II. PROCEDURE IN ACQUIRING LAND BY CONDEMNATION AND IN ASSESSING BENEFITS
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Amendment To Constitution of New York, Art. 1, Sec. 7. Adopted Nov. 4, 1913
When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, by the supreme court, with or without a jury but not with a referee, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of free-holders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes.
The legislature may authorize cities to take more land and property than is needed for actual construction in the laying out, widening, extending, or relocating parks, public places, highways or streets, provided, however, that the additional land and property so authorised to be taken shall be no more than sufficient to form suitable building sites abutting on such park, public place, highway or street. After so much of the land and property has been appropriated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased.
Words in italics are new.
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Acts of New York, 1911. Chap. 679
AN ACT to amend the Greater New York charter, in relation to the payment of the cost of certain public improvements.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Chapter six of the Greater New York charter, as re-enacted by chapter four hundred and sixty-six of the laws of nineteen hundred and one, is hereby amended by adding thereto a new section, to be known as section two hundred and forty-seven, to read as follows:
§ 247. Before a public improvement of any kind (except an improvement to be made pursuant to the rapid transit act) involving the acquisition or the physical improvement of property for streets, public places, parks, bridges, approaches to bridges, for the disposal and treatment of sewage or the improvement of the waterfront, or involving both such acquisition and physical improvement of property, which acquisition or physical improvement, or both, is estimated to cost the sum of fifty thousand dollars or more, shall be authorized, the board of estimate and apportionment may determine in what manner and in what shares and proportions the cost and expense of the acquisition or physical improvement, or both, shall be paid by the city of New York, by one or more boroughs thereof, by a part or portion of one or more boroughs thereof, or by the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby.
If said board shall determine that the cost of such acquisition or physical improvement, or both, shall be apportioned between or among the city of New York, one or more boroughs thereof, a part or portion of one or more boroughs thereof, or the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby, the said board may also determine in what manner and in what proportion the cost and expense of such acquisition or physical improvement, or both, shall be borne either by the city of New York, by one or more boroughs thereof, by a part or portion of one or more boroughs thereof, or by the respective owners, lessees, parties and persons respectively entitled unto or interested in the lands, tenements, hereditaments and premises not required for the said improvement, which said board shall deem peculiarly benefited thereby.
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Kansas City vs. Bacon et al. 157 Mo. 450
VALLIANT, J. Appeal from a judgment of the circuit court of Jackson county assessing benefits against property of the defendants in the proceedings to establish Penn Valley park in Kansas City.
For the establishing of the park 134 acres of land were condemned and the total amount assessed as the value thereof to be paid the owners was $870,759.60, and for the payment of that amount assessments as of benefits were made on a large number of lots included in what is known as West Park district, among which were lots owned severally by defendants Bacon and Monroe. The assessments on the lots of Mrs. Bacon aggregated $3,252.49; those on the lots of Monroe, $991.17. The amount assessed against the city as general benefits was $1.
The point against which the main force of appellants’ argument is directed is instruction 11 given at the request of the city, and which is:
“11. By your verdict you shall show a correct description of each piece or parcel of property taken and the value thereof, and of each piece or parcel of private property damaged and the amount of injury thereto. You shall also show by your verdict the amount, if any, assessed against the city, and shall show the amount of benefits assessed against each piece or parcel of private property found benefited within the benefit district.
In estimating the benefits that may accrue to the city and to the public generally, or to any property in the benefit district by reason of the proposed improvement, you shall consider only such benefits as are direct, certain and proximate.”
The law contemplates that a public improvement may bring a benefit to the property of individuals separate from that which it brings to the city in general, and that it may bring a benefit to the city in general separate from that which it brings to the property of the individuals, and that when it comes to apportioning the cost, the individuals and the city should each bear the burden in proportion to the respective benefit, but the benefit in the one case must be as “direct, certain and proximate” as in the other.
