265 F. 985 | D.D.C. | 1920
Appeal from a judgment in the Supreme Court of the District condemning land necpssary for the extension of Kenyon street, from Seventeenth street to Mt. Pleasant Street, under authority of the Act of September 1, 1916, c. 433 (39 Stat. 688), which makes applicable subchapter 1 of chapter 15 of the District Code, and authorizes the commissioners, within six months, to have condemned—
■ "the land that may be necessary for the extension of Kenyon Street Northwest, from Seventeenth street to Mt. Pleasant street, with a width of eighty feet: Provided, however, that the entire amount found to be due and awarded by a jury in said proceeding as damages for and in respect of the land to be condemned for said extension, plus the costs and expenses of the proceedings hereunder, shall be assessed by the jury as benefits.”
Section 491g of subchapter 1 of chapter 15 of the Code provides:
“And where any part of any lot, piece, parcel, or tract of land has been dedicated for the opening, extension, widening, or straightening of the street, avenue, road or highway, the jury, in determining whether the remainder of said lot, piece, parcel, or tract is to be assessed for benefits, and the amount of benefits, if any, to be assessed thereon, shall also take into consideration the fact of such dedication and the value of the land so dedicated.”
The jury found benefits resulting from the proposed extension of Kenyon street to equal $13,660.36 in value. Of this sum $9,020.36 was asséssed upon parcels of land on either side of Kenyon street, comprising parts of the tract of land out of which the dedication of 1893 was made. In computing benefits, the present value of these various parcels of land was considered; but in fixing the value of the land theretofore dedicated the jury were restricted to the date of the dedication. In other words, benefits were assessed as of the date of the condemnation, while the value of the land dedicated was fixed as of a date some 15 years earlier. That this was not equitable is apparent, and if the statute reasonably lends itself to a different interpretation, that interpretation should be adopted.
We think it was tire intent of Congress that the adjustment should be as of the date of the condemnation. Had appellant made no dedication in 1893, and her land had been included in this proceeding, obviously its value would have been fixed as of the present. Can it be that Congress intended to discriminate against one whose volun
“to prove that an official grade had been established for Kenyon street in the area of said extension, or to prove the topographical conditions of the lots, pieces, or parcels of land which the jury might find to be benefited by said extension.”
Section 491g requires the jury, in determining the amount to be assessed as benefits, to — -
“take into consideration the respective situations and topographical conditions of said lots, pieces, or parcels of land, and the benefits and advantages they may severally receive from the opening, extension, widening, or straightening of the street, avenue, road, or highway.”
It is the contention of appellant that, to enable the jury to take into consideration “the respective situations and topographical conditions” of the land with reference to the extension of this street, evidence should have been offered as to the grade of the extension. We think this contention in harmony with the requirements of the statute. The grade of the street certainly is an element to he considered by the jury in determining both the damages and benefits, and appellant was interested in each.
“to exercise its own judgment, derived from personal knowledge from a view of the premises, as well as from the opinion evidence wliieli might be brought before them.’’ Columbia Heights Realty Co. v. Rudolph, 217 U. S. 547, 560, 30 Sup. Ct. 581, 54 L. Ed. 877, 19 Ann. Cas. 854; Wash. R. & E. Co. v. Newman, 41 App. D. C. 439, 445.
Certainly the jury, after hearing the evidence, could the better apply it by a second view of the premises, and it was not error to permit that view.
The court properly instructed the jury as to the burden of proof and that only actual special benefits could be taken into consideration.
The judgment is reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.