Evening star. [volume] (Washington, D.C.) 1854-1972, 1896-01-27
Judge Cox Says the Highway Act is
Unconstitutional.
ASSESSING CONJECHURAL BENEFITS
No Provision for Compensation for
Land Taken.
n E ED OF RE VISIO N


ago in The Star would be the casa, and the
court dismissed all the proceedings hereto
fore had in the case.
The decision was rendered In case 40,
Denison and IeightoE's subdivision of Mt.
Pleasant, tie first Of the street extension
cases heard In the second case heard, 453,
Ingles.de subdivision, the same ruling of
the court was made applicable, and that,
tco, was dismissed. The announcement in
The Star that the decision would be rem
dered this morning served to crowd the
court room with counsel and land owners.
Many of those present, however, were
neither counsel nor owners, but were citi-
zens who are deeply interested in the mat
ter. The courts opinion was a long one,
the judge occupying more than thirty min
utes in reading it. Among. the counsel for
thanisl Wilson Chaplin Brown, w. L. Cole,
VIM G. johnson, Arthur OConnor, Donald
Mcpherson, A. A. Lipscomb, C. II. Armes
and VIM. F. Matingly.
The District was represented by Mr.. S. T..
Thomas. A B. Duvall, A. s. Worthington
and Samuel Maddox. The District has the
right to carry the case appeal to the
Court of Appeals, and while Mr.. Worthing-
ton, Of special counsel for the District, did
not SO state in court, he stated to Mr..
Nathaniel Wilson that such a step would
be taken.
The Opinion.
tAt the commencement of these proceed
ings motion was made On behalf of the
owners of some of the ground sought to be
condemned that the jury be discharged and
the proceedings dismissed.
1T was understood then that the motion
should be overruled pro forna, in order that
the question made should be carried up by
appeal, and the court was not requested to
consider them or pronounce any formal
opinion.
''But since the case WAS submitted to the
jury and finding has been made by them,
the questions involved in that motion have
again been brought forward, and the court
Is moved to reconsider them and decide them
upon their merits, and to give the same re-
lief that was then applied for. I have felt
bound to entertain this motion, especially
as 1t has seemed to me that we can better
appreciate the merits or defects of the law
rnder which we are acting now that we
have seen something of it's practical opera
ton than we could beforehand.
Without examining in detail the motion
which was filed at the beginning of this pro-
oeeding, which was quite voluminous, 1t is
sufficient to say that the substance of the
grounds set forth in 1t is that the act of
Is made is unconstitutional, because 1t pro-
vfdes for taking private property for public
Use without providing for just compensa-
tion to the owners, as the Constitution re-
ouires'
After summarizing the provisions of the
law, he continued:
constitutional restriction than the general
prohibition against taking property without
du9 process of law, the legislature of the
state, having the power to- fix the sum
necessary to be levied for the expense of a
public Improvement and to order 1t to be
assessed. either like other taxes upon prop
erty generally or only upon the lands bene
flied by the improvement, Ia authorized to
dete rmine both the amount of the whole
tax and the class of lands which will
receive the benefit. and should, therefore.
bear the burden, although it may, If it sees
fit, commit the ascertainment of either or
both of these facts to the judgment of COM
misSioners-
The Deduction of ReneHts.
But when we approach the subject of
the deduction OF benefits We encounter the
most vexed question in this branch of
constitutional law. We are not to expect
much light upon 1t from the decisions of
the federal courts, because the government
OF the United States has had little occa-
sion to condemn property for public use
outside Of the District of Columbia, and
am not aware that III the rare instances
that have occurred this question has ever
arisen.
But in the state courts the decisions are
ir Vulnerable and irreconcilable In some
the subject Is regulated by constitutional
or statutory enactment In different ways;
In others 1t is determined differently by the
courts upon general principles.
In some states special benefits are al
tained value of the land taken, but only
from the incidental damages allowed, in
addition to that In others-but this Is gen.
orally, perhaps, statutory-there can be no
deduction for benefits at all. In others,
again, both special benefits and the general
benefits shared in common with the neigh
borhood or locality can be deducted. In
others. again, the special benefits can be
deducted from both the ascertained value
OF the land taken and the incidental dam
age occasioned by the taking. 1t would be
utterly useless to attempt review of the
authorities, and do not see how I can do
better than acquiesce in the conclusion Of
those eminent commentators Judge Cooley
and Judge Dillon, that the weight of au-
thorfty in the state courts favors the last
mentioned view, viz: that the special ben
effts to an individual lot of which a part is
condemned can properly be set of against,
or deducted from, the amount found due a.
the value of the land appropriated and as
special damage to the remainder of the
tract parcel.
"But this does not relieve us of the diff
Guilty. The question still remains, What
kind Of benefit may thus be set off and de-
Quoted, and how is 1t to be ascertained?
1T is agreed on all hands that the land
taken is to be paid for at its present value,
not according to the value determined N
the future by the contemplated improve
ment mills on Eminent Domain, Sec.- III:
Lewis on Eminent Domain, Sec. 4SO); and
cCmmoH justice requires that any deduction
from this for supposed benefits should be
for benefits which, II not Immediately real
lzeQ, snOuld De at least SO far present as to
be certain and presently ascertainable. A
municipality, for example, directs a street
to be condemned, opened, paved and grad
ed, and that the benefits to the remaining
property shall be deducted from the dam
ages allowed to the owners for the land
taken Here the benefit is certain and
easily estimated, and there may be no herd
ship in paying for the land partly or wholly
In these benefits. In the examination of a
great many cases I have found none in
which this charge of benefits is sanctioned.
except where the improvement has been
peremptorily directed by law to be- made:
street or county road has been directed
to be laid out, swampy ground has been
directed to be drained and reclaimed or a
bridge to be built or an existing street
wfdened. The owner of land to be affected
by the proposed Improvement has all the
certainty of benefit which legislative ordi-
nance can give him. The jurors who are to
estimate the damages know when the work
Is to be done and what will be its cost and
can easily estimate the benefit to result
from 1t. There 10 nothing conJectural, H.
iVsiye or problematical about 1t. And this
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