American Security & Trust Co. v. Rudolph, 38 App. D.C. 32

American Security & Trust Co. v. Rudolph

38 App. D.C. 32

D.C. Cir.

1912

Check Treatment

Mr. Chief Justice Shepard

delivered the opinion of the Court:

Four errors have been assigned, which, as have been stated by counsel: “All converge towards, and culminate in a single point; namely, the question of the correctness of the court’s action in refusing to modify the appellees’ third prayer, and refusing to grant appellants’ first prayer.”

The exception to the plaintiff’s first prayer was, as we have seen, that, after, direсting the jury to take into consideration the benefits and advantages to be derived from the extension of the avenue, the following words were added: “By the extension of the avenue the jury are to understand its establishment, laying out, and completion for all the ordinary uses of a public thoroughfare.” The only recital in the bill of exceptions, of the evidence relating to the amount and character of benefits to result from the improvement is the following:—

“Plaintiff also gave evidence tending to show that the portion of said tract to be taken for the extension of said avenue was worth from $3,000’ to $4,000 per acre; that the benefit to the remainder of said tract not taken would equal or exceed the value of. the land taken upon the assumption that the government would grade and improve said extension of said street so as to make it a.usable street; that such benefit would result from being able to subdivide into lots, sell the lots, and build houses upon the land abutting on the extended streets; that if the extended street was not so graded and improved, no benefit would result to the remainder of the land.”

The objection to this languagе of the instruction above quoted is that it “comprehends benefits assumed to result from the street’s 'physical improvement as a usable road open to traffic.’ ” This assumed probability that the jury would misunderstand its meaning was sought to be removed by appellants’ first instruction, which the court refused. The instruction called attention to the fact that no appropriation had been made for grading, paving, or otherwise opening the street to traffic, or for the laying of water mains therein; that there is no law binding *39the United States or the District of Columbia to make any such improvement within five years, or any other limit of time; and in consideration thereof, directed the jury to disregard any advantage that might be supposed to accrue to the land if such improvements were in fact made. There was no error in giving the instruction number 3, prayed by the plaintiffs. Section 491a of the Code [34 Stat. at L. 151, chap. 2070], regulating condemnation proceedings, authorizes the condemnation of the land needed, for the opening, extension, widening, or straightening of any street, etc. The proceeding here was the extension of an avenue. The words excеpted to as defining the meaning of the extension of a street have been approved as correct in an analogous case. Columbia Heights Realty Co. v. Macfarland, 31 App. D. C. 112-127, s. c. 217 U. S. 547-557, 54 L. ed. 877-881, 30 Sup. Ct. Rep. 581, 19 A. & E. Ann. Cas. 854. As it appeared that the extension would necessarily have to be brought to grade before it could be improved, they were instructed in the second prayer given to the jury for the defendants, that in determining what if any benefit may accrue from the establishment of the highway, they must take into consideration the necessary cost of grading the abutting land in a manner to adapt it to the use of the avenue as an abutting highway. The appellants concede that the foregoing instruction was approved in the case above cited, but contend that this approval was upon the express ground that other instructions given at the same time qualified it, by specifically eliminating from consideration ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍benefits resulting from prospective future improvements of the street after its acquisition by the proceeding for extension. It is quite true that in other parts of the charge in that case the assessment of benefits was limited to such as must accrue “immediately from the extension of the street in question,” and could not be based upon any special improvements made since its extension. And these limitations were adverted to in the opinions as entirely overcoming the'objections that the jury were not limited to the benefits resulting immediately from the opening of the streets, but might consider benefits that might accrue from subsequent improvements of or upon the street. The limitations *40were of special importance in that case, because, during the long delay that had attended the proceeding, the street had been improved and a car line built thereon before the second and final hearing.

Appellants contend that under the instruction given, the jury were likely to understand that “all the ordinary uses of a public thoroughfare” would include all such physical improvements of the street as would make it a completed street for all purposes, which would comprehend its adaptation to the building of houses, which would necessarily require the laying of water mains and sewers. In this connection attention is called to the substance of the evidence heretofore recited. In such cases the evidence is ordinarily heard by the jury, not in the presence of the court, and this, in connection with their personal inspection, is the foundation of their assessment of benefits. While the bill of exceptions does not purport to give the substance of all of the evidence that may have been introduced, it recites enough to show in general the foundations upon which the witnesses’ estimates of benefits rested, and to serve as a test of the correctness of the instructions given and refused. It appears therefrom that the amount of the benefit was made to depend upon the assumption that the street would be graded and improved so as to make it a “usable street j” such benefit to result from “being able to subdivide into lots, sell the lots, and build houses upоn the land abutting upon the extended streetand further, “that if the extended street was not so graded and improved, no benefit would result to the remainder of the land.”

