FOOTNOTES:
[29] Constitution of Wisconsin, Article XI, Section 3.
[30] Acts of Wisconsin, 1891, Chapter 179, Section 8. Special laws of Minnesota, 1889, Chapter 30, Section 2.
[31] Quarterly Journal of Economics, April, 1893.
[32] Colonial Laws of New York, Vol. I, pp. 269-271.
[33] 4 Massachusetts Colonial Records, Part I, p. 327.
[34] Cited in Hammett vs. Philadelphia, 65 Pa. St. 158.
[35] Ancient Charters of Massachusetts, pp. 389, 651.
[36] Tenth Session Laws of New York, Chapter 88, p. 544.
[37] Theory and Practice of Special Assessments. Transactions. American Society of Civil Engineers, Vol. 38. Paper 817.
[38] Constitution of Ohio, with Amendments proposed by Constitutional Convention of 1912, Article XVIII, Section 11.
[39] Acts of Massachusetts, 1882, Chapter 154, Section 7.
[40] Report of the Chief Engineer of the Board of Estimate and Apportionment, October 19, 1907, pp. 15 ff.
[41] Op. cit. pp. 20 ff.
[42] Rose Reis vs. City of New York, et al., 188 N. Y. 58.
[43] See Appendix, p. [249] for text.
[44] Special Laws of Minnesota, 1889, Chapter 30, Section 4.
[45] Charter of Kansas City, Article 13, Section 8 ff.
[46] Charter of Kansas City, Article 13, Sections 33 and 34.
[47] Charter of Kansas City, Article 13, Section 23.
[50] Charter of Kansas City, Article 13, Section 19.
[51] Charter of Kansas City, Article 13, Section 24.
[52] Report of Board of Park Commissioners, 1909, Table 22.
[53] Londoner vs. City and County of Denver, decided November 22, 1911.
[54] Denver Municipal Facts, 1911, Vol. 23, p. 14.
[55] Op. cit. Issue of March 11, 1911, p. 8.
[56] Londoner vs. City and County of Denver.
[57] Acts of Indiana, 1911, Chapter 231.
[58] Ibid., Chapter 231, Section 14. Parts of the text are given in Appendix, p. 254.
[59] Acts of Indiana, 1911, Chapter 231, Section 17.
[60] Acts of 1911, Chapter 231, Section 19.
[61] Acts of 1911, Chapter 231, Section 20.
[62] Acts of Massachusetts, 1906, Chapter 393; and Revised Laws, Chapter 50, Section 1.
[63] Acts of Washington, 1907, Chapter 153, Section 20.
[64] Charter of New York City, 1901, Article 950.
[65] Acts of Massachusetts, 1906, Chapter 393, Section 5.
[66] Changed by Chapter 536, Acts of 1913.
[67] Report of Chief Engineer, Board of Estimate and Apportionment, October 19, 1907, p. 3.
[68] Ibid., p. 14.
[69] Report of Chief Engineer, Board of Estimate and Apportionment, October 19, 1907, pp. 5 ff.
[70] Acts of Massachusetts, 1891, Chapter 323, Sections 14, 15.
[71] Acts of Massachusetts, 1902, Chapter 521, Section 14.
[72] Acts of Massachusetts, 1913, Chapter 536, gives the street commissioners discretion and removes the limit of 50 per cent.
[73] Acts of Massachusetts, 1902, Chapter 521, Section 1.
[74] This restriction was removed by Acts of Massachusetts, 1913, Chapter 536.
[75] Charter of St. Louis, 1901, Act VI, Section 1.
[76] Acts of Massachusetts, 1913, Chapter 536, removes both limitations on the discretion of the Boston street commissioners in the special case covered by the act.
[77] Fifteen petitions for reduction of assessment are pending and no payments have been made.
[78] Thirteen petitions for reduction of assessments and two writs of certiorari are pending. The latter question the validity of the assessment.
[79] Acts of 1912, Chapter 537, compels the street commissioners to reduce this assessment. See Appendix, p. 268, for the text of act.
[80] Sixty petitions for reduction of assessments are pending. Acts of 1912, Chapter 339, authorized a reduction of assessments. See Appendix, p. [267].
[81] For each specified improvement the amount assessed on property specially benefited equals the sum of the cost of land taking and land damage and cost of construction.
[82] Widening not yet done. Amounts are those used in making assessment roll.
[83] Three instalments unpaid.
[84] Six instalments unpaid.
[85] Eight instalments unpaid, January 1, 1912.
CHAPTER IV
EXCESS CONDEMNATION
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.