217 U.S.

547
30 S.Ct. 581
54 L.Ed. 877

COLUMBIA HEIGHTS REALTY COMPANY, Plffs. in Err.,

v.
CUNO H. RUDOLPH et al., Commissioners of the District of
Columbia.
No. 157.
Argued April 12, 13, 1910.
Decided May 16, 1910.

Messrs. Arthur A. Birney and Leo Simmons for plaintiffs in error.

[Syllabus from page 548 intentionally omitted]
Messrs. James Francis Smith and Edward H. Thomas for defendants in
error.
Mr. Justice Lurton delivered the opinion of the court:

In 1899, the then commissioners for the District of Columbia filed a petition in
the supreme court of the District for the condemnation of land necessary for the
extension of Eleventh street northwest. In due course the statutory jury of seven
filed an award of damages and of benefits. The verdict was confirmed so far as
it awarded damages for the property, but was disaffirmed and vacated as to the
amount of benefits. The award, so far as it assessed the damages, was accepted,
and the money has long since been paid; but from the order setting aside or
vacating the assessment of benefits, the commissioners appealed to the court of
appeals of the District, where that order was reversed, and the proceeding
remanded to the lower court, with direction to vacate the order setting aside the
amount of benefits, 'and for such further proceedings in the case, according to
law, as may be just and right.' The supreme court of the district, on March 4,
1904, in obedience to the mandate of the court of appeals, set aside its former
order vacating the assessment of benefits by the jury, and thereupon heard the
matter upon exceptions of the defendants to the award, and upon the motion of
the petitioners for a confirmation of the award of benefits. Whereupon an order

was made denying confirmation, and ordering that 'in case the petitioners desire
to proceed further in the premises, they shall, within a reasonable time, make
application to this court for directions to the marshal to summon a jury of
twelve, as provided by law.' From this order refusing confirmation, the
petitioners prayed an appeal, but did not perfect same. The next step in the case
was taken on June 17, 1904, when the landowners moved the court to dismiss
the proceeding, assigning as reason therefor that 'the law under which such
proceeding must be had has been repealed;' and, second, 'for failure of
petitioners to proceed as required by the order of this court of March 4, 1904.'
Upon this motion the court, on June 17, 1904, made an order in these words:
2

'Upon consideration of the proceedings herein and the motion filed by Abner
Greenleaf and others on June 17th, A. D. 1904, it is by the court, this 17th day
of June, A. p. 1904, ordered, that the petitioners in the above-entitled cause,
within sixty days from the date hereof, proceed in the matter of the
reassessment of benefits herein, in accordance with the terms and provisions of
the act of Congress approved June 6, 1900, entitled, 'An Act for the Extension
of Columbia Road East of Thirteenth Street, and for Other Purposes." [31 Stat.
at L. 665, chap. 809.]

Thereupon the then commissioners, in continuance of the old proceeding under

the act of March 3, 1899 (30 Stat. at L. 1344, chap. 431), filed an amended and
supplementary proceeding according to the terms of the later act of June 6,
1900 (31 Stat. at L. 668, chap. 809), in which, after setting out all of the
proceedings under the pending petition, they prayed for a reassessment of
benefits against abutting and adjacent owners whose lands had not been
assessed for benefits as required both under the former and later acts of
Congress in respect to the extension of Eleventh street northwest. Under this
amended petition a jury of seven was impaneled, who returned as assessment of
benefits against the plaintiffs. This, after exceptions had been overruled, was
confirmed. A writ of error was taken by the plaintiffs in error to the court of
appeals for the District of Columbia, where the judgment of the supreme court
was affirmed. Thereupon this writ of error was sued out.

This protracted litigation is now before us, unaccompanied by an assignment of

errors.

The act of February 9, 1893, chap. 74, 8, 27 Stat. at L. 436, U. S. Comp. Stat.
1901, p. 573, concerning writs of error and appeals from the court of appeals of
the District of Columbia, provides that they shall be allowed in the 'same
manner and under the same regulations as heretofore provided for in cases of
writs of error on judgments or appeals from decrees rendered in the supreme

court of the District of Columbia.' The procedure referred to is that found in

705, Rev. Stat., which provides that such writs or appeals shall be allowed in
the 'same manner and under the same regulations as are provided in cases of
writs of error on judgments or appeals from decrees rendered in a circuit court.'
6

Secs. 997 and 1012, Rev. Stat. (U. S. Comp. Stat. 1901, pp. 712, 716), require
the transcript from the circuit court to be filed with an assignment of error, and
the 35th rule of this court prescribes the character of such assignments, and that
'no writ of error or appeal shall be allowed until such assignment of errors shall
have been filed, . . .' and that 'errors not assigned according to this rule will be
disregarded; but the court, at its option, may notice a plain error not assigned.'
This rule refers in terms only to writs of error and appeals under 5 of the act
of March 3, 1891 [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p.
549], but it is, in effect, extended to every writ of error or appeal to or from any
court by rule 21, which requires that the brief shall set out 'a specification of the
errors involved.' This 'specification of error' must conform to rule 35 in
particularity. Thus, the fourth paragraph provides: 'When there is no
assignment of errors, as required by 997 of the Revised Statutes, counsel will
not be heard, except at the request of the court; and errors not specified
according to this rule will be disregarded; but the court, at its option, may
notice a plain error not assigned or specified.'

