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admitted it to be established by the weight of authority that, under the right of eminent domain, the special benefits to an individual lot, of which a part was condemned, could properly be set off against or deducted from the amount found due as the value of the land appropriated and as special damage to the remainder of the tract or parcel; and that, under the legislative power of taxation, an assessment might be laid upon such remainder and other lands in the neighborhood, for the general benefits derived from the existence of the new street. But he held that either a deduction for special benefits, or an assessment for general benefits, should be for benefits which, if not immediately realized, should be at least so far present as to be certain and presently ascertainable; that the act of 1893, in a proceeding (such as this was) under section 6, relating to a highway through an existing subdivision, simply required a condemnation of the right of way, and did not, as in a proceeding under section 7 relating to lands not within an existing subdivision, also require an immediate opening of the highway; that the act authorized the taking of private property for public use, and attempted to pay for it partly in future and contingent benefits, and failed to provide for the just compensation required by the Constitution to be made, and was therefore an unconstitutional appropriation of private property, which the courts could not carry out; and consequently that section 11, as applied to the case, was unconstitutional and void, and the whole proceeding must be set aside. He further suggested, although not deciding, that section 15, providing for an assessment of half the damages upon the lands deriving a general benefit from the highway, could not be carried out, because, while committing that assessment to the same jury, it fixed neither the taxing district, nor the rule of apportionment; and also observed that "the recording of the map by the Commissioners, if nothing is done in pursuance of this step, is only a less injury to the lot-owners than taking their property without paying for it." 24 Washington Law Reporter, 65-71.

From that judgment, the Commissioners appealed to the Court of Appeals of the District of Columbia, which, in an

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opinion delivered by Justice Shepard, Justice Morris concurring, reached the following conclusions:

1st. That under the last clause of the Fifth Amendment to the Constitution of the United States, "nor shall private property be taken for public use without just compensation," this just compensation means "the actual value of the property taken, payable in money, and without diminution on account of benefits general or special," although special benefits might be considered in respect of a claim for damages done to the adjacent land not actually taken; and therefore that "so much, at least, of section 11, as provides for the diminution of the just compensation for the value of the land taken to the extent of benefits accruing to the remainder, is beyond the power of Congress, and therefore void."

2d. That, "in so far as the general principle of the assessment established by section 15 of this act is concerned, there can be no substantial objection; it is fair, liberal and regular"; but that "section 15 is inoperative by failure to conform to the necessary operation of sections 6 and 7. To accomplish the object of speedy condemnation and rectification of streets in localities, where important, some provision should have been made for the creation of definite taxing districts, including one or several subdivisions and sections adjacent, where it might appear to be expedient and just, so that the work of condemnation, laying off, and assessment of expenses of streets could take place promptly without complication with others. Another defect is that the assessments, when confirmed by the court, shall bear interest from date of such confirmation, notwithstanding the fact that Congress may not accept them, if at all, for a year, possibly, under the provisions of section 18."

3d. "That Congress has made no appropriation for the immediate payment of the compensation that may be assessed does not render the act invalid."

4th. That the invalidity of sections 11 and 15 does not make the act as a whole inoperative and void.

5th. That the record of the maps, provided for in the act, does not amount to "a taking of the land, in the sense that it

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interferes with the enjoyment thereof by the owners to an injurious extent, beyond the power of Congress, without a provision for compensation."

The result was that the judgment was reversed, and the cause remanded with directions to modify the judgment in so far as it dismissed the petition, and to reinstate the cause for further proceedings not inconsistent with the opinion of the Court of Appeals. 8 App. D. C. 393.

Chief Justice Alvey filed a separate opinion, holding section 11 to be constitutional and valid, and in this respect dissenting from his associates; but substantially concurring in the rest of their opinion, and holding section 15 to be "impossible of execution," and "nugatory for the want of certainty," in the following respects: "This power of assessment for benefits, as given in this section of the act, is without territorial limitation, and may extend into other subdivisions, and the same lots or parcels of land may be subject to assessments by other juries thereafter called upon to make assessments upon land benefited." "It entirely fails to define or prescribe the district or territory within which the benefits may be assessed. Whether confined to the particular subdivision in which the highway or street may be condemned and established, or whether such benefits may be assessed against land beyond the limits of such subdivision along the line of such improvement, as extended into or through adjoining subdivisions, the act is entirely silent. Nor is there any provision conferring authority upon commissioners, or upon the court, to define such taxing district. And the act wholly fails to provide how the assessment shall be apportioned - whether with reference to the existing value of the land, or to the amount of benefit only that may be derived from the improvement when made." 8 App. D. C. 427-429.

