
    WILLIAM CAHILL v. THE DISTRICT OF COLUMBIA.
    At Law. —
    No. 16,066.
    Where the Board of Public Works of the District of Columbia, in pursuance of an act of the Legislative Assembly, appropriated private property for a public street, and procured the same to be condemned, and a jury to assess the owner’s damage, and also paved and curbed the same and dedicated it to public travel, tire District is estopped from denying its power in the premises, and the owner will be entitled to the damages awarded by the jury. The owner’s consent to the appropriation of his property is to be inferred from his bringing an action to recover the damages.
    STATEMENT OE THE CASE.
    By an act approved June 26,1878, the Legislative Assembly of the District of Columbia authorized the Board of Public Works to extend M street from New Hampshire avenue to Twenty-first street, aud to assess damages to the owners of property which may be taken for the extension, if any shall be sustained; and the amount necessary for payment of damage was thereby appropriated out of the general fund. The plaintiff brings this suit against tbe District to recover the sum of $893.65, tbe amount awarded to Mm by a jury for 1,190.82 square feet of ground condemned aud taken into said street from bis lot lettered G- in square numbered 72, in the city of Washington, and the further sum of $165 for 220.08 square feet taken for tbe same purpose from bis lot lettered B in said square. The plaintiff’s declaration avers that, pursuant to said act of Assembly, on October 1,1873, the defendant entered upon and took possession of said ground, and lias ever since retained such possession, whereby the said defendant became liable- to pay the plaintiff the sums of money awarded to said plaintiff by the jury aforesaid for said ground so taken into said street as aforesaid, amounting in the aggregate to the sum of $1,058.65. It is also stated that defendant, being so liable, promised to pay the same. The common counts are added. The survey or plan of M street as extended over the private property of plaintiff is annexed, as is also the surveyor’s certificate, which states that the said street is now paved, graded, and curbed, and showing also the quantity of land taken and condemned.
    The defendant interposed a demurrer on the ground principally that the condemnation of the land was ultra vires of the municipal corporation of the District of Columbia.
    On the 25th day of November, 1876, the demurrer was overruled and an appeal taken to the general term.
    
      L. G. Bine, for plaintiff.
    As to the third ground of demurrer: While the exercise of the right of eminent domain is not expressly granted by Congress to defendant as to streets, we contend that it is granted by implication, and that its exercise of such right in this case,.where the land- taken was for public use — i. e., a public street, and not for mere ornamental purposes — was entirely legal. (Dev. Stats. Dist. Col., sec. 2; 1 Dillon on Mun. Corp., sec. 82.)
    Passing to defendant’s fifth ground of demurrer, we say that defendant having taken possession of the plaintiff’s land, graded and. paved it as a public street, and thrown it open for travel, is such a ratification of the proceedings as estops it from- afterwards denying the validity of the same.
    
      William Birney, for defendant.
    The condemnation of land for the streets of Washington was ultra vires of the municipal corporation of the District of Columbia and void.
    
      1. The municipal power of Washington has been always limited to repairs of streets laid out on the original plan of the city.
    The power to condemn, ground for alleys has been given, but for streets, never.
    The charter powers are: “ To keep in repair all necessary streets,” * * * “ and to pass regulations necessary for
    the preservation of the same, agreeably to the plan of the said city;” (Chart, of 1802, sec. 7;) “to open and keep in repair streets,” * * * “agreeably to the plan of the city;” (Chart, of 1820, sec. 7;) “do cause new alleys to be opened through the squares, and to extend those already laid out, upon the application of the owners of more than one-half the property in such squares;” (Chart, of 1820, secs. 5, 8;) “to cause new alleys to be opened into the squares, and to open, change, or close those already laid out.” (Chart, of 1848, sec. 2.)
   Cartter, Oh. J.,

delivered the opinion of the court orally:

The question which has been principally discussed in this case relates to the powers of the District of Columbia to extend M street through private property. It is material to consider that this objection is not raised by the owner of the property. Indeed, by bringing his action for damages, he has consented to the appropriation of his land. Besides, the District authorities have not only condemned this property and procured a jury to assess the damage, but they have taken possession of it, and dedicated it to the purpose of a.public highway, and curbed and paved it for the public use. The case, we think, ought to be decided in view of these circumstances. It is not necessary to pass upon the question of power in the Legislative Assembly to pass the act of June 26, 1873. The power of opening streets and extending them through private property is usually delegated by the State Legislatures to municipal corporations, and they are constituted the sole judges of how and when the power should be exercised; the limitation being, of course, that compensation shall be made to the owners. We are not inclined to decide whether Congress had invested the Legislative Assembly with this right of condemning private property. It is peiv haps inferable from their general legislative authority, and hence within the corporate powers of the District under the territorial government. But on that subject we do not desire to express an opinion. It is sufficient that the property in question has been appropriated for the purpose of a street. The plaintiff has been deprived of its use and occupation, and the defendant has dedicated it to the public use, and that dedication has been accepted and acted upon by the municipal authorities with the consent of the owner. It seems to us that these circumstances should relieve the case from any objection on the ground that the District had no right to appropriate this ground to the public use. The owner’s consent ought to remove any objection of this kind, and the District should not be permitted to set up its own wrong or irregularity to defeat the award of a jury summoned at its own instance for the express purpose of condemning the land and assessing plaintiff’s damage. A judgment in favor of the plaintiff will estop him from claiming any interest in the ground occupied by the street. There must be judgment in favor of the plaintiff' upon the demurrer.  