Carrying out the city plan

The great obstacle to the execution of any plan, whether for the orderly extension of a city or for the reconstruction of its older sections, is usually the expense of acquiring the necessary land. This difficulty may arise because the cost of the land is excessive, due to bad methods of acquisition, or because the cost of land acquirement is unfairly distributed. Either or both of these conditions will place an excessive burden on the tax payers. If this cost must be borne wholly or mainly by the tax payers at large while a few land owners absorb a wholly disproportionate share of the financial benefit from the improvements, there will result a strong popular sentiment against such improvements, and a city government that is at all responsive will refuse to undertake them, even though the city as a whole may suffer for lack of them in the long run.

We are considering here only well conceived plans, the execution of which will be a real advantage to the community as a whole if the initial difficulties of financing them can be overcome. The execution of any plan which would result in a net damage or loss to a community can not properly be called an improvement. A real improvement is an investment on which the return to the community may be immediate or may be deferred.

The financial problem in acquiring land for any contemplated improvement is, therefore, in the first place, to avoid excessive cost, and in the second place, to distribute the cost in an equitable manner. To determine whether the city is paying an excessive price for land, a careful consideration of the details in condemnation procedure is essential.

PROCEDURE IN THE CONDEMNATION OF LAND

The extraordinary right of the community to take private land even against the will of the owner necessitates extraordinary protection to the individual. This protection is written into every state constitution excepting that of North Carolina, and the clause is interpreted, not as a declaration of the power of eminent domain, which is inherent in sovereignty, but as a limitation on that power. This protection is further guaranteed to the citizens of every state by the Fourteenth Amendment of the Federal Constitution. Private property can be taken for a public purpose only after “due legal process” and the payment of compensation, but the guarantee of the Federal Constitution does not compel uniformity in the provisions of all states. “Due legal process” in condemnation proceedings is satisfied by a great variety of statutory requirements, the only essential being that they shall contain provisions for determining compensation, for giving proper notice, and for hearing remonstrants. On the methods of determining these three essentials depend the simplicity and economy of condemnation procedure.

Most states give the further right to the land owner at some stage of the proceedings of having his compensation ascertained by a common law jury. In the absence of specific language to that effect it is generally held that the owner has no right to a jury in land damage cases, since at common law before 1787, in both England and America, compensation in such cases was ascertained by other tribunals without the right of appeal to a jury of twelve. Constitutions giving in general terms a right of trial by jury are interpreted to refer only to such cases as were tried by jury at the common law. Many states, however, have granted jury trials in eminent domain cases by statute, while other states have construed clauses of their constitutions as applicable to eminent domain proceedings and have allowed a jury trial.

The method of ascertaining the compensation is the first consideration of a municipality endeavoring to reduce the cost of taking land for public purposes, but the other elements of “due legal process” are responsible for much of the delay in condemnation procedure and may affect considerably the amount of compensation. Every hearing requires either a notice to property owners or legal service in hand, by mail, or by publication. After every hearing, time must be allowed for protest and appeals and the report of every hearing must be published. As the hearings grow more numerous the expense of advertising becomes a large item, and every addition to the length or complexity of the procedure involves an increase of counsel and witness fees or other legal expenses. Consequently, the elimination of any one of the steps in condemnation procedure has an important bearing on the question of reducing the size of the city’s investment. We may best consider the provisions for notice and hearing together.

PROVISIONS FOR NOTICE AND HEARING

After authority has been given by the proper administrative body, the steps in condemning land for public use are notoriously many before the city can take possession of the land. Property owners are given not one day in court for the protection of their rights, but many days.

1. INITIAL PROCEEDINGS

Milwaukee. After the city council passes an ordinance authorizing the taking of land by eminent domain, there must be first, a finding by a jury of 12 that the taking is necessary for public use; second, a hearing before the board of public works on the question of damages; and third, there may be an appeal from this hearing to a jury which reviews the entire evidence. The following docket entries were made in a normal street opening case:

Thus, in a typical Milwaukee street opening almost a year elapses before the point of beginning to ascertain compensation is reached.

