Transcript of Record — DIST. OF COL. v. Lynchburg Co.
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SUPREME COURT OF THE UNITED STATES,
OCTOBER 1914.
No. 163.
CUNO H. RUDOLPH, Jo!
IN A. JOUNSTON, AND CHESTER
HARDING, COMMISSIONERS OF CHE DISTRICT OF
COLUMBIA, PETITIONERS,
v8.
LYNCHBURG INVESTMENT CORPORATION AND HOLMES
CENTRAL REALTY CORPORATION.
ON WRIT OF CERTIORARI TO THE COURT OF APPE
DISTRICT OF COLUMBIA.
ALS OF THE
Original. Print
INDEX
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Transcript from the supreme court of the District of Columbia.
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Memoranda : Order directing marshal to summon jury ;
order accepting and directing jury : cuse submitted to jury
Verdict of jury
Motion of Lynchburg Investinent Corporation to vacate ver-
dict ;
Exceptions of Holmes Central Realty Corporation to verdict
Motion to ratify and confirm TUG 8 NF. Oe esc...
Order overruling exceptions and objections and confirming
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Jupp & DerweiLer (INnc.), Painters, WasHINGTON, D. C., JuLy 8, 1914,
INDEX.
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Original. Print
Time to file and settle bills of exceptions and transcript of
record extended; bill of exceptions submitted........... 33 32
Order making bill of exceptions part of record........... 33 32
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Memorandum: Time to file transcript of record entinied. 42 4?
Assignment of errors on behalf of Lynchburg iaventenent
Corporation and the Holmes Central Realty Investment
COMPOTION on nce cvccesarctcernvenaevesscenvesencesacne 42 2
Directions to clerk for preparation of transcript of record. . 44 4
Memorandum : Time to file transcript further extended... . 45 rr
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Minute entry of argument and submission............-..--.+-- 47 45
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Stipulation as to return to writ of certiorari............... ove 58 53
Clerk's certificate and return to writ of certiorari.............. 59 53
C. H. RUDOLPH ET AL. VS. LYNCHBURG INVESTMENT CORP. ET AL. 1
1 In the Court of Appeals of the District of Columbia.
No. 2468.
LyNcusBurG INvesTMENT CoRPORATION et al., Appellants,
Cuno H. Seacawi et al.
Supreme Court of the District of Columbia.
District Court, No. 990.
In re THe ExTENsION AND WIDENING OF COLORADO AVENUE AND
OF KENNEDY Street NortHwesv.
UNITED States or AMERICA,
District of Columbia, ss:
Be it remembered, That in the Supreme Court of the District of
Columbia, at the city of Washington, in said District, at the times
hereinafter mentioned, the following papers were filed, and proceed-
ings had, in the above-entitled cause, to wit:
Petition.
Filed November 28, 1911.
In the Supreme Court of the ~— of Columbia, Holding a District
urt.
District Court, No. 990.
In re THE ExreNsion AND WIDENING oF CoLoRApo AVENUE AND
oF KENNEDY Street Norruwesr.
The petition of Cuno H. Rudolph, John A. Johnston and William
V. Judson, respectfully represents:
1. That they are the Commissioners of the District of Columbia,
and as such Commissioners file this petition under the authority of an
Act of Congress approved June 30, 1911, entitled “An Act to au-
thorize the extension and widening of Colorado Avenue, Northwest
from Longfellow Street to Sixteenth Street, and of Kennedy Street,
Northwest through lot numbered eight hundred, square numbered
twenty-seven hundred and eighteen,” wherein and whereby
2 your petitioners are authorized and directed within six months
after the passage of said Act under and in accordance with
the provisions of Sections 491a to 491n; both inclusive. of sub-
chapter 1 of Chapter XV of the Code of Law for the District of Co-
1—163
ae IC SIO OR es pe ape
Ty
2 CUNO H. RUDOLPH ET AL. vs.
lumbia, to institute proceedings in rem in the Supreme Court of
the District of Columbia, to condemn the land that may be neces-
sary for the extension and widening of Colorado Avenue, Northwest.
from Longfellow Street to Sixteenth Street with a width of one hun-
dred and twenty feet, according to the plan for the permanent sys
tem of highways for the District of Columbia, and of Kennedy
Street, Northwest, through lot numbered eight hundred, square
twenty-seven hundred and eighteen, with a width of ninety feet;
that your petitioners under the authority of said Act and according
to the provisions thereof and of said sub-chapter 1 of chapter XV of
the Code, file this petition for the purpose of acquiring by condemna-
tion the hereinafter described land for the extension and widening
of Colorado Avenue, and of Kennedy Street, as aforesaid, and for the
assessments of the benefits resulting from the said extension and
widening of Colorado Avenue and Kennedy Street.
2. That a map or plat showing the land to be taken for the said
extension and widening of Colorado Avenue and Kennedy Street is
hereto annexed as part of this petition, marked “Exhibit D. C.,
No. 1.”
3. That the land necessary for the said extension and widening
of Colorado Avenue and Kennedy Street (together with the names
and residences of the owners of the fee thereof, as far as the same
-ean be ascertained) ix particularly described as follows:
Descriptions of Land to Be Condemned for the Extension and
Widening of Colorado Avenue Northwest from Longfellow Street
to 16th Street, and of Kennedy Street Northwest Through Lot
No, 800, Square 2718.
Part of a tract of land taxed as Parcel 86/6:
Beginning for the same at the intersection of the east line of 16th
street with the easterly line of Blagden Mill Road, and running
P thence with the east line of 16th street, south 0 05’ west 74.74 feet;
thence with proposed easterly line of Colorado Avenue, 120 feet
wide, north 33° 22’ 40” east 316.83 feet to the easterly line of the
Blagden Mill Road; thence with said easterly line, south 42° 34’
west 257.68 feet to the point of beginning, containing 6502.94 square
feet.
Assessed in the name of Harriet 8S. Mathewson.
Part of a tract of land taxed as lot 808, square 2715:
Beginning for the same at the intersection of the east line of 16th
street with the westerly line of Blagden Mill Road, and running
thence with the east line of 16th street, north 0 05’ east 94.87 feet
to the proposed wevterly line of Colorado Avenue, 120 feet wide:
thence with said proposed line, north 33° 22’ 40” east 282.46
3 feet to the northerly line of said lot; thence with said north-
erly line, south 56° 27’ 20” east 110.51 feet to the westerly
line of Blagden Mill Road; thence with said westerly line south 42°
34’ west 366.40 feet to the point of beginning, containing 27340.16
square feet.
Assessed in the name of Henry W. Houston.
ed
LYNCHBURG INVESTMENT CORPORATION EY AL. 3
Part of a tract of land taxed as Lot 809, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the ~outherly line of said lot. north 56°
37° 20” west 110.51 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide: thence with said westerly line, north 33°
22’ 40” east 100 feet to the northerly line of said lot: thence with
said northerly line, south 56° 37’ 207 east 52.97 feet to the westerly
line of Piney Branch Road; thence with said westerly line, south
1° 26° 30” west 38.27 feet to an angle in said line; thence still with
said line, south 17° 01’ east 20.94 feet to the westerly line of the
Blagden Mill Road; thence with said westerly line, south 42° 34’
west 54.90 feet to the point of beginning, containing 10738.66 square
feet.
Assessed in the name of John H. Holt 903 G St. N. W.
Part of a tract of land taxed as Lot 815, Square 2718:
sevinning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37° 20” west 82.97 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33° 22’
40” east 15 feet to the northerly line of said lot: thence with said
northerly line, south 56° 37’ 20” east 73.6] feet to the westerly line
of Piney Branch Road; thence with said westerly line south 1° 26’
30” feet west 17.68 feet to the point of beginning containing
1174.35 square feet.
Assessed in the names of Chas. C. Bryan and Walter A. Brown,
Trustees, 1307 Fairmont N. W., 624 14th St. N. W.
Part of a tract of land taxed as Lot 810, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 73.61 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide: thence with said westerly line, north 33°
22’ 40” east 150 feet to the northerly line of said lot: thence with
said northerly line, south 56° 37’ 20” east 30.01 feet to the present
westerly line of Colorado Avenue; thence with said westerly line
the following courses and distances:
South 32° 44’ 30” west 10.78 feet; south 22° 37’ 30” west
101.87 feet; south 1° 26’ 30” west 46.15 feet to the point of begin-
ning, containing 6696.22 square feet.
Assessed in the name of Alonzo O. Bliss, Hotel Driscoll,
4 Part of a tract of land taxed as Lot 818, Square 2718.
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 30.01 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide: thence with said westerly line, north 33° 22’
40” east 50 feet to the northerly line of said lot: thence with said
northerly line, south 56° 37’ 20” east 29.44 feet to the present west-
erly line of Colorado Avenue; thence with said westerly line, south
= aoe POP APS ET SON SE Ea MMe Z 188
4 CUNO H. RUDOLPH ET AL. Vs.
32° 44’ 30” west 50 feet to the point of beginning, containing
1486.25 square feet.
Assessed in the name of Ellis Spear, 1851 Lamont, N. W.
Part of a tract of land taxed as Lot 819, Square 2715:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 29.44 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33° 22’
40” east 100 feet to the northerly line of said lot; thence with said
northerly line, south 56° 37’ 20” east 28.29 feet to the present west-
erly line of Colorado Avenue; thence with said westerly line, south
32° 44’ 30” west 100.01 feet to the point of beginning, containing
2886.50 square feet.
pews in the name of Thomas G. Stewart.
Part of a tract of land taxed as Lot 812, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 28.29 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33° 22’
40” east 100 feet to the northerly line of said lot; thence with said
northerly line, south 56° 37’ 20” east 27.15 feet to the present west-
erly line of Colorado Avenue; thence with said westerly line, south
32° 44’ 30” west 100.01 feet to the point of beginning, containing
2772 square feet.
Assessed in the name of Fred M. Tryon, 1225 Mass. Ave. 8. E.
Part of a tract of land taxed as Lot 813, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 27.15 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33° 22’
40” east 100 feet to the northerly line of said lot; thence with said
northerly line, south 56° 37’ 20” east 26 feet to the present west-
erly line of Colorado Avenue; thence with said westerly line, south
32° 44’ 30” west 100.01 feet to the point of beginning, containing
2657.50 square feet.
- ~ in the name of Marie May Fisher, 1548 Wyoming Ave.
5 Part of a tract of land taxed as Lot 814, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 26 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33° 22’
40” east 112.22 feet to the northerly line of said lot; thence with
said northerly line, south 62° 22’ east 24.79 feet to the present west-
erly line of Colorado Avenue; thence with said westerly line, south
LYNCHBURG INVESTMENT CORPORATION ET AL. 5
32° 44’ 30” west 114.44 feet to the point of beginning, containing
2872.94 square feet.
Assessed in the name of Ernest Wilkinson, Ouray Bldg.
Part of a tract of land taxed as Lot 800, Square 2718:
Beginning for the same at the most northerly corner of said lot,
and running thence with the east line of 16th street, south 0 05’ west
59.01 feet to the proposed south line of Kennedy Street, 90 feet
wide; thence with said south line, east 112.80 feet to the northerly
line of said lot; thence with said northerly line, north 62° 22’ west
125.91 feet to the point of beginning, containing 3328 square feet.
Assessed in the name of John P. Perry, Ezra R. Frost and Helen
M. Bostwick, 606 9th St. N. W., 142 RN. E.
Part of a tract of land taxed as Parcel 8613:
Beginning for the same at the northwest corner of said parcel,
and running thence with the south line of Longfellow Street, east
77.14 feet to the proposed easterly line of Colorado Avenue, 120
feet wide; thence with said easterly line, south 33° 22’ 30” west
169.17 feet to the southerly line of said parcel; thence with said
southerly line, north 79° 51’ west 66.18 feet to the present easterly
line of Colorado Avenue: thence with said easterly line, north 32°
01’ 30” east 152.88 feet to the point of beginning, containing
10143.50 square feet.
a Assessed in the name of Carrie Madison, 13th & Longfellow St.
% s
4. That the aforesaid Act of Congress provides that the total
amount to be found due and awarded as damages plus the cost and
expenses of the proceedings, shall be assessed by the jury as
benefits, and that said assessments shall he made by the said jury as
benefits as contemplated in Section 491g of sub-chapter 1 of Chapter
XV of the Code hereinbefore referred to, which said Section 491g
provides :
“That such amount shall be assessed by the jury as benefits, and
to the extent of such benefits against the lots, pieces or parcels of
land on each side of the street. avenue or highway to be opened,
extended, widened or straightened, and against any and all other
lots, pieces or parcels of land which the jury may find will be bene-
fited by the opening, extension, widening or straightening; and in
determining the amount to be assessed against said lots, pieces or
parcels of land the jury shall take into consideration the respective
parcels of land the jury shall take into consideration the
respective situations, and topographical condition of said
lots, pieces or parcels of land, and the benefits and advan-
tages they may severally receive from the opening, extension, widen-
ing or straightening of said street, avenue. road or highway.”
Wherefore, the premises considered, and in accordance with the
further provisions of sub-chapter 1 of Chapter XV of the Code of
Law for the District of Columbia, your petitioners ray as follows:
First. That this Honorable Court may cause publie notice of not
6 CUNO H. RUDOLPH ET AL. Vs.
less than twenty days to be given of the institution of these pro-
ceedings by advertisement in three daily newspapers published in
the District of Columbia, which notice shall warn and require all
persons having any interest in the proceedings to appear in this
Court at a day to be named in said notice, and to continue in at-
tendance until the Court shall have made its final order ratifying
and confirming the award of damages and the assessments of bene-
fits by the jury; and shall cause a copy of said notice to be served
by the United States Marshall for the District of Columbia, or his
deputies, upon such owners of the land to be condemned as can be
found by the said Marshal or his deputies, within the District of
Columbia, and upon the tenants and occupants of the same.
Second. That the said Marshal may be directed to summon a jury
of five experienced, judicious, disinterested men, who shall be free-
holders in the District of Columbia, not related to any person inter-
ested in these proceedings and not in the service or employment of
the District of Columbia, or of the United States, to ascertain the
damages each owner of the land to be taken may sustain by reason
of the said extension and widening of Colorado Avenue and Ken-
nedy Street, and the condemnation of the land nece-sary for the
same. and to assess the benefits resulting therefrom in accordance
with the provisions of the aforesaid Act of Congress and of the
aforesaid sub-chapter 1 of chapter XV of the Code.
Third. That such other and further orders may be passed and
proceedings had herein as are contemplated by the aforesaid Act of
Congress. to the end that the aforesaid land may be condemned and
secured for the said extension and widening of Colorado Avenue and
of Kennedy Street, as aforesaid.
CUNO H. RUDOLPH.
JOHN A. JOHNSTON,
WM. V. JUDSON,
Commissioners of the District of Columbia.
District or Co_umpBta, 88:
Cuno H. Rudolph, being first duly sworn says:
That he ix the President of the Board of Commissioners of the
District of Columbia, that he has read the foregoing petition sub-
scribed by the said Commissioners and knows the contents thereof;
that the facts therein stated are true to the best of his official knowl-
edge and belief.
CUNO H. RUDOLPIL
Subscribed and sworn to before me this 23d day of Novem-
ber, A. D. 1911.
WILLIAM TINDALL,
Notary Public, D. C.
E. H. THOMAS,
J. F. SMITH,
Attys.
(Here follows drawing marked page 742.)
FILMING
Aria abe eS
ix
SP GS cla a ama acc ate Me Se
Rant
Sed PERDANA az
LYNCHBURG INVESTMENT CORPORATION ET AL. 7
Notice and Order of Publication.
Filed November 28, 1911.
