District of Columbia v. Prospect Hill Cemetery

5 App. D.C. 497, 1895 U.S. App. LEXIS 3565

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 4, 1895
• Docket: Nos. 359, 373, 419, and 420
• Status: Published

Opinion

Mr. Justice Moeeis

delivered the opinion of the Court :

It is quite clear from this statement that the controversy in all these cases is substantially the same, and that they can all be disposed of together, as they were argued together.

Several interesting and important questions are raised on the record, although none perhaps entirely novel. They are questions alike interesting to the citizen and the public, inasmuch as they concern one of the most important attributes of sovereignty,, the right "to take private property for public use, upon the payment of just compensation therefor, in accordance with the dictates of natural justice and the requirements of our fundamental law. And there are questions, too, of a technical character that lie upon the threshold of our inquiry and demand our preliminary consideration.

1. First among these latter is the question whether the appeal of the District of Columbia from the order of the court below of December 22, 1894, whereby that court refused to vacate its previous order of confirmation of the report of the commissioners for the appraisement of the land sought to be taken, can be sustained. We do not think that it can. The motion made to vacate the order was in the nature of a motion for a new trial (Railroad Co. v. Nesbit, 10 How. 395; Garrison v. New York, 21 Wall. 196); and it is well settled law that from an order refusing or granting such a motion no appeal will lie. The motion is one addressed to the discretion of the court; and from the exercise of that discretion, in the absence of statute, there is no right of appeal to a purely appellate tribunal.

If it be argued that the act of Congress of August 7,1894, which directed the Supreme Court of the District of Columbia to vacate the order of confirmation, took away the discretion which was in the court to refuse or grant the motion to vacate the order at its pleasure, we do not see that the statute, if it was one within the constitutional power of Congress to enact, alters our appellate jurisdiction in any manner. The mandate of that statute was addressed by Congress to the Supreme Court of the District of Columbia in a matter over which that court was presumed to have sole and exclusive cognizance and jurisdiction, and the action of that court upon the mandate was not such as to present to us any question for review. In the absence of the statute, as we have stated, we would not have any authority to review such action; and the statute does not, either expressly or by implication, confer any such authority upon us. A writ of error or appeal wdll lie only when it is authorized either by special or general law. United States v. Nourse, 6 Pet. 470, 494; Ex parte Zellner, 9 Wall. 244. It will not lie where there is a special statutory jurisdiction of an unusual character conferred upon the court below, without any provision for an appeal. United States v. Nourse, 6 Pet. 470; Hayes v. Fischer, 102 U. S. 121; Ex parte Kearney, 7 Wheat. 38; Durousseau v. United States, 6 Cranch, 307, 313.

But even if we were to review the decision of the court below upon this motion, it is not apparent how we could do otherwise than affirm it. That court was without jurisdiction to entertain the motion. The cause had been removed from it by appeal to this court, and the term had elapsed at which the order of confirmation had been rendered. If that order is to be regarded as a final order, then the power of the court over it plainly ended with the term, except in so far as, under the act of Maryland of 1787, Ch. 9, Sec. 6, it might have been set aside for fraud, deceit, surprise, or irregularity, no one of which is suggested here. If, on the other hand, the order of confirmation is not to be regarded as a finality, but merely as an interlocutory proceeding in a cause still pending before the court, such contention, besides being fatal to the main appeal taken by the District of Columbia, would be wholly unavailing for the purpose of this appeal. For certainly, if the order of confirmation was not a final order, an order which refused to vacate it could have in it no greater elements of finality. So that in any aspect of this case, we cannot entertain the appeal taken from the order of December 22, 1894; and that appeal must be dismissed.

