Evening star. [volume] (Washington, D.C.) 1854-1972, 1895-12-16
Constitutionality Of the Highway
Act Questioned.
INSTRUCTIONS ASKED FOR REFUSED
Full Text Of Judge Cox's Charge
to the Jury.
A RITY FIN DIN G


hearing of case 49, Denison and Leighton's
subdivision of Mount Pleasant. the frs: of
the forty-seven subdivisions embraced
within section l of the approved plan of
street extension, testimony was continued
behalf of the District.
The same jury of seven appraisers sitting
in the present case have been summoned
by Marshal Wilson to sit in case 49, and
the latter case will, it is thought, be con-
cluded in less than weeks time.
The witnesses examined today in case
419 were w. W. Townsend. owner of lot
40; Albert F. Fox, real estate dealer; J. H.
Lichliter. a builder; Robert B. Brown, Capt.
Fiebeger, assistant to the Engineer Com
missioner; John NJ. Henderson, lot owner;
Mr.. Thos. C. Daniel, real estate dealer; b.
p. Davis real estate dealer.
MIR. Wilson's Request for Instructions
This concluded the testimony IN the case.
and Mr.. Nathaniel Wilson. on behalf gen.
orally of the land owners, offered series
of Instructions which he asked the court
to give the jury of appraisers. The asked
for Instructions attacked the constitution
atty of the street extension act. contend
ing that the assessing of both damages
and benefits contemplated by the act
asked the court to tell the jury that they
cannot assess benefits against any parcel
of land not embraced within the subdi-
vision IN question, and that in assessing
benefits they cannot take into considera
ton any supposed benefits resulting from
the proposed extension of streets.
Mr.. Wilson also formally moved that the
jury be discharged and the proceedings dis
missed because the fling of the approved
plan of section l last August was IN effect
the taking of the lands. and because no
provision was made in the act for the com
pen.sat.on of the owners in legal tender. 1t
being unlawful to compensate them partly
in money and partly in benefits: also. be-
cause it IS not in the power of Congress to
provide that one-half of both general ard
special benefits shall be charged against lot
owners. The act is contradictory and
uncertain, explained Mr.. Wilson. that It
really is impossible of enforcement. and for
that reason he also asked that the jury be
discharged from the further consideration
of the case.
Judge Cox's Refusal.
Judge Cox said he would refuse the in
structons and would. pro forma, overrule
the motion to discharge the jury, although
he remarked that he sympathized with
many of the matters urged by Mr. Wilson
1t did not seem to him, however that any
one could be subjected to a double assess
ment of benefits. He did not of course,
know that the act ever WILL or ever can
be enforced. but they would have to do the
very best they could under the circum-
stances.
Counsel on both sides decided to submit
the case to the jury without arguments
and Judge Cox proceeded to charge the
jury.
The Charge to the Jury.
In charging the jury Judge Cox said
LAS to each of the several parcels of land
proposed to be condemned as a public high
way, the jury are to ascertain what would
be a Just compensa ton to the owner foI
such condemnation.
Il might perhaps add here that the Dis
trict of Columbia does not expect to take
the fee cimple ownership of the land but
simply the use of the land for the public
highway: so that IL hereafter it should DE
abandoned public highway the fe.
simple ownership would revert to the
owner. 1t would always remain in him, il
II the District should afterward abandon
the road or street the ownership of the
land in the present proprietor would re-
main unaffected.
you may consider the most valuable uses to
which said land may be put by the owner
Or other persons: the advantages OF the
locality for residential, commercial or Other
purposes.
You may also consider what said land
is worth in cash or its equivalent in the
II arket, II market exists for such land !.
also, what prices have recently been paid
for land in said subdivision, and in its
vicinity, making due allowance for differ
erce in situation and conditions of the
land sold. and said value shall be ascer-
tanned of the time of the hearing be-
fore the jury.
Damage or benefit.
That when any parcel of land to be con-
demned as aforesaid shall be part of a
larger parcel owned by the same person,
you shall assess the just compensation for
the part taken; you shall also take into
consideration the damage or benefit which
the appropriation of said part for public
highway may be to the owner or owners of
such larger parcel by lessening or enhanc-
irS the value of the remainder not taken,
and shall render your verdict accordingly
for the amount of said compensation and
damage, if you shall find such damage. or
for the amount of compensation, less the
benefit. If you shall find benefit.
That is to say, taking at random lot 105,
we will say, you will find. first. what is a
just compensation for the part taken, If
any, of the extension of 10th street; and if
you find any benefit is derived from them
by the balance of the lot over and above
it's present market value by having a new
front on wide highway. you will deduct
the amount of that benefit, the percentage.
if you can arrive at it, from the amount al
lowed for damages for the taking Of the
street.
But there Is a constitutional question
here which the gentlemen representing the
lot owners have raised, as to whether Con-
gress has any right to deduct estimated
benefits from the land itself which is taken.
In order that that question may be pre-
sented on the record l direct you further
that you shall state separately the amount
of compensation due for the land taken,
and also the amount of damage, If any, to
the part not taken. or the amount of bene-
fit, if any, to the part not TAKEN so that
the figures will be before the court upon
the final hearing. and the amount of bene-
fit can be deducted or not, according to the
final decision of this question of constitu-
tional law. without the necessity of having
another jury to pass upon the question.
'In estimating the amount of damage to
the part not taken you shall not consider
the probabilities of a future sale of such
part by it's owner to the owner Of the adj
joining tract, such probabilities being too
remote.
You will remember that as to some of
these lots the part not taken is Of very lit
tie value in itself, a mere strip, sometimes,