fit, accruing to the owner of land taken for a street in the city of New York, by the increased value of adjacent lands belonging to him, might be set off against the loss or damage caused to him by the taking, and, if equal to such loss or damage, was a just compensation for the land taken; and Chancellor Walworth, delivering the leading opinion, said: "The owner of the property taken is entitled to a full compensation for the damage he sustains thereby, but, if the taking of his · property for the public improvement is a benefit rather than an injury to him, he certainly has no equitable claim to damages. Besides, it is a well-settled principle that, where any particular county, district, or neighborhood is exclusively benefited by a public improvement, the inhabitants of that district may be taxed for the whole expenses of the improvement, and in proportion to the supposed benefit received by each. In this case, if the whole value of the property taken for a street in the city of New York is allowed to the individual owner, the proprietors of the adjacent lots must be assessed for the purpose of paying that amount, and, if the individual whose property is taken is the owner of a lot adjacent, that lot must be assessed ratably with others. It therefore makes no difference whether he is allowed the whole value of the property taken in the first instance, and is assessed for his portion of the damage, or whether the one sum is offset against the other in the first place, and the balance only is allowed." Livingston v. New York, 8 Wend. 85, 101, 102. That decision appears to have since been considered as establishing that both special and general benefits from the laying out of a street may be set off against the value of the part taken, as well as against the damages to the remainder. In re Furman Street, 17 Wend. 649, 659, 671; People v. Brooklyn, 4 N. Y. 419, 435; Granger v. Syracuse, 38 How. Prac. 308; Genet v. City of Brooklyn, 99 N. Y. 296, 305, 1 N. E. 777; Eldridge v. City of Binghamton, 120 N. Y. 309, 313, 24 N. E. 462; Bohm v. Metropolitan Ry. Co., 129 N. Y. 576, 586, 29 N. E. 802.

829.

In New Jersey, in a very recent case, a statute authorizing the taking of land for a highway, and directing the commissioners "to make a just and equitable estimate and appraisement of the compensation and damages each owner of the real estate and land to be taken will sustain by reason of such taking, considering in such appraisal the condition in which each owner's parcel will be left after taking so much thereof as will be necessary for said opening, and the benefits that will result from such road to the owner or owners of such land and real estate," was held by the supreme court, in an opinion delivered by Mr. Justice Dixon, to be consistent with the provision of the constitution of 1844 (article 1, § 16) that "private property shall not be taken for public use, without just compensation," for these reasons: "Just compensation for taking part of an entire tract of land for public use cannot, we think, be ascertained without con

sidering all the proximate effects of the taking. These are the withdrawal of the part taken from the dominion of the former owner, the damage done to the residue by the separation, and the benefit immediately accruing to the residue from the devotion of the part taken to a certain public use. Just compensation is ascertained by combining the pecuniary value of all these facts. If any be excluded, what is given is more or less than is just. The value of the land taken is no more essential to just compensation than is satisfaction for the damage done to the residue, nor is it more exempt from diminution on account of benefits conferred. There is, however, a possibility of benefit to accrue from certain public uses for which land is taken, like the opening of highways, which should not be considered, for two reasons: First, because this benefit is to arise, if at all, in the indefinite future, while the compensation must be such as is just at the time of the taking; second, because it is so uncertain in character as to be incapable of present estimation. Such benefit is that which may spring from the growth of population, if it should be attracted by the public improvement for which the land is taken, and from similar sources. It is usually styled general benefit, because it affects the whole community or neighborhood. But any benefit which accompanies the act of taking the land for the contemplated use, and which admits of reasonable computation, may enter into the award." Mangles v. Freeholders, 55 N. J. Law, 88, 92, 25 Atl. 322, 323. The like rule has been upheld by the court of errors in the case of a railroad. Packard v. Railway Co., 54 N. J. Law, 553, 25 Atl. 506.