Again: If we are asked to give effect to the act of Congress of August 7, 1894, as a legislative declaration of purpose on the part of the United States to decline to take the land which was proposed to be taken, it is not apparent how we can do this. No action of this court, nor indeed of the Supreme Court of the District of Columbia, is required for that purpose. There is no obligation on the part of the United States to take the land at its appraised value. The order of the court does not transfer the title; there are no vested rights affected by that order (Garrison v. New York, 21 Wall. 196); the action of the court is simply intended to determine the value of the land as preliminary to further action by the public authorities. While, therefore, the United States, as well as all the other parties in interest, are bound by the final judgment of the court in the determination of the matter of value, they are not bound to proceed to take the land; and there is no necessity for the communication to the court of their refusal so to do. In this view of the case, we do not deem it necessary to discuss the power of the legislative body to direct action by the court such as was here directed to be taken, or to consider the pertinency in this regard of the two cases of Railroad Co. v. Nesbit, 10 How. 395, and Garrison v. New York, 21 Wall. 196, which have been cited, or of the last mentioned case, also in 49 N. Y. 150.

2. In the second place, with respect to the main appeal of the District of Columbia, that from the order of confirmation of the report of the commissioners of appraisement, no question is raised as to the right of appeal, notwithstanding the peculiar character of the proceedings; and we may assume that, in connection with the equity suit instituted by the heirs of David Moore, and into which all the other proceedings have been incorporated, the appeal may be sustained. But then, so far as concerns this appeal by the District, we fail to find anything on which to review the decision of the court below. The burden of complaint is that the valuation of the land was excessive. But we have not the means of correcting that, even if we had the authority so to do. There is nothing whatever in the record, except two ex parte affidavits, which, of course, we cannot regard, to show excessive valuation, or to show the grounds upon which the valuation was based. We cannot review, much less reverse, upon such a record as this. To the commissioners, and not to the court, it must be remembered, the law has committed the matter of the determination of value. Their report is the equivalent of a verdict of a jury; and the court should only interfere with the one as, under the general rules of law, it would interfere with the other.

3. The only question which we can regard as fairly raised by the record for our consideration is, whether, in their appraisement of the value of the land actually proposed to be taken, the commissioners were justified in including the value of damages or benefits to the adjacent land. And this question is raised by the instructions given to the commissioners by the court and their so-called alternative report thereupon. The question of damages affects Prospect Hill Cemetery, and that of benefits the owners of the Barbour tract; for no benefit is found to accrue to the cemetery, and no damage to the owners of the Barbour tract.

The commissioners found that, besides the taking of an actual piece of its land valued at $45,724, the remaining land of the Prospect Hill Cemetery was damaged by the taking to the extent of $5,962. The court below disallowed this damage. We think there was error in this. The inherent power of sovereignty to take private property for publie uses has no limitation upon it but that of making just compensation for that of which it deprives the citizen; and that compensation with us necessarily means legal tender money of the United States, the medium of exchange by which all other demands and liabilities may be lawfully discharged. The compensation must be co-extensive with that which is taken, otherwise it would hot be just compensation. That which is taken is that of which the owner is deprived. If by the taking of part of his holding the use of the remainder is impaired or destroyed, with what justice can it be said that just compensation to him would be found in the actual value of that which was actually taken ? It has been held by the Supreme Court of the United States that it is not necessary that property should be absolutely taken, in order to give a right for compensation under the constitutional guarantee; and that serious interruption to the common and necessary use of property is the equivalent of taking within the meaning of the constitutional provision. The taking of part of one’s property may involve the deprivation of the remainder of a valuable spring, or of a stream of running water, or of a convenient road, or may require the reconstruction of buildings or fencing, or may, in fact, render such remainder absolutely useless for all the purposes for which it had been used. Can it be that such depreciation or destruction of value is not covered by the safeguard of the Constitution.

In the case of Pumpelly v. Green Bay Company, 13 Wall. , the Supreme Court of the United States, by Mr. Justice Miller, said, in the vigorous language for which that eminent jurist was noted :

“ It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the Government, and which has received the commendation of jurists, statesmen and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the Government refrains from the absolute conversion of real property to the uses of the public, it can-destroy its value entirely, can inflict irreparable and permanent injury to any extent, can in effect subject it to total destruction, without making any compensation, because in the narrowest sense of that word, it is not taken for public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the Government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.” . . .

