Carrying out the city plan

Excess condemnation, or the taking by a public agency under the power of eminent domain of more land and property than are needed for the actual construction of a contemplated public improvement with a view to selling the excess at such increase of value as may result from the improvement, offers, as suggested in the last chapter, a method of relieving the burden of the tax payers at large, and it is this feature that is likely to be emphasized in any discussion of the merits of the excess condemnation principle; but, entirely apart from its financial aspect, it has an importance in the execution of plans which is too little considered. We have seen in the first chapter that a serious obstacle to the realization of plans for improvement is the universal constitutional limitation on the power of eminent domain through the provision that land can not be taken unless it is “necessary for the public use.” The usual narrow construction of this phrase allows a public agency to take only the land or rights in land required for the actual use of the public. When a comprehensive plan of reconstruction involves the widening of a built-up street or the opening of a new street cutting through improved property, the municipality is allowed to take just enough land for the actual construction of the street irrespective of the size or shape of the lots left on either side of the improvement.

The disadvantage to the municipality is both physical and financial. The land owner receives as compensation both the value of land actually taken and the damage to his remaining land, and consequently often gets as much for a part of his lot as he would for the whole of it. Even where special assessment laws work effectively it is often impossible to show ground for such an assessment against a remnant that is distinctly inferior to the customary marketable lot in size or shape. In the absence of any effective control over remnants left by the construction of the improvement, the new highway is likely to be bordered by ugly vacant lots of irregular shape and size which are totally unsuited for use and likely to remain vacant until they can be brought under the same ownership with parts of adjacent lands so as to provide adequate building lots. One of the most marked instances of this was in the widening of Delancey Street to make a proper approach for the Williamsburg Bridge in New York City, where lots were left in some cases less than 10 feet deep. The plan for the establishment of a new traffic thoroughfare between the north and south terminal stations in Boston shows remnants, the entire length amounting to 48,274 feet, absolutely unsuited for independent development.

In so far as remnants are unsuited for proper development a use of them is induced which robs an improvement of much of its effectiveness. Financially the city loses because the sort of development which will increase assessed valuations is prevented. Esthetically the city suffers because it can not protect its streets, its parks, and boulevards by an effective control over the abutting land, and its show places are disfigured by a use of this land not in keeping with the character of the surroundings. It is for this reason that cities have been forced to see approaches to public buildings lined with ill-assorted structures, and park areas surrounded by unsightly dumps and bill-boards. The net benefit to the city of a given expenditure for park purposes may easily be reduced by these means to a small fraction of what was reasonably expected when the investment was made. To overcome these disadvantages and to secure the maximum of benefit from an improvement appears to be the primary aim of excess condemnation legislation in the United States.

It will clear the way for a discussion of the subject to point out the nearest substitute for the excess condemnation method which is ordinarily available in America today. The absorption by the public of the increase of property values directly resulting from an improvement made at public expense, at least up to an amount equal to the cost of the improvement, may be more or less successfully accomplished by special assessments as set forth in Chapter III. The control over property adjacent to a public improvement just in so far as that control is needed to enable the public to get the full use and enjoyment of the public property, may be obtained without acquiring title by the purchase or condemnation of easements. The combination of the two is believed by the more conservative thinkers on the subject to afford all the power that is necessary without the dangers of excess condemnation.

THE HISTORY OF EXCESS CONDEMNATION IN THE UNITED STATES

The Massachusetts legislature of 1903[86] provided for an examination and report upon legislation needed to enable a city, town, or state commission to take in fee, to purchase, or otherwise to acquire for public purposes and in connection with any public work all or any part of the land within certain defined limits, and after appropriating as much of the land as necessary to sell or lease the remainder. The commission subsequently appointed by the governor did a thoroughgoing piece of work and their conclusions, embodied in two reports to the legislature of 1904, both now out of print, contained very valuable contributions on a subject on which there is scant literature.[87]

