# Wight v. Davidson

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## Dissenting Opinion

    Harlan
United States Supreme Court
181 U.S. 371
Wight v. Davidson
Argued: October 26, 29, 1900. --- Decided: April 29, 1901
Congress, by an act approved March 3, 1899, entitled 'An Act to Extend § Street in the District of Columbia, and for Other Purposes,' enacted as follows:
'Sec. 1. That within thirty days from the passage of this act the commissioners of the District of Columbia be and they are hereby authorized and directed to institute by a petition in the supreme court of the District of Columbia, sitting as a district court, a proceeding to condemn the land necessary to open and extend S, Twenty-second, and Decatur streets through lots forty-one and forty-two of Phelps and Tuttle's subdivision of Connecticut Avenue Heights, part of Widow's Mite: Provided, That the owners of the 'Kall' tract dedicate the land in said tract contained within the lines of said streets: And provided further, That of the amount found due and awarded as damages for and in respect of the land condemned under this section for the opening of said streets, not less than one half thereof shall be assessed by the jury in said proceedings against the pieces and parcels of ground situate and lying on each side of the extension of said streets, and also on all or any adjacent pieces or parcels of land which will be benefited by the opening of said streets as herein provided.
'Sec. 5. That the proceedings for the condemnation of said lands . . . shall be under and according to the provisions of chapter 11 of the Revised Statutes of the United States relating to the District of Columbia, which provide for the condemnation of lands in said District for public highways.'
'Sec. 7. That the sums to be assessed against each lot and piece and parcel of ground shall be determined and designated by the jury, and in determining what amount shall be assessed against any particular piece or parcel of ground, the jury shall take into consideration the situation of said lots and the benefits that they may severally receive from the opening of said streets.' 30 Stat. at L. 1344, chap. 431.
On March 31, 1899, the commissioners filed a petition in the supreme court of the District, alleging that the owners of the Kall tract had dedicated to the District of Columbia, for highway purposes, the land in said tract contained within the lines of S, Twenty-second, and Decatur streets; that a map of the proposed extension of said streets, showing the number and designation of lots affected, the names of the owners thereof, and the areas of land required for the extension, had been prepared and a copy thereof annexed to the petition; and praying the court to direct the marshal of the District to summon a jury to be and appear on the premises on a day specified, to assess the damages, if any, which each owner of land through which said streets were proposed to be extended, might sustain by reason thereof; and that such other and further orders might be made and proceedings had as were contemplated by the said act of Congress and by chapter 11 of the Revised Statutes of the United States relating to the District of Columbia, to the end that a permanent right of way for the public over said lands might be obtained and secured for the extension of said streets.
On April 3, 1899, an order of publication was made by the court directing that all persons interested in the proceedings appear in the court on or before the 22d day of April, 1899, and show cause, if any they have, why the prayer of said petition should not be granted, and that a copy of the order should be published in the Washington Post and the Washington Times newspapers at least six times, and in the Washington Law Reporter once, before the said 22d day of April, 1899.
On July 21, 1899, it was ordered by the court that, whereas notice by advertisement had been duly published, a jury should be summoned to be and appear upon the premises to assess the damages, if any, which each owner of land may sustain by reason of the condemnation of the land necessary to open and extend said streets, as prayed in said petition, and directing that of the amount due and awarded as damages by said jury in respect of the land condemned for the opening of said streets not less than one half thereof should be assessed by said jury against the pieces and parcels of ground situated and lying on each side of the extension of said streets, and also on all or any adjacent pieces or parcels of land which would be benefited by the opening of said streets; and to further proceed in accordance with the act of Congress approved March 3, 1899.
On August 30, 1899, there was filed in the supreme court of the District a return or report by the marshal, setting forth the appointment and qualification of the jurors, and a statement of the proceedings of said jury in taking testimony and hearing arguments of counsel. With the report of the marshal there was also filed a verdict in writing by the jury in the following terms: In the Supreme Court of the District of Columbia, holding a District Court for said District.
In re Extension of S, Twenty-second, and Decatur Streets.-No. 549.
