Statement of the Case.

The plaintiffs in error filed their exceptions to this report January 4, 1892, said exceptions being based upon the grounds, among others, that the act of Congress was unconstitutional and all proceedings based thereon void; that the aggregate of the values, found by the assessors, of the lands included in the park, was in excess of the appropriation made by Congress; that the actual values of the lands were largely in excess of the values fixed by the appraisers; that the commissioners, in appraising the values of the property, disregarded certain parts of the evidence in respect thereto; that the attorney representing the government did not produce witnesses to impartially testify touching the value of said lands, but, on the contrary, placed a list of prices fixed by said park commission in the hands of divers persons proposed to be used as witnesses, for the purpose of affecting their judgment as to values, and to guide them in reaching values to correspond with those thus furnished them.

The plaintiffs in error contended that into the present act should be read the sundry civil appropriation act of August, 1890, wherein it was provided that the valuation by appraisers, to be appointed by the court, of lands to be purchased for the Government Printing Office, should be confirmed by the court, said appropriation act providing that after its passage, in all cases of the taking of property in said District for public uses, its provisions respecting such condemnation and appraisement should operate; and contended that under said appropriation act the court should review the evidence and proceedings before the appraisers appointed in the present instance, and decide whether the values fixed by them afforded just compensation for the property taken.

These exceptions were overruled, and the report confirmed. The constitutional questions involved having been already passed upon, the court decided, in overruling said exceptions, that the restriction in the act as to the cost of the lands is not a restriction upon the duty of the court to confirm the appraisement, but a restriction upon the government's finally securing the land, since it cannot be discovered whether or not the value is in excess of the appropriation until the court has dis

Statement of the Case.

charged its duty of assessing the land; that, as the evidence before the appraisers was conflicting, and the result simply an estimate based upon a comparison of the opposing opinions of witnesses, it cannot be said that the verdict was contrary to the evidence; that, as to the objection that lists of values fixed by the park commission were furnished to witnesses, an expert witness has a right to qualify himself by comparing his views with those of others, and to enlighten his judgment by any means which conduce to the formation of a reliable opinion, as after all he simply gives an opinion; that, as a general rule, the court has no right to review an appraisement simply because of error of judgment, if such has been manifested, on the part of the appraisers, as to value, and the said sundry civil appropriations act did not modify the rule; and that, under said appropriations act, the court must confirm the appraisement as a matter of course if the appraisers had discharged their duty, and if there were no legal ground for setting their report aside.

The park commission, in consideration of the limitation in the act with respect to the amount to be paid for the lands, and the difficulties resulting from an appraisement of values which, when added to the amount paid for tracts purchased and for expenses, would exceed the appropriation, on March 11, 1892, submitted for the inspection of the President a copy of the map, showing by red lines thereon the boundaries of a reduced area within the limits of the lands first selected, formed by the omission of certain tracts originally included. A letter of the park commission anticipating these difficulties had been referred to the Attorney General, and in his opinion thereon, dated April 10, 1891, he stated that if the assessed value of the land in the court proceedings exceeded the appropriation, the commission might exercise its discretion to pay for the land they regarded as most desirable.

In conformity with this interpretation of the act, the park commission reduced the area of the land proposed to be taken, to within the limits indicated by red lines on the said map, and, having shown to the President the cost of the lands within the reduced area, together with all expenses, requested him to decide the values appraised to be reasonable. In

Statement of the Case.

response to this, by his letter to the park commission, dated April 13, 1892, the President stated his decision that the values fixed by the appraisers appointed by the Supreme Court of said District under the act were reasonable.

The park commission then filed a petition in said court, April 19, 1892, presenting the decision of the President, and showing that each and all the owners of said parcels, the assessed values of which had been so decided to be reasonable, had failed and neglected to demand or receive from the court those values, and that said owners claimed interest on their respective assessments from the date of the filing of the said original map. The petitioners therefore prayed the court to pass an order authorizing them to pay into court the assessed values of all of said parcels of real estate.