The commission found no precedent and little of value on the subject of excess condemnation in this country, and in the cities of Europe they found the principle applied in two very different ways. In France, according to the letter of the law, only remnants of such size and shape as to be unsuited to the erection of buildings could be taken in addition to the land actually needed for the construction of the improvement. In England, Belgium, Switzerland, and Italy, municipalities were allowed to take all the property within certain bounds in the neighborhood of a proposed work, to use what was necessary, and to dispose of the remainder by sale or lease. In the bill which was submitted by the Massachusetts commission, the French method was adopted as sufficiently broad to carry out the purposes of the municipality and as being more fair than the other method cited to the property owner whose land would be taken. The draft of the bill was passed with modifications by the Massachusetts legislature of 1904 and is known as the “Remnant Act,” the principle of which is contained in the following clauses:

In Ohio[91] and Maryland[92] the principle is incorporated in legislation for the protection of parks, parkways, and approaches to public buildings and, as far as the language of the acts indicates, excess taking can be made only for these specific purposes. The Virginia Assembly of 1906 passed an act[93] giving the power to condemn and take more land than is necessary “when the use of the land proposed to be taken would impair the beauty, usefulness, or efficiency of the parks, plats, or public property, or which by the peculiar topography would impair the convenient use of a street or render impracticable without extra expense the improvement of the same.”

The nearest approach to the European idea of excess condemnation is found in the acts of Connecticut, 1907.[94] The language of this clause puts no limit on the amount of land which can be taken. Unless the courts establish such a limit a broad power is given. The city is allowed, in fact, to embark on a real estate speculation. By No. 315 of the acts of Pennsylvania, 1907, cities are allowed to acquire by appropriation private property within 200 feet of the boundary of parks, parkways, and playgrounds. This act also allows the resale of surplus land with restrictions in the deed.

The Massachusetts act is the only one directed specifically to the acquisition of remnants which are made practically unsalable because of the taking for public use, but only on this ground is it to be distinguished from the other legislation above cited. In all this legislation the purpose is to provide a more effective method of accomplishing an improvement. A primary purpose in every case is either to lay out or widen a public street or to acquire or protect parks, parkways, or approaches to public buildings. All of these purposes are without question public, and the taking of excess land is but an incident to an acknowledged public purpose; namely, to insure a more useful wide street or a more attractive parkway. There is no suggestion either directly or by inference in any of this legislation that the excess taking is anything more than an incident to a public purpose and a means of securing the more perfect and successful realization of that purpose.

THE CONSTITUTIONALITY OF EXCESS TAKING

The Pennsylvania act is the only one which has been tested by judicial decision.

In July, 1912, the City Council of Philadelphia authorized the taking of excess land under the legislation of 1907, in connection with the proposed parkway from City Hall to Fairmount Park. The question of the constitutionality of the act was squarely raised and the lower court decided in favor of its validity, but this decision was reversed by the supreme court of the state.[95]

That the “remnant act” of Massachusetts would be declared constitutional is suggested in the answer of the Massachusetts supreme court to a question of the legislature in 1910. The question arose out of the necessity for a traffic thoroughfare between the north and south terminal stations in Boston. It appeared to the legislature impossible to construct a direct thoroughfare between these stations, unless a power of eminent domain were given which would allow the acquirement and reallotment of the land adjacent to the thoroughfare in lots suitable for mercantile buildings. As presented to the court the question was as follows:

The supreme court interpreted the question briefly as meaning “Can land be taken with a view to its subsequent use by private individuals?” and its holding is that where the purpose of excess taking is primarily the creation of lots suitable for use of private individuals, such a taking is clearly unconstitutional. The court seems to make a distinction near the end of the opinion between cases where the excess taking is merely incidental to the main purpose, and cites the remnant act as such an example. We have therefore the suggestion that the remnant act might be found to be a constitutional exercise of power. The suggestion is of course of no value as a precedent, but is helpful as showing the sentiment of the justices of the supreme court of Massachusetts.