The court has, however, not regarded itself as under any absolute obligation to
dismiss a writ of error or appeal because of the nonassignment of errors, as
required by 997 and 1012, Rev. Stat., having, by its rules, reserved the
option to notice a plain error, whether assigned or not. Independent School Dist.
v. Hall, 106 U. S. 428, 27 L. ed. 237, 1 Sup. Ct. Rep. 417; Farrar v. Churchill,
135 U. S. 609, 614, 34 L. ed. 246, 249, 10 Sup. Ct. Rep. 771; United States v.
Pena, 175 U. S. 500, 502, 44 L. ed. 251, 252, 20 Sup. Ct. Rep. 165.

In the present case, the brief of counsel for the plaintiffs in error specifies ten
alleged errors. The defendants in error have made no objection for failure to
assign error under 997 and 1012, Rev. Stat., but have submitted the case
upon the specifications of error in the brief of the plaintiffs in error. For these
reasons, we shall exercise the option reserved under both rules 21 and 35, of
examining the transcript, that we may be advised as to whether there has
occurred any 'plain error' which obviously demands correction.

1. Did the court err in allowing an assessment of benefits under the act of June
6, 1900? We think not. Under the proceedings had theretofore under the act of
March 3, 1899, there had resulted a condemnation of the land needed for the
extension of Eleventh street northwest, and an assessment of damages sustained

by the landowners, which award had been confirmed and the money paid. But
that act provided 'that of the amount found due and awarded as damages for and
in respect of the land condemned under this section for the opening of said
streets, not less than one half thereof shall be assessed by the jury in said
proceedings against the pieces and parcels of ground situate and lying on each
side of the extension of said streets, and also on all or any adjacent pieces or
parcels of land which will be benefited by the opening of said streets, as herein
provided.' Objection to this arbitrary fixing of the minimum amount to be
assessed for benefits upon lots benefited by the opening of the street was
considered, and the act sustained as within the complete jurisdiction which the
United States possesses over the District of Columbia, in the case of Wight v.
Davidson, 181 U. S. 371, 45 L. ed. 900, 21 Sup. Ct. Rep. 616. The benefits
assessable under that act were separately found as against each parcel of
property supposed to be benefited, but that part of the award of the jury was
vacated upon the erroneous supposition that the rule for assessment of benefits
in the act was void. This action of the District court, as we have already seen,
was reversed. Thereupon the District court denied the motion of the
commissioners to affirm the verdict of the jury assessing benefits. In this
situation it was open to the commissioners to apply for another jury. Before
they did so the special act of June 6, 1900, was passed. The effect of the action
of the court in refusing to confirm the first assessment of benefits was to make
void the award and verdict of the jury, in so far as that verdict had separately
found the benefits accruing to the property by the extension of the street. The
commissioners were therefore complying with the direction to them found in
the 12th section of the act of Congress of June 6, 1900. That act provided that
the commissioners should make application to the supreme court of the District
of Columbia 'for the final ratification and confirmation of the awards of the jury
for and in respect to the land condemned for the extension of Eleventh street,'
etc. And 'in the event that the assessments for benefits levied by the jury in
relation to said Eleventh street shall for any reason be declared void, the said
commissioners . . . are authorized and directed to make application to said court
for a reassessment of such benefits, under and in accordance with the provisions
of this act.' The procedure under this act differs in many particulars from that
under the act of 1899. In view of this, the property owners, on June 17, 1904,
moved the court to dismiss the old proceeding, basing the motion, as shown by
the entry upon the journal of the court, upon the contention that 'the law under
which such proceeding must be had has been repealed,' and 'for failure of the
petitioners to proceed as required by the order of this court,' of March 4, 1904.
Thereupon the court made the order heretofore set out, requiring a reassessment
of benefits under the later act.
10

There is no possible doubt as to the correctness of this order. The new act

superseded the former act in so far as the reassessment of benefits was

concerned. Both parties seemingly concurred in assuming that this was the
case, and that the refusal of the court to confirm the original assessment of
benefits was an annulment of the award of benefits by the first jury. The order
was in part based upon the motion of the plaintiffs in error, and was made
without protest or objection, and none was suggested for more than a year.
Such a reassessment was but a continuance of the original proceeding, which
might well be done by an amended or supplementary petition by virtue of the
authority of the new act. This disposes also of the contention that the
proceeding for reassessment of benefits was barred by the statute of limitations
of three years. The proceeding for reassessment was not a new action, but a
continuance of the old one, and therefore not subject to the operation of the
statute.
11

2. Coming now to the errors assigned upon the procedure under this petition for
a reassessment of benefits. The first objection is that the court did not examine
the jurors as to whether they possessed the qualifications required by 4 of the
new act, nor administer to them the oath required by the statute under which the
court was proceeding.