“We are not unaware of the numerous cases in the State courts in which the doctrine has been successfully invoked that for a consequential injury to the property of the individual arising from the prosecution of improvements of roads, streets, rivers and other highways, for the public good, there is no redress; and we do not deny that the principle is a sound one, in its proper application, to many injuries to property so originating. And when, in the exercise of our duties here, we shall be called upon to construe other State constitutions, we shall not be unmindful of the weight due to the decisions of the courts of those States. But we are of opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle and in some cases beyond it; and that it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle.”

The case of Pumpelly v. Green Bay Company was one in which, in the course of the construction of a dam for the improvement of the outlet of a lake in Wisconsin, the waters of the lake were raised so high as to overflow the lands of an adjacent owner; and this was adjudged to be a taking of his lands under the right of eminent domain, for which he was entitled to compensation.

Mr. Cooley, in his work on Constitutional Limitations, sums up the law as deduced from the authorities, as follows: “Any injury to the property of an individual which deprives the owner of the ordinary use of it, is equivalent to a taking, and entitles him to compensation. Water front on a stream, where the tide does not ebb and flow, is property, and, if taken, must be paid for as such. So with an exclusive right of wharfage upon tidewater. So with the right of an owner of land to use an adjoining street, whether he is the owner of the land over which the street is laid out or not. So with the right of pasturage in streets, which belongs to the owners of the soil. So a partial destruction or diminution of the value of property by an act of the Government which directly and not merely incidentally affects it, is to that extent an appropriation.” Cooley’s Constitutional Limitations, page 544, and cases in notes.

A clear distinction is recognized between direct and consequential or incidental damage to property. The latter is remote, vague and indefinite, and is regarded as damnum absque injuria) such, for instance, as might result from the establishment of a railroad or a public institution in one’s neighborhood. This is not regarded as coming within the constitutional provision. But the taking of property which, by its very taking, divests the owner of the same beneficial use of the remainder of his property as he had previously enjoyed, is undoubtedly direct damage to that remainder for which he is entitled by the Constitution to just compensation.

We are not advised by the report of the commissioners in the present case whether any element of consequential or incidential damage entered into their finding; and we are not justified in assuming that there was any such element. We must suppose that the damage which they report is actual, direct and positive damage, tending to the substantial impairment of the value of the property for the purpose for which it is used. And we must conclude that the damage being of that character is such as entitles the owners of the property to just compensation for it. Lewis on Eminent Domain, Sec. 464, and cases cited in notes; Boom Co. v. Patterson, 98 U. S. 403.

4. Exception was taken on behalf of the District of Columbia to the instruction given by the court below to the commissioners to estimate the value of the property of Prospect Hill Cemetery with reference to its present uses, namely, the purposes of a cemetery. But an instruction more favorable to the District than this could not well have been given. It is questionable whether it was not error as against the Prospect Hill Cemetery, inasmuch as that company was entitled not only to the value of its lauds for their present use, but to their value for any other reasonable use for which they were adapted. Boom Co. v. Patterson, 98 U. S. 403. Certainly the District of Columbia has no just right to complain of the instruction.

5. The court below disallowed the claim of benefits as against the owners of the Barbour tract. The disallowance was based upon the ground that the statute made no provision for the assessment either of benefits or of damages.