The doubtful constitutionality of the acts containing the excess-taking principle and the dissatisfaction with the limitation on the exercise of the power of eminent domain, have resulted in the effort to modify the limitation on the powers as now contained in state constitutions by constitutional amendment. Both the Massachusetts and New York legislatures have passed such amendments, which were submitted to the people of both states in the fall of 1911.[97] The New York amendment was defeated[98] but it is valuable for purposes of comparison. The Massachusetts amendment was passed by a large vote, and at the legislative session of 1912 a special act gave the city of Worcester the right to take excess land for a street widening.[99] The people of Wisconsin and Ohio in 1912 adopted amendments containing similar wide powers[100] of excess condemnation.

The New York amendment provided that when private property was taken for public use by a municipal corporation “additional adjoining and neighboring property may be taken under conditions to be prescribed by the legislature by general laws; property thus taken shall be deemed to be taken for a public use.”

From the viewpoint of the believer in excess taking as an easy means of correcting a defective street system and as the handmaiden of reconstruction, the amendment offered in 1911 which was not accepted by the people of New York was ideally phrased. Any excess taking which the legislature saw fit to authorize was made constitutional, whether that taking was a mere incident to a better realization of a public purpose or whether it was primarily a speculation to recoup the city’s investment in reconstruction. It is not an answer to the extreme radicalism of the amendment to say that the legislature would probably hedge the power of excess taking with limitations. Radical legislation even in New York is not impossible, and a most radical act of a radical legislature would have had the stamp of constitutionality placed upon it by this amendment if the people had accepted it.

The Massachusetts amendment, on the other hand, limits both the application of the principle and the extent of the excess taking. It applies only to the “laying out, widening or relocating of highways” and the amount of land in excess which may be taken is “not more in extent than would be sufficient for suitable building lots on both sides of such highway or street.” The amendment leaves open for dispute the question of what shall be “a suitable building lot,” but this can best be defined by special act when the peculiar needs of each improvement are considered.

The Wisconsin amendment makes constitutional an excess taking of neighboring property for streets, squares, public parks, parkways, civic centers, and playgrounds and their surroundings, and after the improvement surplus land may be conveyed with restrictions to protect the improvement.

Before these amendments to the constitution were proposed, court decisions were frequent that it was the province of the legislature to determine whether a proposed taking was necessary for the public use. When once the legislature had so determined, only in case of a manifest injustice or where the legislature had obviously overstepped the bounds of the constitution would the supreme court interfere with the legislative action. The amendments take away the limitation set in the state constitution and therefore leave no constitutional question for the state judicial tribunal to determine. Whether the federal courts would take jurisdiction of such a case from the state court on the ground that property is taken without due process of law in violation of the fourteenth amendment, is still undetermined.

THE EXPEDIENCY OF ADOPTING IN THE UNITED STATES THE EXCESS CONDEMNATION PRINCIPLE

We are not here considering the value of excess taking where the sole or even primary purpose is to recoup the municipality’s investment in a public improvement. Such a use of the power would probably not pass the constitutional test, would be too open to abuse, and would tend to draw municipalities into such large speculative holdings of real estate as might easily overstrain their credit. But in the cases where excess taking is made primarily to secure the greatest physical benefit from the improvement, the community is able incidentally to reap a portion of the increase in values caused by the investment of the community’s money through the sale of such land as is not actually needed for the improvement. This method of distributing the cost of an improvement is supposed to produce a larger financial return to the city than the special assessment method, and at the same time to avoid the expense of litigating with property owners the question of benefit.