12

These objections come too late. The statute made it the duty of the court to hear
objections to jurors 'before accepting them.' None were made. So with the oath;
if that administered departed in any particular from the terms of the statute,
objection should have been made at the time. None was made, and only after
the verdict was any made. The journal entry, moreover, recites that the jurors
summoned by the marshal, under the order theretofore made, were 'accepted as
qualified,' and that the oath was administered to them 'in accordance with the
provisions of the act of Congress of June 6, 1900.' It is now sought to
contradict the record by a statement contained in a bill of exceptions allowed
after final judgment, that counsel for the plaintiffs in error was not present
when the order of record was made and the jury accepted and sworn, and that
after they had been so accepted and sworn, counsel was denied the right to
examine the jurors as to their qualifications. In respect to the oath administered,
the bill of exceptions contains the meager statement that the jurors were sworn
to 'assess the benefits accruing to the property abutting or adjacent to Eleventh
street extended, according to the statute.'

13

The oath which is required to be administered by 4 of the act of June 6, 1900,

under which the court was proceeding, was an oath applicable only to the
condemnation of land for an exension of the Columbia road, and the jury were
to be sworn to assess the damages and benefits resulting from the extension of
that road. Such an otah in the present case, when only benefits were to be

assessed for property already taken and paid for, upon another street
altogether, was, of course, not applicable. The court, in such circumstances,
required as it was to follow the procedure of the columbia road statute, was
perfectly of the Columbia road statute, was perfectly to the property concerned
in this proceeding. True, the oath prescribed by 4 includes an affirmation that
the jury was disinterested and unrelated, and would act without favor or
partiality; but the statement in the bill of exceptions does not show that these
matters were omited from the oath, and the presumption remains that the
statutory oath was followed as far as applicable, which is the implication from
the journal entry.
14

As to the qualitications of the jurors: Primarily, they had been summoned, as

shown by the order to the marshal and his return, as men having the statutory
qualifications. The journal recites that the court 'accepted them as qualified.' No
hint is found in this transcript that they were not qualified, or that they were
guilty of any misconduct. Not having asked the court to examine them before
accepting them, or to be then permitted to qualify them, it was not reversible
error to deny the privilege after they had been sworn and accepted. That
counsel was not present when they were accepted and sworn does not invalidate
the impaneling of the jury. Under the statute and the warning order, the parties
interested were required to be present and 'continue in attendance' until the
matter was ended.

15

3. It is assigned as error that the court erred in overruling the plea of res
judicata as to lots 1 and 30 in block 27, and lots 1 to 16 in block 28. The plea
was not good.

16

The first jury, that which, under the act of March, 1899, assessed both damages
and benefits, was, under that act, required to award damages not only for land
taken for the extension of the street, but also damages to the remainder of the
land by being left high above or below the grade. The then owners of these lots
were awarded such grade damages to land not taken, which award has been
confirmed and paid. But the same jury, as they were instructed to do, assessed
the benefits sustained to the remainder, not taken, separately. This part of the
verdict was set aside; so that, as it stands, the plaintiffs have been paid the
damages sustained to the property not taken by reason of the grade resulting,
but have never been assessed for the benefits accruing to the same untaken
remainder. It is now said that the confirmation of the amount of damages is an
adjudication that the lots not taken were damaged, and not benefited. But that is
not the legal construction of the judgment, for the real damages have never
been reduced by the benefits, which the statute says shall not be less than 50
per cent of the damages sustained. The former judgment was conclusive only as

to the damages, and that has not and could not be reopened. The benefits,
having been separately stated in that verdict, remained to be determined, and
were properly reassessed under the later act of Congress.
17

4. Alleged error in instructions given or refused.

18

The sixth assignment noticed in the brief is error in giving the first instruction
asked by the commissioners. This request was in these words:

19

'It is the duty of the jury to consider and assess the benefits which have resulted
to the pieces or parcels of land on each side of Eleventh street northwest, as
extended from Florida avenue to Lydecker avenue, and the benefits which have
resulted to any and all other pieces or parcels of land from the extension; and in
determining the amounts to be so assessed against said pieces or parcels of land,
the jury shall take into consideration the respective situations of the said pieces
or parcels of land, and the benefits that they have severally received from said
extension of said Eleventh street. By extension of the street, the jury are to
understand its establishment, laying out, and completion for all the ordinary
uses of a public thoroughfare, or highway.'

