legislative signal, citing Unnamed Physician v. Comm'n on Medical Discipline and State Comm'n on Human Relations v. Baltimore. It also surveyed older Maryland precedent, including County Commissioners v. Maryland Hospital for the Insane (a county with eminent domain power still could not take State-owned land), Gist v. Owings, and Baltimore v. Bouldin, all suggesting that condemnation statutes are not read to authorize taking land that is already publicly owned. Northern Central Railway Co. v. Baltimore was read as leaving open, by negative implication, whether land no longer devoted to an existing public use might be treated differently, an idea the opinion found developed in an out-of-state treatise and in King County v. City of Seattle (holding counties lack power to condemn state or subdivision property absent express or necessarily implied authorization) and Village of Elmwood Park v. Forest Preserve District of Cook County. Weighing this mixed authority, the opinion concluded it could not predict that Maryland's Court of Appeals would recognize a municipality's power to condemn land owned by a county, and so advised that Berlin lacked authority under Section 9-705(5) to condemn the Worcester County land for its sewage disposal site.

Citations and references

Statutes:

• Section 9-705(5) of the Environment Article

Cases:

• State of Maryland, Department of Health & Mental Hygiene v. Mayor & Council of Berlin, Case No. 87CV0510 (Cir. Ct. for Worcester County, June 29, 1987)
• County Commissioners v. Maryland Hospital for the Insane, 62 Md. 127, 129 (1884)
• Gist v. Owings, 95 Md. 302, 306, 52 A. 395 (1902)
• Baltimore v. Bouldin, 23 Md. 328, 373 (1865)
• Unnamed Physician v. Comm'n on Medical Discipline, 285 Md. 1, 400 A.2d 396 (1979)
• State Comm'n on Human Relations v. Baltimore, 280 Md. 35, 371 A.2d 645 (1977)
• Northern Central Railway Co. v. Baltimore, 133 Md. 658, 106 A. 159 (1919)
• King County v. City of Seattle, 414 P.2d 1016, 1019 (Wash. 1966)
• Village of Elmwood Park v. Forest Preserve District of Cook County, 316 N.E.2d 140, 142 (Ill. App. 1974)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LOCAL GOVERNMENT

Municipal Corporations—Condemnation—Municipality Lacks Authority To Condemn County-Owned Land For a Sewage Disposal Site.

February 11, 1988

Guy R. Ayres III, Esquire

On behalf of the Mayor and Council of Berlin, you have requested our opinion concerning the authority of Berlin to condemn, for use as a spray irrigation sewage disposal site, a tract of land owned by Worcester County. You have reviewed the matter and have advised the town that it lacks the authority to condemn the County land in question.
For the reasons stated below, we likewise conclude that Berlin lacks the authority to condemn this land.

                                I
                          Background

Under a consent order with the State, Berlin is required to submit plans and specifications for "a land application treatment system which when constructed would allow the applicable discharge permits to be met." State of Maryland, Department of Health & Mental Hygiene v. Mayor & Council of Berlin, Case No. 87CV0510 (Cir. Ct. for Worcester County, June 29, 1987).
The proposed site for this sewage disposal system is a tract of land outside the limits of Berlin that is owned by the County Commissioners of Worcester County. Your letter describes the present status of the land as follows:

  The County Commissioner of Worcester County, by a formal resolution, voted that the subject property was excess property, and not needed for the present or future needs of the county. Further, by formal resolution, they voted that the need of Berlin was a public need so that the land would not have to be sold to the highest bidder.

Letter from Guy R. Ayres III to Jack Schwartz, at 1 (October 21, 1987). However, after hearing objections from nearby property owners, the Worcester County Commissioners have hesitated to transfer the land to Berlin. The possibility that they will not go forward with the conveyance has led to the question of whether Berlin may take the land under the following grant of power:

   A municipal authority may:

   (5) In order to exercise any power set out in this subtitle with regard to any part of any [water or sewerage] system, acquire by purchase, in fee or as an easement, from any owner, or if the owner objects, by condemnation, any property inside or outside the municipality

Section 9-705(5) of the Environment Article ("EN" Article).

