Evening star. [volume] (Washington, D.C.) 1854-1972, 1912-03-14
MUST SHOW NEED
Court Checks Commissioners
in Alley Opening.
POINT WON BY CITIZENS
Columbia Heights Residents Fear
Injury to Property.
CONDEMNATION TO WAIT
Proof of Necessity Of Improvement
Must Be Submitted to
Justice.

An important ruling has been made by
Justice Barnard of the District Supreme
Court in the proceeding instituted by the
District Commissioners to condemn
ground for the opening of an alley in
square No. 2s43, bounded by 18th and
14th streets, Kenyon street and Park
road, Columbia Heights. In the opinion
the court holds that before a jury is
sworn and the evidence taken In this
case as to damages and benefits, 1t will
be incumbent on the District Commits
sioners to submit to the court evidence
showing that there exists an actual ne
cessity'' for the proposed alley. in add
ton to the fact that the Commissioners
deem the public interests require 1t.
The, case was argued before Justice
Barnard several weeks ago by former
Assistant Corporation Counsel A. Left
witch Sinclair. Mrs. Ellen Spencer Mus
sey and Andrew Wilson. who appeared
as counsel for Capt. George ". Sensner,
Sophia A Galloway, Frank r. Altemus,
Frank s. Altemus. Elmer F. Yount.
Marian B. Thorwarth and others, and by
Assistant Corporation Counsel P. II.
Marshall, who appeared for the District
commissioners.
Description of Alley.
The proposed alley is to have an open
ing eight feet wide on 18th street, with
width of fifteen feet running north and
south nearly parallel to 18th street. at
distance of about 40 feet west of 18th
street, with an extension midway Of the
north and south alley, In a southwest
erly direction. some 400 feet and stopping
on the east line of lot % in the square
IN
being the only outlet of the proposed al
ley, court or cul de sac.
Justice Barnard pointed out in his opin-
ion that mo reason is assigned for the
conclusion by the Commissioners that
they deem the public interests require
the opening of said alley, and all the
answers of the land owners deny that
the public interests do require said alley,
and aver that it would be an irreparable
injury and damage to them IL such alley
should be opened. Some of them state
that they bought their lots and built
their houses with the expectation that no
alley would be opened in said square, and
have arranged their premises so that
none is needed. and that if this one
should be opened 1t would greatly injure
and disturb them"
Refers to Fay Case.
In his opinion. Justice Barnard refers
to the opinion of the Court of Appeals
in the recent case of John c. Fay against
the District Commissioners. saying:
.'It is clear that the Court of Appeals
in said case holds that the statute pro-
vidng for the opening of alleys must be
strictly construed, and that the court can
have no implied jurisdiction in the prem
ises. and that where issues of fact are
rendered. as in this case, proof must be
taken in order to show that the court
has Jurisdiction. The Court of Appeals
al holds that when the commissioners
state in their petition that they deem 1T
of public interest to open an alley, and
that fact is denied by the owners, an
issue is formed that requires proof.
Il am not so certain, continues Justice
Barnard that the Court of Appeals did
not intend to say in that case that the
Commissioners would not be authorized
to institute such a proceeding before 1t
should become necessary, and that the
necessity of the alley, when denied by the
owners, should also be established by
proof. before the court should proceed
with the case. Section 16oSe of the code,
it seems to me, might authorize That con-
clusion when construed, as 1t must be,
with said section 1908. and in order to
give the court jurisdiction, that 1t must
be shown that there is an actual neces-
sity for the alley. in addition to the fact
that the Commissioners deem the PUBIC
interests require 1t.
II am therefore forced to the conclusion
that before the jury is sworn and the
evidence taken in this case, as to dam
ages and benefits, the issues raised by
the answers, to the necessity OF the
said alley and as to fact that the Com
missioners deem the same to be of public
interest should be inquired into and de-
termined on proof to be presented TO the
court.
The peculiar shape of the lots in this
square, and of the width and direction OF
the said alley, and the fact that 1t does
not run through the square at all may
rial haa a
sity for it. l am not prepared to say that
It may not be properly designated as an
alley within the meaning of the law; out
there is force in the argument OF coun-
sci that an alley should run through,
from one side to the other, of a square or
tract of ground, subdivided for residence
purposes, and that question ought TO DE
settled in connection with the question
as 10 whether the proposed alley is neces-
sarv in order that there may be no ques-
ton as to jurisdiction. if the jury is to be
finally sworn, and the evidence taken as
to damages and benefits.
Opening Is Opposed.
There is considerable opposition to the
opening of an alley in the square in ques-
ton, and a determined fight has been
made against the proposed alley ever
since it was announced that condemna-
ton proceeding were to be Instituted by
the District Commissioners. 1t is stated
in the answers filed by property owners
to the petition of the Commissioners that
an alley is not need in the square, and
that practically all of the property own
ers in the square are opposed to the
opening. The answers of the property
owners further show that the Columbia
Heights Citizens Association has passed
resolutions unanimously opposing the
opening of the alley.
Louis Cohen. oldest Jewish citizen and
merchant Of stanton, Va, is dead, aged
sixty-eight years. He was born on the
German and Polish border and came to