The fact that a statute requiring notice has been construed in a
number of cases in the jurisdiction as meaning the method used in
the case is an important element to be considered by the courts in
The notice required by § 491c of subd. 1 of c. 15 of the Code of
the District of Columbia requiring public notice of not less than
twenty days to be given of the institution of a condemnation
proceeding construed as meaning that notice shall be given twenty
days before the time set, and not that it shall be given on twenty
distinct days before that time.
This Court assumes that a special act directing condemnation
proceedings adjudicates the benefits as a whole and leaves open all
questions as to any particular lots. It is error for the trial
court not to instruct that the burden is on the District to
establish by preponderance of evidence the extent of special
benefits accruing to a particular parcel.
The jury in a condemnation proceeding should be instructed as to
their duty in regard to considering dedications of land taken.
Assessments for benefits cannot be separated, and error in
charging in that respect cannot be corrected by reversal of the
judgment in part.
Although the intermediate appellate court may have erred in
basing its reversal of the lower court on the matter of most
general importance in a case in this Court on certiorari, if its
judgment was correct on other points, it should be affirmed.
40 App.D.C. 130 affirmed.
The facts are stated in the opinion.
Page 236 U. S. 694
MR. JUSTICE HOLMES delivered the 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, c. 1, 37 Stat. 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.
Page 236 U. S. 695
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
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. 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
Page 236 U. S. 696
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 businessmen 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.
, 221 U. S.
), 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
Page 236 U. S. 697
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.