On May 2, 1892, the said respondents, now plaintiffs in error, moved to dismiss the petition on the grounds, among others, that the assessment of only a part of the lands shown on the map as originally prepared had been acted upon by the President; that no proceedings had been instituted on the basis of the reduced area, nor any map filed other than the original map; that the park commission having selected lands. for the park, and filed a map thereof, had no power to reduce the area of the lands; and that for about a half mile along said Rock Creek, lands taken for the park lie upon only one side thereof, whereas said act provides that the park is to lie on both sides of said creek.

The court denied the motion, interpreting the act to express an absolute intent that there shall be a park on Rock Creek, and to give authority to the park commission, after making their original selection of lands for the park, to amend their work by abandoning such parcels as they were not authorized by the appropriation to purchase. The operation of the order denying this motion was suspended, however, so far as it might affect the property of the plaintiffs in error, until the further order of the court.

The plaintiffs in error then presented to the court an answer to the petition, setting up the same grounds of objection thereto as urged by them in their motion to dismiss the

Counsel for Plaintiffs in Error.

last-named petition, and requested that the answer might be filed. The court finding no point presented in the answer not already passed upon, denied the request to have the same filed, and ordered May 24, 1892, that the United States pay forthwith into the registry of the court the values, without interest thereon, appraised by the appraising commissioners theretofore appointed by the court, including the values of the property of plaintiffs in error.

Upon motion of the park commission, the court, on July 13, 1892, granted an order to show cause why the title in fee simple to the property of plaintiffs in error should not be declared by the court to be vested in the United States. The plaintiffs in error filed an answer to this rule, reserving therein all the objections theretofore taken by them during the progress of the said proceedings. The court overruled the objections, and ordered and decreed, July 16, 1892, that the fee simple title to each and all of the tracts of land represented by plaintiffs in error be vested in the United States, and that the owners of said tracts forthwith deliver up possession of their respective holdings to the park commission or its executive officer. On July 19, 1892, upon application of the United States, a special auditor was appointed to ascertain and report to the court the names of the persons respectively entitled to the appraised values of the tracts of lands selected for said park, claimed by the plaintiffs in error, and to report separately upon each tract or road within the boundaries thereof.

Thereupon plaintiffs in error sued out a writ of error to bring this final judgment and the record in the condemnation proceedings before this court for review.

In addition to the alleged errors above indicated, the plaintiffs in error now say, first, that the United States had no right, after filing the first map of the land selected, to abandon the taking of any part of the land condemned; and, secondly, that the assessment for benefits provided for by the act of Congress is beyond the power of the government, and that, therefore, the act is void.

Mr. Tallmadge A. Lambert and Mr. Jeremiah M. Wilson for plaintiffs in error.

Opinion of the Court.

Mr. R. Ross Perry and Mr. C. C. Cole, (with whom was Mr. H. T. Taggart on the brief,) for defendants in error.

MR. JUSTICE SHIRAS, after stating the case as above, delivered the opinion of the court.

In the memory of men now living, a proposition to take private property, without the consent of its owner, for a public park, and to assess a proportionate part of the cost upon real estate benefited thereby, would have been regarded as a novel exercise of legislative power.

It is true that, in the case of many of the older cities and towns, there were commons or public grounds, but the purpose of these was not to provide places for exercise and recreation, but places on which the owners of domestic animals might pasture them in common, and they were generally laid out as part of the original plan of the town or city.

It is said, in Johnson's Cyclopædia, that the Central Park of New York was the first place deliberately provided for the inhabitants of any city or town in the United States for exclusive use as a pleasure-ground, for rest and exercise in the open air. However that may be, there is now scarcely a city of any considerable size in the entire country that does not have, or has not projected, such parks.

The validity of the legislative acts erecting such parks, and providing for their cost, has been uniformly upheld. It will be sufficient to cite a few of the cases. Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; In re Commissioners of the Central Park, 63 Barb. 282; Owners of Ground v. Mayor of Albany, 15 Wend. 374; Holt v. Somerville, 127 Mass. 408; Foster v. Boston Park Commissioners, 131 Mass. 225; also 133 Mass. 321; St. Louis County Court v. Griswold, 58 Missouri, 175; Cook v. South Park Commissioners, 61 Illinois, 115; Kerr v. South Park Commissioners, 117 U. S. 379. In these and many other cases it was, either directly or in effect, held that land taken in a city for public parks and squares, by authority of law, whether advantageous to the public for recreation, health or business, is taken for a public use.