1. FINANCIAL VALUE OF EXCESS CONDEMNATION

In cities where special assessments to cover a large portion of the cost of acquiring land are levied and collected, and the tax payers are not restive, there is little enthusiasm over the European method of financing reconstruction. But cities in which special assessments are ineffective or non-existent, as in Boston, Philadelphia, and cities of Ohio, see in excess condemnation an opportunity to get for the community a large portion of the increment resulting from reconstruction with less chance for litigation by the land holders. No city in the United States has yet experimented with such condemnation,[101] but precedents from abroad are confidently cited as establishing its financial value. To determine the soundness of this opinion would require an analysis of European reconstructions in which excess takings have been made, and such an analysis depends for its value so much on a first hand acquaintance with many various sets of local conditions that to attempt it here is impossible. A review of the available sources of information on the subject does not make out an overwhelming case for the financial success of excess condemnation.

Financial Results in France. From 1852 to 1869 new streets were laid out in Paris which required a total surface of 2,726,000 square yards. Under the law, the authorities were allowed to take in excess of actual need for street purposes only when the lots left after the taking were unsuitable in shape or size for the erection of proper buildings; but the policy of the French government allowed a very liberal construction of the law, and ‘remnants’ were taken in some cases 5,000 square feet in area. Remnants which were at the time of the taking considered unsuitable for building purposes were subsequently subdivided into at least two lots, each of which was sold for a building lot. Just how much excess land was taken for the purpose of new streets in this period is not known. In 1869 the sales of such land had totaled $51,800,000, and there was still on hand 728,400 square yards, valued at $14,400,000. The cost of all the land taken was $259,400,000. Valuing the excess taking at $66,200,000, the land actually used for street purposes cost $193,200,000.[102] “In other words, the sale of lands purchased in excess of the requirements for the purpose of making new streets, together with the sale of 390,000 square yards obtained through the discontinuance of old streets, yielded only 25.5 per cent of the original outlay upon land—$259,400,000. That means that the efforts to secure a part of the increase in values resulting from the laying out of 56.25 miles of streets proved unsuccessful.”[103]

No period offered a better opportunity for a successful test of the principle of excess taking as a method of recoupment. The years from 1852 to 1869 were marked by rapid increase in values. The prices received by the city for the sale of surplus land were considered excellent, but the initial cost of all the land condemned had been enormously heavy and for this the juries were responsible. M. Brelay, a former member of the Commission des Indemnités, a body established by the state for the purpose of bringing together without recourse to the jury, public authorities and owners of land says: “The proceedings before the juries are among the most discouraging symptoms of the day. In these proceedings cheating almost has come to be honorable; the juries willingly accept scandalous statements as to value and inventories and leases prepared by lawyers and expert valuers who display a profound knowledge of the extent to which human folly will go in the person of the juror.” In 1890 awards were so excessive to owners of land that an award of 50 per cent more than the fair market value was commented upon as honest by Brelay in his survey of public improvements in Paris.[104] Awards to tenants, whether merchants or householders, were even more excessive. In 1888 the city took 48 houses occupied by tenants who paid an average rental of $54 a year. The owners of property had the right to dispossess the tenants on three months’ notice. The tenants’ holdings were therefore worth $13.50—three months’ rent; the juries awarded an average of $169.[105] In another case the city offered housekeeping tenants $700;[106] the jury awarded $13,000. The offer of the city to tenants with trade interests was increased by the jury from $486,560 to $935,120.[107] To one tenant, with no trade interest or lease, the city offered $7.40; the jury gave him $600.[108] “The city had authorized the construction of the Bourse de Commerce on the assumption that the compensations for taking for public use would aggregate $5,000,000; in September, 1887, the compensations awarded aggregated $8,000,000.”[109]

The avowed purpose in the liberal takings between 1852 and 1869 was to reduce the expense of street improvements. There was no satisfactory law under which the cost of land for streets could be assessed on benefited properties, and only by the sale of excess lands could the expense be reduced. The failure of the method resulted in a change of policy by the Council of State which, from the time of the establishment of the present republic, opposed any excess takings simply for the purpose of resale. When the Trousseau Hospital was removed the Council of State refused to approve the taking of any remnant whose area exceeded 650 square feet, even though it was admitted that the controlling purpose of the city authorities was not recoupment.[110] Approval was given for the taking of small remnants on the ground that the additional cost of acquisition was trifling, and small remnants were readily sold at a price which more than compensated for the additional cost.