Conceding all that the learned counsel say concerning the difference between general and special taxation, we do not see how it affects the question relating to the character of the benefits the city is required to pay for in a case like this. And if it is lawful for the jury to estimate the benefit to the city at large with a view to charging a proper share of the cost of the improvement to the city and thereby to that extent relieve the burden of the property owners; that is to say, if that feature of the law which contemplates laying a portion of the burden on the city at large is not in violation of the fourteenth amendment to the Constitution of the United States, then there must be some rule to guide the jury in assessing those benefits, and if it is not proper to instruct the jury that the only benefits to the city at large which they are to consider are such “as are direct, certain and proximate,” then the contrary is true, and they should be instructed to consider benefits that are indirect, uncertain and remote. We recognize that the task of assessing benefits either to private property or to the city at large is a very difficult one, and that the temptation to the jury to indulge in conjecture is great, but still they ought to be admonished that the law requires them to use their reason and judgment, and not their imagination. The provision of the law requiring the benefits to the city at large to be estimated by the jury should either be eliminated entirely or else the jury should be instructed as to what the law means by such benefits, and if it does not mean such “as are direct, certain and proximate,” it is meaningless.
The specific charge of inequality before the law that these appellants make is that the city has been relieved of its just proportion of the cost of the park, and that portion has been laid, together with their own burden, on these appellants. In their brief they say that the jury should first have estimated the benefit to the city at large and should have charged only the balance of the cost as benefits against the private property, that the assessment of one dollar against the city was no assessment at all.
If the case was given to the jury under proper instructions, whatever opinion we may have as to the fact, we can not say as a matter of law that an assessment of merely nominal benefit was unlawful.
See also Kansas City vs. Bacon 147 Mo. 259, in which this language is found:
“In the absence of misleading instructions or evidence of misconduct a verdict of one dollar against the city at large is not as a matter of law ground to disturb a verdict.”
In this case there was an assessment on property holders of $600,000, and of $1.00 against the city.
And:
Kansas City vs. Smart, 128 Mo. 272, where there was an assessment of $140,000 against the benefit district and $1.00 against the city.
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Park Law of Indianapolis. Chap. 231. Acts of Indiana, 1911
AN ACT concerning the “department of public parks” in cities of the first and second classes, defining its powers and duties, conferring certain powers upon the common council and mayor of such cities in relation to said park department, legalizing appointments of boards of park commissioners in such cities, and acts done by such boards, repealing conflicting laws, and declaring an emergency.
[S. 378. Approved March 6, 1911.]
Section 1. Cities—First and Second Class—Department of Parks.
Section 2. Park Commissioners—Terms.
Section 3. Organization—Reports—Meetings—Funds.
Section 4. Control of Parks and Boulevards—Powers.
Section 5. Letting of Contracts.
Section 6. Breach of Agreement—Suit—Rules—Taxation.
Section 7. Sale of Park Lands—Park Line—Amusement Places.
Section 8. Bequests of Property—Use and Control—Gardens, Etc.
Section 9. Power over Waterways, Etc.
Section 10. Condemnation—Eminent Domain. The said board of park commissioners are authorized to exercise the power of eminent domain within such city, for the purpose of carrying out any of the provisions of this act, and outside of such city within five miles of the limits of such city. And in case such board of park commissioners cannot agree with the owners, lessees or occupants of any real estate selected by them for the purposes herein set forth, they may proceed to procure the condemnation of the same as hereinafter provided, and in addition thereto, when not in conflict nor inconsistent with the express provisions of this act, may proceed under the general laws of the State of Indiana governing the condemnation of the right of way for the purposes of internal improvement which may be in force at the time, and the provisions of such laws are hereby extended to parks, parkways, park boulevards and pleasure driveways, or parts thereof, so far as the same are not in conflict or inconsistent with the terms of this act.
