134 F.2d 14 | D.D.C. | 1943
This is an appeal from an o^der of the District Court dismissing complaint to recover certain benefit assessment payments ..nade as a result of a condemnation proceeding against the lands of the appellants.
The appellants were the owners of 72 lots in Square No. 1582, located in the area bounded by Western Avenue, Wisconsin Avenue, Fessenden Street, and 45th Street, N. W. They urged condemnation proceedings for street extensions on the ground that this entire community, including their lands, would be benefited by the opening of the streets under the plan of the Highway Commission. The condemnation proceeding was thereafter instituted, and in 1930 a jury assessed benefits against appellants’ lots.
This action to recover all moneys paid as assessments was instituted on December 16, 1935. It was alleged that the District of Columbia had “abandoned, renounced, and repudiated the purpose of said condemnation cause, and that the consideration, for assessments had failed.” The District denied that the street improvement project had been abandoned or that there had been a failure of consideration for the assessments, and affirmatively alleged that at the time the action was instituted, some, although not all, of the physical extension of said streets had been completed, and at that time all of the work was in process of being done and was planned to be done; and at the time of the filing of the answer to the supplemental and amended complaint, March 29, 1940, in which appellants sought recovery of the moneys paid pending the action, all of the work had been done. The District Court found that the District of Columbia did not abandon the project involved, and had no intention of abandoning said project, and dismissed the action.
The appellants rely almost entirely upon District of Columbia v. Thomp
The cases cited? in the Thompson opinion, upon which appellants earnestly rely, likewise fail to support their position. In the Valentine case
The Supreme Court, affirming the Thompson case,
In the instant case, as in the cases relied upon by the appellants, the major issue is abandonment. Here, there is an affirmative allegation of intention on the part of the District to complete the work. Such an averment is missing in each of the foregoing cases which wc have discussed. The findings of fact of the District Court disclose that the District promptly undertook the improvements for which the assessments had been levied and paid; that much of the contemplated improvements had been completed before the suit was instituted to recover the moneys theretofore paid;
The District Court has found as a conclusion of law that there had been no abandonment and no intention to abandon. The record supports and justifies its conclusion.
Affirmed.
$75.00 for each of 48 lots, and $100.-00 for each of 24 lots.
$50.00 for each of 48 lots, and $75.00 for each of 24 lots.
58 App.D.C. 313, 30 F.2d 476, affirmed 281 U.S. 25, 50 S.Ct. 172, 74 L.Ed. 677.
Valentine v. City of St. Paul, 34 Minn. 446, 26 N.W. 457, 458.
McConville v. City of St. Paul, 75 Minn. 383, 77 N.W. 993, 994, 995, 43 L.R.A. 584, 74 Am.St.Rep. 508.
City of San Antonio v. Peters, Tex.Civ.App., 40 S.W. 827.
Bradford v. City of Chicago, 25 Ill. 411, reprint pages 349, 360.
281 U.S. 25, 50 S.Ct. 172, 74 L.Ed. 677.
Id., 281 U.S. at page 32, 50 S.Ct. at page 174, 74 L.Ed. 677.
44th Street:
From Jenifer Street to a point 200 feet south, graded and surfaced in 3931;
From Harrison Street to a point 200 feet south of Jenifer Street, graded in 1932, surfaced in 1934;
Between Fessenden and Harrison*16 Streets, grading completed by February, 1932;
From Jenifer Street to Western Avenue, grading and surfacing completed on .August 14, 1935.
Jenifer Street:
From Wisconsin Avenue to 44th Street, graded and surfaced in 1931.
Harrison Street:
From property line west of 44th Street to Wisconsin Avenue, graded and surfaced in 1932.
Garrison Street:
From 44th Street to Wisconsin Avenue, grading and surfacing begun October 29, 1935.
Garrison Street:
From 44th Street to Wisconsin Avenue, completed prior to October 1, 1937. 44th Street:
Between Fessenden and Harrison Streets, surfaced sometime prior to January 30,-1936.
45th Street:
From Harrison Street to Western Avenue. The District Court found that the work was completed in 1935. In the record here, it would appear, this street was not opened or graded until October 1, 1937. Admittedly it had been completed prior to February 12, 1940.
Jenifer Street:
From 44th Street to Western Avenue, graded and surfaced in September, 1939.