As a result of the experience, both before and after the establishment of the present republic, it is the consensus of opinion among those who have had experience with both methods, that extended excess taking for the purpose of securing a profit from the resale of surplus land is neither desirable nor profitable.[111]

Financial Results in Belgium. The law which permits excess taking in Belgium was passed at the instance of Brussels and to satisfy a peculiar need. The old city of Brussels had no street system worthy of the name, and the jumble of narrow, crooked streets and blind alleys resulted in a most unsanitary condition. Lots, as a rule, were small, in some cases ridiculously so, one plan showing lots with areas of 150 to 175 square feet. Through the center of the lower part of the city flowed the River Senne which was little better than an open sewer. The improvement made possible by the law of 1867 was to carry the river underneath the city and to build over the old river bed a broad central thoroughfare, which is now the main business street of the city. The law fixed no limit to the extent of land which could be taken in excess of actual needs, and Brussels used the law most liberally.

In addition to the heavy outlay for land, the authorities incurred extraordinary expenses in order to induce a rapid and yet proper development of the new streets. Several public buildings were constructed by the city on the new boulevard; loans were made to contractors to the extent of one-half of the estimated cost of buildings; surplus land was sold on very easy terms, the only requirement being the payment of 4.5 per cent per annum on the purchase price for sixty-six years, payments which were calculated to “extinguish the principal of the debt at the end of that term while giving the city an income on the amount unpaid of 4⅕ per cent.”[112] These terms proved altogether too tempting and the speculation that resulted brought about wholesale failure of contractors and purchasers. In the end the city was forced to complete the construction of the new boulevard at an expense greatly in excess of the original estimate, to complete unfinished buildings on which loans had been made, and to foreclose through the failure of purchasers of lots. Today the city is the owner of nearly 400 buildings on this thoroughfare known as the New or Inner Boulevard. The increase in debt occasioned by this and other improvements was enormous. At the beginning of the year 1867 the debt was less than $8,000,000; by the year 1879 it exceeded $50,000,000; and when refunded in 1886 it was about $56,000,000. The city in the early 80’s was on the verge of bankruptcy.[113]

In 1902 it was estimated that the properties acquired by the city in connection with the new boulevard had cost approximately $6,400,000. “The value of the properties at the time of acquisition was fixed either by expert appraisal or the foreclosure sale at $5,200,000.” In 1902 they were believed to be worth about $6,400,000; but on the basis of the income which the city receives they would not sell for much more than $5,500,000, and the city is satisfied to keep the properties which are yielding more than enough “to meet interest and sinking fund requirements[114] on the amount of debt which could be retired through their sale.”

Authorities of the city of Brussels without exception consider that excess taking is the only method which could have produced the Brussels of today, and the burgomaster, in 1904, was even of the opinion that the method had been a means of reducing the expense of street improvements. Other cities of Belgium, by avoiding the extraordinary expense connected with the building operations under loans undertaken in Brussels, are reported to have secured a profit out of the sales of excess lands. This is notably so in the case of Liege. Despite the financial strain through which Brussels went from 1875 to 1886, it is probably true that the peculiar conditions of Brussels justified the extraordinary methods adopted for its improvement; but whatever may be the consensus of opinion about the success of the experience of the city with excess condemnation it can not be advantageously cited as a precedent for the adoption of excess condemnation as a means of reducing the expense of reconstruction in the United States. The experience with excess taking in Paris and in the cities of Belgium shows conclusively that a considerable period must elapse before real estate contiguous to the improvement increases to any great extent in value[115] and this experience is confirmed by that of London as shown below. It has, with surprising uniformity, been at least eight years in all three countries before such increase has been noticeable. As an element of the cost of excess condemnation, therefore, the interest on the outlay for the acquisition of land and buildings must be figured for a period of eight to ten years.

