Opinion of the Court.

Other ancient documents offered by the claimants may be laid out of consideration. They consist principally of conveyances, to some of which members of the Lucero family were parties, but the descriptions of the lands are too uncertain to afford any definite information upon the extent of the grant, or even of what was claimed by Lucero in that connection.

Upon the whole, we have come to the conclusion that the claimants have not made out their case by a fair preponderance of evidence, or such weight of testimony as is necessary to establish their title to this large tract of land. We should have reached this conclusion without hesitation had it not been for the proceedings connected with the ouster of Antonio Gallego from the Cañada de en Medio in 1785, which is really the only item of testimony at all inconsistent with the Government's theory of the case; but, after all, this is but evidence of a general reputation, or of a judicial ruling in a case to which the crown was not a party; and it is not at all improbable that the alcalde may have considered Lucero's title to be good as against one who had no title at all beyond a mere permit to pasture a few horses, or raise a few sheep thereon, "without having any title or document which might accredit its being his." It does not follow that, if the Government itself had attacked the grant or the extent of it, his ruling upon that point would not have been different; in fact, the ruling in the prior case between the Indians of the pueblo and the Romeros is about as strong evidence that the lands at El Capulin, also within the assumed limits of the grant, were crown lands, as the judgment in this case was that the lands upon the Cañada de en Medio belonged to the Luceros.

These judgments are really of little value except as throwing light upon the occupation or attempted occupation by Lucero of that portion of the tract lying nearest to the Rio Grande, and of the general reputation as to the extent of his grant. The chief reliance must be upon the terms of the petition itself, and it is fortunate that the most important part of this petition, namely, the description of the boundaries, has been best preserved. The only real difficulty in its interpretation is the ambiguity arising from the words "Pueblo

Syllabus.

Viejo de Cochiti." The burden of proving the larger grant is upon the claimants. So long as the description is reconcilable with the smaller grant, and with a pueblo located upon the mesa of Cochiti, the Government is entitled to the benefit of that construction. The location of that pueblo seven miles to the northeast is supported by testimony too shadowy to be a safe basis for a legal adjudication in favor of the claimants.

While we agree with the court below upon the main question involved, the different view we have taken regarding the western boundary requires that its decree be

Reversed, and the case remanded for further proceedings in conformity with this opinion.

BAUMAN v. ROSS.

ROSS v. BAUMAN.

ABBOT v. ROSS.

ROSS v. ARMES.

APPEALS FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

Nos. 631, 632, 633, 634. Argued December 16, 17, 1896. — - Decided May 10, 1897.

Under the Fifth Amendment to the Constitution of the United States, which declares "nor shall private property be taken for public use without just compensation," Congress may 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.

By the Constitution of the United States, the estimate of the just compensation for property taken for the public use, under the right of eminent

Names of Counsel.

domain, is not required to be made by a jury; but may be entrusted to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.

Congress, in the exercise of the right of taxation in the District of Columbia, may direct that half of the amount of the compensation or damages awarded to the owners of lands appropriated to the public use for a highway shall be assessed and charged upon the District of Columbia, and the other half upon the lands benefited thereby within the District, in proportion to the benefit; and may commit the ascertainment of the lands to be assessed, and the apportionment of the benefits among them, to the same tribunal which assesses the compensation or damages.

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. The recording by public authority of a map of a proposed system of highways within certain territory, without restricting the use or improvement of lands before the commencement of proceedings for their condemnation for such highways, or limiting the damages to be awarded in such proceedings, does not of itself entitle the owners of lands to compensation or damages.

An act of Congress, providing for the estimate of damages for taking lands for highways in the District of Columbia, and for the assessment of such damages, with interest, upon lands benefited by the highways, is not invalidated by a provision that the proceedings shall be void if Congress, after being six months in session, shall make no appropriation for the payment of the damages.

The act of March 2, 1893, c. 197, entitled "An act to provide for a permanent system of highways in that part of the District of Columbia lying outside of cities," is constitutional and valid.

