Evening star., 1896-01-27


per. and as such they are not present. but
| future and contingent ones. I have no
doubt that the jury have endeavored to
| carry out the law in this sense and have
| arrived at the amount of special benefits
| by deducting the present value Of the parts
| Of land left unapproprfated from their
| probable value when these highways are
| completed and open for use.
"If this constitutional question had been
| pressed before the jury proceeded to act
| would have felt obliged to pronounce the
law unconstitutional, and to arrest all fur
| ther proceedings under it. But as the jury
| has found a large amount of special bene-
| fits to be deducted from the damages as
| certained the inherent vice of the law has
| been practically demonstrated and it be-
comes my duty to set aside the whole pro-
| ceedng for the condemnation of the land.
| other Features of the Law.
| II might stop here. But there are other
| features in the law as to which some COM
ments are suggested by our experience in
this case.
| "The tenth section of the law provides
| that one jury may be sworn and one trial
had as to all or any of the parcels of land
| involved in the proceedings, at the d1scre-
! ton of the court. And section ten directs
| that the same jury which shall assess the
| damages shall also ascertain what prop
| erty is benefited by the opening of the
| highway and shall assess one-half Of the
| total amount of damages on the property
| SO benefited
| 1.-The Jury having been sworn nrSt III re-
| lation to subdivision 419 of section first, 1t
was at once perceived that If the jury were
| to consider what property outside Of that
subdivision would be benefited by SO much
| of the new highway as lies within that
| subdivision, and assess it accordingly. an
| other jury, in passing upon an adjacent
| subdivision, might. in turn, assess Dement'S
| anew upon the lots in 419, and thus the as
| sessments of different juries might overlap
| and be doubled up on the unfortunate lot
| holder The Jury were, therefore, given to
understand that they were to cohiina tneir
assessment for benefits to this subdivision
| 'On further consideration 1t does not APP
| pear that this would carry out the law. II
we suppose spacious avenue to be run
| through half dozen SUBDIVISIONS from
| the boundary of the city to the boundary
| of the District, it is evident that the part
| of the avenue nearest the city Is just as
! certainly, though, perhaps, not IN the Same
| degree, beneficial to the most remote as TO
| the nearest subdivision. because 1t Is equal
| ly essential to it, and forms part OF It's
| means of convenient access to the city, ana
| the benefit of such highway is not confin-
ed to the ground Immediately abutting on
it, but extends laterally to all the prop
erty to which it adds convenient access
to the city In fact, it diffuses itself in
| every direction, until 1t imperceptibly dis
appears, like the ripples In a stream caused
by stone thrown into it. But If jury are
| to assess all the property so benefited. they
| must first know the whole amount of DAM
| ages to be awarded for all the property
taken for the supposed highway IN order
| be made. In order to do this 1t would be
necessary for the same jury to assess the
damages in all the subdivisions affected by
the ghway in question, and for all assess
| ments to be suspended until this work is
| completed, which shows that the assess
ment Tor benefits is premature, and would,
| in any event, have to be set aside.
| But, not to speak of the enormous and
| unreasonable amount of labor that this
would devolve upon single jury, 1t may be
observed that the jury, in making such an
| md tha
be completely at sea, without chart, rudder
| or compass.
- 1.-The uncertainty on this subject
| of the present law makes 1t impossible to
| get at and carry out the intent of the legis-
lative authority, ard has the unavoidable
result Of making any assessment mat
| ter of guesswork, or a purely arbitrary
distribution of the burden.
Recording the Maps.
1.-The case calls for another remark. The
recording of the map by the Commissioners.
| if nothing is done in pursuance OF this
step, is only less injury to the lot owners
than taking their property without paying
, ! for it. The case of state VS.. Hudson coun-
> ty avenue commissioners, before referred
, to, has some features very like the present
; | case.
THE commissioners were authorized by
, law to open an avenue across the county
, Of Hudson. Among the first acts required
| of them was that Of surveying the route
, of this road and adopting location. This
was done, and then, by writ of certiorari,
: the proceedings were brought before the
supreme court.
..The law intended to provide that the ex-
pense should be apportioned between the
owners of land proXimate to the road,
8 within certain limits, and the public. The
law confused and contradictory,
e however, to the apportionment of the
| expense that the court held 1t impossible
4 to carry it into execution, and the question
| then was whether the survey and location
e of the road should still stand good. And
the court said. per Beasley, chief justice:
I'm this respect it was said, in the first
e place, that If the road has been properly
. laid 1t should not be obiiterated or lied
t on the ground that certain subsequent
e proceedings prescribed in the statute can
J., not be carried into effect But l can find
The project cannot be carried through Oh
S made in any extent available unless the
: money necessary for it can be raised. This
official survey. brought before us by this
n writ, IS. and must remain under the Law
: in its present state mere dead letter, sc
, far as the public Is concerned, but it is
e and must be very serious incumbrance
: upon the property which it traverses. As
: long as this map shall remain upon the
n public records, threatening the property
e which it embraces, with the realization
s long as there is every reason to believe
n the property will have its value affected II
e the the ma, market et;, I do not believ'
s be held at such disadvantage. Thi!
e adopted survey constitutes something yer,
e like conditional lien this land, ant
e that lien cannot, with any sort of justice
be suffered to remain in the Elusive an
y ticfpation of future legislation.
e Accordingly, in that case, the court Sc
e aside the entire proceedings of the Com
n missioners including the recording of tn,
} plat of the road.
l. Had the full effect Of the act of 1893 beer
appreciated before any step was takeI
to carry it into execution this case woult
= have been an authority for arresting ever
the preliminary proceeding Of recordin,
} the map, by certiorari or injunction
y mo such question, however, is bcfor
It me, and refer to it only as an additions
10 feature of the situation showing the i'm
portance of some legislative revision of tn
l. law"
n Views of the Decision.
W ]. B. Winner said that if the bill is foun,
r. to be defective there is no use in repealin,
u the entire instrument, the errors dis
r covered can be corrected. If the constitu
'e tionality of the present law is finally ques
. toned then bill should be passed to maxi