20

The objection to this seems to be that the jury was not limited to the benefits
resulting immediately from the opening of the street, but might consider all
enhancement which might come from subsequent improvement of or upon the
street. But this was not the whole of the instruction of the court upon that
subject, and any doubt as to what the court did mean was eliminated by other
parts of the charge. Thus, the court said that to lay an assessment for benefits
against any piece of land abutting upon said street or adjacent thereto, the jury
must find that the benefits upon which such assessment is based was brought
about by the extension of said street, and not by any improvement made since it
was extended, or by the extension of car lines in said street. Again, the court
said that such benefits must accrue 'immediately from the extension of the
street in question.' This was repeated when it was said that 'the benefit
assessable must be an enhancement in value immediately upon the opening and
extension of said street,' and that they had 'no right to consider any
enhancement or increase in value that is the result of any special improvements
made on the street after it was opened and established, as previously stated.'
There is no reason for doubting the meaning of the court.

21

The several requests made by the plaintiffs in error were sufficiently covered
by the charge as given.

22

5. The next specification of error in the brief is in these words: 'The court erred
in refusing to review the evidence taken before the jury, and to determine if the
verdict was unjust and unreasonable.' The act of June 6, 1900, under which the
court was proceeding, required the jury to go upon and view the premises, and
then to hear and receive such evidence as might be offered, in the presence of
the court, or otherwise, as the court might direct, and to then return the majority
verdict as to the amount of benefits against the property involved. In this case
the evidence was not heard by the jury in the presence of the court, that being
according to the order of the court.

23

The act further provides that 'the court shall have power to hear and determine
any objections which may be filed to said verdict or award, and to set aside and
vacate the same, in whole or in part, when satisfied that it is unjust or
unreasonable, and in such event a new jury shall be summoned, who shall
proceed to assess the damages or benefits, as the case may be,' etc.

24

This specification of error has for its foundation the concluding paragraph of
the bill of exceptions, as follows:

25

'The foregoing substance of the testimony taken before the said jury as
abstracted by the appellant from the testimony filed as an affidavit in the case
by order of the court. After the counsel had argued the case upon the
propositions of the law raised by the exceptions, counsel for the appellant, in
support of its motions and exceptions, offered to read to the court the said
testimony, but the court declined to hear the same or consider it at the time in
full, counsel saying that it would be his purpose to consider the same if the
court found, after consideration, the propositions of the law were against the
appellant. But counsel had no further opportunity to argue said case on the
evidence, and without reading the evidence, or hearing it fully read, the court
passed an order overruling all the exceptions, and confirming said verdict, and
refused to consider said testimony any further, and the appellant excepted.

26

'And thereupon the appellant presented to the court, the justice who presided at
the hearing of this case, and made the rulings herein referred to, this, its bill of
exceptions, containing the proceedings before the court and before the jury or
commission, with the substance of the evidence taken before the said jury, and
the affidavits filed in the case subsequent thereto, as herein referred to, with the
exceptions as therein noted, which were duly taken by the appellant separately,
in the order in which they appear, and allowed by the court at the time.'
The certificate was in these words:

27

'And the said appellant, by its counsel, prays the court to sign and seal this, its
bill of exceptions, and make the same a part of the record in this case, which is
now accordingly done, and the said bill of exceptions is here now signed and
sealed in due form and made a part of the record in this case this 14th day of
August, 1907, nuno pro tunc.'

28

Why the court should be required to read, or hear read, 'in full,' a paper which
was confessedly but the substance of the testimony taken before the jury, as
'abstracted by appellants from the testimony filed as an affidavit in the case,' we
are at a loss to know. The power of the court to review the award by such a jury
must, in the very nature of the matter, be limited to plain errors of law,
misconduct, or grave error of fact indicating plain partiality or corruption. The
jury saw and heard the witnesses; the court did not. The jury went upon and
viewed the premises; the court did not. The duty to review did not involve mere
error in judgment as to the extent of enhancement in value, for the judgment of
the jury manifestly rested upon much which could not be brought before the
court. The jury was expected to exercise its own judgment, derived from
personal knowledge from a view of the premises, as well as from the opinion
evidence which might be brought before them. Shoemaker v. United States,
147 U. S. 282, 37 L. ed. 170, 13 Sup. Ct. Rep. 361. No specific wrong,
injustice, or error is pointed out. Even if we had all of the evidence before us, it
would not be within our province to weigh it. But we have not, nor is there, any
agreed statement of facts. it is impossible for us to say, therefore, whether the
trial court erred in holding the award not unreasonable, or so unjust as to require
a new trial before another jury. Other matters complained of in argument need
not be specifically referred to.

29

We find no error, and the judgment is affirmed.