* * * * * * *
Notice is hereby given that the Commissioners of the District of
Columbia, pursuant to the provisions of an Act of Congress approved
June 30th, 1911, entitled, “An Act to authorize the extension and
widening of Colorado Avenue, Northwest, from Longfellow Street
to Sixteenth Street, and of Kennedy Street, Northwest, through lot
numbered eight hundred, square numbered twenty-seven hundred
and eighteen”, have filed a petition in this Court praying the con-
demnation of the land necessary for the extension and widening of
Colorado Avenue, Northwest, with a width of one hundred and
twenty feet, and of Kennedy Street, Northwest, with a width of
ninety feet, in the District of Columbia, as shown on a map or plat
filed with the said petition, as part thereof, and praying also that a
jury of five experienced, judicious, disinterested men, who shall be
freeholders within the District of Columbia, not related to any person
interested in these proceedings and not in the service or employment
of the District of Columbia, or of the United States, be summoned by
the United States Marshal for the District of Columbia, to assess the
damages each owner of the land to be taken may sustain by reason
of the extension and widening of the aforesaid street and avenue
and the condemnation of the land necessary for the purposes thereof,
and to assess as benefits resulting therefrom the entire amount of
said damages plus the costs of this proceeding upon the land abut-
ting upon the said avenue and street to be extended and widened,
and also upon all other pieces and parcels of land which the jury
may find will be benefited by the said extension and widening of
said Avenue and Street, as provided for by the aforesaid Act of
Congress. It is, by the Court, this 28th day of November, A. D.
1911, Ordered: That all persons having any interest in these pro-
ceedings be, and they are hereby, warned and commanded to appear
in this Court on or before the 9th day of January A. D., 1912, at
ten O'clock, A. M., and continue in attendance until the Court shall
have made its final order ratifying and confirming the award
8 of damages and the assessment of benefits of the jury to be
empaneled and sworn herein, and it is further Ordered, that
acopy of this notice and order be published once in the Washing-
ton Law Reporter and on six secular days in the Washington Even-
ing Star, the Washington Herald, and the Washington Post, news-
papers published in the said District, commencing at least twenty
davs before the said 9th day of January A. D. 1912. It is further
Ordered. that a copy of this notice and order be served by the United
Stetes Marshal or his deputies, upon such owners of the land to be
condemned herein as may be found by the said Marshal or his
deputies within the District of Columbia, and upon the tenants and
— of the same before the said 9th day of January A. D.
2.
By the Court: JOB BARNARD, Justice.
> PERSE ORR PR I Ot eR sip eee ae Pee mn gaa peer, —_—
tara erg: ee Domne eeenyegy: ten mangers
on i eae
8 CUNO H. RUDOLPH ET AL. Vs.
Proof of Publication.
Filed January 9, 1912.
* . * * . * ”
Affidavit.
Disrricr or CoLtumsBtA, To wit:
Personally appeared before me, a Notary Public in and for the
said District, Arthur D. Marks well known to me to be one of the
publishers of The Washington Post, a daily newspaper printed and
published in the City of Washington and the District aforesaid, and
made oath in due form of law that the annexed notice was published
in said daily newspaper at the times mentioned in the Certificate
opposite hereto.
Witness my hand and official seal this § day of Nov. 1911.
[ SEAL. | WILLIAM K. NOTTINGHAM,
Notary Public, D.C.
Cost of Proof of Publication not paid unless annexed receipt is
signed and stamped by cashier of The Washington Post Company.
WasuineaTon, D. C., Nov. 6, 1911.
M— Dist. Com’rs to The Washington Post Company, Dr.
For publishing the annexed Legal Notice in The Washing-
NE SER Ne ye ne OO Pa a aa ae a ee $62.10
Received payment for the Company —— —, 19—.
9 E. H. Thomas and Jas. Francis Smith, Attorneys.
In the Supreme Court of the District of Columbia, Holding a
District Court.
District Court, No. 990.
In re ExteENSION AND WIDENING oF CoLoRADO AVENUE AND KeEv-
NEDY STREET NORTHWEST.
Notice is hereby given that the Commissioners of the District of
Columbia, pursuant to the provisions of an Act of Congress ap-
proved June 30, 1911, entitled “An Act to authorize the extension
and widening of Colorado Avenue, Northwest, from Longfellow
Street to Sixteenth Street, and of Kennedy Street, Northwest,
through lot numbered eight hundred, square numbered twenty-seven
hundred and eighteen,” have filed a petition in this Court praying
the condemnation of the land necessary for the extension and widen-
>
LYNCHBURG INVESTMENT CORPORATION ET AL. 9
ing of Colorado Avenue, Northwest, with a width of one hundred
and twenty feet, and of Kennedy Street, Northwest, with a width of
ninety feet, in the District of Columbia, as shown on a map or plat
filed with the said petition, as part thereof, and praying also that a
jury of five experienced, judicious, disinterested men, who shall be
freeholders within the District of Columbia, not related to any per-
son interested in these proceedings and not in the service or employ-
ment of the District of Columbia, or of the United States, be sum-
moned by the United States Marshal for the District of Columbia, to
assess the damages each owner of the land to be taken may sustain
by reason of the extension and widening of the aforesaid street and
avenue and the condemnation of the land necessary for the purposes
thereof, and to assess as benefits resulting therefrom the entire
amount of said damages plus the costs of this proceeding upon the
land abutting upon the said avenue and street to be extended and
widened, pm also upon all other pieces and parcels of land which
the jury may find will be benefited by the said extension and widen-
ing of said Avenue and Street, as provided for by the aforesaid Act
of Congress, It is, by the Court, this 28th day of November, A. D.
1911, Ordered: That all persons having any interest in these pro-
ceedings be, and they are hereby, warned and commanded to appear
in this Court on or before the 9th day of January, A. D. 1912, at
Ten O'clock, A. M., and continue in attendance until the Court shall
have made its final order ratifying and confirming the award of
damages and the assessment of benefits of the jury to be empaneled
and sworn here, and it is further Ordered, that a copy of this notice
and order be published once in the Washington Law Reporter and
on six secular days in the Washington Evening Star, the Washing-
ton Herald, and The Washington Post, newspapers published in
the said District, commencing at least twenty days before the said
9th day of January A. D. 1912. It is further Ordered, that a copy
of this notice and order be served by the United States Marshal or
his deputies, upon such owners of the land to be condemned
10 herein as may be found by the said Marshal or his deputies
within the District of Columbia, and upon the tenants and
occupants of the same before the said 9th day of January A. D.
1912.
By the Court:
JOB BARNARD, Justice.
A true Copy.
Test:
[ SEAL. | J. R. YOUNG, Clerk,
By F. E. CUNNINGHAM,
Ass't Clerk.
I hereby certify that the foregoing Legal Notice was printed and
published in the Washington Post, a daily newspaper upon the fol-
lowing dates: Nov. 29, Dee. 1-2-4-5-6, 1911.
ARTHUR D. MARKS,
Business Manager.
* * * * + * *
10 CUNO H. RUDOLPH ET AL. VS.
Affidavit.
District or Cotumsia, To wit:
Personally appeared before me, a Notary Public in and for the
said District, M. W. Moore, who being duly sworn according to law,
on oath says he is the Manager of The Law Reporter Printing Com-
pany, publisher of “The Washington Law Reporter” a weekly news-
paper printed and published in the District aforesaid, and that the
advertisement of which the annexed is a true copy was published in
the regular editions of said weekly newspaper 1 times, on the fol-
lowing dates Dec. 1, 1911.
M. W. MOORE.
Sworn to and subscribed before ine Dec. 8th, 1911.
[ SEAL. ] WM. J. NEALE,
Notary Public, District of Columbia,
Office of Publication, 518 Fifth Street N. W.
No. 990, Doe. —, 777.
In re THE WipENING AND Extension or CoLorapo AVE. AND OF
KENNEDY STREET.
Wasninoton, D. C., Dec. 8, 1911.
M— District of Coul-bia to The Law Reporter Printing Company,
Dr., Publisher of “The Washington Law Reporter.”
For Publishing the attached Legal Notice................ $7.68
Received payment for the company —, 191-.
?
General Manager.
Per
11 E. H. Thomas and Jas. Francis Smith, Attorneys.
In the Supreme Court of the District of Columbia, Holding a
District Court.
District —, No. 990.
In re ExtexsioN AND WIDENING oF CoLoRADO AVENUE AND OF
KENNEDY STREET NORTHWEST.
Notice is hereby given that the Commissioners of the District of
Columbia, pursuant to the provisions of an act of Congress approved
June 30th, 1911, entitled, “An Act to authorize the extension and
widening of Colorado Avenue, Northwest, from Longfellow Street
to Sixteenth Street, and of Kennedy Street, Northwest, through lot
numbered eight hundred, square numbered twenty-seven hundred
PRI ROLLED AE AOR MRR
LYNCHBURG INVESTMENT CORPORATION ET AL. 11
and eighteen,” have filed a petition in this Court praying the con-
demnation of the land necessary for the extension and widening of
Colorado Avenue, Northwest, with a width of one hundred and
twenty feet, and of Kennedy Street, Northwest, with a width of
ninety feet, in the District of Columbia, as shown on a map or plat
filed with the said petition, ax part thereof, and praying also that a
jury of five experienced, judicious, disinterested men, who shall be
freeholders within the District of Columbia, not related to any per-
son interested in these proceedings and not in the service or em-
ployment of the District of Columbia, or of the United States. he
summoned by the United States Marshal for the District of Columbia
to assess the damages each owner of the land to be taken may sustain
by reason of the extension and widening of the aforesaid «nd street
and avenue and the condemnation of the land necessary for the pur-
poses thereof, and to assess as benefits resulting therefrom the entire
amount of said damages plus the costs of this proceeding upon the
land abutting upon the said Avenue and Street to be extended and
widened, and also upon all other pieces and parcels of land which
the jury may find will be benefited by the said extension and widen-
ing of said Avenue and Street, as provided for by the aforesaid Act
of Congress. It is, by the Court, this 28th day of November, A. D.
1911, Ordered: That all persons having any interest in these pro-
ceedings be, and they are habe. warned and comnranded to appear
in this Court on or before the 9th day of January A. D. 1912, at
ten o'clock, A. M., and continue in attendance unt] the Court shall
have made its final order ratifying and confirming the award of
damages and the assessment of benefits of the jury to be empaneled
and sworn herein, and it is further Ordered, that a copy of this
notice and order be published once in the Washington Law Reporter
and on six secular days in the Washington Evening Star, the Wash-
ington Herald, and the Washington Post, news apers published in
the said District, commencing at least twenty days before the said
%h day of January A. D. 1912. It is further Ordered, that a copy
of this notice and order be served by the United States Marshal
or his deputies upon such owners of the land to be condemned
12 herein as may be found by the said Marshal or his deputies
within the District of Columbia. and upon the tenants and
— of the same before the said 9th day of January A. D.
By the Court:
JOB BARNARD, Justice.
A true Copy.
Test:
[sEAL. ] J. R. YOUNG, Clerk.
By F. E. CUNNINGHAM.
Asst Clerk.
PREY EPA IR PA LORE TICLE LI ELE 6 ACO INANE GOI
12 CUNO H. RUDOLPH ET AL. VS.
Proof of Publication.
District or CoL. MBIA, 38:
Personally appeared before me Jay B. Smith, a Notary Public in
and for the District aforesaid, Fleming Newbold, who being duly
sworn according to law, on oath says that he is the Agent and Busi- *
ness Manager of The Evening Star, a daily newspaper Published in
this City of Washington, District of Columbia, and that the adver-
tisement, of which the annexed is a true copy, was published in
said newspaper six times on the following dates: Nov’r 29, Dee.
1-2-4-5 & 6 1911, at a cost of Sixty four and 80/100 ($64.80)
Dollars.
FLEMING NEWBOLD.
Sworn to and subscribed before me Dec’r Sth, 1911.
[sEAL. ] JAY B. SMITH,
Notary Public.
E. H. Thomas and Jas. Francis Smith, Attorneys.
In the Supreme Court of the District of Columbia, Holding a
District Court.
District Court, No. 990.
In re Extension AND WIDENING OF CoLorApo AVENUE AND OF
KENNEDY STREET NORTHWEST.
Notice is hereby given that the Commissioners of the District of
Columbia, pursuant to the provisions of an Act of Congress approved
June 30th, 1911, entitled “An Act to authorize the extension and
widening of Colorado Avenue, Northwest, from Longfellow Street
to Sixteenth Street, and of Kennedy Street, Northwest, through lot
numbered eight hundred, square numbered twenty-seven hundred
and eighteen,” have filed a petition in this Court praying the con-
demnation of the land necessary for the extension and widening of
Colorado Avenue, Northwest, with a width of one hundred and
twenty feet, and of Kennedy Street, Northwest, with a width
13 of ninety feet. in the District of Columbia, as shown on a
map or plat filed with the said petition, ax part thereof, and
praying also that a jury of five experienced, judicious, disinterested
men. who shall be freeholders within the District of Columbia, not
related to any person interested in these proceedings and not in the
service or employment of the District of Columbia, or of the United
States. be summoned by the United States Marshal for the District
of Columbia, to assess the damages each owner of the land to be
taken may sustain by reason of the extension and widening of the
aforesaid street and avenue and the condemnation of the land neces
sary for the purposes thereof, and to assess as benefits resulting there
from the entire amount of said damages plus the costs of this pro
LYNCHBURG INVESTMENT CORPORATION ET AL. 13
ceeding upon the land abutting upon the said avenue and street to
be extended and widened, and also upon all other pieces and parcels
of land which the jury may find will be benefited by the said exten-
sion and widening of said Avenue and Street, as provided for by the
aforesaid Act of Congress. It is, by the Court, this 28th day of
November, A. D. 1911, Ordered: That all persons having any in-
terest in these proceedings be, and they are hereby, warned and
commanded to appear in this Court on or before the 9th day of
January, A. D. 1912, at ten O'clock, A. M., and continue in at-
tendance until the Court shall have made its final order ratifying
and confirming the award of damages and the assessment of benefits
of the jury to be empaneled and sworn herein, and it is further
Ordered, that a copy of this notice and order be published once in
the Washington Law Reporter and on six secular days in the Wash-
ington Evening Star, the Washington Herald, and the Washington
Post, newspapers published in the said District, commencing at least
twenty days before the said 9th day of January A. D. 1912. It is
further Ordered, that a copy of this notice and order by the United
States Marshal or his deputies, — upon such owners of the land to be
condemned herein as may be found by the said Marshal or his
deputies within the District of Columbia, and upon the tenants and
occupants of the same before the said 9th day of January A. D.
1912.
By the Court:
JOB BARNARD, Justice.
A true copy.
Test:
[sEax. | J. R. YOUNG, Clerk,
By F. E. CUNNINGHAM,
Ass’t Clerk.
Certificate of Publication.
Ciry axp County or WASHINGTON,
District of Columbia, ss:
On this 9th day of January, A. D. one thousand nine hundred
and twelve personally appeared before me Paul F. Cain, a
14 Notary Public in and for the City and County aforesaid J.
W. Hunter who being duly sworn according to law, declares
that he is the business Manager of The Washington Herald, a daily
newspaper Published in this City and County of Washington, Dis-
trict of Columbia, and that the advertisement, of which the annexed
is a true copy, was published on the following dates: Dec. 2, 4, 5,
6, 7, 8, 1911, at a cost of Forty-eight & 60/100 Dollars.
J. W. HUNTER,
Business Manager The Washington Herald Co.
Sworn and subscribed to before me this 9th day of January, A. D.
one thousand nine hundred and Twelve.
[SEAL. ] PAUL F. CAIN,
Notary Public.
EPH EMEESEIO NI Sas 2 nny iP Ty PPP ILE LIE OE AE i
14 CUNO H. RUDOLPH ET AL. VS.
E. H. Thomas and Jas. Francis Smith, Attorneys.
In the Supreme Court of the District of Columbia, Holding a
District Court.
District Court, No. 990.
In re Extension AND Wipextnc or CoLorapo AVENUE AND OF
KENNEDY StrReET NORTHWEST.