Los Angeles.[12] The city council passes an ordinance of intent to take private property by eminent domain and sets out the purpose for which the land is to be taken. The ordinance is published and thirty days are given for protest, either against the taking or against the district which has been marked out as benefited by the improvement. A protest against the improvement from the owners of a majority of the frontage of property proposed to be taken or damaged puts an end to the proceedings, and the improvement can not be initiated again for at least six months except on petition by the owners of a majority of the frontage. Not until the protests have been disposed of can the city council proceed to pass an ordinance authorizing the filing in court of a petition for condemnation. Sixty days from the time of the passing of the ordinance are allowed for filing the petition, and the details required in the petition are such that even this time usually has to be extended. It is impossible for the city to acquire land in less than a year.

Minneapolis.[13] The first hearing on the question of damages under the park procedure in Minneapolis is held before five appraisers appointed by the park commissioners. The second hearing is before the park commission. At the second hearing the park commissioners consider objections to the appraisers’ report on the ground either of irregularity in the proceedings or of inadequacy of the award of damages. The third hearing is before the court on the question of irregularity of the proceedings. The fourth hearing is before three appraisers appointed by the court to review the evidence and bring in a report on the question of damages. If this appraisal is unsatisfactory there may be even a fifth hearing before three new appraisers, but in the practice of the present counsel for the board of park commissioners, which has extended over several years, there has been only one instance of the court’s granting this fifth hearing.

St. Louis. In St. Louis there is a curious anomaly making for delay. Ordinarily the findings of the eminent domain commission are taken up on appeal to a justice sitting without a jury, but a corporation is allowed to appeal to a common law jury on the question of damages although not on the question of benefit. It is not infrequent for the appeal of a single corporation to result in a jury’s overthrowing the finding of the eminent domain commission in respect to one item, in which case all the work of the commission goes for nothing. A new commission must be appointed and the evidence must be entirely reviewed. A corporation has the same right in Kansas City but, by statute,[14] it must exercise that right before the eminent domain commissioners report, and if it elects to have its damages assessed by a jury the commissioners have no jurisdiction over that part of the case, but accept the finding of the jury and incorporate it in their own report.

Denver. In Denver, where in other details the condemnation procedure is satisfactory, there is much time wasted over the formality of notice and hearing. After the passing of the ordinance and the formal negotiation by the mayor for the purchase, a petition is brought in the district court. Two months, at least, are required for service on residents, and a month more for publication on absent defendants. The hearing is then begun before the commissioners, who are allowed thirty days to report, but this time can be extended. Thirty days are allowed for the publication of the report and thirty days more for the filing of petitions by parties interested. These petitions are usually tried out by a common law jury, but may be heard by a jury of six. It is impossible for the city to get possession of land inside of a year and, where many property owners are involved, much more time is required.

Chicago. In Chicago, where land for streets is commonly dedicated without expense to the city, the only considerable taking for street purposes in the past fifteen years was in connection with the widening of Randolph Street. The docket entries show that the ordinance was passed March 16, 1903, and the petition filed in court in June of the same year. The commission was appointed in July, 1903, and finished its work in September, but the time allowed for petitions and the actual trying of these petitions by jury so delayed the proceedings that an order of possession was not issued to the city until June, 1906.[15]

Oregon. In contrast with the cumbersome methods illustrated above, the state code of Oregon shows the possibilities of a more direct method of condemnation procedure.[16] Without preliminary notice or hearing a petition is filed in court and issues may be joined within fifteen days before a common law jury, and even in cases of non-resident owners the interval between the filing of petition and the trial before the jury is not over two months. The city may come into possession of the land within two months after filing the petition, unless the court docket is crowded. Delays are occasioned chiefly because of insufficient judges.

2. APPEALS TO HIGHER COURT

Even after the award of damages is finally determined by a court sitting with or without jury, a hearing on appeal is allowed on questions of law in condemnation cases as in any other civil case. Such appeals are relatively infrequent, because the determination by the legislature that a proposed taking is for a public use is held not appealable, and because a finding of fact by the lower court on the question of damages will not be disturbed unless there is evidence of gross error or fraud. The questions that go up to the supreme court usually are:

1. Is the statutory provision under which property is condemned constitutional?

2. What is the legal meaning of the language of the statute?

3. Have the municipal authorities strictly complied with the details of the procedure as outlined by the statute?

4. Is the rule of damages as announced in the lower court inequitable either to the city or to the land owner?

The additional expense of appeals to a court of last resort can not be avoided; but possession of land by the city should not wait on the outcome of this appeal, particularly where the only question in issue is the amount of damages. It is the law of most jurisdictions that ownership of the land passes to the city on the payment of the final judgment in the lower court.