What is meant by “graded” is plain enough, but what is meant by “improved” is not at all clear. Paving, water mains, and sewers were not mentioned as elements of improvement necessary to the subdivision into lots and the erection of houses; nor, in the light of common knowledge, would it be reasonable to regard them as necessary, preceding improvements. The refused instruction of the appellants not only directed the jury to the fact that no appropriation had been made for grading, but also that none had been made for paving, or the construction of water mains and sewers. Por this reason the instruction, as a *41whole, was incorrect and its refusal was not error. The record shows, however, that objection had been made to the instruction given, because it did not limit the meaning of the words, “laying out and completion for all the ordinary uses of a public thoroughfare,” so as to exclude therefrom its physical improvement as a usable road open to traffic. It remains to consider, then, whether this objection was well taken, and sufficient, in connection with the special prayer, to make it the duty of the court to so modify the language of the given instruction as to expressly eliminate from consideration benefits that would result from the future grading, paving, and opening to traffic of the street extension.

On behalf of the appellees, it is contended that this modification of the charge was unnecessary, because it was made so plain that only the benefits resulting from the condemnation of the land for the extension and use as a street were to be taken into consideration, that the jury could not possibly have been misled. In support of this they call attention to the second instruction given at defendants’ request, which directed the jury that, in determining whether the land was specially benefited as distinct from a general benefit accruing to other lands in the neighborhood, they must find that the market value of the defendants’ land will be increased or made available for some use for which it is not now available, “by reason of the withdrawal from private use of land taken for New York avenue and its appropriation to public use as a public highway.” In addition, they call attention to the discussion in the presence of the jury, of the objections, which is herein above recited, as specifically informing the jury that the consideration of benefits was limited to those resulting alone from the appropriation to public use of the land needed for the extension of the street. In the course of this discussion, it will be remembered that the court said there could be no assessment for future benefits, and said —addressing his remarks to the jury — that he would give the instruction objected to, “if you understand, gentlemen, that the appropriation to public use means appropriation for use as a street.” He further said that he granted it with that expía*42nаtion to the jury. Under the instruction given at the request of the defendants, the jury were required to take into consideration the expense of making the abutting land conform to the grade established for the street. This was, in fact, a part of the damage to which they were undoubtedly entitled. Defendants are, therefore, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍hardly in a position to object that this grading be considered as an element of benefit resulting from the condemnation of the land for the street extension. Moreover, in estimating benefits to result from the proposed extension, its established grade was properly considered as both an element of damage and benefit. Bauman v. Ross, 167 U. S. 548—587, 42 L. ed. 270-287, 17 Sup. Ct. Rep. 966; Columbia Heights Realty Co. v. Macfarland, 31 App. D.C. 112-127.

It is unnecessary to follow counsel in their discussion of alleged difference in the meaning of the several words, “еxtension,” “open,” “widen,” “straighten,” used in the condemnation statutes. Necessarily, condemnation for either purpose must precede grading or any other character of improvement, whether the same be provided for by law at the time or not. The assessment of damages and benefits must be based on the purposes for which the condemnation proceedings were directed. This was expressly held in Bauman v. Ross, supra, a case arising in the District under the statute then in force, providing for the laying out, opening, etc., of streets and highways. One of the questions considered in that case was the opinion expressed in one of the lower courts, to the effect that the benefits assessed should be confined to those immediately realized, or, аt least, so far present as to be certainly and presently ascertainable.

The statute was substantially similar to the present one in so far as the principle governing assessment of benefits is involved. Discussing some of the terms used in the statute, Mr. Justice Gray said: They “evidently treat condemnation, establishment, laying out, and opening of a highway as denoting one and the same thing, the appropriation or setting apart of land for a highway and throwing it open to public travel, and have no regard to the actual grading or construction of the highway.” And it was further said: “The benefits, as well *43as the damages, to he taken into consideration, are to be estimated as of the date of such appropriation. The damages assessed as of that date constitute the entire compensation for such appropriation of land for a highway, including all injuries resulting from any change of the natural grade required in the actual construction of the highway.” The meaning of the words “extension of the avenue,” as defined in the instruction given, is in accord with the doctrine announced in that case. While the learned trial justice, as admitted by himself, in the brief opinion delivered on the motion to set aside the finding of the jury, might have been somewhat more explicit in his instructions, we agree with him that, considering the instructions as a whole, and as explained to the jury orally, — thereby making the explanation a part of his charge, — they could not have considered themselves as authorized to take into consideration benefits that could only accrue in the future through the paving of the street, much less the construction of water mains and sewer therein.

For the reasons given the judgment will be affirmed, with costs. Affirmed.

On February 6, 1912, the appellants applied for the allowance ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍of a writ of error to the Supreme Court of the United States.