Notice is hereby given that the Commissioners of the District of
Columbia, pursuant to the provisions of an Act of Congress approved
June 30th, 1911, entitled “An Act to authorize the extension and
widening of Colorado Avenue, Northwest, from Longfellow Street
to Sixteenth Street. and of Kennedy Street, Northwest, through lot
numbered eight hundred, square numbered twenty-seven hundred
and eighteen,” have filed a petition in this Court praying the con-
demnation of the land necessary for the extension and widening
of Colorado Avenue, Northwest, with a width of one hundred and
twenty feet, and of Kennedy Street, Northwest, with a width of
ninety feet, in the District of Columbia, as shown on a map or plat
filed with the said petition, as part thereof, and praying also that a
jury of five experienced, judicious, disinterested men, who shall be
freeholders within the District of Columbia, not related to any per-
son interested in these proceedings and not in the service or employ-
ment of the District of Columbia. or of the United States, be sum-
moned by the United States Marshal for the District of Columbia, to
assese the damages each owner of the land to be taken may sustain
by reason of the extension and widening of the aforesaid street and
avenue and the condemnation of the land necessary for the pur-
poses thereof, and to assess as benefits resulting therefrom the entire
amount of said damages plus the costs of this proceeding upon the
land abutting upon the said avenue and street to be exten ed and
widened, and also upon all other pieces and parcels of land which
the jury may find will be benefited by the said extension and widen-
ing of said Avenue and Street, as provided for by the afore-
15 aid Act of Congress. It is, by the Court, this 28th day of
November, A. D. 1911, Ordered: That all persons having
any interest in these proceedings be, and they are hereby. warned
and commanded to appear in this Court on or before the 9th day
of January A. D., 1912, at ten O’elock, A. M.. and continue in at-
tendance until the Court shall have made its final order ratifying
and confirming the award of damages and the assessment of benefits
of the jury to be empaneled and sworn herein, and it is further
Ordered, that a copy of this notice and order be published once in
the Washington Law Reporter and on six secular days in the Wash-
ington Evening Star, the Washington Herald, and the Washington
Post, newspapers published in the said District. commencing at least
twenty days before the said 9th day of January A. D. 1912. It is
further Ordered, that a copy of this notice and order be served by
the United States Marshal or his deputies, upon such owners of the
LYNCHBURG INVESTMENT CORPORATION ET AL. 15
land to be condemned herein as may be found by the said Marshal
or his deputies within the District of Columbia, and upon the ten-
ants and occupants of the same before the said 9th day of January
A. D. 1912.
By the Court:
JOB BARNARD, Justice.
A true copy.
Test:
[sean] J. R. YOUNG, Clerk,
By F. E. CUNNINGHAM,
Asst Clerk.
Appearances.
December 20, 1911.—Appearance of A. Leftwich Sinclair for
John H. Holt, filed.
January 8, 1912.,—Appearance of Eugene A. Jones for Alonzo O.
Bliss, filed.
January 9, 1912.—Appearance of S. Herbert Giesy for Ernest
Wilkinson, filed.
January 19, 1912.—Appearance of S. Herbert Giesy for Marie
May Fisher, filed.
February 23, 1912.—Appearance of William W. Mathewson for
Harriet S. Mathewson, filed.
April 11, 1912.—Appearance of James B. Green for John P.
Perry, filed.
Memoranda.
January 9, 1912.—Order directing Marshal to summon Jury,
filed,
January 26, 1912.—Order accepting and directing Jury, filed.
March 8, 1912.—Case submitted to Jury.
16 Verdict of Jury.
Filed April 4, 1912.
- * * * ” * -
We, the jury in the above entitled cause, hereby find the follow-
ing verdict and award of damages for and in respect of the land to
be condemned and taken for the extension and widening of Colorado
Avenue, Northwest, from Longfellow Street to Sixteenth Street, and
of Kennedy Street, Northwest, through lot numbered eight hundred.
square nunibered twenty-seven hundred and eighteen, in the District
of Columbia, as shown on the map or plat filed with the petition in
this cause, amounting to the sum of thirty-four thousand, one hun-
dred thirty-nine dollars and thirty-seven cents ($34,139.37), as set
forth in Schedule No. 1 hereto annexed as part hereof.
And we, the jury aforesaid, hereby find the expenses of these pro-
ceedings to amount to the sum of five hundred, thirty-six dollars and
eighteen cents, ($536.18).
16 CUNO H. RUDOLPH Ef AL, VS.
And we, the jury aforesaid, hereby find the amount of benefits
according by reason of the extension and widening of Colorado
Avenue, Northwest, from Longfellow Street to Sixteenth Street,
and of Kennedy Street, Northwest, through lot numbered eight
hundred, square numbered twenty-seven hundred and eighteen,
in the District of Columbia, to be the sum of thirty-four thousand,
six hundred seventy-five dollars and fifty-five cents ($34,675.55).
And we, the jury aforesaid, find that the lots, pieces or parcels of
land which will be benefited by the aforesaid extension and widening
of Colorado Avenue, are the lots or parts of lots, pieces or parcels of
land, mentioned and described in Schedule No. 2, hereto annexed as
part hereof: and we hereby find that the several lots, pieces or parcels
of land or parts of lots mentioned in Schedule No, 2, will be bene
fited to the extent of the respective amounts mentioned and set forth
in said Schedule No. 2, and we hereby assess against the said lots, or
parts of lots, pieces or parcels of land, respectively, as and for bene
fits, as aforesaid, the several amounts specified, and set forth in said
Schedule No. 2.
Witnes« our hands and seals this 4th day of April A. D. 1912.
WILLIAM T. GALLEHER. [seat.|
APPLETON P. CLARK. [ SEAL. |
SAMUEL M. DARRAGH. [ SEAL, |
JOHN MITCHELL. [ SEAL. |
J. H. SMALL, Jr. [ SEAL. |
ScnepuLe No. 1.
Damages.
Parcels:
Part of a tract of land taxed as Parcel 86/6:
Beginning for the same at the intersection of the east line of 16th
street with the easterly line of Blagden Mill Road, and run-
17 ning thence with the east line of 16th Street, south 0° 05°
west 74.74 feet: thence with proposed easterly line of Colorado
Avenue, 120 feet wide, north 33° 22’ 40” east 316.55 feet to the
easterly line of the Blagden Mill Road; thence with said easterly
line, south 42° 34’ west 257.68 feet to the point of beginning, con-
taining 6502.94 square feet.
Assessed in the name of Harriet S. Mathewson.
Amount awarded as damages.........---+++eee005 $4155.35
Square 2718:
Part of a tract of land taxed as Lot 808, Square 2718:
Beginning for the same at the intersection of the east line of 16th
Street with the westerly line of Blagden Mill Road, and running
thence with the east line of 16th Street, north 0° 05° east 94.87 feet
to the proposed westerly line of Colorado Avenue, 120 feet wide;
thence with said proposed line, north 33° 22’ 40” east 282.46 fee
LYNCHBURG INVESTMENT CORPORATION ET AL. 17
to the northerly line of said lot; thence with said northerly line,
south 56° 37’ 20” east 110.51 feet to the westerly line of Blagden
Mill Road ; thence with said westerly line, south 42° 34’ west 366.40
feet to the point of beginning, containing 27340.16 square feet.
Assessed in the name of Henry W. Houston.
Amount awarded as damages..................... $12872.00
Part of a tract of land taxed as Lot 809, Square 2718:
Beginning for the same at the most southerly corner of said lot
and running thence with the southerly line of said lot, north 56°
37’ 20” west 110.51 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said wester y line, north 33°
22’ 40” east 100 feet to the northerly line of said lot; thence with
said northerly line, south 56° 37’ 20” east 82.97 feet to the westerly
line of Piney Branch Road; thence with said westerly line, south
1° 26’ 30” west 38.27 feet to an angle in said line; thence still with
said line, south 17° 01’ east 20.94 feet to the westerly line of Blagden
Mill Road; thence with said westerly line, south 42° 34’ west 54.90
feet to the point of beginning, containing 10738.66 square feet.
in the name of John H. Holt.
Amount awarded as damages..................... $4295 .54
Part of a tract of land taxed as Lot 815, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 82.97 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33°
22’ 40” east 15 feet to the northerly line of said lot; thence
with said northerly line south 56° 37’ 20” east 73.61 feet to the
westerly line of Piney Branch Road; thence with said west-
18 — erly line, south 1° 26’ 30” west 17.68 feet to the point of
beginning, containing 1174.35 square feet.
pete. in the names of Chas, C. Bryan & Walter A. Brown, Trs.
Amount awarded as damages....................... $469.60
Part of a tract of land taxed as Lot 810, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 73.61 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33° 22’
40” east 150 feet to the northerly line of said lot; thence with said
northerly line, south 56° 37’ 20” east 30.01 feet to the present west-
erly line of Colorado Avenue; thence with said westerly line the fol-
lowing courses and distances:
3—163
18 CUNO Hi. RUDOLPH FT AL. Vs.
South 32° 44’ 30” west 10.78 feet;
South 22° 37’ 30” west 101.87 feet;
South 1° 26’ 30” west 46.15 feet to the
point of beginning, containing 6606.22 square feet.
Assessed in the names of Arthur L. Bliss, Howard Van Law and
E. A. Jones, Trustees.
Amount awarded as damages.............0.000000- $2678 .49
Part of a tract of land taxed as Lot 818, Square 2718:
Beginning for the same at the most southerly corner of said
lot, and running thence with the southerly line of said lot, north
56° 37’ 20” west 30.01 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33°
22’ 40” east 50 feet to the northerly line of said lot: thence with
said northerly line, south 56° 37’ 20” east 29.44 feet to the present
westerly line of Colorado Avenue; thence with said westerly line.
south 32° 44’ 30” west 50 feet to the point of beginning, contain-
ing 1486.25 square feet.
Assessed in the name of Ellix Spear.
Amount awarded as damages.....................-. $445 86
Part of a tract of land taxed asx Lot 819, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56°
37’ 20” west 29.44 feet to the proposed westerly line of Colorado
Avenue, 120 feet wide; thence with said westerly line, north 33°
22’ 40” east 100 feet to the northerly line of said lot; thence with
said northerly line, south 56° 37’ 20” east 28.29 feet to the present
westerly line of Colorado Avenue; thence with said westerly line,
south 32° 44’ 30” west 100.01 feet to the point of beginning, con-
taining 2586.50 square feet.
Assessed in the name of Thomas G. Stewart.
Amount awarded as damages..................0... $865 95
19 Part of a tract of land taxed as Lot 812, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56° 37’
20” west 28.29 feet to the proposed westerly line of Colorado Avenue,
120 feet wide; thence with said westerly line, north 33° 22’ 40” east
100 feet to the northerly line of said lot; thence with said northerly
line, south 56° 37’ 20” east 27.15 feet to the present westerly line
of Colorado Avenue; thence with said westerly line, south 32° 44
30” west 100.01 feet to the point of beginning, containing 2772
square feet.
Assessed in the name of Fred M. Tryon.
Amount awarded as damages................cee000- $831.60
LYNCHBURG INVESTMENT CORPORATION ET AL. 19
Part of a tract of land taxed as Lot 813, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56° 37’
20” west 27.15 feet to the proposed westerly line of Colorado Avenue,
120 feet wide; thence with said westerly line, north 33° 22’ 40” east
100 feet to the northerly line of said lot; thence with said northerly
line, south 56° 37’ 20” east 26 feet to the present westerly line of
Colorado Avenue; thence with said westerly line, south 32° 44’ 30”
west 100.01 feet to the point of beginning, containing 2657.50 square
feet.
Assessed in the name of Marie May Fisher.
Amount awarded as damages........................ $791.25
Part of a tract of land taxed as Lot 814, Square 2718:
Beginning for the same at the most southerly corner of said lot,
and running thence with the southerly line of said lot, north 56° 37’
20” west 26 feet to the proposed westerly line of Colorado Avenue,
120 feet wide; thence with said westerly ise, north 33° 22’ 40” east
112.22 feet to the northerly line of said lot; thence with said north-
erly line, south 62° 22’ east 24.79 feet to the present westerly line
of Colorado Avenue; thence with said westerly line, south 32° 44’
30” west 114.44 feet to the point of beginning, containing 2872.94
square feet.
Assessed in the name of Ernest Wilkinson.
Amount awarded as damages..................02.4.. $861.88
Part of a tract of land taxed as Lot 800, Square 2718:
Beginning for the same at the most northerly corner of said lot,
and running thence with the east line of 16th Street, south 0° 05’
west 59.01 feet to the proposed south line of Kennedy Street, 90
feet wide; thence with said south line, east 112.80 feet to the north-
erly line of said lot; thence with said northerly line, north
20 62° 22’ west 125.91 feet to the point of beginning, containing
3328 square feet.
Assessed in the name of John P. Perry.
Amount awarded as damages....................... $2828.80
Parcels:
Part of a tract of land taxed as Parcel 86/13:
Beginning for the same at the northwest corner of said parcel,
and running thence with the south line of Longfellow Street, east
77.14 feet to the proposed easterly line of Colorado Avenue, 120 feet
wide; thence with said easterly line, south 33° 22’ 30” west 169.17
feet to the southerly line of said parcel; thence with said southerly
line, north 79° 51’ west 66.18 feet to the present easterly line of
Colorado Avenue; thence with said easterly line, north 32° 01’ 30”
a CEES EL A ON OE OO AE Pa LB CLES IEEE Sk Ae em IR are
|
|
20 CUNO H: RUDOLPH ET AL. VS.
east 152.88 feet to the point of beginning, containing 10143.50
square feet.
Assessed in the name of Samuel W. Woodward.
Amount awarded as damages.............-2seseeee: $3043.05
Costs:
NE oo s.cinsa cle bccuvsansee sees susaaeeenabenn ens $311.18
} EET EOTEE REE TET OE TET Ter ee ee 225.00
Pree Terr rer ey pyre trey rrr $34675.55
i Sr re he eS Pee at assoc ¥.
Synge nh oa, hess aise
is.
5 tit £
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28 CUNO H. RUDOLPH FT AL. VS.
29 Motion to Vacate Verdict.
Filed April 24, 1912.
. * * . * . *
Now comes the Lynchburg Investment Corporation, a body cor-
porate of the State of Virginia, appearing specially for the pur-
pose of this motion and for none other, and, respectfully showing
to the court that it was not made a party to the petition filed herein,
that said petition contained no prayer for process against it, and that
it had no notice of the pendency of this proceeding either actual or
constructive, unless said notice is to be implied from the fact of pub-
lication, moves the court to vacate the verdict of the jury filed herein
in so far as it is concerned for the following reasons:
1. Notice of publication passed heretofore, to wit, the 28th day of
November, A. D. 1911, was defective and insufficient to give the
court any jurisdiction over the Lynchburg Investment Corporation
or its real estate because it did not give notice that an assessment
would be made of benefits which had actually been sustained, but
only the benefits which “the jury might find will be” sustained “by
the said extension and widening.”
2. Because the petition in this cause does not seek the assessment
of benefits which are actually sustained by the property, but, instead,
an assessment of the benefits resulting from the proposed extension
and widening.
3. Because public notice of not less than twenty days was not
given of the institution of this proceeding by advertisment in three
daily newspapers published in the District of Columbia, as pro-
vided hy Section 491-c of the Code and consequently the court
never gequired jurisdiction to assess benefits against the said Lyneh-
burg Secunia Corporation or any of the land owned by it.
4. Because the order of publication passed herein on the 28th day
of November, A. D. 1911, did not conform to the requirements of
the said Section 491-c, but, instead, warned and commanded the
parties to appear on January 9th, 1912, and required that a copy of
that order “be published once in the Washington Law Reporter and
on six secular days in the Washington Evening Star, the Wash-
ington Herald, and the Washington Post, commencing at least 20
days before the said 9th day of January, A. D. 1912”. and the said
order was only published in each of the said papers six times, which
was not “public notice of not less than twenty days.”
5. Because, though the order of publication passed on November
28th, A. D. 1911, required that it be published in the three news
papers therein mentioned on six secular days, it was only published
in the Evening Star on five secular days, one of the six publications
being had on Saturday, December 2nd, in the afternoon of that day,
which was a legal holiday and therefore not a secular day under the
order.
30 6. Because the said Lynchburg Investment Corporation
was nowhere named in the petition in this cause or in
Saat
aS AE
LYNCHBURG INVESTMENT CORPORATION ET AL. 29
prayers annexed thereto, was not served with process, and had no
notice of the pendency of this proceeding until after the conclusion
of the hearing.