THE TRIBUNAL

1. A SPECIAL BOARD SUBJECT TO REVIEW BY THE COURT WITH JURY

A common law jury is apt to lack the knowledge of real estate values and the experience in handling technical evidence which are important in the tribunal which is to ascertain the compensation in land damage cases, and therefore most condemnation codes provide a special tribunal. Some of the codes also see the necessity of a tribunal as far removed as possible from the influence of the parties to the suit and provide for its non-partisan appointment, usually by the court which has jurisdiction over the proceedings. There is a wide difference in the character of these judicial commissions in different cities and even in successive commissions in the same city.

Denver. In the opinion of the city attorney’s office, Denver gets excellent commissioners, or appraisers as they are called. The procedure is a semi-judicial one from the start. The petition is filed in the district court and three appraisers are appointed by the presiding justice, who endeavors to get men of the highest qualifications for this work. The bill which is submitted by the appraisers for their services is usually allowed without much question. On the average, only 15 per cent of the findings of the appraisers are appealed from. A commission was appointed in 1911 to ascertain damages in connection with the extension of the Denver park system. Property for this purpose was taken to the amount of $2,523,463, as estimated by the report of the appraisers. Of this sum $1,814,539 was paid for land taken for the site of the civic center. Considering the size of the undertaking there were very few protesting owners, and these were for the most part owners of property involved in the taking for the civic center. Out of 50 owners only 18, representing $527,428, protested against the awards, and one of these alone represented $265,000. The common law jury which heard the first protest found against the petitioners, and all the rest of the protesting owners withdrew their appeals.[17]

St. Louis. The same procedure as in Denver is followed in St. Louis, the three commissioners being appointed by the judge of the circuit court presiding over the case. A majority of the commissioners has full power to act and make a report. Unlike the practice in Denver, the compensation is fixed at $3.00 a day. It is not to be expected that excellent men will be attracted by such low pay, and perhaps for this reason some of the commissioners have not given satisfaction. It is reported to be not an unusual thing in cases involving less than $1,000 for the commission to take six months in reaching a decision and then to have its finding overturned on review. On the other hand, there have been notably good commissioners in cases involving heavy damages. The commissioners who sat in connection with the condemnation of the site of the municipal courts building took two days to reach a decision, although the property of 400 defendants was taken and over $1,000,000 in damages was paid. Appeals from the commissioners’ findings may be taken to a common law jury only by a corporation land owner—an anomaly in procedure which we have already noticed.[18]

Philadelphia. The municipalities of Pennsylvania in takings for street purposes replace the commission, which may be regarded as somewhat expert in the knowledge of real estate values, by a so-called “road jury” of three appointed by the judge of the court where the petition is filed. Philadelphia, with a population of 2,000,000, and the hill towns of a few hundred inhabitants, have the same procedure.

The awards of road juries are, in the opinion of the city solicitor’s office, on the whole satisfactory. Excessive awards to land owners are appealed from by the city, and in a large per cent of these appeals land owners, to avoid the danger of litigation, remit some portion of the award. The following shows the total amount of awards and total remitted in Philadelphia in 1906, 1907, and 1908.

The appeal from the awards of road juries is heard by a common law jury in the superior court and results, in a considerable number of cases, in a substantial increase over the award. The report of the city law department in 1906 shows that there were 76 cases heard by a road jury in 41 of which appeals were taken. In this same year awards in 130 cases heard in the superior court were increased from $132,054, as fixed by the road jury, to $225,758. In nine cases the amount of the award remained the same and in one there was a decrease of $2,256. The reports of the law department of 1907, 1908, and 1909 do not give the whole number of cases appealed from the road jury, but in the 23 appealed cases heard in the superior court for 1907 there were increases in awards in 17 cases from $49,169 to $91,551; in the 22 appealed cases heard in the superior court for 1908 there were increases in awards in 20 cases from $61,550 to $85,877; in 1909 out of 19 cases there were increases in awards in 14 cases from $119,650 to $153,907.