In Pennsylvania, the constitution of 1790 (article 9, § 10) declared, "Nor shall any man's property be taken or applied to public use," "without just compensation being made;" and that provision, without material change, has been retained in the constitution of 1838 (arti-* cle 9, § 10), and in that of 1873 (article 1, § 10). The rule of compensation was tersely stated by Chief Justice Gibson, in 1821, as follows: "The jury are to consider the matter just as if they were called on to value the injury at the moment when compensation could first be demanded. They are to value the injury to the property, without reference to the person of the owner or the actual state of his business; and, in doing that, the only safe rule is to inquire, what would the property unaffected by the obstruction have sold for at the time the injury was committed? What would it have sold for as affected by the injury? The difference is the true measure of compensation." Navigation Co. v. Thoburn, 7 Serg. & R. 411, 422. The rule, as thus stated, was recognized by Mr. Justice Strong in Watson v. Railroad Co., 37 Pa. St. 469, 481; and, in accordance therewith, it has been uniformly held that, when part of a parcel of land is taken, direct and special benefits to the rest of the same parcel, beyond the general increase in the value of property in the neighborhood, are to be deducted. Plank-Road Co. v. Rea, 20 Pa, St. 97;

Railway Co. v. McCloskey, 110 Pa. St. 436, 1 Atl. 555; Setzler v. Railroad Co., 112 Pa. St. 56, 4 Atl. 370; Long v. Railroad Co., 126 Pa. St. 143, 19 Atl. 39.

In Ohio, under the constitution of 1802 (article 8, § 4), which declared, "Private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner," the supreme court of the state, in 1846, held that, in assessing the compensation for the taking of part of a lot of land for widening a street, benefits resulting from the improvement to the residue of the lot might be set off, and said: "That just, full, and adequate compensation must be made, and in money, is certain; more cannot be required. But if, in appropriating property of the value of $4,000, when, by the same appropriation, the value of what remains is increased $2,000, and the value of the property taken is the rule of damages, the owner actually takes $2,000 without the least consideration, and receives more than the constitution enjoins to be paid, because it is more than a compensation. The word 'compensation' imports that a wrong or injury has been inflicted, and which must be redressed in money. Money must be paid to the extent of the injury, whether more or less than the value of the property; and then, in our view, is the language of the constitution satisfied. We are confirmed in our opinion of the correctness of the construction we place on the word 'compensation,' as employed in the constitution, from the fact that such construction has obtained and been acquiesced in from a period not far short of the organization of the state government. In the opening of roads, constructing turnpikes, and appropriating lands for canals, benefits conferred have been constantly and unceasingly deducted from the value of the property, or damages otherwise sustained. Long contemporaneous construction of an instrument is seldom erroneous, and is always deserving of great consideration, when the meaning of the instrument is obscure." Symonds v. Cincinnati, 14 Ohio, 147, 174, 175. The same rule was followed so long as the constitution of 1802 was in force. Brown v. Cincinnati, Id. 541; Kramer v. Railroad Co., 5 Ohio St. 140; Railroad Co. v. Simpson, Id. 251.

The rule upon the subject was expressed by Mr. Justice Brewer, when a member of the supreme court of the state of Kansas, as follows: "Outside of any special constitutional or statutory restrictions, the right of the state to take private property for public use, and the corresponding right of the individual to receive compensation for the property thus taken, may be assumed." "But this compensation is secured if the individual receive an amount which, with the direct benefits accruing, will equal the loss sustained by the appropriation. We, of course, exclude the indirect and general benefits which result to the public as a whole, and therefore to the individual as one of the public; for he pays in taxation for his share of such general benefits. But, if the proposed