THESE were appeals in proceedings commenced by petition of the Commissioners of the District of Columbia for the condemnation of a permanent right of way for the public over certain subdivisions of lands in the District of Columbia, outside the limits of the cities of Washington and Georgetown, under the act of March 2, 1893, c. 197. 27 Stat. 532. The cases involved the constitutionality of that act. They were argued together, and are stated in the opinion.

Mr. A. S. Worthington for the Commissioners of the District of Columbia. Mr. S. T. Thomas, Mr. A. B. Duvall and Mr. Samuel Maddox were on his brief.

Opinion of the Court.

Mr. Nathaniel Wilson and Mr. Chapin Brown for Bauman and others, and Abbot. Mr. A. H. O'Connor was on their brief.

Mr. W. L. Cole for Armes. Mr. C. H. Armes was on his brief.

MR. JUSTICE GRAY delivered the opinion of the court.

The original plan of the city of Washington, established in 1791, under the direction of President Washington, and by authority of Congress, with its symmetrical arrangements of squares and lots, streets, avenues, circles and public reservations, did not extend north of Boundary street, or affect the roads and highways in the rest of the District of Columbia.

By an act of 1809, the proprietor of any lot or square in the city of Washington was authorized to have it subdivided upon submitting a plat thereof to the surveyor of the District of Columbia, to be certified and recorded in his office upon his being satisfied that its dimensions corresponded with the original lots. Act of January 12, 1809, c. 8; 2 Stat. 511; Rev. Stat. D. C. §§ 477-481.

At a comparatively recent period, owners of lands outside the northern boundary of the city of Washington, from time to time, laid out streets over their lands, and made and recorded subdivisions thereof, as they pleased, often not conforming to each other, or to the general plan of the city of Washington; and Congress, at last, found it necessary to take measures to have the streets throughout the District of Columbia laid out upon a uniform plan.

Congress accordingly, by the act of August 27, 1888, c. 916, entitled "An act to regulate the subdivision of land within the District of Columbia," authorized the Commissioners of the District of Columbia to make and publish general orders regulating the platting and subdividing of all lands and grounds in the District, and required any plat of subdivision made in pursuance of such orders to be approved by them before being admitted to record in the office of the surveyor; and, in section 5, provided that "no future subdivision of land

Opinion of the Court.

in the District of Columbia, without the limits of the cities of Washington and Georgetown, shall be recorded in the surveyor's office of the said District, unless made in conformity with the general plan of the city of Washington." 25 Stat. 451; Comp. Stat. D. C. c. 58, §§ 39-43.

It was in order the more completely to carry out the same object, that Congress passed the act of March 2, 1893, c. 197, entitled "An act to provide a permanent system of highways. in that part of the District of Columbia lying outside of cities," the constitutionality of which is now impugned. 27 Stat. 532.

The parts of the act chiefly attacked are sections 11 and 15. But the record discloses such differences of opinion in the courts below, and the solution of the questions involved depends so much upon a view of the act as a whole, that it will be convenient to state its various provisions somewhat fully.

The first five sections of the act relate to the making, the recording and the effect of plans for the extension of a permanent system of highways, in conformity, as nearly as practicable, with the general plan of the city of Washington, over all that part of the District of Columbia which lies outside the cities of Washington and Georgetown.

The act begins by enacting that "the Commissioners of the District of Columbia are hereby authorized and directed to prepare a plan for the extension of a permanent system of highways over all that portion of said district not included within the limits of the cities of Washington and Georgetown. Said system shall be made as nearly in conformity with the street plan of the city of Washington as the Commissioners may deem advisable and practicable."

By section 2, "the said plans shall be prepared from time to time in sections, each of which shall cover such an area as the Commissioners may deem advisable to include therein; and it shall be the duty of the Commissioners, in preparing such plans by sections, as far as may be practicable, to select first such areas as are covered by existing suburban subdivisions not in conformity with the general plan of the city of Washington. The Commissioners, in making such plans, shall