Newman v. Lynchburg Investment Corporation/Opinion of the Court

This was a proceeding by the petitioners for the extension and widening of Colorado avenue and Kennedy street in the District of Columbia, under a special act of June 30, 1911, chap. 1, 37 Stat. at L. 1. A jury was summoned, assessed the damages for the land to be condemned for the purpose, found that the lots described in a schedule would be benefited to the amounts set forth, and assessed those sums against them. The verdict was objected to and excepted to by the respondents, but was confirmed by the supreme court. On appeal the judgment was reversed by the court of appeals of the District. 40 App. D. C. 129.

The first ground of reversal was that the notice of the proceedings was insufficient, which, if true, will cast a cloud upon a great number of condemnations that have been made heretofore. The condemnation is a proceeding in rem under and in accordance with subchapter one, of chapter 15, of the District Code. By § 491c of that subchapter the court is to 'cause public notice of not less than twenty days to be given of the institution of such proceeding, by advertisement in three daily newspapers published in the District of Columbia,' etc. [34 Stat. at L. 151, chap. 2070]. The order in this case directs publication 'once in the Washington Law Reporter and on six secular days in the Washington Evening Star, the Washington Herald, and the Washington Post,. . . commencing at least twenty days before' January 9, 1912, the date fixed for appearance. The objection and the decision of the court of appeals was that the order did not follow the statute, because the statute requires that notice shall be published in three daily papers for at least twenty days.

The respondents are concerned only as parties assessed for the betterment. As such they could not be mentioned by name in the notice, since by the statute the jury decides what land is benefited, as well as the sum with which it shall be charged. § 491g. It is necessary, of course, that due precautions should be taken to see that they get notice in fact. This consideration, together with the requirement that the publication shall be in a daily paper, and its view of the meaning of the words, led the court of appeals to the conclusion to which it came. Nevertheless we are of a different opinion. The statute means that notice shall be given either not less than twenty days before the time set, or on twenty distinct days before that time. We think it means the former. As to the usage of speech, when we speak of giving a week's or a month's notice we mean a notice that is a week or a month before the event. The fact that the statute has been so construed in a great number of cases in the District, a list of which has been submitted to us, is important not only as confirmation of our view, but as a reason for taking it if we felt more doubt than we do. It seems to be the prevailing rule in the state courts, although there are decisions on the other side. Publication in daily papers is explained sufficiently by their being the papers that business men are most likely to read. It was said that, construed as we construe it, the statute would be satisfied if a single publication were made a year before the day. The answer is that the court fixes the notice, and will see that no injustice is done. It should be observed further that the statute itself is notice of everything except the time and place of the proceeding. It locates exactly upon the face of the earth the extensions to be made and gives their length and width. We are of opinion that the order of publication complied with the law.

The other questions brought before us by the certiorari are of no general importance and may be disposed of in a few words. They concern the conduct of the trial,-matters that, in the absence of very clear error, we leave to the local courts. It was held to be error not to instruct the jury that the burden was upon the District to establish by a preponderance of evidence the extent of the special benefits accruing to the property to be charged. We may assume that the special act has adjudicated the extent of the benefits as a whole (Briscoe v. Rudolph, 221 U.S. 547, 551, 55 L. ed. 848, 850, 31 Sup. Ct. Rep. 679), but it leaves open all questions as to any particular lot. Those elements of the petitioners' case remained for them to prove.

A matter more insisted upon by the court of appeals is that the jury were not instructed to take into consideration the dedication of land for the improvement, and the value of the land so dedicated, as the Code requires that they should be. § 491g. The court was satisfied from an examination of the record that the jury did not consider valuable dedications made by the respondents. The argument is very strong that the court was right on the matter of fact, and as the jury were not instructed as to their duty, we accept the conclusion of the court of appeals. We also agree with that court that the assessments for benefits cannot be separated, and therefore that the error cannot be corrected by a reversal of the judgment in part. The result is that although the Court of Appeals erred upon the matter of most general importance, its judgment reversing that of the Supreme Court must be affirmed.

Judgment affirmed.