7. Because notice by publication did not constitute due pro-
cess of law against the Lynchburg Tuvestment Corporation,
because of the insufficiency, in the several respects above noted, of
the publication actually had, and also because of the unjust discrimi-
nation made in the statute between proceedings against the owners
of land to be condemned and the owners of land to be assessed for
benefits, in that Section 491-c specifically requires that in addition to
said public notice the court shall cause a copy of said notice to be
served by United States Marshal for the District of Columbia, or his
deputies, upon such owners of the land to be condemned as can be
found by the Marshal, or his deputies, within the District of Co-
lumbia, and upon the tenants and occupants of the same, but makes
no provision for actual notice of any kind to owners of land to be as-
sessed, and no attempt was made to give such notice to the Lynch-
burg Investment Corporation, though the petitioners well knew its
interests by virtue of the fact that it has for many years paid taxes
on large parcels of land in the proximity of the land sought to be
condemned in this proceeding, and has for a long time appeared
upon the assessment books of the District of Columbia as such
owner, and it is still the owner among other property in the District
of Columbia, of lots numbered 31, 32, 33. 34, and 35. in Square No.
2804, Lots numbered 11, 12, 13, 14, 16, 17. 18, and 19. in Square
No. 2715, Lots numbered 2, 9, 10, 11 and 14 in Square No. 2716 Lots
numbered 31. 32, 33, 34, 35, 36, 37 and 38 in Square No, 2803,
Lots numbered 29, 30, 31, 32. 33. 34, 35, and 36 in Square No.
2802 and Lots numbered 15, 17, 18 and 19, in Square No. 2801,
against all of which assessment for benefits has been made by the
verdict of the jury returned in this cause,
8. Because, though Section 491-g of the Code expressly provides
that “where part of any lot, piece, parcel or tract of land has been
dedicated for the opening, extension, widening or straightening of a
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”. and though the said Lynchburg
Investment Corporation, by sub-division plat duly recorded in Book
36, page 2, of the records of the office of the Survevor of the District
of Columbia heretofore, to wit, the 10th day of September, 1909,
dedicated for the extension and widening of Colorado Avenue.
Northwest more than fifty thousand square feet of ground, as will
more fully and in detail appear by reference to the said recorded sub-
division, which it is hereby prayed may be taken and read as a part
of this motion, with leave hereafter to file a certified copy thereof.
The fact of this dedication was not brought to the attention
31 of the jury by the petitioners. who well knew the facts and
the Lynchburg Investment Corporation by reason of its lack
PLL Spe Fe ee A OOD L te ORE RARER NOT OP QE: TAS:
30 CUNO H. RUDOLPH ET AL. Vs.
of notice of these proceedings had no opportunity to do so, and in
consequence the jury in this case did not take into consideration the
fact of such dedication or the value of the land so dedicated, and
were not instructed by the court so to do.
9, Because the court instructed the jury that they should assess
benefits upon all lots, pieces, or parcels of land “which the jury
might find will be benefited by the said extension of Colorado Avenue
and Kennedy Street,” and, in the same connection, further in-
structed the jury that “by the extension of the avenue and street the
jury are to understand its establishment, laying out and completion
for all the ordinary uses of a public thoroughfare” instead of in-
structing the jury, as should have been done, that they could assess
such benefits as they should find had actually accrued from the pro-
posal of the contemplated extension and widening; and that they
should not consider the proposed extension and widening as laid out
and completed for the ordinary uses of a public thoroughfare, but
should only consider whatever actual enhancement of the market
value of the land had accrued from the said widening and extension
or either of them.
10, Because the court instructed the jury that they might find
and assess benefits if it should find “either that the fair market value
of such parcel of land will be increased or that such parcel will be
made available for some use for which it is not now available by
reason of the withdrawal from private ownership of the land to be
condemned and its appropriation for public use as a street.”
11. Because the petition in this cause filed nowhere alleges that
the land sought to be condemned is necessary for the extension and
widening of Colorado Avenue, N. W. from Longfellow Street to Six-
teenth Street a width of 120 feet, according to the plan for the per-
manent system of highways for the District of Columbia, and of
Kennedy Street, N. W., through Lot numbered 800, Square No.
2718 with a width of 90 feet.
12. Because the petition in this cause filed does not allege that
the proposed extension and widening of Colorado Avenue is accord-
ing to the plan for the permanent system of highways for the Dis
trict of Columbia.
13. Because the petition in this cause filed does not allege that the
roposed extension and widening of Colorado Avenue is from Long:
fellow Street to Sixteenth Street ax required by the Act of Congress.
14. Because the petition in this cause filed does not allege or show
that the proposed extension and widening of Kennedy Street, N. W.,
through Lot numbered 800, Square 2718, is “with a width of 9
feet.”
15. Because the assessment of damages to property owners in this
cause made by the verdict of the jury is excessive.
16. Because the assesement of benefits against the Lynchburg In-
vestment Corporation made by the verdict of the jury in this cause
js excessive.
As LM
_
9
LYNCHBURG INVESTMENT CORPORATION ET AL. ”
32 17, Because of errors of law committed in the trial of
this cause before tlie jury and in instructing the jury.
LYNCHBURG INVESTMENT CORPORA’ ION,
By FRANK P. HARMAN,
President, Appearing Especially for the
Purposes of this Motion and None Other.
J. J. DARLINGTON,
W. C. SULLIVAN,
Attys, Appearing Especially for the Purposes
of thie Motion and None Others.
District or CoLUMBIA, 8s:
I, Frank P. Harman, on oath say that I am president of the
Lynchburg Investment Corporation, and have read the foregoing
motion to vacate by me subscribed with its name and as its president;
that | know the contents of the foregoing and annexed motion and
make this affidavit as the president of said Lynchburg Investment
Corporation; that the statement- therein contained as of personal
knowledge are true, and that those set forth upon information and
belief I believe to be true.
FRANK P. HARMAN,
Subscribed and sworn to this 24th day of April, A. D. 1912.
[seau.] IRWIN H. LINTON,
Notary Public, D. C.
Exceptions to Verdict.
Filed April 24, 1912.
” * * * * ” ”
Now comes the Ilolmes Central Realty Corporation, the owner of
property against which benefits are assessed by the award or verdict
of the jury in the above entitled cause, which was filed herein on
the 4th day of April, 1911, and excepts and objects to the said
award or verdict on the followin potocenty ip
1. The award of damages for the land is excessive,
2. The assessment of benefits as made against the property of
this exceptant is excessive.
3. The Court failed to instruct the jury as provided by Section
491g of the Code of Laws for the District of Columbia that in de-
termining the benefits to be assessed on this exceptant’s lots or par-
cels of ground they should take into consideration the fact that parts
of said lots of parcelx had been dedicated for the extension and widen-
ing of said Colorado Avenue and Kennedy Street, and also the value
of the said parts so dedicated as shown by plat duly recorded in office
of Surveyor D. C.
4, Other errors of law were committed by the Court in inetructing
the jury.
—
5. Each and every of the several grounds of the motion to
33 vacate the said verdict this day filed by the Lynchburg In-
vestment Corporation.
LECKIE, COX & KRATZ,
Attorneys for the Holmes
Central Realty Corporation.
32 CUNO H. RUDOLPH ET AL. V8.
Motion to Ratify and Confirm Verdict of Jury.
Filed May 14, 1912.
* * * * * ” ”
Now come the Commissioners of the District of Columbia and
move the Court to ratify and confirm the verdict of the jury hereto-
fore filed herein notwithstanding the exceptions filed thereto,
Kk. H. THOMAS,
JAS. F. SMITH,
Attorneys for Petitioners.
Order Overruling Exceptions.
Filed May 23, 1912.
” * * * * ” ”
The cause came on upon the exceptions & objections filed to the
verdict of the jury heretofore returned herein, and upon the motion
to confirm said verdict notwithstanding said objections and excep-
tions, and was argued by counsel, & considered by the Court, where-
upon, it is by the court this 23rd day of May 1912 ordered that the
said objections & exceptions be, and the same are each and all over-
ruled and that the said verdict, awards and assessments be, and the
same are hereby in all respects finally ratified and confirmed.
By the Court:
JOB BARNARD, Justice.
From this order, an appeal is noted in open court by the excep-
tants, the Holmes Realty Company and the Lynchburg Investment
Corporation, and allowed by the Court, with penalty of appeal bond
fixed at $100. each.
By the Court:
JOB BARNARD, Justice.
Memoranda.
June 11, 1912, Appeal bonds approved and filed.
June 14, 1912, Time to file and settle bills of exceptions and tran-
script of record extended to and including the 15th day of August,
1912.
August 13, 1912, Bill of Exceptions submitted.
LYNCHBURG INVESTMENT CORPORATION ET AI. 33
34 Supreme Court of the District of Columbia.
Session resumed pursuant to adjournment, present presiding Mr,
Justice Barnard.
Tvuespay, August 13th, 1912.
” a” ” ” ” a a”
Now comes the defendants, the Lynchburg Investment Corpora-
tion by their Attorneys J. J. Darlington and W. C. Sullivan, and
The Holmes Central Realty Corporation by their Attorneys, Leckie,
Cox & Kratz, and prays the court to sign and make a part of the
record their bill of exceptions taken during the trial of this case and
submitted to the Court on this 13th day of August A. D. 1912, which
is accordingly done nune pro tune.
Filed August 13th, 1912.
In the Supreme Court of the District of Columbia,
No. 990, Dis. Doe.
In re Tne Extension any Wipenixe or CoLorapo AVENUE AND
KENNEDY Srreer NortTuwest,
Bill of Exceptions.
Be it remembered that the above entitled cause came on for trial
on the Sth day of Mareh, A. D. 1912, before Mr. Justice Bernard
and a jury of five persons which had theretofore been empanelled
by the Court, James F. Smith, Esq., appearing for the petitioners,
and various counsel appearing for different property owners, but no
appearance being made or having been entered for or by the Lynch-
burg Investment Corporation until, or except by the motion here-
inafter set out; and no appearance having been entered by the
Holines Central Realty Corporation before the verdict, counsel for
which, however, was present in Court at the time said cause was ar-
gued to the jury.
And thereupon to maintain the issues upon their part joined, the
petitioners and various ogres owners then appearing offered evi-
dence tending to show the value of the land and premises sought to
be condemned and the amount and extent of the benefit which would
accrue to lands and premises in the District of Columbia by the ex-
tension and widening of Colorado Avenue and of Kennedy Street,
Northwest, as proposed in and by the petition in this cause filed, but
ho testimony was offered tending to show the dedication by either
the Lynchburg Investment Corporation or the Holmes Central
Realty Corporation of any land or premises whatever, in the line of
said Colorado Avenue or of said Kennedy Street for the opening,
extension or widening thereof, or otherwise.
And thereupon, the case being announced closed by the
35 petitioners and property owners then appearing, and the
foregoing being all of the evidence given by the respective
5—163
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84 CUNO H. RUDOLPH ET AL. VS. ]
parties, the petitioners, by their counsel requested the court to give
the following instructions to the jury, and the court granted the
said instructions:
1. The jury are instructed that, after ascertaining the amount of
damages to be awarded to the owners of land to be taken for the
extension of Colorado Avenue and Kennedy Street, Northwest, for
which this proceeding has been instituted, they shall then proceed
to assess the full amount of damages, together with the costs of this
proceeding, as benefits, and to the extent of such benefits, against
the lots, pieces or parcels of land on each side of Colorado Avenue
and Kennedy Street to be extended, and upon any and all other
lots, pieces or parcels of land which the jury may find will be bene-
fitted by said extension of Colorado Avenue and Kennedy Street, as
the jury may find said lots, pieces or parcels of land will be bene-
fitted; and in determining the amounts to be assessed against said
lots, pieces or parcels of land, the jury shall 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 said extension of the said avenue. By the
extension of the avenue o1 street the jury are to understand its estab-
lishment, laying out and completion for all the ordinary uses of a
public thoroughfare. The jury are instructed, however, that it is
not incumbent on them to assess benefits arbitrarily ; they should as-
sess benefits only where they find an actual enhancement in value
will accrue to the property by reason of the extension of said Avenue.
2. The several pieces or parcels of land to be taken for the pur-
poses of this proceeding are to be appraised at their present fair mar-
ket value, reference being had to the most advantageous use to which
the property could be put by private individuals or corporations, By
fair market value is meant the price for which the property could
be sold, in cash or on terms equivalent to cash, by one who desires,
but is not obliged to sell to one who desires, but is not obliged to
buy.
‘And thereupon the property owners in attendance by their coun-
sel, requested the court to give, but the court refused to give, the
following instructions:
1. “The jury are instructed that the burden of proof rests upon
the District of Columbia to show to the satisfaction of the jury the
extent of the special benefits which will directly result to property
from the extension and widening of Colorado Avenue and Kennedy
Street, Northwest, as proposed herein.”
And. to the refusal of the court to give the said instructions the
property owners then present, by their counsel, objected and ex-
cepted, and prayed the court to note the said exception upon its min-
utes, and the same at the request of counsel for the property owners
present, was then and there duly noted on the minutes of the court.
And thereupon the said property owners, by their counsel, Te
quested the court to give and the court did give the following instrue-
tions to the jury:
36 8. The jury are instructed that only special and direct
benefits capable of present estimate and reasonable computa
LYNCHBURG INVESTMENT CORPORATION ET AL. 85
tion, are to be assessed, and contingent and speculative benefits aris-
ing in the future from the actual opening and improvement of Colo-
rado Avenue, as extended, are not to be considered.
3. The jury are instructed that the several lots, or parcels of land
to be condemned are to be appraised at their fair market value, with
reference to the most valuable use or uses to which they can or may
be lawfully put. And the market value of said lots. pieces or parcels
of land is not limited to the use or uses to which they are now applied
by the owners thereof, or to their present income from such prop-
erty, and if any of said lots, pieces or parcels of land, by reason of
its location, surroundings, natural advantages or intrinsic character,
is peculiarly adapted to some particular use or uses, the circumstance
or circumstances which make up such adaptability shall be con-
sidered by the jury. By fair market value is meant what the prop
erty would sell for, in cash, or on terms equivalent to cash, when of.
fered for sale by one who desires but is not obliged to sell, to one
who desires but is not obliged to buy.
1. Where a part only of the lot is taken, the owner should be
awarded its value when considered with reference to the whole lot
and as a part thereof.
And thereupon the said property owners, by their counsel, re-
quested the court to give, and the court refused to give, the following
instruction to the jury:
5. The jury are instructed that where only a part of a lot or par-
cel is taken and they find that by the taking thereof the remaining
portion of the lot or parcel is damaged, they shall allow for such
damage to the owner for the remaining part, and in estimating such
damages the measure thereof is the depreciation of the market value
of the remaining portion of such lot or parcel of land: and any such
damages shall be in addition to the damages allowed for the value
of the part actually taken.
And to the refusal of the court to grant the said instruction, the
property owners then present, by their counsel, duly objected and
excepted, and prayed the court to note the said exception upon its
minutes, and the same at the request of counsel for the property
owners then present was then and there duly noted on the minutes
of the court.
And thereupon the said property owners, by their counsel, re-
quested the court to give, and the court did give, the following in-
structions to the jury:
6. The jury are instructed that, in assessing benefits, they cannot
indulge in vague speculation or conjecture, but can only assess
against the property such benefits only, if any, as, in their opinion,
the property assessed may be benefitted by reason of the extension
and widening of Colorado Avenue, Northwest, from Longfellow
Street to Sixteenth Street, and of Kennedy Street, Northwest. through
Lot numbered 800, in square No, 2718, over and above the ordinary
benefit which the community at large or general public may derive
therefrom.
37 7. The jury are instructed that, in order to find that any
lot or parcel of land will be specially benefitted as distinct
= z . WA i oa OO nt a i 5 id
_ ~n
36 CUNO H. RUDOLPH ET AL. VS.
from the general benefit accruing to other lands, they must find
either that the fair market value of such parcel of land will be in-
creased or that such parcel will be made av-ilable for some use for
which it is not now available by reason of the withdrawal from pri-
vate ownership of the land to be condemned and its appropriation
for public use as a street.