It is significant that in a considerable number of the cases appealed from a road jury the evidence is heard by a referee, particularly where a large sum is in dispute, and the common law jury acts on his report. Almost half the appealed cases of 1906 were sent to a referee.

Portland, Oregon. In taking land for street purposes Portland does not use the state code, the advantages of which were described on page 30, but follows the provisions of the city charter,[19] which prescribe a procedure much like that in Philadelphia. Its three “viewers” correspond to the Philadelphia “road jury,” except that they are not appointed by the court but by a committee of the common council and usually for political reasons. The result is that a body of professional viewers has developed who are peculiarly open to the charge that their findings may be influenced by the political strength of the parties to the proceeding. The report of the viewers goes to the city council which usually adopts it as the easiest course to pursue. At any time within twenty days from the confirmation of the report of the viewers by the council, an appeal may be made to the court sitting with jury, the only questions open to appeal being the amount of damages and, where assessments for benefit are also made, the amount of the assessment. Since any number of persons may join in the appeal the proceeding is so complicated that the jury is ordinarily glad to confirm the report as a whole and avoid the rather difficult task of revising it. Two out of three recent cases had that result.

There are two types of commission which for convenience will be placed in this group, though they differ essentially from the Denver and St. Louis commissions. The first is illustrated by the street commissioners in Boston, or the board of public works in Milwaukee; the second, by the Chicago commission specially appointed under the local improvement act. Like judicially appointed commissions, those of Boston and Milwaukee conduct hearings, but unlike judicially appointed commissions they sit as arbiters in a case in which they, as representing the city in the capacity of administrative bodies, are interested parties.

Boston. In proceedings for the condemnation of land needed for streets, and for school houses and other public buildings in Boston, awards of damages are made by the street commissioners after public hearing. The street commissioners are elected for three years and receive a fixed salary. There may be much or little significance in the fact that appeals are frequent from the awards of this elected commission which is apt to be regarded as closely allied with the city administration. Before the jury the city undoubtedly is handicapped by the fact that the awards of damages have been made by a department of the city administration sitting as a tribunal in a cause in which the city is an interested party. The number of appeals from the findings of the Boston street commission compares very unfavorably with those from the St. Louis and Denver judicially appointed commissions, or even with the Indianapolis park commission, a board which, like the Boston street commission, is a department of the city administration. The different result in Indianapolis may be due altogether to the strong demand for the completion of the park system and to the conviction in the minds of land owners that parks create land values; but contributing factors to this result are doubtless, first, the strictly non-partisan character of the Indianapolis commission, which serves without compensation, and its reputation for fair dealing; second, the elimination of the jury in cases appealed from the park commission; and third, the assessment of the cost of land taking on the property specially benefited, which compels the interest of the land owner “specially benefited” in every verdict for land damages and makes appeals to increase verdicts extremely unpopular.

Data in 35 proceedings for street openings, widenings, and relocations in Boston, taken at random from the records of the last fifteen years, show that in 31 cases the awards of the street commissioners were not accepted by the owners. In 28 of these cases there were 1,065 parties to the proceedings, of whom 462 refused to accept awards. Approximately 175 of these claims for additional compensation were settled by the street commissioners, 287 were entered in court and either tried by jury or settled by the law department. Thus 26 per cent of all owners interested in the proceedings appealed to a common law jury and a considerable portion of these appeals were actually tried. Complete figures were obtained from the records of the street commissioners in 12 proceedings and are given in the following table:

TABLE 2.—DAMAGES AWARDED, PARTIES INVOLVED, CLAIMS FOR INCREASE, AND CLAIMS COMPROMISED OR SETTLED, IN 12 PROCEEDINGS FOR STREET IMPROVEMENTS. BOSTON, 1895 TO 1913

Milwaukee. Although in Milwaukee the board of public works is the tribunal before which evidence is presented on the question of damages on account of the taking of property for public purposes, a finding that a taking proposed is necessary and that the purpose is a public one must be made by a jury of twelve men before the case gets to the board of public works. From the awards of the board of public works appeal is allowed to a common law jury, but in the last eight years every appeal has been settled before the case reached trial. It may be said in this connection that there have been no very extensive takings for either street or park purposes.