The Supreme Court of the District of Columbia, upon receiving the mandate of the Court of Appeals, set aside the verdict, so far as it allowed or assessed any benefits, and gave judg ment thereon, so far as it awarded compensation and damages to the owners of lands. From this judgment the Commissioners, as well as one of the land-owners, appealed to the

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Court of Appeals, which affirmed the judgment. Both parties took appeals to this court, being Nos. 633 and 634.

Immediately after the original trial of the case of the Dennison and Leighton subdivision, the case of the Ingleside subdivision was submitted to the same jury, and a verdict was returned in similar form, which, after the first decision of the Court of Appeals, above mentioned, and in accordance with that decision, was partly set aside, and partly affirmed, by a final judgment of the Supreme Court of the District of Columbia. The Commissioners, as well as some of the land-owners, appealed to the Court of Appeals, which affirmed the judgment; and both parties took appeals to this court, being Nos. 631 and 632.

The effect of the decision of the Court of Appeals is that the owner of a parcel of land, a right of way over part of which is condemned under this statute, is entitled to recover the full value of the part taken, free of any deduction for special benefits to the remainder, or of any assessment for the general benefits received by it in common with other lands in the neighborhood.

In entering upon the consideration of the correctness of that conclusion, the precedents in the District of Columbia, bearing upon the subject, are significant, especially as showing the practical construction by Congress of the constitutional provision.

In the city of Washington, the lines of streets and avenues and public squares and reservations were defined and estab lished by the original plan of the city; and the absolute and unqualified title in fee in the lands within those lines was vested in the United States by deeds of conveyance from the proprietors of the lands, or by proceedings of condemnation under statutes of Maryland, upon the original laying out of the city. Burch's Digest, 217-224, 330, 337; Comp. Stat. D. C. pp. 654-660; Van Ness v. Washington, 4 Pet. 232; Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U. S. 672, 680, 681; District of Columbia v. Baltimore & Potomac Railroad, 114 U. S. 453, 460. Congress, therefore, had little or no occasion to provide for the taking of lands,

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under the right of eminent domain, for streets and highways within the city of Washington,

But Congress early began to legislate on the subject of laying out streets and highways in other parts of the District of Columbia, and to provide both for taking into consideration benefits as well as injuries in the assessment of damages sustained by owners of lands, and for assessing and charging upon the persons and lands benefited the amount of such damages.

Georgetown was incorporated under the statute of Maryland of 1789, c. 23, amended by the statute of 1797, c. 56. 2 Kilty's Stat. Two early acts of Congress, amending the charter of Georgetown, contained provisions for the opening and extension of streets, as follows:

By the act of Congress of March 3, 1805, c. 32, § 12, the corporation of Georgetown was empowered, in general terms, "to open, extend and regulate streets within the limits of said town; provided they make to the person or persons, who may be injured by such opening, extension or regulation, just and adequate compensation, to be ascertained by the verdict of an impartial jury, to be summoned and sworn by a justice of the peace of the county of Washington, and to be formed of twenty-three men, who shall proceed in like manner as has been usual in other cases where private property has been condemned for public use." 2 Stat. 335. The usual manner, under the statutes of Maryland, thus referred to, of estimating the compensation or damages to be awarded to the owners of land for opening or extending a street, had been by inquiring what damages they would "actually suffer from the passing of the road over the land," "taking into consideration all conveniences and inconveniences, advantages and disadvantages, arising thereby," or "all benefits and inconveniences." Herty's Digest, (1799) p. 459; Maryland Stats. 1790, c. 32, § 8; 1798, c. 77, § 4; 1799, c. 32, § 2; 1792, c. 27, § 3; 1798, c. 19, § 3; 2 Kilty's Stat.

The supplementary act of March 3, 1809, c. 30, after defining anew the limits of Georgetown, provided in section 4 as follows: "The said corporation shall have power to lay out, open, extend and regulate streets, lanes and alleys, within the