8. The jury are instructed that the benefits as well as the damages
are to be estimated as of the date of the appropriation or taking of
the land sought to be condemned.
And thereupon, the foregoing being all of the instructions pre-
sented to the Court for submission to the jury, and the instructions
above indicated as having been granted by the court being all of the
instructions then and there given to the jury, the case was sub-
mitted to the jury, which thereafter returned their verdict award-
ing damages and assessing benefits as of record in this cause, which
verdict by this reference thereto is hereby made a part of this bill
of exceptions.
And there-pon the Lynchburg Investment Corporation filed in
the said cause its motion in the words and figures following, to vacate
the said verdict:
oe j
Motion to Vacate Verdict.
Now comes the Lynchburg Investment Corporation, a body cor-
porate of the State of Virginia, appearing xpecially for the purpose
of this motion and for none other. and, respectfully showing to
the court that it was not made a party to the petition filed herein.
that the said petition contained no prayer for process against il,
and that it had no notice of the pendency of this proceeding either
actual or constructive, unless said notice is to be implied from. the
fact of publication, moves the court to vacate the verdict of the jury
filed herein. in so far as it is concerned, for the following reasons:
1. Notice of publication passed heretofore, to wit. the 28th day
of November, A. D. 1911, was defective and insufficient to give the
court any jurisdiction over the Lynchburg Investment Corporation
or its real estate. because it did not give notice that an assessment
would be made of benefits which bad actually been sustained. but
only the benefits which “the jury might find will he” sustained “by
the said extension and widening.”
2. Because the petition in this cause does not seek the assessment
of benefits which are actually sustained by the property. but, in-
stead, an assessment of the benefits resulting from the proposed
extension and widening.
3. Because public notice of not less than twenty days was not
given of the institution of this proceeding, by advertising in three
daily newspapers published in the District of Columbia, as provided
by section 491-e of the Code, and consequently the court
38 never acquired jurisdiction to assess benefits against the said
. Lynchburg Investment Corporation or any of the land owned
y it.
4. Because the order of publication passed herein on the 28th
| LYNCHBURG INVESTMENT CORPORATION ET AL. 37
day of November, A. D., 1911, did not conform to the requirements
of the said section 491-c, but, instead, warned and commanded the
parties to appear on January 9th, 1912, and required that a copy
of that order “be published once in the Washington Law Reporter
and on six secular days in the Washington Evening Star, the Wash-
ington Herald, and the Washington Post, commencing at least 20
days before the said 9th day of January, \. D. 1912.” and the said
order was only published in each of the said papers six times, which
was not “public notice of not less than twenty days.”
5. Because, though the order of publication passed on November
28th, A. D. 1911, required that it be published in the three news-
papers therein mentioned on six secular days, it was only published
in the Evening Star on five secular days, one of the six publications
being had on Saturday, December 2nd. in the afternoon of that day,
which was a legal hofiday and therefore not a secular day under the
order,
6, Because the said Lynchburg Investment Corporation was no-
where named in the petition in this cause or in the papers annexed
thereto, was not served with process, and had no notice of the pen-
dency of this proceeding until after the conclusion of the hearing.
7. Because notice of publication did not constitute due process of
law against the Lynchburg Investment Corporation, because of the
insufficiency. in the several respects above noted. of the publication
actually had. and also because of the unjust discrimination made in
the statute between proceedings against the owners of land to be
condenmmed and the owners of land to be assessed for benefits in
that section 491-¢ specifically provides that in addition to said public
notice the court shall cause a copy of said notice to be served by the
United States Marshal/ for the District of Columbia. or his deputies,
upon each owners of the land to be condemned as ean be found by
the Marshal, or his deputies. within the District of Columbia, and
upon the tenants and occupants of the same: but makes no provision
for actual notice of any kind to owners of land to be assessed. and no
atfermpt was made to give such notice to the Lynchburg Investment
Corporation. though the petitioners well knew its interest by virtue
of the fact that it has for many years paid taxes on large parcels of
land in the proximity of the land sought to be condemned in this
proceeding, and has for a long time appeared upon the assessment
books of the District of Columbia as such owner, and it is still the
owner, among other property in the District of Columbia. of lots
numbered 31, 32, 33, 34, and 35, in Square No, 2804, Lots numbered
I, 12, 18. 14. 16, 17, 18 and 19 in Square No. 2715, Lots numbered
2,9, 10, 11, and 14 in Square No. 2716, Lots numbered 31, 32, 33,
44,35, 36, 37 and 38, in Square No. 2803. Lots numbered 29, 30,
31, 82. 38, 34, 35 and 36 in Square 2802 and Lots numbered
39 15, 17. 18 and 19, in Square No, 2801, against all of which
assessinent for benefits has been made by the verdict of the
jury returned in this cause.
8. Because. though section 491-9 of the Code expressly provides
that “where part of any lot. piece, parcel or tract of land has been
dedicated for the opening, extension, widening or straightening of
—
a 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 the 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,” and though the said Lynecb-
burg Investment Corporation by sub-division plat duly recorded in
Book 36, page 2. of the records of the office of the Surveyor of the
District of Columbia, heretofore, to wit, the 10th day of September,
1909. dedicated for the extension and widening of Colorado Avenue,
Northwest, more than fifty thousand square feet of ground, as will
more fully and in detail appear by reference to the said recorded
sub-division, which it is hereby prayed may be taken and read as
a part of this motion, with leave hereafter to file a certified copy
thereof, the fact of dedication was not brought to the attention of
the jury by the petitioners. who well knew the facts, and the Lynch-
burg Investment Corporation, by reason of its lack of notice of these
proceedings, had no opportunity to do so, and in consequence the
jury in this case did not take into consideration the fact of such
dedication or the value of the land so dedicated, and were not in-
structed by the court so to do.
9. Because the court instructed the jury that they should assess
benefits upon all lots, pieces, or parcels of land “which the jury
might find will be benefited by the said extension of Colorado Ave-
nue and Kennedy Street,” and, in the same connection, further in-
structed the jury that “by the extension of the avenue and street the
jury are to understand its establishment, laying out and completion
for all the ordinary uses of a public thoroughfare ;” instead of tn-
structing the jury as should have been done that they should assess
such benefits as they should find had actually accrued from the pro-
posal of the contemplated extension and widening; and that they
should not consider the proposed extension and widening as laid
out and completed for the ordinary uses of a public thoroughfare,
but should only consider whatever actual enhancement of the mar-
ket value of the land had accrued from the -aid widening, extension
or either of them.
10. Because the court instructed the jury that they might find
and assess benefits if it should find “either that the fair market value
of such parcel of land will be increased or that such parcel will be
made available for some use for which it is not now available by
reason of the withdrawal from private ownership of the land to be
condemned and its appropriation for public use as a street.”
11. Because the petition in this cause filed nowhere alleged that
the land sought to be condemned is necessary for the extension and
widening of Colorado Avenue, N. W. from Longfellow Street to
Sixteenth Street. N. W.. with a width of 120 feet. according to the
plan for the permanent system of highways for the District
40 of Columbia, and of Kennedy Street, N. W., through lot
numbered 800, Square No. 2718, with a width of 90 feet.
12. Because the petition in this cause filed does not allege that
the proposed extension and widening of Colorado Avenue is accord-
z
#
LR epee i
oe pone
38 CUNO H. RUDOLPH ET AL, VS.
ee
ing to the plan for the permanent system of highways for the Dis-
trict of Columbia.
13. Because the petition in this cause filed does not allege that the
proposed extension and widening of Colorado Avenue is from Long-
fellow Street to Sixteenth Street as required by the Act of Congress.
14. Because the petition in this cause filed does not allege or show
that the proposed extension and widening of Kennedy Street, N. W.,
through Lot numbered 800, Square No. 2718, is “with a width of 90
feet.”
15, Because the assessment of damages to property owners in this
cause made by the verdict of the jury is excessive.
lj, Because the assessment of benefits against the Lynchburg In-
vestment Corporation made by the verdict of the jury in thix cause is
eXCessiVe,
17. Because of errors of law committed in the trial of this cause
before the jury and in instructing the jury.
LYNCHBURG INVESTMENT COKPORATION,
By FRANK P. HARMAN (Signed), President,
LYNCHBURG INVESTMENT CORPORATION ET AL. 39
MeL Pe
Appearing Specially for the Purposes of
This Motion and None Other.
J.J. DARLINGTON axp
W. C. SULLIVAN,
Aff ys Appearing Specially for the Purpose
of This Motion and None Other.
Disrricer or CoLuMBIA, ss:
1. Frank P. Tlarman, on oath say that I am president of the
Lynchburg Investment Corporation, and have read the foregoing
motion to vacate by me subseribed, in its name and as its president,
that I know the contents of the foregoing and annexed motion to
vacate and make this affidavit as the president of the said Lynch-
lury Investment Corporation; that the statements therein contained
ws of personal knowledge are true, and that those set forth upon in-
ormation and belief 1 believe to be true.
FRANK P. HARMAN. (Signed.)
Sulscribed and sworn to before me this 24th day of April, \. D.
1912.
| NOTARIAL SEAL. | IRWIN H. LINTON (Signed).
Notary Public, D. (C.
Copy of the plat mentioned in said motion and filed and sub-
initted to the court is hereto annexed, marked “Lynchburg
41 Investinent Corporation Exhibit,” and is hereby made a part
of this bill of exceptions.
The Holmes Central Realty Corporation also filed its motion in
the words and figures following, to vacate the verdict -
40 CUNO H. RUDOLPH ET AL. Vs.
Exceptions to Verdict.
Now comes the Holmes Central Realty Corporation, the owner 0
property against which benefits are assessed by the award or verdi
of the jury in the above entitled cause, which was filed herein on th
Ith day of April. 1911, and excepts and objects to the said award o
verdict on the following grounds:
1. The award of damages for the land taken is excessive.
2. The assessment of benefits as made against the property of thi
exceptant is excessive.
4. The Court failed to instruct the jury as provided by Sectio
i1-y of the Code of Laws for the District of Columbia that in de
iermining the benefits to be assessed on this exceptant’s lots or par-
celx of ground they should take into consideration the fact. that
parts of said lots or parcels had been dedicated for the extension
and widening of said Colorado Avenue and Kennedy Street, and
alxo the value of the said parts so dedicated, as shown by plat duly
recorded in the office of the Surveyor for the District of Columbia.
4. Other errors of law were committed by the Court in instruct-
ing the jury.
©». Each and every of the several grounds of the motion to vacate
the aid verdict this day filed by the Lynchburg Investment Cor-
poration.
LECKIE, COX & KRATZ,
Attorneys for the Holmes Central Realty Corporation.
Copy of the plat mentioned in said motion which was filed and
~ubmitted to the court is hereto annexed, marked “Holmes Central
Realty Corporation Exhibit,” and is hereby made a part of this bill
of exceptions.
And the said motions duly coming on to be heard, were, by the
court, on, to wit the 23d day of May. A. D. 1912. overruled. and
the ~aid verdict of the jury was then and there by the court ratified
and confirmed, as al<o appears by the order of the court passed on
said date and of record in said cause, which said order is by this
reference thereto hereby made a part of this bill of exceptions: to
which action of the court in overruling their respective motions the
Lynchburg Investment Corporation and the Holmes Central Realty
Corporation, by their respective counsel. then and there. severally
and separately, duly objected and excepted and prayed the court to
note =aid exceptions upon its minutes. and the same at the request
of the respective counsel for the said corporations were then and
there, severally and separately, duly noted on the minutes of the
court.
42 Be it further remembered that the foregoing comprises the
substance of all the testimony given and all the proceedings
had in and subsequent to the trial of the said ease. and that each o
the said several exceptions taken in the course of the trial of the said
cause, and heretofore set out, were so taken before the jury retired,
separately and severally, and that each of said exceptions, and t
LYNCHBURG INVESTMENT CORPORATION FT AL. 41
exception to the overruling of the motion to vacate the said verdict
was, at the time of the taking thereof, respectively, separately and
severally duly noted upon the minutes of the court by the justice
then and there at the time presiding, and that upon the overruling
of its said motion to vacate the said verdict, the said Lynchburg
Investment Corporation, by its counsel, and upon the overruling of
its said motion the said Holmes Central Realty Corporation, by its
counsel, then and there prayed the court to sign this bill of excep-
tions, to have the same force and effect as if each of said exceptions
hereinbefore set out had been separately and severally set forth in a
separate bill of exceptions by the Lynchburg Investment Corpora-
tion, and as if each of said exceptions had also been set out sep-rately
and severally by the Holmes Central Realty Corporation in another
separate bill of exceptions, and with the full benefit to the said
Lynchburg Investment Corporation of each of the exceptions noted
at the trial of said cause, as hereinbefore set out, and without preju-
dice to any of the rights of the said Lynehburg Investment Corpora-
tion; all of which at the request of counsel for the said Lynchburg
Investment Corporation and of counsel for the Holmes Central
Realty Corporation is accordingly done, and this bill of exceptions is
signed and sealed, and made a part of the record of thix cause. now
for then, this 13th day of August, A. D., 1912.
JOB BARNARD, Justice. [seav.]
(Here follow drawings marked ages 42% and 4244.)
I
42 CUNO H. RUDOLPH ET AL. YS.
Memorandum.
August 13, 1912.—Time to file transcript of record in Court of
Appeals further extended to and including the 15th day of Septem-
ber, 1912.
Assignment of Errors.
Filed August 26, 1912.
* + * * * * *
Now come the respondents, the Lynchburg Investment Corpora-
tion and Holmes Central Realty Corporation, appellants in the above
entitled cause, — jointly. severally and separately, assign for
43 review on appeal, errors committed by the trial court in the
following particulars:
1. In not granting the first prayer offered and requested by the
property owners concerning the verdict of proof.
2. In not granting the fifth prayer offered and requested by the
property owners,
3. In not granting the motion of the Lynchburg Investment Cor-
poration to vacate the verdict of the jury.
4. In not sustaining the exceptions of the verdict of the jury filed
by the Holmes Central Realty Corporation.
5. In not holding that the court had not acquired jurisdiction over
the appellants, or either of them, or the real estate of them, or of
either of them.
6. In not holding that the court had not acquired jurisdiction
over the appellants or either of them, or the real estate of them or of
either of them, by the notice of publication, because public notice of
not less than twenty (20) days was not given of the institution of
the proceedings in the lower court, by advertisement in three daily
newspapers published in the District of Columbia.
7. In holding that the court had acquired jurisdiction over the
appellants or either of them, or the real estate of them, or of either of
them, without giving public notice of not less than twenty (20) days
by advertisement in three daily newspapers published in the District
of Columbia.
8. In holding that publication of the notice to appear once in the
Washington Law Reporter and on six secular days in the Washing-
ton Evening Star, the Washington Herald. and the Washington Post
commencing at least twenty days before the return day, constituted
notice of not less than twenty days.
9. In holding that the Court had acquired jurisdiction over the
appellants, or either of them, or the property of them, or either of
them, notwithstanding the fact that they were, and each of them was.
non-resident corporations, nowhere named in the petition or the
prayers, not served with proces<, and that actual notice of the pen-
dency of the proceeding until the conclusion of the hearing.
10. In not vacating the verdict, and in not sustaining the excep-
tions thereto, because of the failure of the petitioners to discharge
; LYNCHBURG INVESTMENT CORPORATION ET AL. 43
the duty im upon them by law of advising the court and the
jury of the fact of the dedication of land by the appellants and each
of them, in the line of Colorado Avenue or Kennedy Street, at the
point of the proposed extension.
11. In that the petitioners failed to discharge the duty imposed
upon them by law of advising the court and the jury of the fact of
the dedication of land by the appellants and each of them, in the line
of Colorado Avenue or Kennedy Street, at the point of the proposed
extension.
12. In failing to charge the jury and also in failing to vacate the
verdict or sustain the exceptions thereto, because of such failure to
charge the jury, that where part of any lot, piece, parcel or
44 tract of land has been dedicated for the opening, extension,
widening or straightening of a street, avenue, road or high-
way, the jury, in determining whether the remainder of such lot,
parcel, or tract should be assessed for benefits and the amount of
henefit< if any, to be assessed thereon, should also take into consid-
eration the fact of such dedication and the value of the lot so dedi-
cated.