Financial Results in London. From 1857 to 1889 the Metropolitan Board of Works of London made 14 miles of street widenings and thoroughfares, for the most part in the central portion of the city, in order to “supply the deficiencies resulting from centuries of neglect and to keep pace with the wants of an ever increasing population.”[116] During these years the policy of the board was most conservative, and in this respect it differs from both the practice in Paris and the practice in Belgium. The taking of costly buildings was avoided even at the expense of the appearance of the street, and such takings as were made were strictly limited to those properties the whole or a part of which were required for the actual improvement. The cost of the land taken for street improvements was $58,859,000, and there was subsequently recovered from the sale of surplus lands $25,607,000 or 43.5 per cent.[117] The exact amount of land taken or the land sold is not given in the History of London Street Improvements, but in connection with each street the total cost and the total return from sales are given; and of the 54 separate improvements made by the Metropolitan Board of Works only one, namely, Northumberland Avenue, shows a profit from the entire transaction exclusive of cost of construction. The cost was £711,491 and recoupment from sales, £831,310. The profit in this street improvement is variously accounted for.[118] In evidence given before the select committee of the House of Lords the case of Northumberland Avenue was cited as entirely exceptional, because the Duke of Northumberland had given the land at a price which was calculated to leave a profit from the improvement. Moreover, the land was not occupied by buildings and there were no tenants with trade interests. It is these two factors, representing a dead loss to be charged against any increase in land values, which are largely responsible for the poor financial showing of excess condemnation.

Out of a total of 57 streets, those in which the recovery exceeds 35 per cent of the cost are given in the following table:[119]

TABLE 6.—COMPENSATION FOR LAND, GROSS COST, RECEIPTS FROM SALE OF LAND, AND NET COST FOR IMPROVEMENTS MADE BY THE METROPOLITAN BOARD OF WORKS IN CASES IN WHICH THE RECOVERY EXCEEDED 35 PER CENT OF THE COST. LONDON, 1857-1889

Most of the remaining streets show a recovery from the sale of surplus land of less than 20 per cent, and doubtless in many of these cases if the taking had been limited to the land necessary for the street there would have been a saving in the net cost. In the case of Gray’s Road Inn, for instance, a simple street widening, the land alone cost $2,017,000 and from sales $422,000 was recovered, which made a net cost of $1,595,000. “Had the board bought only the land needed for street purposes the cost would have been $1,264,000.”[120]

The Metropolitan Board of Works was criticized for not making more liberal takings, and in the history of its successor, the London County Council, many bills were proposed which authorized a more liberal taking of land solely for recoupment purposes. The London County Council, however, continued the policy of the Metropolitan Board of Works and favored as an additional method of paying for the cost of the improvements a special assessment for benefit.

The relative advantages of excess taking for “recoupment” and the levying of an assessment for benefit were the subject of investigation during the history of the London County Council. Members of the old Metropolitan Board of Works were uniform in condemning excess takings as a method of reducing the cost of improvements.[121] In 1894 Mr. Charles Harrison, vice-chairman of the London County Council, said that recoupment as carried out in London had been unsatisfactory and had tended to result in a net loss. Mr. W. H. Dickenson, deputy chairman of the London County Council, was of the opinion that past public improvements had produced a rise in prices which would have made the recoupment operations yield a certain profit had that profit not been eaten up before it had been obtained. Mr. J. F. Moulton, member of the London County Council, gave evidence that “recoupment is almost always a loss, and increases the cost unless you are going through comparatively unoccupied property or property which is used for habitation and not for purposes of trade.” H. L. Cripps, twenty-five years a member of the Metropolitan Board of Works, said, “It may be taken generally that in no single case, according to the opinions of competent surveyors, has recoupment turned out other than an extravagant operation.” As a result of its own experience and that of its predecessor, the Metropolitan Board of Works, the London County Council took the position before every investigating committee of Parliament that the practice of recoupment by the sale of excess lands should give way as both less desirable and less practicable than an assessment for special benefit.

