#### JOHN WILKES ET AL. v. THE UNITED STATES.

[Congressional,

11445.

Decided January 6, 1908.]

*On the Proofs.*

In 1838 the grade of a street in Washington is lowered 10 feet, which compels the owner of the abutting property to erect a retaining wall. In 1851 the grade is lowered 15 feet more, compelling the owner to underpin the houses, etc. The excavations were made with reasonable care and without trespassing on the owner’s land.

I.Where there was no encroachment on the land abutting and no negligence on the part of the authorities in changing the grade of a street, there was no liability incurred by the city of Washington or the United States.

II.Where there was no liability incurred by the city in changing the grade of a street, there is no claim *'‘legal or equitable*” on the part of an abutting property holder within the meaning of the *TueJcer Act, 1887*(24 Stat. L., 505, § 14).

III.The findings of fact in Congressional cases are to inform the legislative authority of those things which are necessary for the exercise of the legislative intelligence. They are not

*153intended to present to Congress legal questions for judicial determination. But the court will advert to the law applicable to the facts to the end that a clear and unmistakable understanding of the facts shall be secured.

*The Reporters’’*statement of tbe case:

The following bill was referred to the court April 26,1904, by resolution of the United States Senate, under act of Congress approved March 3, 1887, known as the Tucker Act:

“[S. 2739, Fifty-eighth Congress, second session.]

“A BILL For the relief of the widow and heirs at law of Charles Wilkes, deceased, late a rear-admiral in the United States Navy.

*“Be it enacted by the Senate and Mouse of Representatives of the United States of America in Congress*assembled, That the sum of twenty thousand dollars be, and the same is hereby, appropriated and made payable, out of any money in the Treasury not otherwise appropriated, to the widow and heirs at law of Charles Wilkes, late a rear-admiral in the United States Navy, now deceased, on account of special damages, caused during the lifetime of said Near-Admiral Wilkes, to lots numbered six and seven, twenty, and twenty-one to thirty-nine, inclusive, in square numbered six hundred and thirty-four, on North Capitol street, in the city of Washington, in the District of Columbia. Said damages were made by the public authorities twice changing the grade of said street in front of said lots and buildings between the years and eighteen hundred and seventy-two. The said sum to bear interest at the rate of three and sixty-five one-hundredths per centum per annum, as provided in act of Congress of June twentieth, eighteen hundred and seventy-four, like interest having been allowed on all claims of like nature acted on by the board of audit to such citizens as succeeded in having a hearing upon their claims before the suspension of the board of audit created by said act of Congress, the act being suspended March eleventh, eighteen hundred and seventy-six, and unadjusted claims turned over to the Commissioners of the District of Columbia.”

The claimants appeared and filed their petition in this court April 3, 1906, in which they make the following allegations :

That they are children and sole heirs of Charles Wilkes.

That at the times hereinafter mentioned, the said Charles Wilkes, deceased, was the owner in fee simple of two dwelling houses, commonly known as the “ Washington houses,” *154situated on the west side of North Capitol street, between B and C streets, in square 684, as laid down on the official plat of survey of the city of Washington.

That at the time their decedent purchased the said premises the said houses were standing on the then established grade of North Capitol street. That prior to 1838, and while their decedent was the owner of said property, the authorities of the United States lowered the grade of said street about 10 feet, and in order to protect the property their decedent erected a stonewall around the same, at an expense of about $2,000.

' That hereafter, and in the year 1851, the authorities of the United States again made an excavation in front of said property, and at this time lowered the grade about 15 feet, destroying the stonewall around said property, leaving the buildings on a bank about 25 feet above the street, and rendering the same untenantable, in which condition they remained until about the year 1870, when the bank began to give away, and in order to prevent the buildings from falling down their decedent underpinned the same and placed two stories under the original building, at a cost of $23,000, no part of Avhich has been paid by the Government, to the great detriment and injury of the claimants.

The following are the facts of the case as found by the court:

I. Charles Wilkes, deceased, was loyal to the Government of the United States throughout the late civil war.

II. Charles Wilkes, the ancestor of the claimants in this cause, owned and possessed certain buildings and grounds located in the District of Columbia and within the limits of the city of Washington, situate on North Capitol street between B and C streets. Said property was improved by two houses, known as the “Washington houses,” on account of having once been owned by Gen. George Washington.

III. About the year 1838 the grades of the streets adjoining said property were lowered about 10 feet by authority of law, and the said Charles Wilkes at that time, in order to protect his property, erected a stonewall around the same; the grade was again cut about the year 1851 about 15 feet more. About the year 1870 the houses were underpinned by the addition of more rooms so as to make useful and profitable the other part of the structure then standing on the premises.

