Evening star., 1896-01-20
oonstitutionalisy Of the Highway
Act Under Consideration.
ARGUMENTS ON BOTH SIDES
Special Benefits Discussed by the
Opposing Counsel.
THE FIRST ITO N.

Judge Cox, in the District Court. today
took up for consideration the questions
raised as to the constitutionahty of the
street extension act. The District was rep
resented by Messrs. A s. Worthington and
Samuel Maddux, specially engaged, and the
land owners were represented by Messrs.
Nathaniel Wilson, William Birney. w. l..
Cole, Chaplin Brown, ]. H. Lichthter. Ar
thur O'Connor, Donald Mcpherson and 9TH
ers The case in which the validity of the
act was attacked today was in case AID.
Denison and Leighton's subdivision Of Mt.
Pleasant, the first OF the street extension
cases heard, counsel for the land owners
having last week moved that the verdict Of
the jury of appraisers be set aside, and a
new trial granted. The owners also asked
leave to-renew a motion to dismiss the
whole proceedings, because Of the alleged
UT rconstitutionality Of the act.
The discussion was opened by Mr.. Will
liam Bifney, who explained that his clients
are not opposed to the proposed extension
of streets. provided they are justly COM
pensated. But he found that the findings Of
the appraisers are such that his clients cam
not agree that they shall stand While the
testimony before the jury placed the value
IS cents to $1.25 a foot, yet the jury had
valued 1t at 16 cents foot In the matter
of three Of their lots the owners received
compensation. but as to the other lots, the
owners are actually brought into debt The
jury, it seemd to him, made a mistake as
to their duty in the premises. The act.
| said Mr.. Birney, made no provision for al
lowing damages to land not taken, and
compensation, less benefits is, he asserted,
clearly unconstitutional, for the courts have
invariably held that just compensation
| from the extension of streets, Mr.. Birney
remarked that they are contingent, probie-
matical. shadowy. and while possible. not
by any means certain. Certainly there will
| thought. written by some single tax advo-
| cate, who, in providing for unearned incre-
ments, put his ideas in q law which he
(Birney) confidently asserted is undeniably
unconstitutional. The proposed extension
| Of streets was not sought by the land own
| ers, he said; 1t has done them no good but
great injury. and the courts should now. be-
| fore any further injury be done, declare that
| 1t is unconstitutional and impossible of
| enforcement.
Mr.. Nathaniel Wilson.
Mr.. Birney was followed by Mr.. Nathan
| lei Wilson, who claimed that the effect Of
the filing of the map of the approved plan
Of section 1 last August amounted to an
| actual taking of the land embraced within
! the section, for it made unlawful any sub
sequent subdivision of land therein, a con-
| tinual limitation of the power Of land own
ers as to alienation Of their lands. No pro-
| VISION was maQe IN the ACT Tor q cancella-
ton Of the map approved and filed should
no appropriation for the lands be made.
| Hence, said Mr.. Wilson, the law is clearly
in violation Of the fifth article of the Con-
stitution, which prohibits such a taking of
land Without compensation therefor. Mr..
| Wilson read the recent decision by the
Court of Appeals in the case Of Dana
against the Rock Creek Railway Company.
perceive ary reasonable or substantial dis
tinction between the ticking. Of private
property by the actual: physical invasion
of it and the deprivation Of the owners
use of it by acts that amount to the de-
struction or Impairment of that use. The
construction of an impa ssable barrier
/ around property, by which the owners ac-
cess to it would be destroyed, would, to our
common understanding, be no less a taking
of it in the sense Of our Constitution than
would be the owners expulsion from the
4 premises"
The filing of the approved map of section
1, argued Mr.. Wilson, was such q physical
invasion of the property embraced within
1t as the Court of Appeals had In mind,
| and, owners in many Instances will be
cut off from access to their remaining par
cells of lard, that. amounted claimed Mr..
Wilson. to destruction or impairment OF
! the owners use of the land.
Mr.. Wilson also contended that the street
| extension act is unconstitutional, because
as he claimed, 1T provides for no just com.
| pensation for the lands condemned and
taken. He occas STONED not a little amuse.
ment by reading a brief submitted by Mr.
Worthngton in the Court of Appeals in the
| case of the Prospect Hill Cemetery Com.
pany against the District. In his brief, Mr.
Worthington contended, and the Court OF
| Appeals sustained him, that future or con.
! jectural benefits cannot be held as part pay.
ment of lands taken.
'"This is the first time, your honor" re-
marked Mr.. .Worthington, that ever heard
one of my briefs read in court as an au
thority."
IT read it," explained Mr.. Wilson, mot as
conclusive, but as greatly persuasive. pre-
! sumo my friend will, however, say that his
brief was made only for that particular
case, and'is not binding upon him in thi.
| one''
COnstitutiOnal Question.
Mr.. Wilson next claimed that the stree
extension is unconstitutional, as its pro