We, the jury in the above-entitled cause, hereby find the following verdict and award of damages for and in respect of the land condemned and taken necessary to open and extend S, Twenty-second, and Decatur streets through lots 41 and 42 of Phelps and Tuttle's subdivision of Connecticut Avenue Heights, part of Widow's Mite, as shown on the plat or map filed with the petition in this cause, as set forth in schedule 1, hereto annexed as part hereof; and we, the jury aforesaid, in accordance with the act of Congress, approved March 3, 1899, for the extension of said streets, do hereby assess the sum of $26,000, being not less than one half of the damages so, as aforesaid, awarded in schedule 1 against the pieces and parcels of land situate and lying on each side of the extension of said streets, and also on adjacent pieces or parcels of land which we find will be benefited by the extension of said streets, as set forth in schedule 2, hereto annexed as part hereof.
By schedule 1, annexed to the award, it appears that the jury awarded to the owners of parts of lots 41 and 42 of Phelps and Tuttle's subdivision of Widow's Mite, as damages for land within the lines of § and Twenty-second streets extended, the sum of $36,000, and to the owners of part of lot 41, included in the lines of Decatur Place extended, the sum of $16,000.
By schedule 2 it is shown that the jury apportioned one half of said damages among the owners of pieces or parcels of land benefited, and that among those found to be benefited were the owners of the Kall tract, and against whose lands there were assessed various sums amounting, in the aggregate, to $14,000.
On September 19, 1899, the supreme court of the District entered an order confirming the award and assessment, unless cause to the contrary should be shown on or before the 4th day of October, 1899, and directing that a copy of said order should be published once in the Washington Law Reporter and twice in the Evening Star before that date; and further ordering that the marshal should serve a copy of the order personally on all the owners of land condemned and all the owners of land assessed in said verdict, with one half of the damages awarded therein, who might be found within the District of Columbia, and if not found therein, then by mailing a copy thereof to the place of abode or last-known place of residence of each owner or owners.
On September 29, 1899, the marshal returned that he had served a copy of the order personally on, among others, the appellees, and had mailed copies to such parties as resided without the District.
On October 4, 1899, the appellees filed exceptions to the confirmation of the award and finding of the jury, as to the owners of the tract of land known in the proceedings as the Kall tract. The exceptions were as follows:
'First. Said award of damages and finding of the jury is not warranted by the statute under which these proceedings are had and taken, and by a proper construction thereof no damage can be assessed against said tract of land, or any part thereof, or these respondents as owners of said land.
'Second. Because said act is unconstitutional and void in that in contains no provision for notifying the owners of property to be assessed in advance of said assessment, nor at any time pending the consideration of the cause by the jury, nor is any mode designated by the statute by which the objections of the owners whose land is sought to be charged with benefits can be properly heard or considered, or by which any objection they may have to such assessment might be made effective, and for other vices and defects apparent on the face of the statute.
'Third. Because the statute under which said assessment is made is a statute relating to a condemnation of land solely, and contains no provision touching the assessment of benefits, and was not intended to provide for such assessment.
'Fourth. Because the statute authorizing the extension of said streets, and the condemnation of land therefor, and the assessment of benefits, is, when taken in connection with the statute under which the condemnation proceedings were to be conducted, inconsistent and incapable of enforcement as to the assessment of benefits against property forming no part of that sought to be condemned.
'Fifth. Because the description of the property sought to be charged with the assessment of benefits is inaccurate, insufficient, and defective.
'Sixth. Because said award of damages and finding of the jury in that behalf are excessive, unjust, and unreasonable.
'These respondents therefore, each and severally, request and demand said award and finding to be set aside, and that a new jury be impaneled in accordance with the provisions of the statute in such case made and provided.'
On November 18, 1899, after argument, the exceptions were overruled, and the verdict, award, and assessment were in all respects confirmed. Thereupon the cause was taken on appeal to the court of appeals of the District of Columbia. On April 25, 1900, the order and decree of the supreme court of the District were reversed by the said court of appeals, and the cause was remanded to the supreme court of the District, with directions to vacate such order or decree, and for said other proceedings therein, if any, as might be proper and not inconsistent with the opinion of the court of appeals. 16 App. D. C. 371. An appeal was thereupon allowed to this court.
Messrs. C. A. Brandenburg and A. B. Duvall for appellants.
Mr. B. F. Leighton for appellees.
Mr. Justice Shiras delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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