Evening star., 1895-08-30


| turbed, there has been no taking Congr .ss
has prescribed the proceedings by which
the taking may be effected and the tine at
which and the mode by which the taking
may be erected If hereafter the public con-
venience shall require that one or more of
these highways be opened across the COM
plainants' land. In the sense of the
statute, the taking consists of a series of
acts commencing with the application by
the Commissioners to this court for the
condemnation and opening of this highway
over the complainants' land followed by
due notice to the owners. and ending with
| the payment Of the money damages award
ed. Thereafter. the Commissioners may
| take po session, and the taking will be COM
plete. The sense of the statute is not re-
pugnant to the sense of the Constitution.
Fox VS.. W. P. r. R. Co., 81 Cal, 55.)
This property is not taken in the sense
| that the compliments no longer remain the
owners, nor in the sense that the permanent
use of the property has been appropriated.
(Montana VS.. ST. Louis Co, 152 U. s., 169.)
when it was alleged that the Commis-
slonerS were about to take final action in
the location and establishment of the har-
lor lines and lines of waterways within
the city Of Tacoma, in the state of Wash
ington, in such way as to include within
these lines the plaintiffs right OF way,
wharves and warehouses and unless pre-
vented by injurc ction, would thereby de-
prive the plaintiff of the use and benefit
thereof without compensation or due pro-
cess of law, and would cloud the plaintiffs S
title, the Supreme Court held that sucn har
Dor lines, in order to fulfill their purpose.
must be established according to a general
system. That the establishment of harbor
lines of itself takes or Injuries no ones
property, and cannot consistently, with the
interests of the public or with the principle
of equity, be restrained by injunction.
CProsser VS.. n P. R. r. Co., 152 U. s., G3-65)
General System Necessary.
I'm order to fulfill its purpose the scheme
Of streets and highways beyond the boun-
dary of this city must be established ac-
cording to q general system, and must be
projected upon map when established.
The filing of such a map does not deprive
the owners of any substantial right in their
lands Gees not cloud their title nor inter
fere with their possession, use and enjoy
ment of property. The property may never
be taken. Meanwhile the owners can do as
they will with their own. They may culti-
vate their lands, plant vineyards or exca-
vate the soil. They may build houses in
the proposed highway. If hereafter the
land be taken they may be paid damages
for the betterments and improvements.
Save that they are by the map warned
that their land may be taken for street
and definitely informed what part of ii
may be teken, the owners in this case are
liable precisely as all other citizens OF this
District are liable to have their lands taken
for a public purpose at any moment by the
exercise of the power of eminent domain
by the United States. Every other citizen
owning land is subject to the exercise of
this sovereign power in the United States
THE argument that the mere filing of
this map constitutes a taking of the COM
plainants' land is very like the argument
urged in the Rock Creek Park case. The
Rock Creek Park statute GG Stat, 492, cap.
100l) approved September 20, 1880, con-
tains similar provision in section 3: That
the said commission shall cause to be made
an accurate map of said Rock Creek Park,
showing the location, quantity and charac-
ter of each piece of private property to be
taken for such purpose, with the names Of
the respective owners inscribed there)n
which map shall be filed and recorded with
in public records of the District, and from
and after the date of filing said map the
several tracts and parcels of land embraced
in said park shall be held as condemned for
public uses and the title thereof vested i'll
the United States, subject to the payment
of just compensation, to be determined by
said commission etc.
The Rock Creek Park Case.
1.-The Supreme Court said in respect of
similar objections to this provision "the
vice of this contention is in the as
sumption that the lands were actu-
ally condemned and withdrawn from
the possession of their owners by the mere
filing of the map. 1t is true that
by the Institution of proceedings to con-
denim the possession and enjoyment by the
owner are to some extent interfered with.
He can put no permanent improvements on
the land nor sell it except subject to the
was in receipt of the rents, issues and
profits during the time occupied in fixing
the amount to which he was entitled, and
the Inconvenience to which he was SUBJ
pected by the delay are presumed to be
considered and allowed for in fixing the
amount of compensation Shoemaker VS..
L. s.; 141 U. s., 321.)
THE commissioners of the department of
public parks of New York city filed a map
changing streets and defining new high
ways with like purpose for which this
map is intended to be placed on file in this
case. The supreme court of New York
says of such a case: The filing of the map
in question in no way defeated the title of
the plaintiff to the premises until the pro-
oeedngs provided by the statute had been
taken for the purpose of condemning the
premises, and these proceedings may never
be taken and the streets as laid down by
this map never opened for public use.' The
mere filing of the map by the commission
ers created no cloud or incumbrance on
the land projected upon the map. CWagner
VS.. Perry; II Hun, 51S)
I'm respect of square of ground in Bal
timore, where an injunction was sought on
the arguments now urged before me, the
court said that, although the proposed
street had been surveyed, the survey re-
ported, the damages and benefits assessed,
yet the appellants land has not been taken
in the legal sense of that word. The con-
stitutional provision against taking private
property for public use until compensation
Is first paid or rendered means taking the
plying it to the of the public. 1t does
rot mean the preliminary measures neces-
sary in such cases. (Stewart VS.. Baltimore,
Nd, 516o
1.-The cases of Eaton and of Pumpelly be-
fore referred to, state the qualifications of
this doctrine most strongly for the de-
fendant but 1 find in the case presented to
Inc no approximation to the facts in those
cases, no such restriction or interruption of
the use of this land by its owners that de-
stroys its value or strips it of its attributes
or prohibits its owners from using their
four acres as they please.
May Abandon the Plan.
ut is true the owners of this land
cannot compel the Commissioners to carry
the plan into execution. The Commission
ers may abandon it in certain contingen-
cies, or may delay to take the land for
many years. There is lack of reciprocity.
There is some hardship upon the owners,
but this statute does not hinder the own
ers in the usual and ordinary enjoym ent of
property to which they have an absolute
title.
I'm Philadelphia an act of the legislature
snd an ordinance passed to widen Chest
nut street was assailed upon the constftu-
oh IN,