Section 11. Common Council—Park Districts. The common council of any such city shall have power, by ordinance upon and in accordance with the recommendation of the board of park commissioners, to lay off and divide the territory thereof into any number of park districts that the conveniences of the citizens of such city and of administration of the department of public parks may require; and, after such districts are established, may from time to time, in like manner, add new territory to any established district, or create new districts from territory which may be annexed to any such city. When such division is thus made of the territory of any such city into districts, or when alterations are thus made in the districts, the boundaries thereof shall be accurately defined, and the descriptions of boundaries shall be entered by such board at full length in the records of such board and shall be recorded in the office of the recorder of the county in which such city is situated; and a duly authenticated copy thereof shall be filed with the comptroller of such city.
Section 12. Boulevard—Proceedings to Improve. The board of park commissioners of any such city shall have the power to order the improvement of any boulevard or any pleasure driveway or part thereof, under the control of such board, by paving the same, curbing and constructing sidewalks thereon, or either paving, curbing and constructing sidewalks thereon in the same manner and subject to the same limitation as to form and procedure, and to the same extent as is or may be in the future conferred upon the board of public works of any such city to improve any street, alley or sidewalk within such city; the cost of such improvement of such boulevard or pleasure driveway shall become a lien upon property to the same extent, enforceable in the same manner, with the same rights as to payments by installments and appeal as are or may be provided for in the case of street and sidewalk improvements ordered by the board of public works; and the provisions of said laws applicable to street and sidewalk improvements ordered by the board of public works of any such city are hereby extended to the improvement of any such boulevard, or pleasure driveway: Provided, That said board shall have exclusive authority to determine the kind of pavement to be used. And said park board shall have the power to change and fix the grade of any boulevard, park boulevard, or public driveway, or public ground under its control, to the same extent as such power is now or may be in the future conferred upon the board of public works of any such city to change and fix the grade of any street, alley or public place within any such city: Provided, That whenever the land along one side of a boulevard or pleasure driveway is owned by the city or used by the city for park purposes, one-half the cost of such improvement may be assessed against the property benefited in such park district, or districts, to the extent and in the proportion the same shall be benefited as hereinafter provided; and in case it should be determined by said board that no part of the cost of such improvement is properly assessable against the property of a district, or districts, in which the improvement is made, the same may be paid by such city out of any funds available for such purposes.
Section 13. Appropriation of Property—Improvements. The board of park commissioners of such cities of the first and second classes, as supplemental to other powers conferred by this act, shall have the power, whenever in their discretion such course is advisable, to appropriate property in the manner hereinafter provided for the purpose of: (a) establishing a park, parkway, pleasure driveway or boulevard, or (b) widening or extending any park, parkway, pleasure driveway or boulevard, or (c) opening, widening, or extending any route or right of way for a sewer or channel of any water course connected with or necessary for the protection of any park, parkway, pleasure driveway or boulevard, or (d) constructing any embankment or levee along such water course for the protection of any such park, parkway, pleasure driveway or boulevard, or (e) constructing any bridge or viaduct upon or connected with any such park, parkway, pleasure driveway or boulevard, or (f) converting any street or alley connecting any parks, parkways and boulevards in any such city into a boulevard or pleasure driveway; and also said board shall have power, in the same proceedings, to provide for the construction of improvements of such property for a park, parkway, pleasure driveway or boulevard, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction necessary for the widening or extending of the same, in case such be the purpose for which the land is appropriated or to be appropriated; or to provide for the construction necessary for the opening, widening or extending of any such route or right of way for a sewer or channel of any such water course, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction of any such embankment or levee along any such water course as aforesaid, in case such property is appropriated or to be appropriated for such purpose; or to provide for the construction of any such bridge or viaduct, in case such be the purpose for which such property is appropriated or to be appropriated; or to provide for the converting of any such street or alley into a pleasure driveway or boulevard, in case such be the purpose of the appropriation; furthermore, such board may provide for the construction of any of the foregoing work or improvements when the property or part thereof necessary for the same has been secured by contract or otherwise as hereinafter provided.