13. In that the jury did not take into consideration, in making
up the verdict, the fact of the dedication by the appellants or either
of them, of land for the opening, extension, widening or straighten-
ing of Colorado Avenue and Kennedy Street or the value of the
land so dedicated; and also in failing to vacate the verdict and of
sustaining the exceptions thereto because of such failure of the jury
to take into consideration such fact of dedication.
14. In instructing the jury that they should assess benefits upon
all lots, piece- or parcels of land which they might find would be
benefited by the said extension of Colorado Avenue and Kennedy
Street, instead of instructing them that they should assess such bene-
fits only as they should find had actually acerued by reason of the
said extension at the time of returning their verdict.
15. In instructing the jury that, by the extension of Colorado
Avenue and Kennedy Street they should understand their establish-
ment, laying out and completion for all the ordinary uses of a public
thoroughfare.
16. In instructing the jury that they might find and assess bene-
fits if they should find either that the fair market value of the parcel
of land to be assessed would be increased or that such parcel would
be made available by reason of the withdrawal from private owner-
ship of the land to be condemned and its appropriation for public
use as a street.
W. C. SULLIVAN,
Attorney for Lynchburg Investment Corporation,
j LECKTE, COX & KRATZ,
Attorneys for Holmes Central Realty Corporation.
a
44 CUNO H. RUDOLPII ET AL. Vs.
Directions to Clerk for Preparation of Transcript of Record.
Filed August 27, 1912.
” * * ” ” od ”
Now come the Lynchburg Investment Corporation and the
Holmes Central Realty Corporation, respondents appellants in the
above entitled cause, and designate the following to constitute the
transcript of record upon their appeal in the said cause:
1. Petition and exhibit, — filed November 28, 1911.
2. Notice of order of publication, filed November 28, 1911.
3. Proofs of publication, filed January 9, 1912.
4. ——— of order directing securing of jury. filed January 9,
1912.
45 5. Memo. of order accepting and directing jury. filed Jan-
uary 26, 1912.
6. Memo. of case submitted to jury March 8, 1912.
7. Verdict of jury, filed April 4, 1912.
8. Motion of Lynchburg Investment Corporation to vacate ver-
dict, filed April 24, 1912.
9. Exceptions to verdict by Holmes Central Realty Corporation.
filed A ri 24, 1912.
10. Motion of the District of Columbia to confirm verdict, filed
May 4, 1912.
11. Memo. of order over-ruling exceptions and confirming verdict
and notices of appeal, filed May 23, 1912.
12. Memo. of filing of appeal bond and of extensions of time
duly had.
13. Assignment of errors filed August 26th, 1912.
14. Memo. of submission of bill of exceptions to court, and of
order making the same part of the record.
15. Bill of exceptions.
16. Memo. showing all appearances entered in cause with dates
of respective entries.
W. C. SULLIVAN,
Attorney for Lynchburg Investment Corporation.
LECKIE, COX & KRATZ,
Attorney- for Holmes Central Realty Corporation.
James Francis Smith, Esq., Attorney for Petitioners.
Sir: Please take notice that we have this day filed the foregoing
designation of record on appeal in the above entitled cause.
W. C. SULLIVAN,
Attorney for Lynchburg Investment Corporation.
LECKTE, COX & KRATZ.
Attorney- for Holmes Central Realty Corporation.
Service acknowledged this 27th day of August A. D. 1912.
J. F. SMITH,
Per M. F.
.
Ae:
o <<a
LYNCHBURG INVESTMENT CORPORATION ET AL. 45
Memorandum.
August 27, 1912.—Time to file transcript further extended to and
including October 1, 1912.
Supreme Court of the District of Columbia.
Unitrep STatexs or AMERICA,
District of Columbia, sa:
I, John R. Young. Clerk of the Supreme Court of the District of
Columbia. hereby certify the foregoing pages numbered from 1 to
71 inclusive, to be a true and correct transcript of the record,
46 as per directions of counsel herein filed, copy of which is made
part of this transcript. in cause No. 990, District Court. en-
titled “In re: The extension and widening of Colorado Avenue and
of Kennedy Street. Northwest,” as the <ame remains upon the files
and of record in said Court.
In Testimony Whereof, I hereunto subscribe my name and affix
the seal of said Court, at the City of Washington. in said District,
this 28th day of September, A. D. 1912.
[Seal Supreme Court of the District of Columbia. ]
JOHN R. YOUNG, Clerk.
Endorsed on cover: District of Columbia Supreme Court. No.
2468. Lynchburg Investment Corporation et al., appellants, vs.
Cuno H. Rudolph et al. Court of Appeals, District of Columbia.
Filed Sep, 28, 1912. Henry W. Hodges, clerk.
47 Tuesday, February 4th, A. D. 1913.
No. 2468,
Lyxcunurc Investment Corroratiox and Hotmes Cenrrav
Reavty Corporation, Appellants,
vs,
Cuxo H. Rupoten, Jonx A. Jouxsrox. and Witiiam V. Jvpson,
Commissioners of the District of Columbia.
The argument in the above entitled cause was commenced by
Mr. J. W. Cox, attorney for the appellants, and was continued by
Mr. J. F. Smith. attorney for the appellees, and was concluded by
Mr. W. C. Sullivan. attorney for the appellants,
On motion the appellants are allowed to file additional authorities
herein if so advised.
46 CUNO H. RUDOLPH ET AL. VS. |
48 In the Court of Appeals of the District of Columbia, October
Term, 1912.
No. 2468,
LyxcusurG [INVESTMENT CorroraTion et al., Appellants,
vs.
Cuno H. Rupowpu et al., Commissioners of the District of Columbia.
There appearing to be some divergence of statement in the brief
and in the bill of exceptions as to the exact facts relating to the
appearance of the Holmes Central Realty Corporation, it is stipulated
and agreed by and between counsel that the facts are as follows:
No formal appearance was entered by the Holmes Central Realty
Corporation before verdict. Only one session of the Court for the
hearing of testimony was had, viz: Mareh 8, 1912, at which hearing
AE. L. Leckie was present and participated on behalf of the Holmes
Central Realty Corporation, not having appeared or taken any part
in any of the prior proceedings.
LECKIE, COX & KRATZ,
Attorneys for Appellants.
KE. H. THOMAS,
JAS. FRANCIS SMITH,
Attorneys for Appellees,
(Endorsed:) No. 2468. Lynchburg Investment Corporation, et
al, vs. Cuno H. Rudolph, et al. Stipulation. Court of Appeals,
District of Columbia. Filed Feb. 11, 1913. Henry W. Hodges,
Clerk.
49 No. 2468.
LyncusurGc InvestMENT Corporation and Hoimes Cenrrar
Reatry Corroration, Appellants,
v.
Cuno H. Rupoten, Joun A, Jonnstox, and Wiii1aM V. Jupsoy,
Commissioners of the District of Columbia.
Opinion.
Mr. Justice Vax Orspet delivered the opinion of the Court:
This is an appeal from an order of the Supreme Court of the
District of Columbia confirming the verdict of the jury in a con-
demnation proceeding. The proceedings were instituted by the
Commissioners of the District of Columbia under the provisions of
the act of Congress approved June 30, 1911 (37 Stat. L., 1), author-
izing the extension and widening of Colorado Avenue Northwest,
from Longfellow Street to Sixteenth Street, and Kennedy Street
through lot numbered 800, square numbered 2718.
wa
LYNCHBURG INVESTMENT CORPORATION ET AL. 47
The Commissioners were required within six months after
50 the passage of the act to initiate proceedings in accordance
with the provisions of subchapter 1 of Chapter XV of the
Code of the District of Columbia for the condemnation of the neces-
sary land and the assessment of benefits upon the property benefited
by the opening of the streets. The petition was filed, notice by
publication given, and a jury appointed. The jury returned a
verdict awarding damages and assessing benefits. Appellants filed
exceptions to the verdict, which were overruled, and an order was
entered confirming the verdict. The exceptions may be considered
in the following order:
(1) Insufficiency of notice.
(2) Failure of the court to instruct the jury that the burden of
proof was upon the District te show the extent of special benefits
that would result to appellants’ properiy from the opening of said
street and avenue,
(3) Failure of the court to instruct the jury that, in determining
the amount of benefits to be assessed against the land of appel-
lants, consideration should be given to the fact that appellants had
already dedicated part of their land for the extension and widening
of the street and avenue in question.
Notice was given by publication. The order provided that a copy
of the “notice and order be published once in the Washington Law
Reporter, and on six secular days in the Washington Evening Star,
The Washington Herald, and the Washington Post, newspapers
published in the said District, commencing at least twenty ;
before the said 9th day of January, A. D. 1912.” [It appears that
the publication so ordered was made and completed within nine
days, and the last publication was made thirty-two days prior to the
appearance day.
Section 491¢, D.C, Code, authorizing service by publication, pro-
vides: “The said court shall cause public notice of not less than
twenty days to be given of the institution of such proceeding, by
advertisement in three daily newspapers published in the District
of Columbia, which notice shall warn and require all persons hav-
ing any interest in the proceeding to appear in court at a day to be
named in said notice, and to continue in attendance until the court
shall have made its final order ratifying and confirming the award
of damages and the assessment of benefits by the jury herein pro-
vided for; and in addition to such publie notice said court shall
cause a copy of said notice to be served by the United States marshal
for the District of Columbia, or his deputies upon such owners of
the land to be condemned as can be found by said marshal, or his
deputies, within the District of Columbia, and upon the tenants and
occupants of the same.” The notice provided for is intended to reach
two classes of property owners; first, it is the only notice provided
to be given those against whom assessments for benefits may be
made, due to the fact that such persons can only be ascertained from
the return of the jury, neither the court nor the Commissioners of
the District being advised in advance of the persons who may be
embraced within this class; second, those whose land is to be con-
Bilinear
48 CUNO H. RUDOLPH ET AL. Vs.
demned, of whom the court has notice in advance from the petition,
which is required to “contain a particular description of the land to
be condemned and the names of the owners of the fee of said land
and their residences, so far as the same may be ascertained, together
with a plan of the land to be taken.” D. C. Code, sec. 4914. As
to this class, additional summons by the marshal is required where
possible. It appears, however, that appellants were the owners of
lots abutting on both Colorado Avenue and Kennedy Street, portions
of which had been dedicated to the District for the opening and
widening of said streets. Appellants, therefore, had no land subject
to condemnation under this proceeding. Their sole interest cen-
tered in the amount of assessment for benefits which they might be
required to pay. Notice could only be given them, therefore,
through the medium of publication.
The validity of the service by publication is assailed upon the
ground that the notice should have been published daily for at least
twenty days immediately preceding the appearance day. The statute
ix not difficult to construe. It clearly requires that notice shall be
published in three daily papers for at least twenty days. This re-
uirement can not be satisfied by six insertions of the notice in three
daily papers thirty-two days before the appearance day. If six in-
sertions of the notice are sufficient, one is suflicient; and if it can be
inserted thirty-two days before the appearance day, it could be in-
serted six months before. In Delogny et al. v. Smith et al., 3 La,
418, 423, the court, dealing with a similar situation, said: “The law
does not say whether the three months in which the sale should be
advertised, are the three months immediately preceding the sale.
But we think that such is the sound construction. Otherwise the
corporation might give the notice at any time they pleased, and at
so great an interval of time as to render nugatory nearly all the
objects to be attained by advertising.”
It is well settled by the State decisions construing similar statutes
that if the notice is required to be published for a certain period, or
not less than a certain number of days before return day, if the
publication is required to be made in a daily paper it means daily
publication for that period. Stine v. Wilkson et al., 10 Mo., 75;
Washington v. Bassett et al., 15 R. 1., 563; Allen et al. v. Kerr et al,
13 Lea (Tenn.), 256. If publication is required to be made in a
weekly paper, the notice must be published each week during the
period. Armstrong et al. v. Scott, 3 Greene (I.), 433; Leffler v.
Armstrong. 4 Iowa, 482. And where publication is required to be
made for a certain number of days before the return day, and no
daily paper is available in which to “bgp the notice, it is sufficient
if the notice be published in a weekly paper each week during the
period. Land Co. yv. Loan & Trust Co.. 52 Neb., 410, Leffler v.
Armstrong, supra. In the present case, notice by publication is the
only method provided for notifying persons against whose property
benefits may be assessed. It is of the highest importance that every
one interested should have due notice. To that end wide publicity
of the proposed proceedings should be given. The object of notice is
to give the owners of property to be affected by the proposed pro-
| LYNCHBURG INVESTMENT CORPORATION ET AL. 49
ceedings opportunity to defend against the lien for taxes to be
charged against it. One of the chief constitutional guaranties is that
no one shall be deprived of his property or his liberty with-
51 out due notice and an opportunity to be heard in his own
defense. “No principle is more vital to the administration
of justice than that no man shall be condemned in his person or
property without notice, and an opportunity to make his defense.
And every departure from this fundamental rule, by a proceeding
in rem, in which a publication of notice is substituted for a service
on the party, should be subjected to a strict legal scrutiny. Juris-
diction is not to be assumed and exercised in such cases upon the
general ground that the subject-matter of the suit is within the
power of the court. This would dispense with the forms of the law,
prescribed by the legislature, for the security of absent parties. The
inquiry should be, Have the requisites of the statute been complied
with so as to subject the property in controversy to the judgment of
the court, and is such judgment limited to the property named in the
bill? If this can not Ne answered in the affirmative, the proceedings
of the court beyond their jurisdiction are void.’ Boswell’s Lessee v.
Otis et al., 9 How., 336, 350.
In matters affecting private property rights of persons, companies,
or corporations, where it is sought to take it for the public good,
liberal construction should be indulged in favor of the parties thus
affected, and every step required to be taken by the public officials
in thus subjecting private property to public use must be literally
followed. As was said in Fay v. Macfarland, 32 App. D. C., 295:
“The Comiuissioners are creatures of statute. They possess no iim-
plied powers. Their authority to act must be gathered from the
express terms of the law granting it. Hence, in any attempt to act
under a statute granting authority, they must comply literally with
its requirements. Neither has the court any implied jurisdiction in
the premises. Every requirement of a statute conferring jurisdic-
tion upon the court to entertain a proceeding, providing a legal
method of taking private property, must be complied with to the
letter. It must clearly appear, either by express admission of the
parties or by competent evidence, that all the jurisdictional require-
ments are present before the court can lawfully proceed.”
The failure of the court below to establish its jurisdiction by
proper notice against appellants is fatal, and renders the whole pro-
ceeding void and of no effect.
The failure of the court to instruct the jury that the burden was
upon the District to establish by a preponderance of the evidence
the extent of the special benefits accruing to the property as a basis
for the assessment of benefits was error. The burden of establish-
ing a fact is upon the affirmative party. Here, the whole proceed-
ing was initiated primarily for the benefit of the District, and at the
instance of its Commissioners. Appellants were not required to as-
sume the burden of proving the negative proposition that they were
not benefited to a certain amount. It was upon the District to estab-
lish by competent proof the amount of the benefits before appellants
could be put upon their defense. In these proceedings relating to
7—163
50 CUNO H. RUDOLPH ET AL. Vs.
the assessment of benefits, the District stands in the light of a plain-
tiff, and the property owners are defendants. The assessment of the
jury must rest upon sufficient evidence, since there is no presumption
of law as to its correctness. Mayor of Baltimore v. Brick Co., 80
Md., 458. In Baltimore City v. Hurlock, 113 Md., 674, the court
said: “In the case of assessing benefits from opening a street, the
initial question is as to the existence or creation of benefits as a fact.
The opening of the street may result in damage instead of benefit to
the property. Before the alleged benefits can be assessed it must be
shown that there are benefits to be assessed, and the burden of proof
is, and must be, upon every principle of law upon the one alleging
the existence of benefits, not only to show the existence, but the
extent of such benefits.” We are not unmindful that the act of Con-
gress fixes the total amount of the benefits in the present case as
equivalent to the award of damages, but if the burden of proof is
upon the one alleging the benefits where they are not already ascer-
tained in the act, certainly, on the same reasoning, the burden would
be upon the party instituting the condemnation proceedings to estab-
lish by competent evidence the proportion of the total benefits that
should be assessed upon each individual piece of property within the
entire radius. It is unnecessary to Fe whether it was reversible
error to refuse this instruction in the light of the other instructions
given, since there must be a reversal upon other grounds.