Chicago. The second type of commission is provided for in the procedure for street improvements in Chicago. Like the Denver and St. Louis commissions, it is judicially appointed but is more in the nature of a board of advisory experts to the jury, since its report is made without a hearing and on the basis of its own appraisal of valuations. The court frequently follows the suggestion of the city attorney in making the appointments to this commission. The report of the commission is filed in court, summonses are immediately issued to all persons whose land is damaged or taken, and the trial proceeds before a common law jury. There have been so few cases of takings for street openings, widenings, and extensions in Chicago that the data are insufficient to form the basis for an opinion as to the merit of the Chicago method of ascertaining compensation. The only proceeding that has involved considerable land taking within the past twenty years was the widening of Randolph Street, in which case the work of the commission was on the whole well done, if judged by the result of the review by the court. Many owners were concerned in that proceeding, but the finding of the commissioners as to compensation for land taken or damaged was increased only from $314,000 to $367,000, and the finding of the commissioners that there “was no public benefit” and that, therefore, the total expense of the improvement should be assessed on private owners was not altered on appeal. For their services in this case, the commissioners received $1,000 each.

2. A COURT WITH JURY HAVING ORIGINAL JURISDICTION

Although an appointed commission is more likely to consider intelligently the evidence and to come to a fairer conclusion than if the proceedings are brought directly before a jury, this advantage may be more than offset and the preliminary hearing be a waste of time if the commission’s findings are overturned by an inexperienced jury of twelve men. It is therefore not surprising to find in several jurisdictions where the right to a jury is granted in eminent domain cases that the expense of a first hearing before a commission is entirely eliminated. This is so in the state codes of Louisiana, Ohio, Washington, and California. In the city of Chicago for some public purposes, and in Portland, Oregon, for all public purposes except street openings, widenings, and extensions, the same procedure is followed.

Cleveland. In Ohio, the procedure in appropriating land for all public purposes is regulated by the state law.[20] When an ordinance authorizing the appropriation of land is passed by a two-thirds vote of the common council of any city, the city solicitor makes application to the court of common pleas, to a judge in vacation, to the probate court, or to the insolvency court, for the appointment of a jury to award compensation, giving five days’ notice of such application to the owners of property affected by the ordinance. The judge applied to sets a time for the hearing of evidence by the jury and the trial proceeds as in other civil actions. Appeal lies from the finding of the jury, but the right to take and use the property condemned is not affected by the appeal. Upon payment of the judgment or upon depositing the money in court, a fee simple vests in the city unless a lesser estate is asked for in the ordinance of appropriation.

In Cleveland, when the state insolvency court was legislated out of existence by operation of the federal bankruptcy law, that court took over jurisdiction in juvenile and condemnation cases. The docket of the court is not overcrowded and a speedy trial is assured in every case. So rarely have the offers made by the city been exceeded by the jury’s findings that owners have learned the economy of accepting the city’s offer in the first instance and avoiding the delay and expense incident to litigation. The result is that less than one-tenth of the land needed for public purposes is acquired by condemnation procedure.

Chicago. Chicago gets practically all of its sites for school houses by condemnation. The offer of the school board to purchase land desired is hardly more than formal, and on its rejection the petition for condemning the land is brought immediately in court and evidence of the value of the site is presented directly to the jury. This method has been in use for some years and counsel for the board, who has served during the history of this method of procedure, is convinced that the city is in substantially as advantageous a position as a private buyer. During the past five years (1907-1912), with an average of at least 20 cases a year, the jury has, with practically no exception, accepted the valuation of the site as fixed by the law department of the school board. Settlements with property owners have consequently been much more common. Ten years ago 90 per cent of the cases involving condemnation for school purposes in Chicago were tried through to a verdict. Today more than 90 per cent are settled and subsequent proceedings are merely formal, to perfect the title.

San Francisco.[21] In San Francisco, too, the procedure is begun by filing a complaint and issuing summonses thereon in the superior court. If the owners affected by the process do not demand a trial by jury it is waived and three appraisers are appointed by the court to ascertain the compensation. In practice, however, more than 80 per cent of the land needed in San Francisco for public purposes is acquired directly by deed from the owners without resort to condemnation procedure.

