64 F.2d 555 (D.D.C. 1933), 5585, Loughran v. United States

Docket Nº:5585.
Citation:64 F.2d 555
Party Name:LOUGHRAN et al. v. UNITED STATES.
Case Date:March 27, 1933
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 555

64 F.2d 555 (D.D.C. 1933)

LOUGHRAN et al.

v.

UNITED STATES.

No. 5585.

Court of Appeals of the District of Columbia.

March 27, 1933

Argued Dec. 9, 1932.

Page 556

Appeal from the Supreme Court of the District of Columbia.

William E. Leahy and James C. Wilkes, both of Washington, D. C., for appellants.

Henry H. Classie, Leo Rober, Alex H. Bell, Jr., and Arthur G. Lambert, all of Washington, D. C., for the United States.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

HITZ, Associate Justice.

This is an appeal from a judgment for the condemnation of land, after verdict.

The land taken by the United States is the southwest corner of Tenth street and Pennsylvania avenue, northwest, in the city of Washington, otherwise described as lot A, square 349.

The petition was filed under the Act of May 25, 1926, c. 380 (44 Stat. 630), as amended by the Act of Jan. 13, 1928, c. 9 (45 Stat. 51 [40 USCA §§ 341 note, 348]), providing for the acquisition of lands for the government building program.

The property fronts twenty-one feet on the south side of Pennsylvania avenue by sixty feet on Tenth street, and is improved by a five-story brick building used for business purposes.

The appellants contend that their evidence demonstrates a value from $155,000 to $175,000, while the government evidence tends to show a value between $95,000 and $105,000; the verdict and judgment being for $116,408.

The Code of the District of Columbia (title 25, c. 5, § 110) provides a method for obtaining condemnation juries in suits brought by the United States.

From a special box containing names of freeholders possessing the qualifications prescribed for such jurors, the jury commission draws a first, second, or further list of not less than twenty names which are submitted to the court. After examination under oath as to their qualifications, the court selects and impanels a jury of five capable and disinterested persons.

This jury, before hearing any evidence, but in the custody of the marshal and in the presence of the parties, views the land to be taken. Their filed of action is therefore not restricted to a consideration of the allegations and evidence presented in court, but includes the exercise of those qualities of judgment and observation which led to their selection as fit persons for such service.

This procedure was followed in this case, and a verdict rendered, which has been confirmed by the court.

Of the twenty assignments of error, sixteen are directed at rulings on the evidence, and many of these relate to the refusal of the trial judge to consider property values on the north side of Pennsylvania avenue, and to the northward thereof, as throwing any helpful light on values on the south side of Pennsylvania avenue.

Although the only evidence of sales of property fronting on the north side of Pennsylvania avenue that appears to have been actually offered at the trial related to property

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between Twelfth and Thirteenth streets, and therefore two or three blocks to the westward, a general assignment of error refers to all the property on the north side of Pennsylvania avenue from Ninth to Fourteenth streets.

But in our opinion the rulings of the trial judge were fully within his discretionary authority, and the evidence of values and of sales, as tendered and rejected, did not relate to properties of like character and quality, similarly situated, and affected by the same causes as the appellants' property. Kerr v. South Park, 117 U.S. 386, 6 S.Ct. 801, 29 L.Ed. 924; Shoemaker v. U. S., 147 U.S. 305, 13 S.Ct. 361, 37 L.Ed. 170; Franzen v. Chicago, M. & St. P. R. Co, (C. C. A.) 278 F. 370; Patterson v. Baltimore, 127 Md. 233, 96 A. 458.

And any court sitting in the city of Washington might almost take judicial notice, as of a geographical fact of general notoriety, that for generations there has been no comparability of value or similarity of use in properties fronting on the north and south sides of Pennsylvania avenue, and a recognition of this fact by the appellants is implied in the attempts of their brief to explain it.

This long-established difference has not been dimisished by conditions of modern motor traffic, which have increased the difficulty and the danger of crossing Pennsylvania avenue, with its great width and its diagonal course, involving many intersections, while the center of population and of business has continued its progress to the northward of that great thoroughfare.

Again, it is assigned as error that the judge expressed an opinion before the jury as to a difference in values on the north and south sides of Pennsylvania avenue. But we find from our examination of the record that he said no more than was necessary to restrict the evidence to the law, and that he sufficiently disclaimed to the jury either the possession or expression of any opinion touching the value of the land in question, which was left...

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