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Statement of the Case.

[43 App.

The COURT in the opinion stated the facts as follows:

Appeal from a final order in the supreme court of the District dismissing the petition of the District of Columbia, appellant here, for the condemnation of a strip of land defined in the act of May 10, 1910, entitled "An Act to Authorize the Opening of a Road Along the Anacostia River in the District of Columbia." 36 Stat. at L. 353, chap. 225. That act reads in part as follows:

"The Commissioners of the District of Columbia be, and they are hereby, authorized and directed to institute in the supreme court of the District of Columbia a proceeding in rem to condemn and acquire the fee simple and absolute title, including all riparian rights and all other rights pertaining thereto, to a strip of land for a public highway and for park purposes along the Anacostia River and bounded by said river, from Monroe street extended to the right of way of the outfall sewer at and near Poplar Point, and from the southwest corner of the grounds of the Government Hospital for the Insane along said Anacostia River to Giesboro Point, near the western terminus of Memphis street, as shown on the permanent system of highway plans for the District of Columbia. The northern and western boundary of said strip of land shall be coincident with the high-water line of the said Anacostia River, and the southern and eastern boundary of the said strip of land shall be not more than one hundred and sixty feet therefrom: Provided, that of the amount found due and awarded as damages for and in respect of the land condemned under this act for the said public highway and park not less than one half thereof, together with all the costs and expenses of the proceeding or proceedings taken pursuant hereto, shall be assessed as benefits by the jury in said. proceeding against the lots, pieces, or parcels of ground lying on the side or sides of the extension of the said public highway and park, and also on all or any adjacent pieces or parcels of land which will be benefited by the said public highway and park as herein provided."

Proceedings were duly instituted by the Commissioners, un

Opinion of the Court.

D. C.]

der authority of this act, but in their petition the strip of land sought to be condemned extended 1,000 feet beyond Giesboro Point. This proceeding resulted in a verdict on June 19, 1912, awarding damages amounting to $51,367.19, and assessing benefits in the sum of $3,045.62. Of the amount awarded as damages, $26,508.32 was awarded for the 1,000 feet beyond Giesboro Point. Thereupon, and before any judgment was entered upon the verdict, the Commissioners dismissed the proceedings, and thereafter instituted the proceeding here involved, in which they sought the condemnation of the strip of land described in the act and terminating at Giesboro Point. Appellees filed a motion to dismiss this petition, alleging as the grounds therefor that the Commissioners are concluded by the former finding; that the use for which the land is sought to be condemned is not such a public use as would justify the exercise of the right of eminent domain, and that there is no necessity for the taking of this land.

Mr. Conrad H. Syme, Corporation Counsel, and Mr. Jas. Francis Smith, Assistant, for the appellant.

Mr. John C. Gittings, Mr. J. Morrill Chamberlin, Mr. Geo. Francis Williams, Mr. Ralph P. Barnard, and Mr. Guy H. Johnson for the appellees.

Mr. Justice ROBB delivered the opinion of the Court:

In District of Columbia v. Hess, 35 App. D. C. 38, 28 L.R.A. (N. S.) 91, it was ruled that a proceeding to condemn property for public use is not in the nature of a contract between the owner and the condemning party, and that, in the absence of any statutory provision showing a legislative intent to the contrary, condemnation proceedings may be discontinued by the condemning party at any time before the right of the property owner has become complete. The cases there cited, including Garrison v. New York, 21 Wall. 196, 22 L. ed. 612, fully sustain that ruling.

Opinion of the Court.

[43 App.

In the present case the Commissioners were authorized by said act to condemn a strip of land along Anacostia River, "from Monroe street extended to the right of way of the outfall sewer at and near Poplar Point, and from the southwest corner of the grounds of the Government Hospital for the Insane along said Anacostia River to Giesboro Point, near the western terminus of Memphis street, as shown on the permanent system of highway plans for the District of Columbia." An inspection of the map attached to the record indicates that Congress did not intend to authorize the condemnation of land beyond Giesboro Point. This point, which is near the western terminus of Memphis street, apparently is at the eastern terminus of the deepwater channel of the river. The land beyond that point would. therefore be much more valuable. This fact was clearly demonstrated by the award of the jury. It was therefore a serious question whether, in the first proceeding, the Commissioners had not exceeded their authority when they attempted to condemn. 1,000 feet beyond this point. Accordingly, when the jury awarded such a large sum as damages for this strip, the right to condemn which was at least very questionable, and ignored the directions of the statute by failing to assess one half the total damages as benefits (Henderson v. MacFarland, 33 App. D. C. 312; Briscoe v. Rudolph, 221 U. S. 547, 551, 55 L. ed. 848, 850, 31 Sup. Ct. Rep. 679), the Commissioners were fully within their rights in deciding to discontinue the proceeding. No judgment having been entered, the discontinuance amounted merely to taking a nonsuit. It follows that the discontinuance, in good faith, of the first proceeding, was not a bar to the institution of the second. Kansas City v. Mulkey, 176 Mo. 252, 75 S. W. 973; Cincinnati S. R. Co. v. Haas, 42 Ohio St. 239; Garrison v. New York, 21 Wall. 196, 22 L. ed. 612.