From 1890 to 1898 Parliament refused to grant to the Council the power to assess for special benefit, and in this period practically no large improvement schemes were initiated by the Council. In 1899 the power was granted and was incorporated in the legislation which made possible the King’s Highway improvement from Holborn to the Strand. This is probably the most important large improvement of recent years, and in it are united both the principles of excess condemnation and of assessment for betterment. It has been cited in this country as the strongest illustration of the advantage of excess taking as a method of recouping the cost of an improvement.

It is impossible to get accurate figures on the net cost of this improvement since much of the excess land taken is not yet sold or leased, and since it is not certain what portion of the original cost has been returned to the city by sale of excess land and what portion has been returned by assessment for benefit. The cost of land taking and improvement is variously estimated from £4,862,500 to £7,000,000. The last figure includes approximately £2,000,000 for interest charges covering a period of at least fifteen years. The most favorable estimate of the return is £5,000,000, which includes the return from the benefit assessment, making the net cost of the improvement approximately £2,000,000, or the amount of interest charges during the period of development.[122]

In analyzing these figures it must be remembered that they were submitted by a political party opposed to the one which initiated the scheme, and items of cost are included which are more than offset by indirect gains that are not easily reducible to figures. The physical results accomplished by the King’s Highway would have been impossible without the very liberal use of excess taking. The very satisfactory financial result may be due in a large measure to the advantageous lease of surplus land, but, considering the opinion of best informed authorities in London and the history of London street improvements from 1859 to 1900, and considering further that some part of the return in the case of the King’s Highway is the result of betterment assessments on property not acquired, it seems unwise to lay too great stress on the King’s Highway improvement as a precedent for the use of excess taking merely as a method of recoupment.

The causes of the general failure of excess taking to give satisfactory financial returns in London are much the same as they are in France:

First, the cost of acquiring excess land is great because of extravagant jury awards and because of the practice of paying for trade interests and for the “goodwill” of such businesses as are obliged to seek other locations. Mr. Harrison, vice-chairman of the County Council, is of the opinion that recoupment cases show not that there is a loss on the land which is acquired, but that the loss arises exclusively from buying what can not be resold (trade interests), and represents great waste, legal costs, and other items of expenditure attached to each interest.[123] Mr. Dickenson, deputy chairman of the County Council, believes that even if the fee simple alone were taken and the leasehold and subleasehold interests allowed to run out, extravagant prices would be paid and that it would be best to “intercept the benefit” by means of a betterment tax. The fee simple alone would cost at least 10 per cent more than the market value, and to that sum must be added much more in costs.[124]

Second, the effect on values of an improvement is uncertain. In every country where excess taking is practiced it is the common experience to find that occupation of all kinds adapts itself slowly to a considerable change in the street plan. This phenomenon is not dependent on racial characteristics. In Paris, in the cities of Belgium, and in London at least eight years, as has been noted, were necessary before the city or property owners received the benefit expected from the change.

Third, the large power entrusted to administrative boards, both in the awards for damages and in the negotiation and sale of excess land, is open to great abuse. Charges of maladministration in the Metropolitan Board of Works were made the subject of investigation by a royal commission in 1888, and in spite of the finding by the commission that the board was not corrupt, a great deal of uncontradicted evidence of dishonest practice was offered.

Difficulties in the United States. In considering whether excess condemnation is justifiable on the ground of securing to the city such profit from the resale of excess land as will enable it to recoup a large part of the cost of the improvement, it must be borne in mind that “failure of administration” is as likely to defeat expectations in the United States as in Europe. Certainly jury awards in many jurisdictions, and particularly in older jurisdictions, where reconstruction is most necessary, are excessive, and municipal administrations in the United States are no more above temptation than was the London Metropolitan Board of Works.