road or other improvement inure to the direct and special benefit of the individual out of whose property a part is taken, he receives something which none else of the public receive, and it is just that this should be taken? into account in determining what is compensation. Otherwise, he is favored above the rest, and, instead of simply being made whole, he profits by the appropriation, and the taxes of the others must be increased for his special advantage. Upon general principles, then, and with due regard to right and justice, it should be held that the public may show what direct and special benefits accrue to an individual claiming road damages, and that these special benefits should be applied to the reduction of the damages otherwise shown to have been sustained." "The word 'damages' is of general import, and is equivalent to compensation. It includes more than the mere value of the property taken, for often the main injury is not in the value of the property absolutely lost to the owner, but in the effect upon the balance of his property of the cutting out of the part taken. He is damaged, therefore, more than in the value of that which is taken. Conversely, the appropriation of the part taken to the new uses for which it is taken may operate to the direct and special improvement and benefit of that not taken. Surely, this direct increase in value, this special benefit resulting from the improvement the public is making, and for which it must be taxed, reduces the damages he has sustained." Commissioners v. O'Sullivan, 17 Kan. 58-60. And the rule has been applied where the special benefits equaled or exceeded the damages, so that the owner of the land received nothing. Tobie v. Commissioners, 20 Kan. 14; Trosper v. Commissioners, 27 Kan. 391.

Nothing inconsistent with this view was decided or intimated in the opinion of this court delivered by Mr. Justice Brewer, in Monongahela Nav. Co. v. U. S., 148 U. S. 312, 13 Sup. Ct. 622. All that was there said upon this subject was as follows: "The 'just compensation' is to be a full equivalent for the property taken. This excludes the taking into account, as an element in the compensation, any supposed benefit that the owner may receive in common with all from the public uses to which his private property is appropriated,, and leaves it to stand as a declaration that no private property shall be appropriated to public uses unless a full and exact equivalent for it be returned to the owner. We do not in this refer to the case where only a portion of a tract is taken, or express any opinion on the vexel question as to the extent to which the benefits or injuries to the portion not taken may be brought into consideration." 148 U. S. 326, 13 Sup. Ct. 626. And on the next page the opinion of the supreme court of Mississippi in Isom v. Railroad Co., 36 Miss. 300, was referred to and quoted from, not by way of indorsing the peculiar views expressed by that court in another part of its opinion upon the subject of benefits, but only in support of the general proposition that, while the question

what property is needed for public purposes is to be determined by the legislature, the ascertainment of what is just compensation is a judicial inquiry. See Marchant v. Railroad Co., 153 U. S. 380, 385, 14 Sup. Ct. 894; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581.

The case, just decided, of Railway Co. v. Ziegler, 167 U. S. 65, 17 Sup. Ct. 728, in which the owner of a tract of land, part of which was taken for a railroad, and the rest thereby injured, was allowed to recover against the railroad corporation the full value of the land taken, and also the difference in market value of the part left, "irrespective of the effect on the market value by reason of the building of the road," was governed by the express provision of section 2456 of the Code of Washington Territory, afterwards embodied in section 16 of article 1 of the constitution of the state of Washington, requiring, in such a case, compensation to be made, "irrespective of any benefit from any improvement proposed by such corporation." See Railway Co. v. Ziegler, 15 U.S. App. 472, 478, 9 C. C. A. 548, 61 Fed. 392; Enoch v. Railway Co., 6 Wash. St. 393, 33 Pac. 966.

The careful collection and classification of the cases upon this subject in Lewis on Eminent Domain (sections 465-471) shows that in the greater number of the states, unless expressly forbidden by constitution or statute, special benefits are allowed to be set off, both against the value of the part taken, and against damages to the reminder; that in some of those states general benefits also are allowed to be thus set off; that in comparatively few states both kinds of benefits, or at least special benefits, are allowed to be set off against damages to the remainder, but not against the value of the part taken; and that in Mississippi alone benefits are not allowed to be considered at all See, also, Cooley, Const. Lim. (6th Ed.) 697-702; 2 Dill. Mun. Corp. (4th Ed.) §§ 624, 625; Rand. Em. Dom. §§ 254-273.