Appellants assail the judgment chiefly upon the failure of the
court to instruct the jury that in the assessment of benefits it should
take into consideration the value of the land theretofore dedicated
to the District by appellants, Section 491g of the District Code,
among other things provides: “Where part of any lot, piece, parcel,
or tract of land has been dedicated for the opening, extension, widen-
ing, 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.”
It appears that upon the basis of the lowest valuation fixed by the
jury the value of the land dedicated by appellant Lynchburg In-
vestment Corporation is $21,000, and upon the same basis the value
of the land dedicated by appellant Holmes Central Realty Corpo-
ration is $15,000. From an examination of the record, we are con-
vineed that the jury did not take into consideration these valuable
dedications to the District in assessing benefits. In fact, in the bill
of exceptions it is stated that no evidence was presented on this sub-
ject. Appellants’ lands seeim to have been assessed higher than those
who had made no dedication. Indeed, it is difficult to determine
upon what hypothesis the jury proceeded in assessing benefits in this
case. The quality of an ussessment must be apparent upon the face
of the record. Brandenburg v. District of Columbia, 205 U. S., 135.
It is no answer that appellants did not request this instruction. It
was the duty of the court to follow the plain mandates of the law.
The dedication of the land in question was a fundamental issue in
arriving at a just assessment. In fact, no just assessment could be
made without first considering the dedication.
LYNCHBURG INVESTMENT CORPORATION ET AL. 51
The court in Brown v. Macfarland, 19 App. D. C., 525, consider-
ing a similar mandatory provision relative to condemnation proceed-
ings, said: “It is urged that the appellants did not. in terms,
52 demand that the second jury of twelve should be ordered,
and therefore the court was justified in ratifying the verdict
of seven. But it must be borne in mind that it was not the duty of
the appellants, as owners of lands proposed to be condemned, to
demand a summoning of a second jury. The statute does not re-
quire it of them. That is the duty of the authorities authorized to
institute and prosecute the proceedings of condemnation to comple-
tion, The owners of the land proposed to be condemned are placed
in the position of defendants or opponents of the proceeding of con-
demnation; and, consequently, all aflirmative acts prescribed by
the statute in perfecting the proceeding, must be shown to have been
complied with by the parties authorized to take and prosecute the
proceeding. The whole proceeding is strictly statutory, and it must
be affirmatively shown that all the provisions of the statutes that
apply to the proceedings have been substantially complied with.
Otherwise the whole proceeding would be void and without effect.”
There is no theory upon which the omission of the court can be
regarded as harmless error. Neither can the error be corrected by
the reversal of the judgment in part, as may be done under the
statute where the correction will work no injustice. It is impossible
here to separate the assessments for benefits. Hence, new assess-
ments should be made, taking into consideration the dedications of
appellants. When this is done, it will doubtless demand an entire
reapportionment between the properties found to be benefited,
The judgment is reversed with costs, and the cause remanded for
further proceedings.
Reversed.
53 Tuespay, February 25th, A. D. 1913.
January Term, 1913.
No. 2468.
LyncuBurG InvestMENT CorporaTiION and Hotmes CENTRAL
Reatty Corporation, Appellants,
vs.
Cuno H. Rupoirn, Jonny A. Jonnsrox, and Winuiam V. JuDSON,
Commissioners of the District of Columbif.
Appeal from the Supreme Court of the District of Columbia.
This cause came on to be heard on the transcript of the record from
the Supreme Court of the District of Columbia and was argued by
counsel. On consideration whereof, It is now here ordered and
adjudged by this Court that the judgment of the said Supreme
Court, in this cause, be, and the same is hereby, reversed with costs;
52 CUNO H. RUDOLPH FET AL. Vs.
and that this cause be, and the same is hereby, remanded to the said
Supreme Court for further proceedings.
Per Mr. Justice VAN ORSDEL,
February 25, 1913.
54 Court of Appeals of the District of Columbia.
I, Henry W. Hodges, Clerk of the Court of Appeals of the District
of Columbia, do hereby certify that the foregoing printed and type-
written pages numbered from 1 to 53 inclusive contain a true copy
of the transcript of record and proceedings of said Court of Appeals
in the case of Lynchburg Investment Corporation and Holmes Cen-
tral Realty Corporation, Appellants, vs. Cuno H. Rudolph, John A.
Johnston and William V. Judson, Commissioners of the District of
Columbia, No. 2468, April Term, 1913, as the same remain upon
the files and records of said Court of Appeals:
In testimony whereof I hereunto subscribe my name and affix the
seal of said Court of Appeals, at the City of Washington, this 21st
day of April, A. D. 1913.
[Seal Court of Appeals, District of Columbia, 1893.]
HENRY W. HODGES,
Clerk of the Court of Appeals of the District of Columbia.
55 UNITED STATES OF AMERICA, 388:
[Seal of the Supreme Court of the United States. ]
The President of the United States of America to the Honorable the
Judges of the Court of Appeals of the District of Columbia,
Greeting:
Being informed that there is now pending before you a suit in
which Lynchburg Investment Corporation and Holmes Central
Realty Corporation are appellants, and Cuno H. Rudolph, John A.
Johnston, and William V. Judson, Commissioners of the District of
Columbia, are appellees, No. 2468, which suit was removed into the
said Court of Appeals by virtue of an appeal from the Supreme Court
of the District of Columbia, and we, being willing for certain reasons
that the said cause and the record and proceedings therein should
be certified by the said Court of Appeals and removed into the
56 Supreme Court of the United States, do hereby command
you that you send without delay to the said Supreme Court,
as aforesaid, the record and proceedings in said cause, so that the
said Supreme Court may act thereon ax of right and according to
law ought to be done.
Witness the Honorable Edward D. White, Chief Justice of the
United States, the second day of June, in the year of our Lord one
thousand nine hundred and thirteen.
JAMES H. McKENNEY,
Clerk of the Supreme Court of the United States.
LYNCHBURG INVESTMENT CORPORATION ET AL. 53
57 [Endorsed :] No. 2468. File No. 23,668. Supreme Court of
the United States, No. 1093, October Term, 1912. Cuno H.
Rudolph et al., Commissioners, D. C., vs. Lynchburg Investment Cor-
poration et al. Writ of Certiorari. Court of Appeals, District of
Columbia. Filed Jun- 3, 1913. Henry W. Hodges, Clerk.
58 In the Court of Appeals of the District of Columbia.
No, 2468.
LyNcHBURG INVESTMENT CorPoraTION and Hoxtmes CENTRAL
Reatty Corporation, Appellants,
vs.
Cuno H. Rupoirn, Joun A. Jouxsrox, and Wmu1aM V. JUDSON,
Commissioners of the District of Columbia.
It is hereby stipulated by and between the respective parties hereto
that the certified transcript of the record herein now on file in the
Clerk’s Office of the Supreme Court of the United States can be
taken as a return to the writ of certiorari by the Supreme Court of
the United States to this Court in the above entitled cause.
E. H. THOMAS,
J, F. SMITH,
Att’ys for Appellee-, Comm’rs of D. of C.
W. C. SULLIVAN,
JOSEPH W. COX,
Attorneys for Appellants.
(Endorsed:) No. 2468. Lynchburg Investment Corporation, et
al., Appellants, vs. Cuno H. Rudolph, et al. Stipulation as to record
on Return to Writ of Certiorari from Supreme Court U.S. Court of
Appeals, District of Columbia. Filed Jun- 27, 1913. Henry W.
Hodges, Clerk.
59 Court of Appeals of the a" of Columbia, April Term,
1913.
No. 2468,
LyxcupurG INvestMeENT Corporation and Hotmes CrenrrRaL
Rearty Corporation, Appellants,
vs.
Cuno H. Rupoien, Jonn A. Jounstox, and Wittiam V. Jupson,
Commissioners of the District of Columbia.
In obedience to the writ of certiorari filed in this cause and re-
turned herewith, I. Henry W. Hodges, Clerk of the Court of Appeals
of the District of Columbia. hereby certify the foregoing to be a
true copy of the stipulation of counsel filed herein agreeing that the
cicphiabhiaet ok cs SORE aL Raabe ie aq
eet
a"
51 ©. 1. RUDOLPH ET AL. VS. LYNCHBURG INVESTMENT CORP. PT AL. .
certified copy of the transcript of record now on file in the Supreme |
Court of the United States shall constitute the return of the clerk
of the Court of Appeals to said writ of certiorari.
In testimony whereof I hereunto subscribe my name and affix the
seal of said Court of Appeals, at the City of Washington, this 27th
day of June, A. D. 1913.
[Seal Court of Appeals, District of Columbia, 1893. |
HENRY W. HODGES,
Clerk of the Court of Appeals of the District of Columbia.
[Endorsed :| 536-13/23668. No. —-. Court of Appeals of the
District of Columbia.
60 | Endorsed:| File No, 23,668. Supreme Court U. S., Oc-
tober term, 1913. Term No. 536, Cuno H. Rudolph et al.,
Commissioners, D. C., Petitioners, vs. Lynchburg Investment Cor-
poration et al. Writ of certiorari and return. Filed July 3, 1913.
IN THE
SUPREME COURT OF THE UNITED STATES,
Octozer Term, 1912.
No.
CUNO H. RUDOLPH, JOHN A. JOHNSTON, axp
CHESTER HARDING. PETITIONERS,
v8.
LYNCHBURG INVESTMENT CORPORATION axp
HOLMES CENTRAL REALTY CORPORATION,
RESPONDENTS.
To the Honorable the Chief Justice and Associate Justices
of the Supreme Court of the United States:
The petitioners, Cuno H. tudolph, John A. Johnston,
and Chester Harding, Commissioners of the District of Co-
lumbia, respectfully represent:
That under the authority and direction of a special act
of Congress approved June 30, 1911. entitled “An act to au-
thorize the extension and widening of Colorado avenue
northwest from Longfellow street to 16th street, and of
Kennedy street northwest, through lot numbered 800, square
2718” (37 Stat., 1). they instituted condemnation proceed-
In
ay
2
ings in accordance with the provisions of sections 491a to
491n, inclusive, of the Code of Law for the District of Co-
lumbia, for the extension of the streets contemplated by the
aforesaid act of Congress.
Section 491¢ of the Code provides as follows:
“The court shall cause public notice of not lex
than twenty days to be given of the institution of such
proceeding, by advertisement in three daily new:-
papers . ished in the District of Columbia, which
notice shall warn and require all persons having any
interest in the proceeding to appear in court at a date
to be named in said notice, and to continue in attend-
ance until the court shall have made its final order
ratifying and confirming the award of damages, aud
the assessment of benefits by the jury herein provided
for; and in addition to such public notice, said court
shall cause a copy of said notice to be served by the
United States Marshal for the District of Columbia
or his deputies, upon such owners of the land to be
condemned as can be found by said marshal or his
deputies, within the District of Columbia, and upon
the tenants and occupants of the same.”
A notice and order of publication embodying these re-
quirements was issued by the Supreme Court of the District
of Columbia, holding a District Court, on the 28th day of
November, 1911 (R., 7), which notice warned and com-
manded all persons interested to appear in court on or before
the 9th day of January, A. D. 1912. at 10 o'clock a. m.. and
further provided that a copy of the notice and order be
published once in the Washington Law Reporter and on six
secular days in the Washington Evening Star, the Washing-
ton Herald and the Washington Post. commencing at least
twenty days before the 9th day of January, 1912.
The notices were duly published as ordered and copies were
personally served upon a number of property owners, but not
upon the respondents, neither of them being the owner of
any of the land to be condemned. The Holmes Central
Realty Company, one of the respondents, however, partici-
pated at the hearing of the case before the jury.
ae et ert
| :
:
3
The proceedings were duly prosecuted and resulted in the
verdict set out in the record (pp. 16-28), in which various
parcels of land owned by the respondents were assessed for
special benefits.
After the return of the verdict, objections were filed by
the Lynchburg Investment Corporation, on the ground that
the notice by publication did not satisfy the requirements of
the law, and by the Holmes Realty Corporation, upon the
ground that the verdict was unjust and unreasonable. be-
cause the jury did not take dedications of land into consid-
eration, in assessing benefits, ax required by law. Other
grounds were assigned, but those stated only are pertinent to
this hearing.
The court overruled the objections and confirmed the
verdict.
The respondents appealed to the Court of Appeals of the
District of Columbia, and that court reversed the judgment
of the lower court, on the ground that the notice as published
did not satisfy the requirements of the law, construing the
words “public notice of not less than twenty days by adver-
lisement in three daily newspapers published in the District
of Columbia” as meaning publication in three daily news-
papers consecutively for twenty days prior to the return
day, and held that ‘‘the failure of the court below to estab-
lish its jurisdiction by proper notice against appellants is
fatal and renders the whole proceeding void and of no
effect.’’
The mandate of the Court of Appeals directs the vacation
in its entirety, both as to awards and assessments, of the
verdict returned by the jury. This notwithstanding the fact
that only two of the parties interested objected or appealed
and that one of those was present and participated at the
hearing.
This decision is of great importance for the following
reasons:
It virtually invalidates unpaid special assessments aggre-
gating many hundreds of thousands of dollars.
It affects the titles of the District of Columbia, to hundreds
of parcels of land in the District of Columbia, the awards for
which have not been accepted by the owners.
It will necessitate an average cost for advertising in each
street extension case of between six and eight hundred dol-
lars, thereby increasing the burden of assessment.
It will result in throwing out of court absolutely a number
of pending street extension cases, including the present case.
where a time limit is fixed by the statute for the institution
of the proceedings. under a ruling of the Supreme Court of
the District of Columbia that the issuance of the notice, not
the filing of the petition, is the commencement of the suit.
All of the awards except one in the present case have been
paid and the property in part taken possession of and im-
proved as a street. Many of the assessments have also been
paid,
A further collateral effect of this decision will be to invali-
date United States Marshal’s sales of land under section 1035
of the Code, a statutory provision for notice by publication
substantially similar to that in the case at bar. Under a prac-
tice settled for many years. marshal’s sales are never ad-
vertised more than four times.
The advertisement in the present case follows a settled
practice of thirteen vears. ever since the present form of
statutory provision for notice has been used.
THIS DRASTIC DECISION IS UNSUPPORTED BY A SINGLE AU-
THORITY CONSTRUING THE STATUTORY PROVISIONS FOR NOTICE
BY PUBLICATION IN CONDEMNATION OR SPECTAT ASSESSMENT
STATUTES.
Tr IS DIRECTLY CONTRARY TO ALL REPORTED DECISIONS
CONSTRUING PROVISIONS FOR NOTICE BY PUBLICATION IN
SUCH STATUTES. (ROUT FIFTEEN SUCIT CASES ARE CITED
AND EXTRACTS THEREFROM QUOTED IN THE APPENDIX.
It IS CONTRARY TO THE STATEMENT OF THE PROPOSITION
OF EVERY TEXT WRITER WHO HAS DISCUSSED THE SUBJECT.
—_, PTA R AS AOE SMETANA WDB tn PM BEC BI te A ANS MON OE in hi
5
NoT ONE OF THE CASES CITED IN THE OPINION AS 8US-
TAINING IT INVOLVES THE PROVISION FOR NOTICE BY PUBLI-
CATION IN AN EMINENT DOMAIN OR SPECIAL ASSESSMENT
STATUTE.
THE CASES CITED IN THE OPINION ARE SUITS IN EQUITY
TO SET ASIDE FORECLOSURE SALES OF LAND UNDER CIRCUM-
STANCES SUGGESTING FRAUD, WHERE THE PURCHASE PRICE
WAS GROSSLY INADEQUATE,
THEY ARE CASES IN WHICH THE GUIDING PRINCIPLE WAS
THAT EQUITY ABHORS A FORFEITURE. THE PURPOSE OF TILE
ADVERTISEMENT IN THOSE CASES WAS TO ATTRACT NUMBERS
OF BIDDERS TO SALES SO AS TO INCREASE THE PURCHASE PRICE,
AND THE REASONING UNDERLYING THE DECISIONS DOES NOT
APPLY IN THE PRESENT CASE.