Section 14. Proceedings in Appropriating Property. Whenever, as provided in the foregoing section, said board shall deem it advisable to appropriate property and in conjunction proceed with the work of construction, or to appropriate property, or to proceed with such construction when the property necessary, or part thereof, has been secured by contract or otherwise, it shall adopt a resolution declaring such purpose, describing the lands to be appropriated or used therefor, and such other lands as may be injuriously or beneficially affected by said proceedings, and in case improvement or construction is provided for in said resolution, shall cause proper plans and specifications and an estimate of the cost of the proposed work to be prepared by its engineer selected to do such work, which shall be open to inspection by all persons interested in or affected by the appropriation of such lands and the construction of such work, and cause notice of the passage and purport of such resolution and, in case of improvement or construction is provided for in said resolution, of the fact that such plans and specifications have been prepared and can thus be inspected, to be published in some daily newspaper of general circulation in such city once each week for two consecutive weeks. Such notice shall name a time, not less than ten days after the date of publication at which such board shall receive or hear remonstrances from persons interested in or affected by such proceeding. At the time so fixed therefor said board shall hear remonstrances, if any are presented, and after considering the same, take final action, confirming, modifying or rescinding their original resolution. Such action shall be final and conclusive upon all persons. In said resolution and notice separate description of each piece or parcel of property shall not be required, but it shall be sufficient description of the property purchased, or to be purchased, appropriated or damaged to give a description of the entire tract by metes and bounds, whether the same shall be composed of one or more pieces or parcels, and whether owned by one or more person or persons; also, it shall be sufficient, in said resolution and notice, to prescribe the limits within which private property shall be deemed benefited by the proposed improvement, which benefit districts may include one or more park districts, part or parts of such district or districts and lands benefited outside of said city: Provided, however, That at the time before the final adoption of said resolution the resident property-holders in any benefit district, as thus defined, shall have the right to remonstrate against any undertaking by said park board, the cost of which may in whole or in part be assessed against their property. In the event that a majority of such resident property-holders shall remonstrate in writing before the date set for such final adoption of such resolution, no assessment shall be made in such district for such purpose for a period of one year thereafter and then only upon a new resolution duly adopted.
Section 15. Improvement Bids—Deposit.
Section 16. List of Property—Damages—Benefits. Upon such final order being made, as above provided, said board shall cause to be prepared a list or roll of all the owners or holders of property sought to be taken, if any, or which will be either injuriously or beneficially affected by the appropriation of such land and the construction of such work, or by either such appropriation or construction. Such list shall not be confined to the owners of property adjacent to the line of the proposed work, but shall extend to and include all property taken or injuriously affected thereby, and also shall include all lands benefited by the location, establishment, construction or improvement of any such park, parkway, pleasure driveway, boulevard, improvement or structure provided for in the foregoing sections, whether within or without the limits of said city, not more than five miles from the limits thereof. In addition to such list of names, the same shall show with reasonable certainty a description of such properties to be appropriated or affected, either injuriously or beneficially, belonging to such persons, and no greater certainty in names and descriptions shall be necessary to the validity of any assessment than is required in the assessment of taxes.
