Evening star., 1895-08-30
INJUNCTION DENIED
Decision Of Judge McComas in the
Tingle Case.
THE MAP Can Be RECORDED
The Land Not Yet Taken by the
Commissioners.
THE OPINION IN FULL

ion, today refused the petition of Amory
K. and Elsie j. Tingle, filed the 9th of
last April, praying that the District Com
missioners be enjoined from filing and re-
cording the map Of section 1 Of their
proposed plan of street extension.
The facts and points raised are fully
set out in Judge McComas opinion, which
Is as follows:
The Case Stated.
1.-THE complainants own about four acres
and a half of agriculture land on Spring
read, west Of 7th street, near the Mary
land line and beyond the boundary of
the city. This parcel improved by dwell
ing and barn, is occupied by the complain
ants as their home. The Commissioners,
the defendants, by virtue of an act of
Conress approved March 2, 1888, entitled
An act to provide a permanent system
lying outside of the cities, have prepared
section No. l Of the plan for permanent
system of highways embracing the portion
of the District beyond this boundary which
includes the complainants' agriculture
lands, and the Commissioners have made
map of that section on which appear
streets, avenues and reservations. Certain
streets and avenues appear on this map
to include most of the complainants' lands,
leaving them three narrow strips bordering
on the proposed streets. On April q, 1898,
the Commissioners approved certified and
delivered to the commission provided in
section of said act this plan or map
of section No. 1 for the final approval
Of said commission. AS soon as this map
shall have been approved and delivered to
them by this commission, the Commission
ers intend to file and record 1t in the Of
flee of the surveyor Of the District. The act
in section No. provides That after
no further subdivision of any land included
therein shall be admitted to record in the
office of the surveyor of the said District
or in the office Of the recorder Of deeds
thereof unless the same be first approved
by the Commissioners and be in conformity
to such map Section No. provides
that when such map shall have been SO
recorded 1t shall be lawful for the owner
of any land included within such map to
adopt the subdivisions thereby made by
reference thereto in any deed or will he
shall thereafter make. And the Commits
sioners are authorized to name the streets
laid out.
Averments of the Complainants.
1.-THE complainants aver that the intend
ed filing of this map will be great and
irreparable injury and will be the taking
of their private property for public use with
out compensation, and they ask this court to
enjoin the Commissioners from filing and
recording this nap.
1.-The defendants deny that the filing of
this map will be a taking of private prop
erty for public use without compensation
and reply that the recording of this map
will result in no injury whatever to the
complainants and that whenever this prop
erty is required for public uses it will only
be taken with compensation as provided
by this act.
1.-The minor questions argued are not i'm
portant and are not necessary to a decis-
Ion of this case.
THAT the proceedings are regular is not
denied.
s.The ono ouestion nressed ,,non me to
decide is whether after such preliminary
proceedings the filing and recording of
such a map pursuant to this act of Con-
greSS constitutes taking of the complain
ants private property without compensa-
ton, and whether this act of Congress pro-
vidipg a permanent system Of highways
is unconstitutional.
THE language of the fifth amendment,
Nor shall private property be taken for
public use without just compensation has
been construed in cases quite similar to
the case before me. The Constitution does
not provide or require that compensation
shall be actually paid in advance of the
occupancy of the land to be taken. The
owner is entitled to reasonable, certain and
adequate provision for obtaining compen-
sation before his occupancy is disturbed.
Whether particular provision be suffi-
cient to secure compensation is sometimes
a question. Cherokee Nation vs. Kansas
r. R. Co., 135 U. S., esq.,
What the Act Provides.
1.-The act before me provides that the
Commissioners at any time thereafter,
when in their judgment the public con-
venience shall require the opening of any
highway on such map, may make applica-
ton to this court for the condemnation and
opening of such highway, that this court
shall have hearings after due notice, both
public notice and personal service, before
proceeding to condemn such lands for such
highway, and that a jury shall try the
questions. The questions of damages and
compensation are guarded by this act. The
mode of paying damages is set out. An
appeal for owners aggrieved is provided.
Whenever any final decree is made for the
payment of damages to the parties or into
the registry of this court, And when the
money has been appropriated and paid the
Commissioners shall be entitled to take
immediate possession of the parcel of
land In case the court shall enter judg
ment of condemnation in any case and ap-
preparation is not made by Congress for
the payment of such award within the
period of six months, Congress being in
session for that time after such award, or
for the period of six months after the meet
ing of the next session of Congress-, then
proceedings shall be void and the land
shall revert to the owners. Finally the
Commissioners are required to submit an
nual estimates with their annual report
of their action under this statute
When the Title Passes.
"If lump appropriation had been made
to buy all the needed land, or a provision
for payment out of permanent annual ap-
preparations had been stipulated, the pro-
cedure for payment would have been sim
pier, but am of the opinion that this pro-
vision Is sufficiently reasonable, certain and
adequate to secure the just compensation
to which the owner is entitled. Under this
act the title does not pass until compen-
sation is actually made to the owner. nor
are the Commissioners entitled to take pos
session It'll after the money for the dam
ages has been appropriated and paid. The
Fastening of appropriation is provided for
so far as under our system 1t can be.
delay by Congress Of six months makes
void the whole proceeding for the taking of
land for such highway. There is no legal
weight in the objection to the absence of
the appropriation to pay for the lands.
''The filing of this map is preliminary
proceeding. This proceeding SO far is not a
taking Of private property for the public
use, or one that must necessarily result in
such taking 1t is only a preliminary be-
gun for the purpose of ascertaining the
quantity and location of property proposed
to be taken.
ACTS done in a proper exercise of gov
ernmental powers, and rot directly en-
crcaching upon private property, though