                              II
          Authority to Condemn Public Property

EN §9-705(5) empowers a municipality to condemn "any property" needed in connection with its sewerage system, even if the land is located outside the municipality. See Opinion No. 85-015 (May 20, 1985) (unpublished). While thus generally authorizing extraterritorial condemnation of privately owned land, the statute does not specifically authorize a municipality to condemn land owned by another political subdivision. Nor did Opinion No. 85-015 address that unusual situation.
To the best of our knowledge, the question has not been squarely addressed in any reported decision in Maryland. Several decisions of the Court of Appeals suggest that political subdivisions generally do not have the power to condemn one another's property. In holding that a county with eminent domain power nevertheless may not appropriate State-owned land, the Court of Appeals cited approvingly a treatise-writer's conclusion that the land of local subdivisions was to be treated in equivalent fashion. County Commissioners v. Maryland Hospital for the Insane, 62 Md. 127, 129 (1884). Two other old cases suggest that condemnation statutes are not to be read as authorizing the appropriation of land already publicly owned. Gist v. Owings, 95 Md. 302, 306, 52 A. 395 (1902); Baltimore v. Bouldin, 23 Md. 328, 373 (1865). Cf. 41 Opinions of the Attorney General 135 (1956).
But see 57 Opinions of the Attorney General 121 (1972). See generally Ritchie, Law of Municipal Condemnation in Maryland, §14 at 11-13 (1904).
Moreover, the pertinent terminology in EN §9-705(5) is "owner." We agree with you that, like other terms of comparable generality, "owner" does not extend to the State or its political subdivisions in the absence of some manifest legislative intention that they be included. See, e.g., Unnamed Physician v. Comm'n on Medical Discipline, 285 Md. 1, 400 A.2d 396 (1979); State Comm'n on Human Relations v. Baltimore, 280 Md. 35, 371 A.2d 645 (1977).
Nevertheless, the matter is not free from doubt, given the fact that the County land is surplus. In Northern Central Railway Co. v. Baltimore, 133 Md. 658, 106 A. 159 (1919), the Court of Appeals held that the City lacked power to condemn certain railroad property "already subject to a public use which the State itself has sanctioned." 133 Md. at 661. By emphasizing the existing public use, the Court perhaps implied that the railroad's land would have been subject to condemnation if it were not in use.
This unexpressed implication is developed in some out-of-state authority. As one treatise summarizes: "Where ... land is held for the public use, but is not actually so used or needed, it has been held that it is subject to condemnation like the property of private individuals in that it may be taken under general legislative authority without finding a specific intent to authorize taking of public property." 1 Nichols on Eminent Domain §2.2, at 2-67 (rev. 3rd ed. 1985). However, the cases cited for this proposition generally deal with lands owned by publicly chartered corporations like railroads, rather than by governmental units themselves. And, there is out-of-state authority to the contrary. For example: "[W]e hold that in the absence of express or necessarily implied legislative authorization, ... counties do not have the power to acquire by condemnation property owned by the state or a subdivision thereof, regardless of the use to which that property is being put." King County v. City of Seattle, 414 P.2d 1016, 1019 (Wash. 1966). See also Village of Elmwood Park v. Forest Preserve District of Cook County, 316 N.E.2d 140, 142 (Ill. App. 1974). See generally Power of Eminent Domain as Between State and Subdivision or Agency Thereof, or as Between Different Subdivisions or Agencies Themselves, 35 A.L.R.3d 1293 (1971).
In short, the case law is mixed, too mixed, in our view, to serve as a basis for our predicting that the Court of Appeals would find that Berlin has the power to condemn the County's land.

                             III
                         Conclusion

In summary, it is our opinion that the Town of Berlin does not have the authority under EN §9-705(5) to condemn land owned by Worcester County.

        J. Joseph Curran, Jr., Attorney General
        Jack Schwartz, Chief Counsel
           Opinions & Advice