National Republican., 1883-07-18
EXTENSION OF THE WATER WORKS

The Attorney General Says That the
Work Need Not he Delayed on Account
OF NOn-AppropriatiOn TO Pay Eor Com
demncd Land.
Tho attorney general has delivered an ex-
haustivo opinion upon the questions submit
ted through the War department by Commits
sioner Lydccker, relative to tho now aque-
duct and reservoir, whether work on a certain
portion must be delayed until congress shall
appropriate a sum equal to tho assessed value
of the land needed; and whether proceedings
looking to condemnation of land for the res
ervoir can be commenced in advance of those
looking to the condemnation of lands required
for the Aqueduct extension and tho dam at
Great Falls. The attorney general SAYS:
"Tho act of July 5, 1889, entitled An act to
increase the water supply of Washington,
and for other purposes is operative as well in
tho state of Maryland as in tho District
of Columbia. 1t may also affect riparian
rights and tho title to soil in tho state of
Virginia.
"Of the right of congress to appropriate
private property for public use within tho
District of Columbia no question has been
raised. Its power within the states to appro-
pirate for federal purposes has been declared
and announced by the supreme court in Kohr
ct al, VS.. the United States (91 U. S. 367),
where the case of Twombley VS.. Humphrey
NEuJn MICH. 4il) IL ClUou WIN approval.
The courts of Maryland have been explicit
that proper supply of water for tho
seat of government is public use, but inde-
pendent of this 1t Is well settled that the
legislature is the proper and only judge of
what is and what is not public use. 1t
remains, therefore, only to inquire what is
tho method pointed out by congress for this
taking, for, as is said by Davis, j., in Secombo
VS.. Railroad company (23 Wall, 10S), 'it is no
longer an open question in this country that
tho mode of exercising the right of eminent
domain in the absence of any provision in
the organic law prescribing contrary course
is within the discretion of tho legislature.
"The first step to be taken is the prepara-
ton Of the necessary survey and maps for the
extension Of tho aqueduct for the res srvoir,
for the land necessary for tho dam, including
the land now occupied by the dam, and for
the land on which the gatehouse at Great
Falls stands.
"Whon these have become completed it be-
comes the duty of the secretary of war and
attorney general to acquire whatever out
standing titles exist to said land and water
rights, and to the land on which tho gate.
house at Great Falls stands by condomnation
There is a seeming confusion in the statute at
this point arising from tho expression in the
second paragraph IF it shall be necessary to
resort to condemnation but l do not find
anywhere in tho statute grant of authority
secretary of war and the attorney general are
to purchase they must, III some way, ascer-
tain the value of tho property and rights
taken, and it seems TO have been the iuten-
tion of congress that they should learn this
from the appraisers or from the court of
claims. The authority over the appropria-
tions in tho statute Is conferred upon them
sub modo, and in causing coupensationssto be
offered to tho owners tho only grant is to
offer the amount fixed by the appraisers as
the value thereof
"As soon rs resort to condemnation becomes
necessary the attorney general must procsad
| to ascertain tho owners or claimants of the
promises embraced in tho survey by making
publication describing tho land embraced
in the survey, with q notice that the same
has been taken.
"The effect of this is clearly stated later in
the statute. Upon the publication of tho
notice as above directed the secretary of war
may take possession Of the premises embraced
in tho survey and map and proceed with the
constructions herein authorized; that is to
say the taking for public use becomes, with
the publication. completed act.
1t Is not necessary at present to enumcr-
ate the detailed provisions relating to ascer-
tainment of tho valuo, for it must be plain to
any one that while the fifth amendment of
tho constitution says that private property
shall not be taken for public use without Just
compensation, tho taking and tho compensat-
ing are distinct acts They are certainly
distinguished in this statute, for it Is made
lawful for the secretary of war to take pos
session n year before title vests by reason of
failure to file petition in the court of claims,
and entirely Independent Of the time that
may be occupied by the appraisers and the
court Of claims in ascertaining what the
compensation of those who have appeared
| shall be-"
Further in his decision the attorney general
says that it requires no judicial condemnation
to subject private property to public use as,
like the power to tax, il resides in the lcgisla-
tive department to whom the delegation is
made. 1t may be exercised directly or indi-
rectly by that body 1t is not essential that
compensation be made before the actual ap.
preparation. 1t is sufficient if provision is
made by tho law by which the party can obtain
compensation, and that an impartial tribunal
is provided for assessing it,.
He thinks proceedings looking to condem-
nation of land for the reservoir cannot be
commenced In advance of those looking to the
condemnation of lands required for the
aquoduct extension and tho dam at Great
Falls.
The work along the whole line need not be