3. A COURT WITHOUT JURY HAVING ORIGINAL OR APPELLATE JURISDICTION

New York.[22] When the board of estimate and apportionment of New York City authorizes the taking of land for street or park purposes, application is made to the supreme court for the appointment of three commissioners of estimate and assessment, to determine the compensation to owners and to assess as damages the cost of the proposed improvement, or such a proportion thereof as the board of estimate and apportionment directs, on lands deemed specially benefited. After hearing evidence an abstract of the report of the three commissioners or of a majority of them is filed in court at least thirty days before being presented formally to the court for confirmation, in order that petitions in writing against the confirmation of the report may be filed. The court gives a public hearing to remonstrants who have filed their written objections, and confirms or modifies the report, or in some cases sends it back to a new commission. The commissioners are directed by the statute to complete their work within six months unless granted an extension by the court for good cause. Their compensation is $10 a day.

This procedure was long regarded as unsatisfactory. In 1911 it was characterized by the New York press as “inordinately expensive,” because of the financial interest of the commissioners in protracting the proceedings; “generally inefficient,” because of the many incompetent commissioners selected for political reasons; and open to “flagrant abuse,” because the commissioners thus selected were likely to favor property owners who had political influence. By the adoption of a constitutional amendment at the general election November 4, 1913, the legislature is permitted to pass an act which will give to a justice of the supreme court the power to dispose of all matters concerning condemnation formerly in the hands of the commissioners of estimate and assessment.[23] In the opinion of the corporation counsel, Archibald R. Watson, “A justice of the supreme court with undivided responsibility, with no interest to prolong the proceedings, not susceptible to influence and generally of high grade character and capacity, should be able to dispose of condemnation matters with results far preferable than by means of commissioners.”

Minneapolis. We have already described the procedure in appropriating lands for park purposes in Minneapolis up to the time of the confirmation of the awards by the district court.[24] The results are on the whole quite satisfactory. The appraisers are usually competent men and, although appeals are taken from their awards as confirmed by the board of park commissioners to the district court sitting without jury, the percentage of such appeals is not large, not more than 15 per cent in any proceeding, and the increase in awards on appeal is often merely nominal and rarely more than 20 per cent. There seems, however, little justification for two preliminary hearings, one before the appraisers and one before the park commissioners, on the question of land awards. The appraisal could as well be done by the park commissioners through the agency of a competent clerical force, as in Indianapolis, and the expense of appraisals and reappraisals would be avoided.

Kansas City. In Kansas City, Missouri, the petition for taking land for street purposes is brought in the municipal court which sits with a jury of six appointed by the presiding justice.[25] The verdict of the jury is confirmed by the common council of the city and appeals are allowed to the circuit court. In practice not more than 25 per cent of such actions are appealed from the municipal court. In the newer procedure for the taking of land for park purposes a saving of both time and expense, by eliminating the preliminary trial in the municipal court, is brought about by allowing the petition to be filed directly in the circuit court.[26] As in St. Louis, a corporation is allowed a hearing on the question of damages for land taken before a common law jury, but in Kansas City corporations do not demand common law juries. When the procedure was new, a corporation tried the experiment and the result was so disastrous that it is said never to have been attempted since. Presiding justices both in the municipal and circuit courts take care to appoint competent men. That satisfactory jurors can be obtained for $2.50 a day, which is the compensation allowed, is ample evidence that jury service in these cases is regarded as a civic duty and not as a desirable “job.”

Indianapolis. In Indianapolis the board of public works in takings for street purposes, and the board of park commissioners in takings for park purposes, have the same duties which in Kansas City are performed by a jury of six men. All objections to the taking, awards for damages, and the size of the specially benefited area as marked out by the commissioners, are disposed of in one hearing.[27] From the findings of the commissioners appeal lies directly to the circuit or superior court sitting without jury, and the amount of the judgment as found on appeal is final. The businesslike practice which has been adopted by the park commission under the act of 1909, appeals to the sense of fairness of the property owner and has proved most helpful in arriving at awards. In every taking the park board has the assistance of real estate experts as an advisory committee, and is kept in close touch with valuations by a complete card catalogue system which registers the actual consideration in transfers of property.

