Evening star. [volume] (Washington, D.C.) 1854-1972, 1896-04-24
Court Of Appeals Sustains the High
way Act.
HORIGHf;HOVEVER, TO ASSESS BENEFITS
An Opinion From Parts of Which
the Chief Justice Dissented.
TEXT OF THE DECISION

orally regarded as a victory both for the
District and for the land owners. The eff
feet OF yesterdays action of'the appellate
court is to sustain the validity of the act
In part, while at the same time declaring
that its provisions respecting the assess
ment of both special and general benefits
are invalid and imperative. Such, at least,
is understood to be the opinion of counsel
for the District An appeal to the United
States Supreme Court is open to both Sides
but whether or not either side appeals has
Eot yet been definitely determined, and will
cot be, ii is said, until after counsel have
had an opportunity to more carefully con-
slider the effect of the action of the Court
OF Appears. IhlS much is, however, certain
If the land owners appeal, the District
VIII also note an appeal, that every Ques-
| lion raised by either side in the case may
| be considered and passed upon by the Su-
preme Court
The Majority Opinion.
The majority opinion of the court writ
ten by Mr.. Justice Shepard, reviewed in de-
tail the provisions of the act OF March =
1893, under which the proceedings were
brought. The sections of special impor-
tance in the consideration of this case, the
opinion says, are IL and To- which read as
follows:
Section II. That where the use of part
only or any parcel or tract of land shall be
| Conde mned i'll such proceeding, the Jury IN
assessing the damages therefor shall take
| into consideration the benefit the purpose
Tor which II IS taken may be to the owner or
owners of such tract or parcel by enhancing
\ the value of the remainder of the same
| ana shall give their verdict accordingly
| ana the court may require in such case
| that the damages and the benefits shall be
| found and stated separately.
| " Section 10. That the amount awarded
| by said court as damages for each high
way or reservation, or part thereof, con-
demned and established under this act
| shall be one-half assessed against the land
| benefited thereby and the other half shall
| he charged up to the revenues of the Dis
| trict of Columbia: that one-half of the
| amount awarded by said court as damage
| Tor each highway reservation or part
| thereof, condemned and established under
! this act, shall be charged upon the lands
benefited by the laying out and opening of
| such highway or reservation or part there
| OF and the remainder of said amount shall
| be charged to the revenues of the District
| of Columbia The same jury which shall
assess the damages caused by the opening
| of any highways or reservation or part
| thereof, or by the abandonment of an eX-
| listing highway or part thereof, shall ascer-
| tain and determine what property is there
| by benefited, and shall assess against each
parcel which 1t shall find to be SO benefited
| its proper proportional part of the whole of
said one-half of the damages: Provided
That III making such assessment for bene-
IT'S the jury shall. as to any tract part
or which shall have been taken for Such
highway or reservation, or part thereof
make due allowance for the amount if any
which shall have been deducted from the
value of the part taken on account of the
benefit to the remainder of the tract The
proceedings of the court and the Jury in
making assessments for benefits under this
section shall. conform as nearly as is prac-
| ticable to the foregoing provisions of this
act relating to the assessment OF damages
| and the verdict of the jury making an as
| sessment under this section as to any
parcel of land shall not be conclusive until
the same snail have been confirmed by the
court. When confirmed by the court the
assessment so made shall be lien upon
| the land assessed. and shall be collected as
| special Improvement taxes in the District
| OF Columbia have been collected since Feb
| Iuary 81, 1871 and shall be payable in five
| equal annual installments. with interest at
| the rate of per centum per annum from
! the date of the confirmation of the assess
| ment by the court. That no expense for
| the Improvement Of any street, circle res
| ervatfon or avenue laid out under the pro-
| visions of this act, outside the cities Of
| Washington and Georgetown. shall be
| chargeable to the treasury Of the United
! States, but such expense shall be paid solely
| out of the revenues Of the District of Co
| lumba.'
The proceeding in this case" the opin-
| ion then continues, covers what is known
| as Denison and Leishton's subdivision of
| part of Mount Pleasant and Pleasant
| Plains.
| "A jury was empaneled and returned a
verdict in which they describe each lot,
| giving its area in SQUARE feet the num-
! Der of square feet taken for public use
| and the value thereof. the value of build
| II gs, etc, the damages, where any to the
! remaining land, the benefits, where any, to
! the same and concluding with the assess
ment OF damages made in each case less
| benefits.
Upon motions for new trial, in arrest,
| etc, based upon the unconstitutionality of
| the law, the learned justice before whom
| the proceeding was had, after delivering
| an able and comprehensive opinion giving
| the reasons for his conclusion, declared the
/ whole act void; set aside the verdict and
| dismissed the petition.
| From that judgment the appeal has
| been prosecuted.
| a. The first question for decision arises
| under the eleventh section of the act,
| which provides the manner of the assess
| ment Of damages where a part only of the
| owners tract shall be taken. The jury are
| therein directed, in assessing the damages
| for the part taken, to consider also the
| benefit that the purpose for which 1t is
| taken may he to the owner By enhancing
| the value of the remainder.
| Benefits and Damages.
"In the recent case of Nd. and W. RR
| Co. VS.. Hitler, "a W.L.R. 90, which was a
| case of the condemnation of land for the
| Use of a private corporation. we We're COM
| PEELED to give Interpretation to the last
| clause of the fifth amendment: Nor shall
! private property be taken for public use
| without just compensation And the ma
| icrity Of the court We're of the opinion that
| this just compensation means the actual
| value of the property taken, payable in
money and without dirnnuton on account
| of benefits. general or special.
| In respect, howe yer, of claim for dam
| ages done to the adjacent land, not actual
| ly taken, special benefits are to be copsid-
| cred.
| The same rule must necessarily apply
| where the appropriation is for the use of
| the government. There Is no ground for a
| distinction. However, 1t must be admitted
| as pointed out in the case before referred
| to, that there is, in some material respects,
| difference between the effect of condem-
| nation of land for railroad and for pub
| lie highway or street. In the former the
| Use Of the taker is practically exclusive,
| while in the latter case the owner, as one
| of the public, has the enjoyment of all the
| uses of the thoroughfare and has. besides,
| special easement, or property, therein,
! for the subsequent deprivation of which,
| under certain circumstances he may also
| be entitled to compensation. Whatever
| weight these considerations may be entitled
! to, they were not provided for in the fifth
! amendment as they have been in some of
| the later state constitutions; and while
L