The constitution of the United States contains no express prohibition against considering benefits in estimating the just compensation to be paid for private property taken for the public use; and, for the reasons and upon the authorities above stated, no such prohibition can be implied; and it is therefore within the authority of congress, in the exercise of the right of eminent domain, to direct that, when part of a parcel of land is appropriated to the public use for a highway in the District of Columbia, the tribunal vested by law with the duty of assessing the compensation or damages due to the owner, whether for the value of the part taken, or for any injury to the rest, shall take into consideration, by way of lessening the whole or either part of the sum due him, any special and direct benefits, capable of present estimate and reasonable computation, caused by the establishment of the highway to the part not taken.

The suggestion, made at the bar, that section 11 of the act in question, as applied to a pro

ceeding under section 6 relating to an existing subdivision, allows the jury to deduct contingent and speculative benefits to arise in the future from the actual opening and improvement of the highways, may be best met by recurring to the general scope of the act.

In the first section, congress directed the commissioners of the District of Columbia to prepare a plan for the extension of a permanent system of highways, throughout that part of the District lying outside of the cities of Washington and Georgetown, in conformity as nearly as practicable, with the general plan of the city of Washington.

But congress evidently recognized the importance, for the efficient execution of its scheme, and for the avoidance of unnecessary expenditures, to begin by dealing with those localities where subdivisions had been made and streets laid out by the owners of the land, regardless of the general plan; and to leave the completion of the system through other parts of the District, in which the land had not been subdivided, and comparatively few streets had been laid out, to be dealt with afterwards.

The commissioners, therefore, by section 2, were required to prepare their plan of extension in sections, beginning with the areas covered by existing suburban subdivisions not in conformity with the general plan of the city of Washington, and to prepare maps of those sections, and, by section 6, were required, within 30 days after the record of any such map which should alter or dispense with any highway in any then existing subdivision in the area included in the map, to present a petition to the court for condemnation of a permanent right of way for the public over all lands within that subdivision, not already owned by the United States or the District of Columbia or dedicated to public use as a highway; and, by section 7, petitions as to lands not within existing subdivisions might be presented to the court at any time thereafter.

The only substantial difference between proceedings for condemnation of a public right of way over lands within an existing subdivision, under section 6, and over lands not within an existing subdivision, under section 7, is that, as to lands within an existing subdivision, the petition to the court must be presented within 30 days after the recording of the map, and the court is then to proceed with the condemnation (congress, in effect, itself determining that the public convenience requires the immediate establishment of the new highways), while, as to lands not within any existing subdivision, the petition to the court may be presented at any time thereafter, and is not to be presented, nor any condemnation made, until the commissioners and the court, respectively, have determined that the public convenience requires the immediate opening of the highways in question., Although the word "opening" does not occur in section 6, while it is used in section 7, yet. the authority of the court, as defined in either section, is only "to condemn a permanent right of way for the public" over the lands in ques

tion, and does not include the actual laying out and construction of the new highways. Condemnation, and nothing more, is likewise mentioned in the corresponding provisions of section 9.

The provisions of section 8, as to notice to parties interested, and of sections 10-13, as to the summoning and organization of a jury of seven, and as to their duties in assessing the compensation or damages to landowners, including the provision of section 11 for considering benefits in the assessment of damages, are in terms applicable alike to proceedings under section 6 and under section 7.

So are the provisions of section 15, which direct the compensation awarded to be assessed and charged, one-half upon the lands benefited, and the other half upon the District of Columbia, and which, in the use of the various phrases, "highway condemned and established under this act," "laying out and opening of such highway," or simply "opening of any highways," evidently treat condemnation, establishment, laying out, and opening of a highway as denoting one and the same thing, the appropriation or setting apart of land for a highway, and throwing it open to public travel,-and have no regard to the actual grading or construction of the highway.

The provisions of the act which relate to the deduction of benefits in assessing compensation or damages are as follows:

Section 11 provides that, "where the use of a part only of any parcel or tract of land shall be condemned in such a proceeding, the jury, in assessing the damages therefor, shall take into consideration the benefit the purpose for which it is taken may be to the owner or owners of such tract or parcel, by enhancing the value of the remainder of the same, and shall give their verdict accordingly; and the court may require, in such case, that the damages and the benefits shall be found and stated separately."