*155IY. February 27, 1856, a resolution was adopted by the House of Representatives directing that the petition of Charles Wilkes and the papers accompanying his said petition for relief on account of said changes in the grades of the streets, be transmitted to this court for investigation and report to Congress, under an act which required that the court should report to Congress cases referred to it and finally acted on, accompanying its said report in each case with the material facts established by the evidence, and also with an opinion showing the reasons upon which such opinion was founded (10 Stat. L., 612). Thereupon, the ancestor of the present claimants, to wit, Charles Wilkes, filed his petition in this court, from which it appeared that he claimed to be the owner of the two dwelling houses here-inbefore described, and that the grades of the streets were lowered, and that he had erected around his property a stone wall to keep his land intact. That other excavations were made of the streets adjoining his property, about the years 1850 and 1851; and that in the year 1855 a further excavation was made in the same street by the same authority and the grade of the street reduced to its present level, and that the petitioner’s houses were considerably above the grade as changed, from which injury and damage resulted. Thereupon, the petition of said Charles Wilkes was heard in this court, and it was reported to Congress that the case was one of a series of cases claiming damages on account of changes in the grades of the streets of the city of Washington, and that the facts in the petition of said Wilkes and other petitioners did not furnish any grounds for relief. In consequence of this action of the court no order was made authorizing the taking of testimony.

Y. The evidence does not establish to the satisfaction of the court that, in the execution of the work of grading the streets adjoining the property of Charles Wilkes, the officers and agents of either the city of Washington, the District of Columbia, or the Government of the United States were guilty of any negligence in establishing new grades below the surface of the square upon which the property of Charles Wilkes was located; but that the excavations were made with *156reasonable care and without trespassing on the square of ground owned by the said Wilkes.

VI. The evidence in the cause establishes to the satisfaction of the court the fact to be, in so far as it is a question of fact, that this is not a claim, legal or equitable, either against the District of Columbia or the United States.

*Mr. G. W. Z. Blade*for the claimant.

*Mr. W. W. Scott*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants.

Howry, Judge,

delivered the opinion of the court:

The findings do not establish this to be a claim, legal or' equitable, within the meaning of the fourteenth section of the act approved March 3, 1887, commonly known as the Tucker Act (Eev. Stat., sec. 1058, p. 195).

Findings in this class of cases are to inform the legislative authority of those things which are necessary for the convenient exercise of the legislative intelligence. They are not intended to present to Congress legal questions for judicial determination. But it is the duty of the court to so frame its findings that they shall give rise to no misunderstanding as to the legal or equitable conditions of a claim. Hence, the court generally endeavors to avoid finding facts which imply that a legal right has been impaired when, in the opinion of the court, no such legal right ever existed. *(Vance*v. *United*States, 30 C. Cls. R., 252.) It follows, as in the case cited, that the court may show the relations of the facts to the law and advert to the law applicable to the facts, to the end that a clear and unmistakable understanding of the facts shall appear.

Whether the old corporation of Washington, over which Congress exercised the right of supervision, or the District of Columbia, over whose affairs Congress now exercises the same constitutional authority, were responsible, or whether the United States were alone answerable for whatever of damage the owner of this property may prove to have been sustained by reason of the changes in the grades of the adjacent streets, is not a matter of material inquiry, independent of our inability to indicate how much of loss was incurred by *157the owner in being compelled to so improve his houses as to make them accessible from the streets as the grades were changed. The evidence establishes that in reducing the grades there was no encroachment upon the possession of the owner and that the public authorities were guilty of no negligence. It is not contended on the part of the claimants, nor is it alleged in the petition, that in the execution of the work of grading the streets the officers and agents of the public trespassed upon the rights of the property owner. As a “ claim ” in the legal sense it was never suable; nor was there a taking of property within the meaning of the fifth amendment to the Constitution; there was, therefore, no implied contract, nor even tort, because the authorities did what they had a right to do. This court more than a half century ago reported this case to Congress as *damnum, absque injuria.*In doing so it followed the rule decided by the Supreme Court of the United States to the effect that the property of abutting owners could not be said to be damaged unless actually taken and appropriated for public purposes, because of the lawful use of the streets belonging in fee to the Government in control, inasmuch as the streets were highways dedicated to the public which the Government has a right to alter or change at pleasure, and that everyone purchasing a lot upon the summit or on the decline of a hill is presumed to foresee the changes which public necessity or convenience may require, and thereby avoid or provide against a loss. (C. Cls. R., 167, 1st sess. 35th Cong.; *Goszler*v. Georgetown, 6 Wheat., 593.)

Again, said the Supreme Court, the power given to the corporation to open and keep in repair streets agreeably to the plan of the city included the power to alter the grade or change the level of the land on which the streets by the plan of the city were laid out, and when this trust was performed on land dedicated to public use for the purpose of a highway the authorities were not acting unlawfully or wrongfully and were consequently not liable to damages. *(Ann C. Smith*v. Washington, 20 How., 135.) Cases apparently hard will occur, and the books are full of cases on this subject, and for which no remedy is provided. The settled law of *158England and of this country is against the allowance of such claims as these.

This report will be transmitted to Congress, together with a copy of this opinion.