Section 17. Assessment—Damages—Benefits. Upon the coming in of such list such board shall proceed to consider, determine and award, first, the amount of damages sustained by the owners of the several parcels of land required to be taken and appropriated, if any, as is provided for in the above sections of this act, or which will be injuriously affected thereby; second, to consider, determine and assess the amount of benefits accruing to the several tracts or parcels of property benefited by reason of the location, establishment and construction of any such park, parkway, pleasure driveway, boulevard, or other work or improvement provided for in the above sections of this act. No assessments of benefits shall be made in excess of fifteen per cent of the value of the land so assessed exclusive of the improvement upon the land so assessed; and the total of such assessment against any part or parcel of land assessed, during the ten year period of existence of powers herein conferred shall not exceed fifteen per cent of the value of the land so assessed. The damages awarded and the benefits assessed shall be severally shown as against each parcel of land shown on said list: Provided, That the board of park commissioners of any such city shall in any event direct the payment of the cost of any park, parkway, pleasure driveway, boulevard or construction of any improvement provided for in the above sections of this act, over and above the total amount of all assessments of benefits, or to the extent of the benefits to the city as a whole, as determined by said board, to be made out of the general park fund of any such city available for such purpose: Provided further, That in the event the total cost of any such park improvement, including cost of lands, construction, shaping of soil, planting of trees and shrubbery and other work and improvements called for in such resolution, and including costs of making assessments and collections, should exceed the total of benefits to such lands assessed plus the amount available from the general park fund or other sources for any such park improvement, then said board shall proceed no further under said resolution, but shall rescind all action therefrom taken. In case said board shall have ordered the cost of the construction of pavements, curbing and gutters, separately, under the provisions of section 12 hereof, to be paid by abutting property owners, as in said section provided, and it shall appear that the entire cost of the same can not be met by assessments against abutting property owners, not including such city, then such board shall have power to assess the remainder of the cost of such pavement, curbing and sidewalks against the lands of the district or districts wherein such proposed improvement is situate to the extent and in the proportion that the same shall be benefited, in the manner as provided for assessing the cost of other structures and improvements named in sections 13 and 14 of this act: Provided, That the resolution of such board shall in each instance state the method of proposed assessment to be adopted.
When said list shall have been thus completed said board shall cause to be published in some daily newspaper of general circulation in said city, once each week for two successive weeks, a notice describing the location of the lands appropriated, if any, or of the lands on which such improvement is to be made, and the general character of the improvement and the boundaries of the area or district to be assessed; said notice shall also state that the assessment roll, with the names of the owners in favor of whom damages have been awarded and against whom assessments have been made, and descriptions of property affected, with the amounts of preliminary assessments or awards as to each piece or parcel of property affected, is on file and can be seen in the office of said board. Said notice shall also name a day not earlier than ten days after the date of the last publication on which said board shall receive and hear remonstrances from persons with regard to the amount of their respective awards or assessments. Furthermore, said board shall cause a written notice to be served upon the owner of each piece or parcel taken or injuriously affected, showing separately each item of such determination as to lands or parts of lands so owned by him, by leaving a copy at his last and usual place of residence in such city, or by delivering a copy to such owner personally; and said board shall also cause to be mailed by United States mail a notice to the place of residence, if known, of persons owning lands or parts of lands against which special assessments have been made, showing each item of such determination as to such persons. In case any person affected be a non-resident, or his residence shall be unknown, then he shall be notified by publication in some daily newspaper of general circulation once each week for three successive weeks. Said notices shall name a day not earlier than ten days after service of such notice, or after the last date of publication, or after the date of mailing as above provided, on which said board shall receive and hear remonstrances from persons with regard to the amount of their respective awards or assessments. Persons not included in such lists of assessments or awards and claiming to be entitled to the same shall be deemed to have been notified of the pendency of the proceeding by the original notice of the resolution of the board and by the first publication as in this section provided.
Section 18. Property of Insane or Infants.
Section 19. Remonstrance Hearing. Any person notified or deemed to be notified under the preceding sections may appear before such board on the day fixed for hearing such remonstrances with regard to awards and assessments, and remonstrate against the same. All persons appearing before said board having an interest in said proceedings shall be given a hearing. After such remonstrances shall have been received and said hearings had, said board shall thereupon either sustain or modify, by increasing or decreasing the awards or assessments. Any person thus remonstrating, who is aggrieved by the decision of the board, may, within fifteen days thereafter, take an appeal to the circuit or superior court in the county in which such city is located. Such appeal shall only affect the amount of the assessment or award of the person appealing.
Section 20. Appeal. Such appeal may be taken by filing an original complaint in such court against such city within the time named, setting forth the action of such board in respect to such assessment or award and stating the facts relied upon as showing an error on the part of such board. Such court shall rehear the matter of such assessment or award de novo, and confirm, lower or increase the same, as may seem just. In case such court shall reduce the amount of benefit assessed against the land of such property-holder ten per cent. of the assessment by said board, or increase the amount of damages awarded in his favor ten per cent. of the amount awarded by such board, the plaintiff in such suit shall recover costs, otherwise not. The amount of the judgment in such court shall be final, and no appeal shall lie therefrom.