The application was denied March 4,1912,

Mr. Chief Justice Shepard

delivering the opinion of the Court:

The matter before us is a petition for a writ of error from the Supreme Court of the United States to review a judgment of this court rendered in the above entitled cause, January 2, 1912.

The recent change in the law regulating appeals from this court has resulted in numerous petitions for writs of error. Two views have been maintained in respect of the intent and effect of the change in the law. One is that it affects a limitation of the right of review. Another is that, while this is its *44effect in some respects, it has, nevertheless, marked a wide extension.

The situation in which we find ourselves is an embarrassing one. • Necessarily, the Supreme Court of the United States is the sole judge of its jurisdiction in the premises. “At the same time,” as said in passing recently upon the petition of William A. Pierce [Pierce v. United States, 37 App. D. C. 588], “this court is charged with the duty of determining, in the first instance, whether it shall take the formal preliminary action that will operate to suspend the execution of its judgment, and transmit the record of its proceedings to the appellate court for review.”

Should we decline to exercise this discretion, and grant the petition in every case in which the petitioners claim the right of review, the question of jurisdiction may not be brought before the appellate сourt, in regular order, for a long period of time during which uncertainty will prevail; and should it be determined finally that the right of review does not exist, the delay will result in hardship to parties entitled to the fruits of successful ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍litigation. Por these reasons, as said in passing on Pierce’s petition, if, in the opinion of the court, the right to the writ of error is not conferred by the law. it is its duty to decline to take the preliminary action demanded, no matter how important may be the question involved, or how desirous we may be that it should be set at rest by the court of last resort. If we err in such refusal, there is a ready remedy for the error.

With this explanation, we come to the consideration of the question involved.

Subject to an exception in the next to the last clause, section 250 оf an Act to Codify, Revise, and Amend the Laws Relating to the Judiciary, Approved March 5, 1911, and taking effect January 1, 1912, provides the absolute right to review the final judgments and decrees of the court of appeals of the District of Columbia in six classes of cases.

The petition is founded on the contention that it presents a case within the sixth class, which confers the right of review *45“in cases in which the construction of any law of the United Státes is drawn in question by the defendant.” The case is stated as follows in the petition: “This proceeding in the court below was a wholly statutory one, and was instituted by the appellees against the appellants under two acts of Congress, viz.: The special act, approved February 6, 1909 (35 Stat. at L. 597, chap. 75), authorizing the extensiоn of New York avenue, and the general act, approved April 30, 1906 (34 Stat. at L. 151, chap. 2070), known as subchapter 15 of the Code of Law for the District of Columbia.” The question is whether the special act for street extension, and provisions of the Civil Code for the District, are laws of the United States within the meaning of the clause before quoted. Congress is the sole legislative body fоr the Union, and in a broad sense all of its enactments are laws of the United States. But it has two distinct classes of legislative powers. The general function which it was established to perform is the enactment of laws that operate and govern throughout the United States. By virtue of the cession of the District of Columbia, it became invested with special legislative powers therein to the full extent possessed by the state of Maryland before the cession occurred. These powers, as exercised in the Code of Laws for the District and in legislation of the character involved here are local in their nature and purpose, and expressly limited to tire boundaries of the District. They are not laws of the United States, having operation throughout the Union, but special enactments for the regulation of persons and property in the District of Columbia exclusively. They axe local, and not general. It was known to Congress that many laws of the United States come before the courts of the District of Columbia for construction in cases affecting persons residing, and properly situated, in the different States of the Union. Pаrticularly is this the case in respect of those laws governing the administration of affairs committed to the Departments of the Interior and the Postoffiee, the construction of which, in the first instance, is largely devolved upon the courts of the District, because of the maintenance of those departments, *46and the residence of their official heads, at the national capitol. The construction of such laws and their operation is of importance throughout the United States, and the importance of preserving uniformity in their construction, and preventing the confusion that might arise from conflicting decisions, was, doubtless, the reason ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‍why provision was made for the review of decisions relating thereto. Those reasons do not apply to legislation strictly local in its application. We are of the opinion, therefore, that the laws the construction of which is involved in this case are not laws of the United States within the meaning of the provision before quoted.

To give these words the broad meaning contended for would be to break down a distinction that has always been observed between legislatiоn for the United States, and that having relation to the District of Columbia exclusively. Moreover, the meaning contended for would convert an act generally understood as intended to limit appeals and relieve the overburdened docket of the Supreme Court, into one of an entirely different character. Believing, as we do, that the act and the Code, the construction of which are involved, are not laws of the United States within the meaning of the amended law, we are constrained to deny the petition.

An application was made to the Chief Justice of the Supreme Court of the United States, by the appellants, for the allowance of a writ of error to this court. The Chief Justice referred the application to the court, and on April 29, 1912, that court in an opinion written by Mr. Justice Holmes, denied the application.