THE CASES SUPPORTING THE CONTPNTION OF YOUR PETI-
TIONERS, AND THE CASES CITED IN THE OPINION IN SUPPORT
OF THE DECISION OF THE COURT, ARE DISCUSSED IN AN
APPENDIX. THERE ARE BUT SIX CASES IN THE LATTER CLASS,
\ND SEVERAL OF THOSE WERE LATER OVERRULED BY COURTS
OF THE SAME STATES.
Another ground of reversal assigned is the failure of the
trial court to instruct the jury to take dedications into con-
sideration. The record shows that the party most affected
by this question was present and participated at the hearing
before the jury. No evidence was offered as to any dedica-
tion, and no instructions asked in respect thereof. The
question was properly addressed to the trial court on a
motion to set aside the verdict as being unjust and unreason-
able. The trial court found that there was no substantial
merit in the contention. It is submitted that the Court of
Appeals had no jurisdiction to review this ruling.
Your petitioners believe that the aforesaid decree of the
Court of Appeals of the District of Columbia is erroneous,
and that this honorable court should require the said cause
to be certified to it for its review and determination, in con-
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6
formity with section 251 of the act approved March 3rd.
1911, entitled an act to codify, revise and amend the laws
relating to the judiciary, in such case made and provided.
Wherefore your petitioners pray that the writ of certiorar:
may issue out of and under the hand and seal of this court.
directed to the Court of Appeals of the District of Columbia,
demanding said court to certify and send to this court, on a
day certain to be therein designated, a full and complete
transcript of the record and all proceedings of said Court of
Appeals in said cause therein entitled No. 2468, “Lyneh-
burg Investment Corporation and Holmes Central Realty
Corporation, appellants, vs, Cuno H. Rudolph, John A.
Johnston, and William V. Judson, Commissioners of the
District of Columbia’, to the end that said cause may be
reviewed and determined by this court, and that the said
decree of the said Court of Appeals in said cause, and every
part thereof, may Le reversed by this honorable court.
CUNO Hf. RUDOLPH,
JOIN A. JOHNSTON,
CHESTER HARDING.
Commissioners of the District
of Columbia, Petitioners Herein.
EDWARD H. THOMAS.
Corporation Counsel ;
JAMES FRANCIS SMITH,
Assistant,
Attorneys for Petitioners.
APPENDIX.
I.
Authorities Which Support the Contention of th» Petitioners.
Paige and Jones on “Taxation by Assessment”, section
753, thus states the general doctrine on this proposition :
“It is frequently provided by statute that so many
‘days’ notice’ must be published. It is generally held
that this does not mean publication for each day for
the specified number of days, but that such a statute
is satisfied by a single publication for the requisite
number of days before the step in the assessment pro-
ceedings for which notice is to be given. Thus, a
statute requiring ‘at least sixty days’ notice’ has been
held to mean that the period of sixty days must elapse
after the publication of the notice before the perform-
ance of the act of which notice is to be given. Ac-
cordingly, giving notice once a week for nine con-
secutive weeks was held to be a compliance with the
statute.”
See also Lewis on Eminent Domain, section
579 (3rd Ed., bot. p. 1026).
In Aldis vx, South Park Commissioners (171 Ill., 424), a
ease involving the validity of assessments for the improve-
ment of the street, the court said, page 432:
“Tt is next contended that the notice of publication
for confirmation was insuflicient to confer jurisdiction
on the court to enter judgment. This position is
predicated on the fact that the notice found on file
as shown by the certificate of publication attached to
the notice, was published but once in the daily news-
paper, and it is claimed the statute required the notice
to be published ten days in succession before the day
of confirmation. The statute provides that the said
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commissioners shall give ‘at least ten days’ notice of
the application’ for confirmation, ‘which said notice
shal] be published in one or more newspapers pub-
lished in the county at least ten days before the time
named for such application.’ Unless no other and
different authority from that found in the section of
the statute is to be incorporated into it, we think the
obvious meaning of the section is that the notice shall
be published once and that ten days before the time
named for the application. The legislature, in the
enactment of the statute, no doubt understood the
difference between ten days’ notice and ten days’ suc-
cessive notice, and if it had been intended to require
ten successive days notice, language indicating that
intention would have been incorporated in the section
before it wax adopted.” (Italics ours.)
The.above was cited with approval in Royal Insurance
Company vs. South Park Commissioners, 175 IIL, 491.
In Central Savings Bank of Baltimore vs. Mayor and City
Council of Baltimore (71 Md., 515), where the commis
sioners for opening streets had made their assessments for
benefits and damages for the extension and widening of
Douglass street, Baltimore, and a motion was made to quash
the proceedings on the ground of insutliciency of the notice
the court said, page 518:
“The act of assembly expressly requires that before
any ordinance shall be passed for opening, extending
or widening a street in the city of Baltimore, sixty
days’ notice of an application for its passage shall be
given in two of the daily newspapers of the city.
The power to pass the ordinance depends upon the
performance of this condition. In this case the first
publication of the notice was more than sixty days
before the passage of the ordinance, The statute
does not direct that the notice shall be published any
specified number of times; it merely requires that it
shall be given. A notice may be given once, twice
or a dozen times, and it may be repeated at distant
intervals; but it is difficult to infer that it must be
repeated, from the mere requirement that it shall be
9
given. The statute prescribes a limitation under
which the legislative power of the mayor and city
council is to be exercised. If it were possible for us
to change the terms of this limitation we should be
met with a very serious difficulty, when we attempted
to define the extent to which we should carry the
change. Should we say that the notice should be
published ten, twenty or thirty times, or should we
say that the number of publications should he deter-
mined by the judgment which we might form of the
exigencies of the particular case? * * * In the
present case the notice was published a number of
times; but the interval between the last publication
and the passage of the ordinance was less than sixty
days. Repetitions of the notices were reasonable, ax
they gave it greater publicity.” (Italies ours. )
In Philadelphia, Wilmington and Baltimore R. R. Co. vs.
Shipley (72 Md., 90), an action to recover an assessment,
the declaration alleging “that the ten days’ notice required
by said act was duly given by inserting the same, both in the
Maryland Journal, a newspaper published a Towsontown.
and in the Baltimore Sun, on the 4th day of February, 1888,
the defense was that the declaration did not show compliance
with the provisions of the statute in regard to giving notices.
The court said, page 92:
“Notices required to be given by the act under
which this suit is brought are three in number:
First, ‘the examiner sball give at least ten days’ notice
by publication in one or more newspapers published
in Baltimore county, and one newspaper of general
circulation published in Baltimore city’, that applica-
tion has been made to open said street, * * = *
We think that when the declaration is tested by this
statutory provision, it clearly appears by its allega-
tions that the plaintiff did all that he was required
to do in giving notices.
“In Baltimore vs. Little Sisters of the Poor, 56
Md., 405, the court in construing a statute requiring
that ‘at least sixty days’ notice shall be given’ said:
‘It is clear that the statute does not require a daily
2n
10
ublication for sixty days in two newspapers, nor does
it specify any number of times for the publication.’
* * *
“And in this case we think the one publication in
each of the two newspapers mentioned was enough to
gratify the statutory requirement.”
In Mayor and City Council of Baltimore vs. The Little
Sisters of the Poor (56 Md., 400), which was a bill for
injunction to restrain the collection of an assessment of
benefits for the opening of McKim street, on the ground that
the assessment was invalid for the want of sufficient pre-
liminary notice required by law, which provided that “at
least sixty days’ notice shall be given of any application for
the passage of such ordinance in at least two of the daily
newspapers in the said city,” the court held, page 406:
“It is clear that the statute does not require a daily
publication for sixty days in two newspapers, nor does
it specify any number of times for the publication.
According to its true construction, it requires that the
notice shall be published in two of the daily news-
papers of the city, and that a period of sixty days
shall elupse after the publication of the notice, before
any such ordinance shall be passed. Such has been
the construction and uniform practice ever since the
act of 1838, ch. 236, was passed containing the same
provision now embodied in the local Code. (Italics
ours.
“1 Bouldin’s case, 23 Md., 328, in which the
uestion of the sufficiency of the notice was fully
iscussed, the record shows that it had been published
four times in each of two daily newspapers. It was
not suggested by the counsel for the appellee, in that
case, that such a publication was not sufficient, pro-
vided it had been made at least sixty days before the
ordinance was passed. The point was therefore not
distinctly referred to by the court; but it was held
that the publication of the notice was sufficient.
“The cases of White vs. Malcolm, 15 Md., 529, and
Johnson vs. Dorsey, 7 Gill.. 269, 286, in which analo-
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gous questions arose, are strong authorities in support
of the position taken by the appellant.
“In our opinion, the publication of the notice in
this case was a sufficient compliance with the pro-
visions of the Code.”
In Harrison vs. Newman, 71 Kansas, 325, the Court says:
“Section 160 provides that when a city appro-
priates private property for certain stated purposes
(including the opening of an alley) the appraisers
appointed shall ascertain the value of the land taken,
and the damages to other property, and apportion the
total in accordance with their judgment * * *
and that they shall at least give three days’ notice in
the official city paper of the time and place of their
meeting.
“The only notice in that case was by publication
made in one issue of a daily paper nine ays before
the meeting of the appraisers. The plaintiff claims
that this was not a compliance with the requirements
of section 160, and argues that ‘three days’ notice in
the official paper means three publications on three
separate days in that paper.’ We do not think this
is a correct interpretation. A three days’ notice of
a meeting is a notice given three days before the
meeting is to be held. One publication in a daily
paper is notice, and if it is made three days in ad-
vance of the time set it is three days’ notice. (P. W.
& B. R. R. Co, vs. Shipley, 72 Md., 90.) Similar
phrases are of frequent occurrence in the statutes in
such connection as to admit of no other construction.
Where a continuous publication is intended this is
indicated by the requirement that it shall be ‘for a
stated time, or by some equivalent expression,’ ”
In McGilvery vs. The City of Lewiston (13 Idaho, 338), a
recent case, involving the validity of a special assessment for
sewers, the syllabus, paragraph 8, page 339. reads:
“Where the statute provides for the giving ‘of
twenty days’ notice’ by publication in some news-
paper, but does not specify any number of issues of
the newspaper in which the notice shall be published,
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it is a sufficient compliance with the statute if the
notice is published in one issue of the paper, and that
publication occurs twenty days prior to the date of the
meeting or other action of which the publication
purports to give notice.”
In Drainage District vs. Campbell (154 Mo., 151), the
court, after stating the general rule that the provisions of
the law in condemnation cases must be strictly complied
with, in response to a contention that the notice was not
published for fifteen days before the time at which the parties
were notified to appear before the court, under a statute
which authorized commissioners to proceed “on giving fifteen
days’ notice,” said:
“The time specified in the notice at which defend.
ants were notified to appear before the judge was
August 24, 1896, while its first insertion in the new--
paper was on August 7, 1896, and thereafter weekly
until the 21st of that month, when it was published
for the last time. There was, therefore, <eventeen
days’ notice. including the day of its first insertion
in the paper. and excluding the 24th. the day upon
which the application was heard. Tt was only neces-
sary that fifteen days intervene between the first ap-
plication and the time fixed for hearing the applica-
tion, while. as has been said. there were seventeen
days.”
The above decision is significant because one of the au-
thorities mainly relied upon by the respondents and cited in
the opinion is Stine vs. Wilkson, 10 Mo., 75.
Following is another Missouri case modifying Stine rx.
Wilkson-
“German Bank rs. Stumpf, 73 Mo., 311, 314.
This was an action of ejectment respecting property
sold under a deed of trust. the allegation being that
the notice of sale did not satisfy the requirements of
the law.
“The Court: In regard to the notice. we are of
opinion that the omission to publish it on the three
—
13
days named does not render the sale void. * * *
It is unnecessary, however, to make any conjectures
upon the subject. When thirty days’ notice is re-
quired, thirty days should, of course, intervene be-
tween the first publication and the day of <ale; and
although it may be customary and competent to con-
tinue the notice in every issue of the paper from its
first insertion to the day of sale, yet it has been ex-
pressly decided that thirty days’ notice in a daily
paper does not mean thirty days’ daily notice in such
paper. White vs. Maleolm, 15 Mo... 543: Johnson ve.
Dorsey, 7 Gill., 286; Leffler ve. Armstrong, 4 Towa,
482. We think, however, that. where the notice has
not appeared in every issue of the paper from its first
insertion to the date of sale, and the omission to make
continuous publication therefore is of such a char-
acter or is attended by such circumstances as to
mislead the public and work an injury to the party
whose property is sold, the same may he set aside
Stine vs. Wilkson, 10 Mo., 96.”
In Muskingum Valley Turnpike Company vs. Ward, 13
Ohio, 120, concerning the provision of the statute requiring
“at least sixty days’ notice” to be given of the time and place
of payment of stock instalments. the court said:
“The third ground for a new trial is that the notice
was not published continuously for sixty days. This
position stands upon the hypothesis that ‘at least
sixty days’ notice’ is equivalent to ‘notice for and
during sixty days.” The words are, however, not
equivalent. Notice published once sixty days or
more before the time of payment is all that the statute
requires. We are not left at liberty to imagine or
suppose in this case that one thing is expressed and
another intended, because whenever the legislature
have designed that continuous notice shall be given
they have used erplicit terms. Had a continuove
notice heen intended in this class of cases we should
have found words more appropriate to convey that
meaning, such as ‘notice by publication at least sixty
days prior to the day of payment. which notice shall
be published daily, tri-weekly or weekly to the day of
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payment’, or ‘which notice shall be continued for
eight consecutive weeks prior to the day of payment.’
The manifest object of requiring sixty days’ notice
was to give the stockholders reasonable time to pre-
pare funds to meet the demands made upon them.
The notice must be, from the power of the words used
in the statute, complete at least sixty days before the
day of payment. It could not be thus complete if, in
order to perfect it, the necessity existed of renewing
it each week during the sixty days.” (Italies ours.)
In Andrews vs. Ohio & Mississippi Railway Co., 14 Ind..
169, a case involving the statutory provision as to notice for
the payment of installments of stock, the court said:
“Two objections were made which we will notice:
First, that the charter authorized calls by giving
sixty days’ notice in some newspaper, ete.; that this
was inserted at a single time, whereas it should have
heen continuously, * *
“Was the notice proved sufficient? We are of
opinion that it was? The notice was not required to
be published in different newspapers or issues of 1
newspaper. The notice began to operate from the
time it was given. It was not by the statute required
to be renewed, as in some other instances.”
In Jenkins, Assignee, vs. Pierce, 98 Tll., 646, attacking the
validity of a deed of trust sale for lack of notice, the court, in
its opinion, said:
“The mortgage provides that, in default of pay-
ment, ‘Prather, his heirs, executors, administrators or
assigns, after publishing a notice in a newspaper
printed in the city of Chicago thirty days before the
sale, may make sale of said premises.’ The notice
was published in a newspaper printed in the city of
Chicago more than thirty days before the day of sale,
and as to this there ix no controversy. It was held
in Weld vs. Rees, 48 Tll., 428, that, under a power
containing identically the same language, but one
publication was necessary. The notice published
was, therefore, sufficient.”
15
In In re Bassford, 50 New York Reports, 510, 511, the
court concurred in the opinion of the judge at general term
respecting the construction of the statutory provision for
notice of an improvement for which an assessment was levied.
The opinion concurred in is printed ax a foot-note, and is in
part as follows:
“The design was to apprise the tax-payers in the
manner pointed out in the statute of any contem-
plated improvement xo that by remonstrance or sug-
gestions the same might be modified or prevented.
It is reasonable to suppose that such notice would be
more available by waiting two days after its publica-
tion than by requiring two publications within
twenty-four hours previous to the time of acting.
“There was nothing in the Douglass case that
decided this question, and | see no reason for chang-
ing the views on this point. All laws requiring
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