Hutcherson v. District of Columbia

39 App. D.C. 512, 1913 U.S. App. LEXIS 2026

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 6, 1913
• Docket: No. 2447
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

The 1st and 2d assignments of error raise the question whether said acts of Congress authorized the raising of the grade of 11th street in the manner set forth in the declaration and plea. This question is easily determined, since the act of 1905 expressly authorized the commissioners to reconstruct the bridge on the then existing line, or on such other line' as they might" determine, and to provide proper approaches thereto. The provision authorizing the acquisition of such land as might be necessary to provide such approaches did not preclude the commissioners-, from using land already owned by the United States; in other words, it did not preclude them from using 11th street. The-purpose of the bridge was for public travel, and that purpose could be subserved only by connecting the ends of the bridge-with streets. If, in raising the grade at either end, more land was necessary, authority was granted the commissioners to acquire it, but they were not obliged to do so unless they deemed it necessary.

Tbe other assignments of error raise the question whether there has been a taking of private property for public use without compensation. There has been no taking of appellant’s property within the meaning of the 5th Amendment to the Constitution. Richards v. Washington Terminal Co. 37 App. D. C. 289; Sauer v. New York, 206 U. S. 536, 51 L. ed. 1176, 27 Sup., Ct. Rep. 686; United States v. Grizzard, 219 U. S. 180, 55 L. ed. 165, 31 L.R.A.(N.S.) 1135, 31 Sup. Ct. Rep. 162. In the Richard’s Case the action was against a railroad company for consequential damages occasioned by the occupation of a right of way and the operation of trains, without negligence. The cases here relied upon by appellant were reviewed in that decision, and the following conclusion was reached: “While some of the State decisions make no distinction between consequential injuries to property incident to the proper operation of a railroad and an actual invasion or physical taking' of such property, the Supreme Court of the United States, as we read its decisions, has clearly made such a distinction. * * * híany of the States, appreciating the injustice liable to result from this rule, have amended their Constitutions so as to cover injuries thus sustained. We take the law in the present case,, however, as we find it; and we see no escape from the conclusion that plaintiff’s property has not been taken within the meaning of the Constitution.” In the present case, there is no claim of negligence, nor is there any contention of an actual in- % \sxuL Tc\a gr&Ae ol O staeiA Aas not, Aeon changed, the plea reciting that the grade for the approach to the bridge commences at the junction of O and 11th streets. Between the 50 feet of appellant’s property facing on 11th street and the. retaining wall in that street is a roadway and a sidewalk. It is thus apparent that in front of appellant’s property is a means of ingress and egress. On the northerly side of said property is O street, which is in the same condition as before the reconstruction of said bridge. Appellant complains, therefore, because 11th street has been raised opposite his premises. at a distance therefrom of over 16 feet, notwithstanding that he has practically the same accommodations as heretofore. It is apparent without further argument, we think, that the injuries complained of are purely consequential. A different case would Shave been presented had the location of appellant’s property been such that the erection of this retaining wall isolated it and prevented its further use. The suggested question is not before us. Judgment must be affirmed, with costs. Affirmed.