King v. Rudolph

35 App. D.C. 558, 1910 U.S. App. LEXIS 5934

• Court: District of Columbia Court of Appeals
• Decided: November 1, 1910
• Docket: No. 2129
• Status: Published

Opinion

Mr. Justice Kobb

delivered the opinion of the Court:

The first point relied upon by appellant relates to the suff ficiency of his notice, and is based upon the highly technical contention that the purpose of the proceedings, as stated in said notice, was, in part, to assess benefits upon the land in the “square'” confronting the square containing the land condemned, when in fact benefits were to be assessed against land in more than one square. This contention has no merit. The notice specifically referred to the statute under which the proceeding was instituted, and even if it had not, appellant was charged with knowledge of the law. Sec. 1608f of the Code [33 Stat. at L. 734, chap. 734] to which we must look to ascertain the requirements of a legal notice in this proceeding,

* provides that the court cause public notice to be given of such a proceeding by advertising, “which notice shall warn all persons having any interest in the proceedings.” The section further provides that, in the discretion of the court, personal notice may be served upon such owners of the fee of the land to be condemned as may be found within the District. The notice given in this case warned all persons having any interest in the proceedings to appear upon a day certain. This notice was ample, and no exception can be taken by appellant to the obvious clerical error to which he has directed attention.

It is next urged that the statute under which this proceeding was instituted is unconstitutional. This assignment is easily disposed of, for the reason that a statute almost identical in its provisions was sustained by the Supreme Court of the United States in the Martin Case, 205 U. S. 135, 51 L. ed. 743, 27 Sup. Ct. Sep. 440. In that case the jury was required to appraise the damages to real estate and to "apportion an amount equal io the amount of said damages so ascertained and appraised as aforesaid,” including the expenses of the proceeding, “according as each lot or part of lot of land in such square may be benefited,” etc. The court ruled that the statute was susceptible of the interpretation “that in any event the apportionment is to be limited to the benefit.” The statute in the present case, sec. 1608j of the Code, directs the jury to “assess as benefits accruing by reason of said opening, extension, widening, or straightening, an amount equal to the amount of damages,” including the expense of the proceeding, “upon each lot or part of lot or parcel of land in the square or block in which such alley or minor street is to be opened, extended, widened, or straightened, and upon each lot, part of lot, or parcel of ground in the squares or blocks confronting the square in which such alloy or minor street is to be opened, extended, widened, or straightened, which will be benefited by such opening, extension, widening, or straightening, in the proportion that said jury may find said lots, parts of lots, or parcels of land will be benefited.” This language is in effect identical with the language of the statute passed upon in the Martin Case. The assessment was set aside by the Supreme Court in that case because the court was satisfied that it had been made arbitrarily, and that it was in effect in excess of the actual benefits received. In this case, however, the jury have affirmatively found that the land against which this assessment was made will be benefited to the extent of the assessment. This finding clearly indicates that the trial justice correctly instructed the jury as to its duty in the premises, and that the assessment attacked is reasonable and fair.

Finding no error, the judgment is affirmed, with costs.

Affirmed.

Note. — The act of June 21, 1906, provides that proceedings under it shall he had in accordance with the provisions of D. O. Code, relating to the opening of alleys and minor streets (secs. 1608 to 16081), and that assessment for benefits shall be returned as provided for in sec. 1608j.— Repobteb.