Section 21. Local Assessment Duplicate—Liens.
Section 22. Payment of Damages—Tender.
Section 23. Payment to Owners—Title to Lands.
Section 24. Recording Land Descriptions.
Section 25. Appointments Valid.
Section 26. Ten-Year Limit—Assessment. The power herein granted for the assessments of benefits shall expire ten years from the date at which this act shall take effect: Provided, That after the expiration of said ten year period, said board of park commissioners shall have and exercise powers therein granted in respect to the opening and improvement of streets, ways and boulevards, of which they have control, similar to powers of the board of public works of such cities in respect to streets and highways.
Section 27. Aggregate Benefits. The powers herein granted for the assessment of benefits against property, except as to powers similar to those of the board of public works of such cities, are hereby further limited as follows: The aggregate amount of benefits which may be assessed against property by such park board in cities of the first class during said ten year period, from and after the taking effect of this act, shall not exceed one million, two hundred and fifty thousand dollars. The total amount of such local benefits which may be assessed by such board of park commissioners in cities of the first class during any one year after the taking effect of this act, shall not exceed two hundred thousand dollars. The aggregate amount of benefits which may be assessed against property by such board of park commissioners in cities of the second class during said ten year period, from and after the taking effect of this act, shall not exceed five hundred thousand dollars. The total amount of such local benefits which may be assessed by any such board of park commissioners in cities of the second class during any one year after the taking effect of this act shall not exceed fifty thousand dollars: Provided, That if in any one year such board of park commissioners in any city of the first or second class should assess an amount less than the annual limitation herein contained, then and in that event any such board may, in the following or any subsequent year, make such assessments in excess of said annual limitation to the amount of such difference between such annual limitation and the amount assessed in any previous year. The limits herein fixed shall not be deemed to apply to any sum which may be raised from a general tax levy, and appropriated by the council of such city for the use of such park board, or received from any source other than through benefit assessments, but the limiting amounts herein named shall apply only to such benefit assessments, not including those ordered by powers similar to those of the board of public works.
Section 28. Repeal.
Section 29. Emergency.
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Acts of Massachusetts, 1912. Chap. 339
AN ACT to authorize the City of Boston to abate a portion of the betterment assessments made on account of the laying out and construction of Columbia Road.
Section 1. The board of street commissioners of the city of Boston may at any time within two years after the passage of this act abate such proportion of any assessment for a betterment made on account of the laying out and construction of Columbia Road from Franklin Park, in Dorchester, to Marine Park, in South Boston, not exceeding in the case of lots unimproved at the time of the passage of the order for the said laying out and construction twenty per cent, and in the case of lots improved at the time of the passage of said order and lots bordering on the parts of the said road formerly known as the Strandway and Dorchesterway thirty-three and one-third per cent, as said board shall deem just and expedient.
Section 2. Said board may by its certificate authorize the treasurer of the city to repay the excess of any amount paid on account of said assessments over the amounts determined as the revised assessments in accordance with the provisions of this act, and said excess shall be repaid by the treasurer from the appropriation from which the improvement was paid for to the person for whom payment was made, or to his legal representatives.
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Acts of Massachusetts, 1912. Chap. 537
AN ACT to provide for reducing the betterments charged for the improvement of Bennington Boulevard in East Boston.
Section 1. The city of Boston is hereby required to reduce the betterments charged for the improvement of Bennington Boulevard in the East Boston district of the said city in such manner and to such extent as shall be agreed upon by the city and the owners of the lands concerned. In case of their failure to agree, the amount of the reduction to be made under the provisions of this act shall be determined by the superior court for the county of Suffolk, if a petition therefor is filed in the office of the clerk of the court by the owners of the land within two years after the passage of this act. The case shall be heard by a single judge, if the parties so agree, or by a jury if either party requests a trial by jury; and the jury shall view the premises if either party so requests.