38 App. D.C. 560 | D.C. Cir. | 1912
delivered the opinion of the Court:
It is apparent from a reading of the -will of Philip Jackson that power was thereby granted to the wife to exhaust, if necessary, the entire estate, both real and personal, for her support. The adopted daughter was to take only what should be left. When, therefore, these condemnation proceedings were had, the surviving wife was in complete control of the locus in quo, and entitled to the award of damages. If, at her decease, any part of that award remained, it passed under the terms of the will.
The proceedings for the condemnation of this alley were had more than half a century ago, and the alley, for a like period of time, has, without interruption, been occupied and used as a public alley. The claim of the plaintiffs is based upon the supposition that, Peter Jackson being dead at the time these condemnation proceedings were had, provision for the payment of damages in his name cannot be said to have been a payment to the true owner, and hence, it is argued, the proceedings were fatally defective; in other words, the contention is that the land in question was taken without due process of law. It must be borne in mind that these proceedings were proceedings in rem, and not in personam. The damages assessed were on account of the land condemned, and, after the lapse of such a long period of time, it must be presumed, in the absence of evidence to the contrary, that notice was given to the parties interested. The record shows affirmatively that damages were assessed and paid. We are asked to presume that, because of the notation— apparently in the form of a memorandum — that these damages
The plaintiffs apparently proceeded upon the theory that the burden was upon the defendant to show that this payment was made to the party entitled to receive it. The rule is to the contrary. Knox County v. Ninth Nat. Bank, 147 U. S. 91 — 97, 37 L. ed. 93—95, 13 Sup. Ct. Rep. 267; Nofire v. United States, 164 U. S. 657-660, 41 L. ed. 588-590, 17 Sup. Ct. Rep. 212; Guthrie Nat. Bamk v. Guthrie, 173 U. S. 528, 43 L. ed. 796, 19 Sup. Ct. Rep. 513. Where there is evidence, as here, that a street or highway was originally established under the power of eminent domain, and opened to and used by the public for a time beyond which a possessory action to recover land may not be brought, the presumption undoubtedly is that the street or highway was originally established by proper authority, and in accordance with law. Pillsbury v. Brown, 82 Me. 453, 9 L.R.A. 94, 19 Atl. 858; Thomas v. Ford, 63 Md. 346, 52 Am. Rep. 513; Blossom v. Cannon, 14 Mass. 177; Langdon v. State, 23 Neb. 509, 37 N. W. 79. In Nealy v. Brown, 6 Ill. 12, the court, in considering the act of the county commissioners in establishing the highway in question, said: “The county commissioners are vested with exclusive jurisdiction over all matters in relation to roads in their respective counties, and we are satisfied that sound policy and the public good require that we should presume that the antecedent proceedings had been regular, subject, however, to be rebutted by the other party.”
There being no evidence .in this record which would overcome the presumption of the regularity of the proceedings for the condemnation of the locus in quo, and warrant a finding