The evening times., 1895-08-30
else of this sovereign power in the United

else of this sovereign power in the United
states.
The commissioners OF the department
of public parks of New York city filed a
map changing streets and defining new
highways with a like purpose for which this
map 1s intended to be placed on file in this
case. The supreme court of New York says
of such a case:
1.-the filing of the map in question in
no way defeated the title of the plaintiff
to the premises until the proceedings
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 Com
missioners created no cloud or encumbrance
on the land projected upon the map.
CASE IN BALTIMORE.
I'm respect to a square of ground in
Baltimore 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 assessedt
| yet the appellant q land has not been ia ken
in the legal sense of the word. The consti-
tutional provision against taking private
property for public use until compensation
| is first paid or rendered, means taking the
property from the owner and actually ap-
plying it to the use of the public. 1t does
not mean the preliminary measures neces-
sary in such cases.
| ut is true the owners of this land cannot
compel the Commissioners TO carry the plan
| int Thn piosin
| abondon 1t in certain contingencies 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 owners in the
| usual and ordinary enjoyment OF property
to which they have an absolute title.
"The case OF Foster VS.. Scott, 136 N.
Y, 5S4. SO much relied on by the learn
counsel for the compl ainants', states
no different doctrine but deals with very
different circumstances 1t is true that
whenever law deprives the owner OF
the beneficial use and free enjoyment of
his property. or imposes restraints upon
such use and enjoyment that materially af-
fects Its value, itdeprives him OF his property
within the meaning of the Constitution 1t
is not necessary, in order to render a statute
obnoxious TO the restraints of the Consti-
tuition that IL must in terms or in effect
authorize an actual taking OF the property,
solong as 1t affects its free use or enjoyment
or the power of disposition at the will of
the owner"
USE OF PROPERTY.
1.-The statute which the learned court was
discussing virtually imposed restriction
upon the use of the property, because 1t
enacted that it could not he used for building
purposes except at the risk OF the owner
of losing the cost of the building al some
time in the future. The court held that
this provision of the statute impaired the
value of the land and interfered with the
owners power of disposition, and the stat
ute to that extent was void. But no such
restriction is imposed upon the complainants
in the use of these lands, by the action OF
Congress for extending highways.
The free and full right of use remains unim-
paired by the terms of this statute.
But further, 1t is argued, the constitu-
tioDality OF a law is to be tested. not by
what has been done under it, but by what |
may, by its authority, be done, as wasstated |
in Stewart VS.. Palmer, "a n. Y, lsS. 1t |
is urged that by the filing of this map the |
public has constructive notice that the lands |
SO marked are highway. and that build
ing thereon will not be permitted and thus /
indirectly the complainants will be restricted |
In the use of their property.
''Speaking on this objection the Supreme
Court says: This test is accurate, pro-
vided, of course, 1t is limited IT, what may
rightfuIly be done and does not extend To
that which is wrongfully or under pre-
tense of the statute done
This statute gives the Commissioners no
such power over the lands of the conf
plainants: 1t sanctions no restraints upon
the complanants' rights to sell or build
on this land.
'.Other hardships have ebeensuggested, but
the courts cannot prevent them. Some of
them Congress may relieve by legislation,
others are necessary Incidents of a wise
plan of public Improvement of the Federal
City,"
A number of lawyers were present at the
reading of the opinion by the court At its
conclusion Mr.. Melloy sigBified his inten-
ton of making an appeal, which will be
noted as soon as he is able to prepare the
papers in the case.