The evening times., 1895-08-30
HIGHWAY IlW SUSTAINED
Judge Mecomas Dismisses the
TingIe Injunction Suit.
EFFECT OF THE DECISION
He Holds That the Proceedings So Far
Do Not Constitute the Seizure of
Private PrOperty-QuestiOn of Dam
ages One of the Future-PrOper Ex.
ercise of Governmental Authority.

| Judge McComas to-day rendered his de-
cision in the Tingle injunction suit against
the District Commissioners. He discharged
the temporary restraining order, dismissed
the plea for an Injunction and sustained
the act of March 2, 1898, which makes
provision for a permanent system of high
ways beyond the presnt city limits.
The petition was filed on April 81 last by
Amory K. and E. j. Tingle, whose suit
was prosecuted by william A. Meloy. The
Commissioners were represented In court
by Messrs Thomas and Duvall, attorneys
for the District.
In the delivery of his opinion the court
said:
| 1.-THE minor questions argued are not
important and are not necessary to a decis-
ion of this case. That the proceedings are
| regular Is not denied. The one question
pressed upon me TO decide is whether after
such preliminary proceedings the filing
and recording of such map pursuant to
this act of Congress constitutes a taking
of the complainunts' private property with
out compensation, and whether this act of
| Congress providing permanent system Of
high ways 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
| 10 the case before me. The ConstitutiCa .
does not provide or require that compensa-
ton 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 COM
pensation before The occupancy is disturbed.
Whether a particular provision be suffi-
cicnt to secure compensation is sometimes
question.
APPEALIs PROVIDED.
1.-THE act before me provides that the
Commissioners, at any time thereafter,
when in their Judgment the public con-
venience shal lrequlre the opening of any
highway on such map, may make applca-
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 question of damages
and compensation are guarded by this act.
The mode of paying damages is set out.
An appeal for owners aggrieved is pr"-
vided.
The filing of this map is preliminary
proceeding. This proceeding so far is not
taking of private property for the public
use or one that must necessarily result in
such taking. 1t is only preliminary be-
gun for the. purpose of ascertaining the
quantity and location of property proposed
to be taken.
'.Acts done in proper exercise of gov
ernmental process and not directly en-
croaching upon private property, though
their consequences may impair it's use, are
universally held not to he taking
within the meaning of the Constitutional
provision. They do not entltle the owner of
such property to compensation from the
United States or give him right to enjoin
its agents. This doctri ne is esta blished, and
its EXTREMIST qualification is fou nd III those
cases where it was held that permanent
flooding of private property amounted tc
a physical invasion of the real estate of the
private owner and pra actioal custer of his
possession may be regarded as taking,
although the lands be not absolutely taken.
"In the case before me there was no such
physical invasion; there is no disturbance
of the possession of the owners.
LAND NOT TAKEN.
at cannot be said in Il leEals sense that the
land has been Ia ken until the act has trans
pired which divests the title. So long as
the title remains in the owners, so long as the
land remains uncha nged, SO long as the pos
session of the owners is undisturbed, there
has been no taking. Congress has prescribed
the proceedings by which the taking may
be effected and the time at which and the
mode by which the taking may be effected
il hereafter the public convenience shall re-
quire that one or more of these highways
he opened across the complainants' land.
''ID the sense of the statute, the taking
consists of series of acts, commencing
with the application by the Commissioners
TO this court for the condemnation and open
ing of this highway over the complainants'
land, followed by due notice to the owners
and ending with the payment of the money
damages awarded. Thereafter the Com
missioners may take possession and the
ia king will be complete. The sense of the
statute is not repugnant to the sense of the
Constitution. This property is not taken
In the sense that the compiainants no longer
remain the owners. nor in the sense that the
permanent use of the property has been ap-
when it was alleged that the Commits
sioners were about to take final action
in the location and establishment of the
harbor lines and lines of waterways
within the city of Tacoma, in the State
of Washington, in such way as to include
within these lines the plaintiffs right
of way wharvcs, and warehouses, and
unless prevented by injunction would
thereby deprive the plaintiff of the use
and benefit thereof without compensation
or due process of law and would cloud the
plaintiffs title, the Supreme Court held
that such harbor lines in >order to fulfill
their purpose must be established accord
ing to general system. That the estab-
of harbor lines of itself takes
or Injuries no ones property and cannot
with the interests of the pub
lie or with the principle of equity be re-
strained by injunction.
THEIR RIGHTS NOT ABRIDGED.
"In order to fulfill its purpose the
scheme of streets and highways beyond
the boundary of this city must be estab-
lished according to q general system and
must be projected upon mp when
established. The filing of such map does
not deprive the owners of any substantial
right in their lands, does not cloud their
title nor interfere with their possession,
useand enjoyment ofproperty. The heproperty
may never be taken. Meanwhile the wners
can do as they will with their own. They
may cultivate their lands, plant vineyards,
or excavate the soil. They may build
houses in the proposed highway. II here
after the land be taken they may be paid
damages for the betterments and improve