Johnson & Wimsatt v. Hazen

• Citation: 69 App. DC 151,99 F.2d 384
• Decision Date: 25 July 1938
• Docket Number: No. 7067.,7067.
• Parties: JOHNSON & WIMSATT, Inc., v. HAZEN et al., Com'rs of the District of Columbia.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 151, 99 F.2d 384 (1938)

JOHNSON & WIMSATT, Inc., v. HAZEN et al., Com'rs of the District of Columbia.

No. 7067.

United States Court of Appeals for the District of Columbia.

Argued May 18, 1938.

Decided July 25, 1938.

Rehearing Denied October 13, 1938.

George E. Sullivan, of Washington, D. C., for appellant.

Elwood H. Seal, Corp. Counsel, and Vernon E. West and Walter L. Fowler, Asst. Corp. Counsel, all of Washington, D. C., for appellees.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

VINSON, Associate Justice.

This is an appeal from final judgment of the District Court of the United States for the District of Columbia, assessing benefits against land, no part of which was taken, in a condemnation proceeding instituted by the District of Columbia under the authority of an act of Congress, approved March 4, 1913 (37 Stat. 950; D.C. Code (1929) tit. 25, c. 5, sec. 51), providing for the opening, extending, or widening of streets to conform with the plan of the permanent system of highways in the District.

The petition asked for the condemnation of land for the extension of Maryland Avenue, 17th Street, and H Street, N.E., and the widening of 17th Street, N.E.; and, that benefits might be assessed under the provision of an act of Congress, approved May 28, 1926 (44 Stat. 675, § 1; D. C. Code 1929, tit. 25, c. 5, sec. 69). The requirements of the act in respect of notice, both advertisement and actual service of notice upon the owners of the land sought to be condemned, were strictly followed. A duly impaneled jury heard witnesses, viewed the several premises, entered a verdict and award of damages for the land to be condemned, and assessed benefits accruing from the street improvements against 27 parcels of land owned by the appellant, no part of which was taken.

After verdict of the jury, but before its confirmation, the appellant was given the required statutory notice of the sums assessed as benefits against its land, by publication and registered mail (45 Stat. 953; D.C.Code (1929) tit. 25, c. 5, sec. 71). Thereafter, the appellant filed its objections and exceptions to the assessments, the stated grounds being that "it has been illegally deprived of an opportunity to cross-examine witnesses, produce witnesses and be heard before the jury, due to failure, in advance of the trial, to give the public notice required by law or any proper or reasonable substitute"; that the assessments were unjust and unreasonable; that the benefits were not established by a fair preponderance of the evidence; and, that there was denial of due process of law guaranteed by the Fifth Amendment of the Constitution of the United States, U.S.C.A. Const. Amend. 5. In support thereof, appellant presented to the court the affidavit of its president that it had received no notice of the condemnation proceedings through the public press, or otherwise, prior to the verdict of the jury assessing the benefits; that, thereby, it had been deprived of its right to cross-examine witnesses, produce witnesses of its own, and make argument to the jury in respect of the special assessments attempted to be made against its property; that "if there be any enhancement in market value of any of said lots in consequence thereof, it is so small as to be infinitesimal and only a small fractional part of what has been assessed by the jury"; and, that the assessments were not established by a fair preponderance of the evidence.

The lower court overruled the objections and exceptions and appellant duly noted an appeal, assigning as error substantially the grounds contained in its objections and exceptions.

Appellant raises the question as to the sufficiency of the published notice in the condemnation proceedings. We hold that it was sufficient and regularly given. This general public notice required by the statute warned and required all persons having any interest in the condemnation proceedings to appear in court and to continue in attendance until the final order of confirmation of award of damages and assessments of benefits. The Supreme Court has held that such notice by publication "operated as a notice to all concerned of the pending appointment of a jury, and that proceedings under the act of Congress would subsequently be had" and "gave an opportunity for interested parties to attend the meetings of the jury, to adduce evidence, and be heard by counsel". Wight v. Davidson, 181 U.S. 371, 382, 21 S.Ct. 616, 620, 45 L.Ed. 900. In addition thereto the statute requires personal service of the notice to be executed upon all owners of the lands to be condemned, who can be found by the marshal within the District of Columbia.

The statute provides additional notice, through publication and personal service by registered mail, for those persons owning lands not taken which have been assessed for benefits. We quote, in part, Sec. 71, tit. 25, D.C.Code of 1929: "Where in any condemnation proceedings instituted by the Commissioners of the District of Columbia * * * the jury of condemnation shall assess benefits against any land or parcel of land no part of which was taken by the condemnation proceedings, and the owner of the land or parcel of land so assessed for benefits was not served with notice of the condemnation proceedings, notice of such assessment for benefits shall be given by the Commissioners of the District of Columbia by registered letter, * * * and, in addition thereto, the court shall give public notice of the land * * * assessed for benefits, no part of...