The question of assessments upon adjacent property for supposed benefits accruing to it from abutting public improvements is one that has given rise to great discussion and great contrariety of judicial opinion. While it would seem to be just and reasonable in theory that those specially benefited by a public improvement should be specially assessed for the cost of it, we believe that in no case has there ever-been recourse to such special assessment without specific statutory authority to levy the assessment. To charge upon private individuals the cost of a public improvement or any proportionate share of such cost, even if such proceeding be found to be free from the apparent inconsistency which it seems to involve, certainly cannot be done without warrant of a statute distinctly so providing. Most extraordinary and unjustifiable would it be to levy such assessment before the proposed improvement was even begun. And yet this would be the precise effect of an attempt to set off against the just compensation payable for land sought to be condemned for the purposes of a street the possible benefits that might accrue to adjoining land from the opening of such street. Even if the just compensation payable under the-guarantees of the Constitution could be violently construed as payable in land, Or in the increased value of land, or in some possible or problematical benefit or advantage or convenience that may inure to a person, it would be in any event payment for present loss by a mere promise, that might never be realized, of future advantages. If these supposed advantages can be made the subject of legislative cognizance otherwise than by enhanced assessment, for ordinary taxation, it is time enough so to make them when the improvement has become an accomplished fact. It is not reasonable or just to pay for land taken for the public use in promises of increased values for the remainder that may have no foundation in fact.

We are of opinion, therefore, that the court below was right in its refusal to charge against the owners of the Bar-hour tract the value of the supposed benefits that were to accrue to the remainder of their property from the proposed extension and opening of North Capitol street, or to allow such proposed benefits to be set off against the value of the land proposed to be taken.

6. There remains the question whether the adjudication by the court below of the matter of values was a final and conclusive adjudication between the parties which precludes further or other proceedings by the public authorities for the condemnation of the land sought to be taken. This is the question raised by the bill in equity filed on behalf of the heirs of David Moore, and it is also involved to some extent in the attempt to vacate the order of confirmation, and in the act of Congress directing such action and the institution of new proceedings for condemnation.

Proceedings for the condemnation and appropriation of private property for public use are somewhat exceptional in our jurisprudence. Such appropriation was so rare under the common law as to have scarcely had any provision made for it under that system of jurisprudence; and although in the present century the exercise of the right of eminent domain has become frequent enough, not only by Government directly for its own immediate purposes, but likewise by the numerous corporations, public or quasi-public, that have been created for the construction and operation of works of public improvements, such as railroads, telegraphs, and the like, yet it is rather singular that in the matter of procedure for its exercise there has been so little attempt for its thorough and systematic regulation by statutory enactment. The whole matter has usually been remitted, with all its difficult questions, both of law and fact, to the determination of a jury hastily and perhaps capriciously summoned by a sheriff or marshal, and loosely acting according to their own good will and pleasure, without guidance or control by any court or tribunal competent to instruct them in the principles of the law that should govern such proceedings. In the present instance there is a nearer approach than usual to the regularity of judicial 'procedure; and in pursuance of a statute intended to be generally applicable in all such matters, although plainly defective in its provisions, the action of a court of justice is invoked, with suitable machinery for the determination of the issue involved between the parties in interest, who are, on the one side, the representatives of the public authority, and on the other, the persons whose lands it is proposed to take. The representatives of the public authority have inaugurated the proceeding, as it was their duty to do under the statute, by filing their petition in the Supreme Court of the District of Columbia sitting as a District Court of the United States, in which they requested the appointment of commissioners for the appraisement and valuation of the lands. The sole issue raised by the proceedings was the value of the private property which it was proposed to appropriate to the public use. The determination of that value was the sole object of the proceedings, and when that value was determined in the mode prescribed the functions of the court were at an end, and the respective rights of the parties in the premises were fixed. The final action of the court in the case was a solemn and binding adjudication to the effect that, if the public authorities elected to take the land in question, which, so far as the owners were concerned, they were still free to take or not, as they should think proper, they should be entitled to do so upon the payment therefor to such owners of the value which was adjudged to be their just compensation.

If these proceedings are to be regarded as legitimate legal proceedings, and not as a mere farce, the public authorities are as much bound by them as the owners of the land. It requires neither elaboration of argument nor citation of authorities to show that, when the State becomes a party to a suit it is as much bound by the judgment or decree as an individual. It may not litigate the matter again any more than an individual would be entitled to litigate it. Subject only to the same rules of law that would govern in the case of individuals, the adjudication is absolutely binding and conclusive upon the State; and no action, either of its legislative or of its executive department, could be construed to give such adjudication less binding force than it would have between individuals. This position we must regard as elementary and fundamental.

