Carr v. District of Columbia

Decision Date18 August 1976
Docket NumberNo. 74-1331,74-1331
PartiesOliver T. CARR, Jr., et al., Appellant, v. DISTRICT OF COLUMBIA, a Municipal Corporation, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

On Appellants' Petition for Rehearing.

Before BASTIAN, * Senior Circuit Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

ORDER

PER CURIAM.

On consideration of appellants' petition for rehearing, it is

ORDERED by the Court that appellants' aforesaid petition is denied.

Opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The Street Readjustment Act of the District of Columbia 1 authorizes the City Council 2 to close any street or alley which in its judgment has become useless or unnecessary, 3 and prescribes the procedures through which closures may eventuate. The Act provides that "the title to the land embraced within the public space so closed," if not vested in the United States, shall "revert to the owners of the abutting property subject to such compensation therefor in money, land or structures as the District of Columbia Council, in its judgment, may find just and equitable, 4 in view of all the circumstances of the case affecting near-by (sic) property of abutters and nonabutters." 5 The Act further provides "(t)hat if the title to such land be in the United States the property shall not revert to the owners of the abutting property but may be disposed of . . . to the best advantage of the locality and the properties therein and thereby affected . . . or also," unless its use is requested by a federal agency, "be sold 6 . . . ." 7 Sales of United States alley space must be "for cash at a price not less than the assessed value of contiguous lots," 8 and "(a)ll money derived from the sale of land in which the United States is interested . . . (must) be paid into the treasury of the United States . . . to the credit of the United States." 9

Appellants submitted an application for the closing of an alley abutting lots to which they held legal title as trustees for a business organization. It was then, and apparently for a long time thereafter, assumed both by appellants and by District officials that the subject of the application was an "original" alley, owned in fee simple by the United States. 10 After compliance with the statutory procedures applicable, the City Council ordered that the alley be closed on the condition that appellants pay $196,200 as the fair market value of the public space the alley had occupied.

Appellants deposited that sum in escrow and the alley was closed, whereupon appellants sued in the District Court for a judgment declaring that the District could not exact compensation for the alley space. 11 After suffering an adverse decision and judgment in that court, 12 appellants took the present appeal. While the appeal was under submission, appellants filed motions asserting for the first time that, according to information recently acquired, the United States did not own the alley at the time of closure. 13 On this new ground, appellants contended that their challenge to the assessment of the fair market value of the alley space was the stronger. 14

Our decision was to affirm the District Court's judgment on all issues premised on fee simple ownership of the alley by the United States, but to remand the case for modification of the judgment to avoid any prejudice to an action by appellants in the Court of Claims for recovery of the $196,200 on the theory that the United States lacked ownership. 15 Now, on appellants' petition for rehearing, we adhere to that decision for reasons more fully delineated herein than before.

I

Appellants' contention that the United States lacked ownership of the subject alley upon closure has no proper place in this appeal. Throughout the proceedings before the City Council and later in the District Court, all parties believed that the United States had fee simple title to the alley space and acted accordingly. As a result, there was no effort to build a foundation in the record for judicial consideration, either in the District Court or here, of the hypothesis which appellants now advance. 16 As ever so recently we stated, "our adjudicatory authority extends only to questions amply grounded in the record," 17 and that observation is fully apropos here. Numerous documents which are vital links in appellants' lack-of-title argument 18 are completely outside the record before us, and "the evidentiary virtues appellant(s) attribute() to them cannot be left to mere assumption." 19 Moreover, appellants' claim has never been tendered for, much less subjected to, adversary scrutiny in the crucible of an evidentiary hearing. If appellants are to litigate their newly-found theory, it must be done in another lawsuit.

Since we do not understand that appellants are in any wise abandoning their original approach in this litigation, we must consider the appeal on the predicate upon which the District Court ruled that the United States did own the alley. We think the court was correct in its conclusion that appellants, who upon closure of the alley were permitted to acquire the alley space in fee simple, could properly be assessed its fair market value. The situation presented here is quite unlike that where the District of Columbia closes one of its own alleys, thereby causing the property to statutorily "revert to the owners of the abutting property." 20 Where the alley closed belongs to the United States, the Street Readjustment Act provides, precisely contrarily, that "the property shall not revert to the owners of the abutting property." 21 As the Court of Claims has explained, "there is no reversion to the property owners because neither they nor their predecessors in title owned the land on which the alley was established, but the title thereto was in the United States." 22 In such instances, the Act explicitly confers upon the City Council an option: "the property . . . ((a)) may be disposed of . . . to the best advantage of the locality and the properties therein and thereby affected . . . or ((b)) also said property (may) be sold" unless its use is desired by a federal agency. 23 The Act emphasizes that in the event that the second option is selected, the sale is for the account of the United States. 24

Appellants insist, however, that the two statutory alternatives are mutually exclusive. They argue that where, as here, a United States alley is disposed of to the best advantage of the locality, the disposition must be free of charge. The District Court found this argument unacceptable, 25 and so do we. In the first place, not only does the statutory language not suggest appellants' construction, but instead it quite plainly connotes the opposite. The Act states that the property may be disposed of without sale "or also (the) property (may) be sold"; 26 "also," in this context, naturally and popularly means "(i)n addition: as well: besides: too." 27 And for even more impressive reasons, we are convinced that both of the options are exercisable simultaneously.

The Act empowers the City Council to close only "useless or unnecessary alleys." 28 Abandonment of such an alley and sale of the public space into the private domain is usually calculated to foster real estate development in the area 29 and thereby, in this very important sense, to work "to the best advantage of the locality and the properties therein and thereby affected." 30 If, as appellants contend, compensation cannot be demanded where that advantage accrues, the statutory authorization of compensatory sales 31 is well nigh negated. Whenever possible, a statute is to be interpreted so as to allow all of its parts to operate, 32 and to avoid absurd results. 33

Beyond that, we perceive no inconsistency between compensatory sales of United States alley space and the public weal in the larger sense. Beside enrichment of the public fisc through sale proceeds, closure of useless or unnecessary alleys invariably portends other advantages to the community at large. Maintenance costs are eliminated, as is liability for personal injury sustained on the space, and the realty-tax base is broadened. 34 We are unwilling to assume that Congress did not have these valuable benefits in mind when it passed the Street Readjustment Act, nor can we believe that Congress had the federal interest any less at heart. As the District Court observed, the Act

distinguishes between United States and District of Columbia land and gives the City Council express authority to charge for United States property. Thus, it reflects a congressional purpose to allow the District of Columbia to consider the interests of the United States as well as its own interests when it disposes of Federal land. . . . Because this case involves an original United States alley the fact that advantages accrued to the District of Columbia by its closing does not preclude the District from adding conditions for the benefit and protection of the United States. 35

We think, too, that appellants' construction of the Street Readjustment Act would bring it into unnecessary conflict with related legislation. Alley closings were originally authorized in 1901 36 by a statute, still extant, 37 which is confined in operation to alleys and minor streets. 38 Like the Street Readjustment Act, 39 the 1901 Act provides that "(i)f the alley (closed) is not an original alley the title thereto shall revert to the owners of the land abutting thereon;" 40 but it is the 1901 Act that contains the provisions relative to sale of United States alley space, which the Street Readjustment Act incorporates. 41 "If the alley to be closed is an original alley," the 1901 Act ordains, "(the City Council) may sell the land contained therein for cash at a price not less than the assessed value of contiguous lots," 42 and "(a)ll money derived from (its) sale . . . shall be paid into...

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