Although the act is only three years old, there has been at least one considerable taking in each park district. In the North Park there have been two, one involving an expense of $154,420 and the other $131,662. In all the takings for park purposes under the new act involving over $600,000 worth of property and several thousand owners, there have been only four appeals from the findings of the board, two of which have been decided by the superior court. In one an award of $10,000 was increased to $17,000 and in the other an award of $6,925 was increased to $9,800. In one proceeding alone there were 1,600 owners involved and only 50 were present at the hearing given remonstrants.[28]

CONCLUSIONS

The New York constitutional amendment provides the simplest method of ascertaining compensation. Owners of land are given one day in court in which all questions concerning the regularity of procedure and the amount of compensation are determined. There is in such a procedure the least chance for waste of time or money in preliminary hearings, and all the responsibility for decisions is put on the justice who presides in the case. But no judicial decision has sufficiently tested whether the land owner’s rights are properly safeguarded. The procedure in Indianapolis has had the advantage of a thorough testing. Its results are satisfactory enough both to the city and to the land owner to recommend its adoption in any jurisdiction contemplating a change in procedure. But where a common law jury is prescribed by the constitution the adoption of the Indianapolis procedure in its entirety would not be possible without a constitutional amendment. No comment is necessary to emphasize the difficulty of passing such an amendment, and there is considerable question whether it would be necessary or expedient in the light of experience in Chicago and Cleveland where the awards of common law juries have been fair both to the municipality and to property owners.

The worst that can be said of the jury in condemnation cases is that in some jurisdictions it has a lively prejudice against the city as a petitioner in eminent domain cases. The opinion is also generally held by those who have had experience in the presentation of evidence to a jury that the usual uncertainty in a jury’s findings in any civil case is only increased by the technical nature of the evidence presented in condemnation cases. The jury is asked to estimate land values without having had any previous experience. It must depend entirely on its view of the premises and on the opinion of real estate experts for its decision. About all a fairminded jury can do in such cases beyond striking a mechanical average of the widely divergent expert testimony is to discount the several claims in proportion to the impression made upon the jury by the individual experts,—and the jury is asked to measure the relative elasticity of conscience of experts after a too meager character study.

Where condemnation cases must continue to be tried before a jury, the important question in revising methods of procedure is whether there is any advantage in a preliminary hearing, either before a permanent board or before a board specially appointed for each case. From the data which we have just reviewed it is obvious that however excellent the preliminary tribunal, it results in increased cost and delay in those cases where its findings are not accepted by the land owners. But it is just as clear, first, that before a preliminary tribunal well constituted and acting under favorable conditions, the procedure is simpler and less expensive; second, that appeals from its findings are few; and third, that not infrequently its awards are sustained on appeal. Thus the preliminary hearing at its best has the positive merit of being the means in a great majority of cases of a large saving in time and expense, and, even in cases that are appealed, of influencing the jury’s verdict. In jurisdictions where preliminary boards are unsatisfactory, changes in method of appointment or in minor details should be tried before the principle of a preliminary hearing is condemned. If the tribunal has a political bias or is too closely affiliated with either of the parties to the proceeding, it should be replaced by a strictly non-partisan tribunal appointed by the court. A tribunal of permanent tenure is likely to handle cases with more dispatch, because of longer experience, than one appointed for each case. A properly paid tribunal is a surer guarantee of competent service than one paid an entirely inadequate sum or one induced to prolong its deliberations by a per diem compensation.

Whatever reason may justify the continuance of commissioners in eminent domain cases is not applicable to procedure in Philadelphia and other cities and towns of Pennsylvania and in Portland, Oregon. There seems to be no good reason for allowing damages to be ascertained in the first instance by a jury indifferently qualified to pass upon the evidence and then to have the same evidence reviewed by a larger jury that is if anything less qualified to reach a fair verdict.

Even where it can be shown that awards of commissions of acknowledged excellence are generally appealed from and are increased by a jury on appeal, the reform that is needed is likely to be more fundamental than the abolition of the commission. A very large factor in determining the attitude both of the general tax payer and of the owner of land, and consequently in determining the number of appeals from a commission’s findings and the advantage or disadvantage of the city’s position before a common law jury, is the method of distributing the cost of an improvement. A summary of these methods in several jurisdictions should, therefore, indicate ways and means to reduce the initial investment of capital in the land required for an improvement, the problem which has just been considered, as well as the way of providing capital, which will be discussed in the next chapter.