2. PHYSICAL VALUE OF EXCESS CONDEMNATION

Irrespective of its value as a financial expedient, excess taking allows the municipality to secure the greatest physical benefit from an improvement. The widening or relocating of a built-up street is likely to involve a complete rearranging of lot lines, particularly in older cities where the lot line is irregular and the depth of lots varies greatly. To limit the taking of land to that actually acquired for the construction of the street results inevitably in remnant lots, and the one effective way to unite these remnants with larger parcels is to put their control in the hands of the municipality, and to provide for an impartial appraisal of their value. It should be an exceptional case where the owner of the lot adjoining the remnants would not take the land at its appraised value, but even if the remnants remained unoccupied their control by the municipality would be more likely to prevent their use for undesirable purposes than if they were left in private ownership.

Control over remnants is possible with a very limited right of excess taking. If the right is enlarged and the municipality permitted to take on both sides of a widened business thoroughfare land enough for suitable building lots, the construction of buildings can be secured which will fit the thoroughfare and will yield the highest possible return in taxation. It is equally desirable for the municipality to control land abutting on parks, parkways, and approaches to public buildings, both to prevent a use of the land which would be disfiguring and to induce by restriction in the deed of sale of such land a type of construction which would harmonize with the public purpose.

Those who oppose the radical extension of the power of eminent domain believe that control over development by the municipality can be as effectively gained by the acquisition of easements in the land abutting on streets, parks, and parkways, which would prohibit certain uses of the land and prescribe the character and even the style of architecture of the buildings constructed upon it. Much has been accomplished by such easements. They may do no more than require an open front yard or garden of minimum depth on the private property[125] or fix an arbitrary height limitation on buildings,[126] or they may require approval in detail by a public authority of the designs of buildings in case they are built above or beyond certain limits.[127] In theory at least they may curtail the freedom of the land owner to any extent which might be found necessary to secure to the public completely satisfactory use of the adjacent public improvement. But practically they are limited by the fact that if they diminish too far the freedom of control which the owner of the fee can exercise over the development and use of the property they will establish a divided responsibility which is fatal to efficiency and initiative, and which absolutely destroys much of the economic value of the property. The fear of such a result may raise the damages for the acquirement of extensive easements almost to the full value of the property. In addition to this practical limitation upon the taking of easements in connection with special assessments as a substitute for excess condemnation in those cases to which the latter is specially applicable, it is to be noted that one important function of the excess condemnation method is not provided for at all; namely, the prompt readjustment of such serious disturbances of the normal size and shape of lots and of the normal relation of property lines to streets as may have been caused by the public action in forcing through an improvement. These disturbances constitute a situation as full of injustice to the owner of the lots as it is unsatisfactory from the point of view of the public.

CONCLUSIONS

1. In the absence of more convincing precedents too much reliance should not be placed on excess condemnation as a method of distributing the cost of public improvements. Where the maximum physical benefit from an improvement can be secured under the present restricted power of eminent domain, excess taking should not be resorted to except in rare cases where it would involve few expensive buildings and where the land value is so low that the inevitable tendency is upward. Rather than introduce excess taking for the purpose chiefly of recouping the city’s investment, the highest possible return should be sought by the American method of special assessment, already proved an eminently successful method of distributing the cost of the acquisition of land for public purposes.

2. But the use of excess taking to protect the value, both economic and esthetic, of a business thoroughfare, park, or parkway is sometimes essential to the full success of a great improvement. Only by its use in some cases can the full advantage of an improved thoroughfare be secured by providing abutting lots of size and shape adapted for suitable structures. Only by selling surplus land under restrictions can the city most effectively control the fringe along the widened thoroughfare. Whether its use results in a net financial profit or not is a secondary consideration if it accomplishes a necessary result more completely and efficiently than can otherwise be done.