
    JAMES T. BRADFORD vs. THE DISTRICT OF COLUMBIA.
    1. In a suit to establish a title derived from condemnation proceedings all the facts necessary to the jurisdiction to condemn must be established.
    2. But when the relief sought is the annulment of the condemnation the burden is on the party asking such relief to show that the proceedings were illegal.
    3. B, being owner of a lot of ground, a portion of it was condemned as an alley. Afterwards complainant conveyed the lot to C., describing it as bounded by said alley. At a still subsequent period B, by bill in equity attacked the condemnation proceedings as void. Held, That B’s conveyance to O, while it did not dedicate ■ the alley to the public, gave to C and his assigns the right to enjoy the alley as an easement, and, therefore, even if the .condemnation proceedings were void equity would not interfere.
    In Equity.
    No. 10,388.
    Decided November 18, 1889.
    The Chief Justice and Justices Hagner and James sitting*.
    Appeal by the defendants from a decree of the Special Term on a bill to annul proceedings condemning private property for alley purposes, 'the court below having decreed the condemnation proceedings void. ' '
    The Facts are sufficiently stated in the opinion.
    Mr. Guión Miller for complainant:
    “ No person shall be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.” Fifth Amendment United States Constitution.
    The owners not having had an opportunity to be heard, the trial was not such a jury trial as is contemplated by the Seventh Amendment of the United States Constitution.
    The ordinance provides for a jury of twelve to ascertain the damage which may accrue to any individual.
    “Where a jury is provided the party must have an opportunity to appear when it is impanelled, that he may make objections. And he has the same right to notice of the time and place of assessment that he would have in any other case of judicial proceedings, and the assessment will be invalid if no such notice is given.” Cooley’s Constitutional Limitations, *563; Powers vs. Bears, 12 Wis., 213; People vs. Tallman, 36 Barb., 222; Bonville vs. Ormrod, 26 Mo., 195; Dickey vs. Tennison, 27 Id., 376; Chase vs. Hathaway, 14 Mass., 223; Commissioners vs. Mining Co., 61 Md., 553.
    The proceedings must show on their face that there was notice to the owners. The record fails to show any notice, and testimony of Webb and Shurtliff clearly shows that no notice was ever given.
    Webb and their agent Stickney distinctly testify that they had notice. And Shurtliff, who was a non-resident, says he has ho recollection of receiving notice. Pomeroy, Constitutional Law, 157; Hager vs. Reclamation District, 111 U. S., 701; Windsor vs. McVeigh. 93 Id., 274; Hollingsworth vs. Barber, 4 Peters, 475; Thatcher vs. Powell, 6 Wheat., 126.
    So far as this suit is concerned the fact that Bradford has made conveyances of portions of the lot in question is of no consequence. Those deeds do not convey the part of the lot attempted to be condemned. The title to that remains in Bradford, but a cloud is thrown upon his title to it by the records of the condemnation proceedings.
    This cloud equity will remove. Ward vs. Chamberlain, 2 Black, 430; Van Wyck vs. Knevals, 106 U. S., 360; Clark vs. Smith, 13 Peters, 203.
    Mr. H. E. Davis for defendant.
   Mr. Justice James

delivered the opinion the Court:

The bill in this case states that while certain lots on Massachusetts avenue were owned by Webb and another, a jury was summoned to condemn an alley through the square, taking a part of this property and a part of an adjoining lot; that no notice was given to the owners, and that for want of such notice the jury had no jurisdiction to condemn; that without any knowledge even of the fact, or any constructive notice by record, there had been a proceeding to condemn the alley; the complainant had purchased the property, and that, therefore, the proceedings for condemnation were, as against him, a nullity. It is alleged that nevertheless they constitute a cloud upon his title, and the bill prays that the alleged condemnation be decreed to be void as to his lots, and the record thereof cancelled.

Where the title is derived from proceedings for condemnation, it would be necessary, in a suit to establish' that title, to prove all facts necessary to the jurisdiction to condemn, and among these notice to and an opportunity to be heard on the part of the original owners. But when the active interposition of a court of equity is asked, and the relief sought is the annulment of the condemnation, it is for the party asking that kind of relief to show that the proceedings were illegal. Accordingly it is for the complainant to show that the jury proceeded in this case without notice to the lot owners from whom he purchased. We have examined the evidence on this point and do not find it sufficient-.

It appears that complainant had, before he filed this bill, sold to Carusi the whole of his said lot, except so much as was included in this alley; and that his deed to Carusi described the property as bounding thereon. This did not constitute a dedication of the land as a public alley, but it did give to the grantee an easement, for the enjoyment of which the alley must remain open to use by Carusi and his assigns.

The strip subject to this easement is all that remains in the complainant, and it is only to remove a cloud upon his title to the land thus subject that this relief is asked. We think that, even if the condemnation proceedings had been shown to be without jurisdiction, equity should not be asked to interfere actively, when the land must remain open to the easement created by the complainant.

The decree is reversed and the bill is-dismissed.]  