Horace Gray

“ Some confusion has perhaps arisen from designating the tribunal of seven men, which is to estimate the damages and to assess the benefits, as 'a jury,' when it is in truth an inquest or commission, appointed by the court under authority of the act of congress, and differing from an ordinary jury in consisting of less than 12 persons, and in not being required to act with unanimity. ”

“ The lands to be assessed being described generally as 'the lands benefited' by the condemnation and establishment of the new highway, or by the abandonment of an existing highway, and again as the 'property thereby benefited,' and as the lands which the jury 'find to be so benefited,' without any words of restriction to lands in the particular subdivision, the reasonable inference is that all lands so benefited, lying within the exclusive jurisdiction of congress over the District of Columbia, may be included in the assessment. ”

“ The power of congress, exercising the right of eminent domain within the District of Columbia, to provide for the deduction of benefits from the compensation or damages for taking part of a parcel of land and injuring the rest, does not appear ever to have been judicially questioned until it was denied by a majority of the court of appeals of the District of Columbia within the last two of three years. ”

“ If the legislature, in taxing lands benefited by a highway, or other public improvement, makes provision for notice, by publication or otherwise, to each owner of land, and for hearing him, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, his property is not taken without due process of law. ”

“ In 1863, the same court, whenever it should 'deem it conducive to the public interests to open a new road, or change the course of an old one,' was authorized to order the route to be surveyed, and the road to be recorded and opened; and to direct the marshal 'to summon a jury of seven judicious disinterested men, not related to any party interested, to be and appear on the premises on a day specified to assess the damages, if any, which each owner of land through which the road is to pass may sustain by reason thereof' ”

“ The legislature, in the exercise of the right of taxation, has the authority to direct the whole, or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening, the grading, or the repair of a street, to be assessed upon the owners of lands benefited thereby. ”

“ Objection was made to that part of section 15 which provides that the assessment, when confirmed by the court, shall be a lien upon the land, and be collected like other taxes, and 'be payable in five equal annual instalments, with interest at the rate of four per centum per annum from the date of the confirmation of the assessment by the court.' But it is within the commonly exercised and indisputable power of the legislature to make taxes of any kind, assessed upon real estate, payable forthwith, and an immediated lien thereon. ”

“ Otherwise, he is favored above the rest, and, instead of simply being made whole, he profits by the appropriation, and the taxes of the others must be increased for his special advantage. Upon general principles, then, and with due regard to right and justice, it should be held that the public may show what direct and special benefits accrue to an individual claiming road damages, and that these special benefits should be applied to the reduction of the damages otherwise shown to have been sustained.' 'The word 'damages' is of general import, and is equivalent to compensation. ”

“ The owner may suffer much greater damage by the road depriving him of water, or by otherwise rendering the cultivation of his farm inconvenient and laborious, or it may happen that the new highway may essentially benefit his farm, and that he may suffer very little or no injury by the location. ”

“ To accomplish the object of speedy condemnation and rectification of streets in localities, where important, some provision should have been made for the creation of definite taxing districts, including one or several subdivisions and sections adjacent, where it might appear to be expedient and just, so that the work of condemnation, laying off, and assessment of expenses of streets could take place promptly without complication with others. ”

“ By an act of 1809, the proprietor of any lot or square in the city of Washington was authorized to have it subdivided upon submitting a plat thereof to the surveyor of the District of Columbia, to be certified and recorded in his office, upon his being satisfied that its dimensions corresponded with the original lots. ”

“ But congress evidently recognized the importance, for the efficient execution of its scheme, and for the avoidance of unnecessary expenditures, to begin by dealing with those localities where subdivisions had been made and streets laid out by the owners of the land, regardless of the general plan ”

“ Middlesex Sessions, 9 Mass. 388, and, after being constantly acted on in Massachusetts, was embodied in the Revised Statutes of 1836, in this form: 'In estimating the damages sustained by any person in his property, by the laying out, altering, or discontinuing of any highway, the jury shall take into consideration all the damage done to the complainant, whether by taking his property, or by injuring it in any manner ”

“ On February 5, 1896, on motion of the respondents, Justice Cox ordered and adjudged that the verdict be set aside, and the petition dismissed, on the ground that the act of 1893 was unconstitutional and void, for the reasons stated in his opinion filed on the same day. ”