The suggestion is made by counsel for appellees that the Commissioners after the first verdict, instead of discontinuing the entire proceeding, might have asked the court to vacate it as to the ground beyond Giesboro Point. To this suggestion counsel for the Commissioners answer that it was impossible to tell whether the taking of the 1,000-foot strip on the deep-water

D. C.]

Syllabus.

channel was not responsible for the failure of the jury to assess greater benefits against the remaining land of the owner of this strip. Reading the whole record, we entertain no doubt as to the good faith of the Commissioners in discontinuing the first proceeding.

The act declares in plain and unambiguous language that the land is to be condemned "for a public highway and for park purposes." This being a public use, the court will not inquire into either the necessity or expediency of the exercise of the right of eminent domain, since these questions are purely for the legislative branch of the government. Baltimore Boom Co. v. Patterson, 98 U. S. 403, 25 L. ed. 206; Shoemaker v. United States, 147 U. S. 282, 37 L. ed. 170, 13 Sup. Ct. Rep. 361; United States v. Gettysburg Electric R. Co. 160 U. S. 668, 40 L. ed. 576, 16 Sup. Ct. Rep. 427.

The judgment will be reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opiuion. Reversed.

FOWLER v. KOEHLER.*

BUILDING REGULATIONS; PARTY WALLS; CONSTITUTIONAL LAW; EMINENT DOMAIN; ESTOPPEL; NOTICE; CUSTOM AND USAGE; COVENANT; DEEDS.

1. The building regulations of the District of Columbia in respect of party walls rise neither to the dignity of statutes or ordinances, but are mere rules for the enforcement of existing rights, established, so far as they relate to compensation to be paid by one using such a wall,

*Party Walls-Contribution to Cost.-The authorities passing upon the enforcement of obligation to contribute to cost of party walls, by or against grantees or successors in title, are reviewed in the note to Cook v. Paul, 66 L.R.A. 673.

Constitutional Law.-As to constitutionality of party-wall statutes, see note to Cook v. Paul, 66 L.R.A. 710.

Syllabus.

[43 App.

by the order of President Washington, expressly authorized by the provisions of the original grant of the Federal district.

2. The building regulations promulgated by President Washington by virtue of the authority contained in the original grant of the Federal district, providing for the erection of party walls, and that the first builder should be reimbursed one moiety of the charge of such party wall, or so much thereof as the next builder should use, is inoperative beyond the limits of the city of Washington as originally laid off; and there is no statute or regulation in force legalizing the erection of such walls beyond such limits.

3. There are but two lawful ways in which a party wall can be established, -one by contract between the owners of the adjoining property, and the other by force of statute.

4 The erection of a party wall by one of the two adjoining owners does not amount to a taking of private property for private use, in the broad sense of the limitations of the Federal Constitution, but amounts only to the establishment of a mutual easement or servitude and benefit.

5. Where the owner of a lot on which a party wall extends accepts the wall by attaching his building thereto, he estops himself to complain of the trespass, and the mutual easement or servitude is as completely established as if the wall had been constructed under the authority of a statute or an express contract.

6. Where the owner of a lot has notice of the construction of a party wall by the owner of the adjoining lot, and stands by, and, without protest, permits the erection of the wall to proceed to completion, the law will imply an agreement on his part to accept the benefits thus tendered.

7. While there is no statute or regulation authorizing the building, beyond the limits of the original city of Washington, of a party wall partly on land of the builder and partly on the adjoining land, and requiring the adjoining owner, when he shall use the wall, to reimburse the first builder, there has been a long-established custom to so construct such walls, and for the second builder to so reimburse the first builder, although such custom has been based upon the erroneous belief that a regulation so providing which is in force within the limits of the city was operative outside of its limits; and because the enforcement of such custom as to walls now in existence will tend to establish uniformity throughout the District; and because the custom is such a fair and just one that no possible evil can result from its adoption, the grantee of the owner of a lot beyond such limits, when he makes use of a party wall which has been built partly on his lot, will be required to pay the first builder for so much of the wall as he shall make use of.

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