Section 13 provides that "the verdict of the jury shall state, as to each parcel of land involved in the proceeding, only the amount of compensation, less the benefits, if any,*which it shall award in respect thereof." And section 15 speaks of the benefits, so deducted, as "the amount, if any, which shall have been deducted from the value of the part taken, on account of the benefit to the remainder of the tract."

Construing section 11 in connection with the rest of the act, the words "the purpose for which it is taken," in the provision that, when the use of a part only of any parcel or tract of land is condemned, the jury, in assessing the damages therefor, shall take into consideration the benefit that "the purpose for which it is taken may be to the owner or owners of such tract or parcel by enhancing the remainder of the same," clearly signify the purpose for which it is condemned,-the appropriation of the land for a highway, which is distinct from, and necessarily antecedent to, the actual construction and completion of the way; and the benefits, as well as the damages, to be taken

into consideration, are to be estimated as of the date of such appropriation. The damages assessed as of that date constitute the entire compensation for such appropriation of land for a highway, including all injuries resulting from any change of the natural grade required in the actual construction of the highway, and also, it would seem, unless expressly provided otherwise by constitution or statute, any which may be caused by a future change of the grade by the public authorities. Goszler v. Georgetown, 6 Wheat. 593; Smith v. Washington, 20 How. 135, 149; Transportation Co. v. Chicago, 99 U. S. 635; Chicago v. Taylor, 125 U. S. 161, 8 Sup. Ct. 820; Wabash R. Co. v. City of Defiance, 167 U. S. 87, 17 Sup. Ct. 748.

The necessary conclusion is that there is nothing unusual or unconstitutional in the provision of section 11, requiring benefits to be taken into consideration in assessing the compensation or damages to be awarded to the owners of lands affected by the establishment of new highways.

The other principal question in the case is of the constitutionality of section 15, which directs "the amount awarded by said court as damages for each highway or reservation, or part thereof, condemned and established under. this act," to be assessed and charged, one-half upon the lands benefited*thereby, and the other half upon the District of Columbia, and, as to the first half, enacts that it "shall be charged upon the lands benefited by the laying out and opening of such highway or reservation, or part thereof"; that "the same jury which shall assess the damages caused by the opening of any highways or reservation, or part thereof, or by the abandonment of an existing highway, or part thereof, shall ascertain and determine what property is thereby benefited, and shall assess against each parcel which it shall find to be so benefited its proper proportional part of the whole of said one half of the damages: provided, that in making such assessment for benefits the jury shall, as to any tract a part of which shall have been taken for such highway or reservation, or part thereof, make due allowance for the amount, if any, which shall have been deducted from the value of the part taken, on account of the benefit to the remainder of the tract"; that "the proceedings of the court and the jury, in making assessments for benefits under this section, shall conform as nearly as is practicable to the foregoing provisions of this act relating to the assessment of damages; and the verdict of the jury, making an assessment under this section as to any parcel of land, shall not be conclusive until the same shall have been confirmed by the court"; and that, "when confirmed by the court, the assessment so made shall be a lien upon the land assessed," and shall be collected as other taxes are collected, "and shall be payable in five equal annual instalments, with interest at the rate of four per centum per annum from the date of the confirmation of the assessment by the court."

The provisions of this section are to be re

It was contended by some of the owners of lands that the public improvement proposed was not of a local character, but was for the advantage of the whole country, and should be paid for by the United States, and not by the District of Columbia, or by the owners of the lands affected by the improvement. But It is for the legislature, and not for the judiciary, to determine whether the expense of a public improvement should be borne by the whole state, or by the district or neighborhood immediately benefited. The case in this respect comes within the principle upon which this court held that the legislature of Alabama might charge the county of Mobile with the whole cost of an extensive improvement of Mobile harbor, and, speaking by Mr. Justice Field, said: "The objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole state. Assuming this to be so, it is not an objection which destroys its validity. When any public work is authorized, it rests with the legislature, unless restrained by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties or other particular subdivisions of the state, or lay the greater share or the whole upon that county or portion of the state specially and immediately benefited by the expenditure." Mobile Co. v. Kimball, 102 U. S. 691, 703, 704.