Applying this doctrine to the case before us, if we regard the order of confirmation made by the court below as a final adjudication of the question of value which was in issue between the parties, that adjudication was binding upon the District of Columbia and upon its Commissioners to the same extent as upon the owners of the land, and was a final and conclusive adjudication of that question, subject only to be affected by some of the methods known to the administration of the law for the vacation or reversal of judgments and decrees. It will scarcely be questioned that, if the District of Columbia were satisfied with the valuation, and the owners of the land were dissatisfied with it, the latter would still be compelled to part with their land for the price adjudged to be its value. Can it be allowed that they would be bound and yet not the District? And can the latter be permitted to weary out the owners with successive inquisitions until they procure a finding that is satisfactory to them? The statement of the question would seem to carry its answer with it.

We are referred to two cases in which the question has arisen, and where it has been emphatically solved against the contention maintained here on behalf of the District of Columbia. One of these is the case of Rogers v. City of St. Catharines, 3 Mo. App. 41, and the other is that of Schneider v. The City of Rochester, in the Supreme Court of the State of New York, 61 N. Y. S. R. 63. No authority is cited to the contrary, and we presume none could be. Certainly we could not regard as of much value any authority that would sanction the inequality and injustice that would he involved in the contrary opinion.

We conclude that, if the order in question is to be regarded as a final adjudication of the question in issue, neither the District of Columbia, nor its Commissioners, nor the Congress of the United States, nor the Government of the United States in any of its departments or branches, is at liberty to regard such adjudication as otherwise than a finality; and there is no more power in Congress to direct the court to set aside such an order than there would be to give a similar direction with reference to any other judgment or decree of the court. But if, on the contrary, the order is not a final adjudication, but only an interlocutory proceeding, and if it should be admitted that, as an interlocutory proceeding, it remained within the control of the court below, and that control was subject to be affected by the act of Congress, which we have no doubt was the theory of those who procured the passage of the act, then this appeal was improperly taken by the District of Columbia ; for there is no right of appeal to this court from an interlocutory order, except as specially allowed. And the appeal, upon that assumption, would have to be dismissed. We must suppose that the act of Congress was passed under a misapprehension of the existing conditions.

We do not mean, of course, to be understood as holding that the United States or the District of Columbia may not withdraw from the purpose of appropriating the lands in question to public use, and that they may not at some future time renew that purpose, and take the appropriate steps to carry it into effect. There is no reason why a purpose once abandoned, in good faith, may not, under other circumstances and other conditions, be renewed. We are not called upon to determine here the circumstances and conditions under which such renewal may be had, so as to justify an entirely new inquisition of damages, without reference to the previous adjudication. We can only deal with cases as they arise. What we here mean to hold is, that the public authorities, in the pursuit of an avowed purpose to acquire certain lands by condemnation for the public use, may not, while persisting in the avowal of such purpose, withdraw from the inquisition which they have caused to be had, disregard the result of that inquisition and the judgment of the court thereon, because they are dissatisfied with that result, and seek by other methods to procure a smaller valuation of the desired property.

Upon the whole, we are of opinion that the decree of the court below in the equity suit of Moore and others against the District of Columbia and others, which is No. 420 on our docket, should be affirmed with costs; that the appeal of the District of Columbia from the order of the court below of December 22, 1894 (No. 419), should be dismissed, with costs; and that the order of confirmation (Appeals Nos. 359 and 373) should be modified so as to include the allowance of the sum of $5,962 to Prospect Hill Cemetery as damages to its remaining property, and so modified should be affirmed, with costs. For that purpose, the cause of the District of Columbia v. Prospect Hill Cemetery and others, entitled “ No. 383, District Court,” will be remanded to the Supreme Court of the District of Columbia, with directions so to modify its order. And it is so ordered.