Evening star., 1896-01-27
Prospective benefits.

equally to general benefits assessed and
special benefits deducted
Prospective benefits.
"But let us suppose, if so foolish a thing
can be conceived or as possible that Con-
gress should direct the condemnation of
land, for improvements to be made at some
future day, and Nof a character yet to be
determined, andsrequire the valuation of
the land condemned to be reduced by the
POSSIBLE benefits toithe land retained, from
the mere prospect of underlined improve
ments in the future. Could that possibly
be sustained as jrst compensation in the
sense of the Constitution? There can be but
one answer to such question; and this
leads US to the inquiry whether the present
case appre aches tile one supposed. or falls
within the class before described.
1.-The object of the act of March 2, 1898,
Is declared to be to establish a permanent
system of highways in that part of the Dis
trict of Columbia lying outside of the cities.
"a highway is a road open to the pub
hc-a main road or thoroughfare.
ITO be complete, it must be opened. AS
the supreme court of New Jersey says. in
State Gaines Pros. VS.. Hudson County Ave
nue. Commissioners, 81 N. j. L.. II:
"The second meaning which may be
given to this EXPIRE ssion of opening said
avenue is, that it denotes the operation of
clearing the avenue Of distractions
No Right and No Assurance.
1.-The principal highway in subdivision
419, which we have been so long examin-
ing, is 10th street. AS laid out upon the
map this passes through Enclosures and
buildings. Until these are removed it
cannot be open to use. The Commission
ers cannot spend a dollar for this pur-
pose without authority of Congress NO
such authority is given in this act nor any
direction that the street shall be opened
1t is not even provided that on any con.
tingency, such as the reasonableness OF
l Il f1n n
by Congress to pay them, the highway
snail be opened, but the law stops at the
condemnation Of the land and thus estab
| fishes impossible barrier to any indi-
vdual Improvement. without guaranteeing
| a public one. Until the street Is opened
no one can use it as highway. and no
| one could recover damages for injuries sus-
tained in such authorized use. So that
the lot owner, by the mere condemnation
which the law authorizes, acquires no right
| to that which is charged to him AS the
| consideration, in part for his land, and
he has no assurance when, If ever. he will
acquire that right. Meanwhile his land
| is taken from him and because the Dis
| trict may take possession of 1t without
paying him for it in money If these special
| benefits charged against 1t, he can
put it to no use. Congress declines
| to bear any of the expense Of highways
| outside of Washington and Georgetown
| and throws the whole burden on the reve-
nues of the District, as to make all i'm
provement in that direction contingent
| upon the cOndltlOn or the DlStIlct treasury,
| so that the benefit lies in the uncertain
| future and Is conjectural. 1t may be fur
ther remarked. as showing how difficult
1t is. to estimate these conjectural benefits,
| that no grades have been established for
| these streets, and therefore it cannot be
known whether a particular lot will be
| above or below grade, very material ques-
ton to the just ascertainment of benefits.
even where benefit is certain to accrue, as
| to. time, If at all.'iwte
Judge Cox quotes number of decisions.
but referred especially to the case of Isom
agt. the Mississippi Railroad Company 36
! Miss, 300.
There it appeared he said. that the
| charter of the railroad company authorized
| it to have land condemned for its road, and
| contained this clause, that the jury, in es-
timating the damages, shall take into the
| est mate the benefits resulting to the owner
toward the extinguishment of his claim for
| damages; in the case the court says:
| THE rule held by this court is this: In
der our constitution, the owner Of the land
is entitled to jhse compensation for the
| damage ne sustains by the application Of
his land and property to public use. at the
time the public make the appropriation of
his private property. The value Ct the
property in the market at that time, and
| no other. and the injury then necessarily
known to result to the owner as the neces-
sary and immediate consequence of such
public use Of his property. without refer
ence to the uncertain or remote benefits or
disadvantages that may or may not accrue
!
tion) the owner loses. whatever is then in
capable of defirite ascertainment, but rests
merely on conjecture, possibility or proba-
bility, dependent on the future, cannot be
taken into the estimate by the rule of just
compensation. It cannot be just to award
compei satfon for inquiries that may never
happen nor, on the other hand, can it be
just to compensate present injury or depri
walton of right by the possible probable
| benefits which may result, at some future
time, for what Is now admitted in jury
ITO say that the owner shall be paid al
any other time, or in anything else than the
measure of value known to the Constitution
or that he shall receive more or less thar
/ the loss of injury then capable of definite
| inquiry and ascertainment. or that his
, claim to this compensation shall be extin
guished by the probable benefits, which, II
the future, may result from the construction
:, of road which may not be finished in six
, teen years the time limited by the charter
cannot by any fair Interpretation of The
r Constitution be regarded as just compensa
! tion first made. This provision of the char
t ter. therefore, which requires the jury, II
| eSt1maf1ng the damages, to take into tn,
estimate the benefit resulting to such owner
T by reason of such road passing through hi!
| land, toward the eXtinguishment of sucl
| claims for damages is subversive of tn,
O rights intended to be secured by this claus,
| OF the Cons stitution, and to that extent il
9 void. irdorse these sentiments said tn,
f judge, "and consider the language Of th
; Mississippi court strongly applicable to tn
" present case.
"There is no difference in principle be
tween the taking of private property for tn
use of railroad and taking 1t for immediat
use of the state In both cases it is takel
only in virtue of the right of eminent do
main, and in both cases the same just com
pensation must be made.
No Provision for Compensation.
. Congress, by the act of 1893, author
ICES the taking of private property for pub
lie use and attempts to pay for it partl
in benefits to be received in future ,and tha
9 contingently. 1t fails 10 provide for tn
n first compensation required by the Consti
q tuition to be made, and is, therefore, a.
= unconstitutional appropriation of privat
y | property whicn the courts cannot carr
. out. 1t is unnecessary to decide whethe
!, the recording of the map amounts tc
!. u taking. 1t Is sufficient that the law pur
= ports to transfer the title and put tn
s s government in possession when it has onl
. paid part of the. compensation due, ali
= ;. this Is taking without just compensation
II ut was contehdeI in argument that tn
mere fact of recording the map was
II benefit inasmuch as it established tn
/ streets and avenues in the sense Of settlin
, their lines and boundaries for all futur