The legislature, in the exercise of the right of taxation, has the authority to direct the whole, or such part as it may prescribe, of the expense of a public improvement, such as the establishing, the widening, the grading, or the repair of a street, to be assessed upon the owners of lands benefited thereby. Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. 663; Spencer v. Merchant, 125 U. S. 345, 355, 356, 8 Sup. Ct. 921; Walston v. Nevin, 128 U. S. 578, 582, 9 Sup. Ct. 192; Lent v. Tillson, 140 U. S. 316, 328, 11 Sup. Ct. 825; Illinois Cent. R. Co. v. Decatur, 147 U. S. 190, 198, 199, 13 Sup. Ct. 293; Paulsen v. Portland, 149 U. S. 30, 13 Sup. Ct. 750. This authority has been repeatedly exercised in the District of Columbia by congress, with the sanction of this court. Willard v. Presbury, 14 Wall. 676; Mattingly v. District of Columbia, 97 U. S. 687; Shoemaker v. U. S., 147 U. S. 282, 286, 302, 13 Sup. Ct. 361.

The class of lands to be assessed for the purpose may be either determined by the legIslature itself, by defining a territorial district, or by other designation; or it may be left by the legislature to the determination of commissioners, and be made to consist of such lands, and such only, as the commissioners shall decide to be benefited. Spencer v. Merchant and Shoemaker v. U. S., above cited;

168, 175, 176, 17 Sup. Ct. 56; Ulman v. Mayor, 165 U. S. 719, 17 Sup. Ct. 1001. See, also, the very able opinion of the court of appeals of New York, delivered by Judge Ruggles, in People v. Brooklyn, 4 N. Y. 419, 430.

The rule of apportionment among the parcels of land benefited also rests within the discretion of the legislature, and may be directed to be in proportion to the position, the frontage, the area, or the market value of the lands, or in proportion to the benefits as estimated by commissioners. Mattingly v. District of Columbia, Spencer v. Merchant, Walston Nevin, Shoemaker v. U. S., Paulsen v. Portland, and Irrigation Dist. v. Bradley, above cited.

If the legislature, in taxing lands benefited by a highway, or other public improvement, makes provision for notice, by publication or otherwise, to each owner of land, and for hearing him, at some stage of the proceedings, upon the question what proportion of the tax shall be assessed upon his land, his property is not taken without due process of law. Davidson v. New Orleans, Spencer v. Merchant, Walston v. Nevin, Lent v. Tillson, Paulsen v. Portland, and Irrigation Dist. v. Bradley, above cited.

The whole sum directed by section 15 to be assessed upon lands benefited is one-half of "the amount awarded by said court as damages for each highway or reservation, or part thereof, condemned and established under this act." This fixing of the gross sum to be assessed was clearly within the authority of congress, according to the above cases.

The class of lands to be assessed is defined by directing that the aforesaid sum "shall be charged upon the lands benefited by the laying out and opening of such highway or reservation, or part thereof," and that the jury "shall ascertain and determine what property is thereby benefited." And the rule of assessment is defined by the further direction that the jury "shall assess against each parcel which it shall find to be so benefited its proper proportional part of" the sum aforesaid, with a proviso that, as to any tract, part of which only has been taken, due allowance shall be made "for the amount, if any, which shall have been deducted from the value of the part taken, on account of the benefit to the remainder of the tract."

It was argued that section 15 was too uncertain to be put in execution, because it failed to define the district or territory within which the benefits might be assessed, and did not even specify whether the assessment should or should not be confined to lands within the particular subdivision in which a new highway was established. But in either alternative the assessment could not include lands outside of the District of Columbia; and the section would be equally constitutional whether the district of assessment was the particular ubdivision, or the whole District of Columbia. And there does not appear to be any uncertainty as to which alternative was in