Carrying out the city plan

by Flavel Shurtleff

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:

Section 2. The Commonwealth, or any city in the Commonwealth ... may take in fee by right of eminent domain the whole of any estate, part of which is actually required for the laying out, alteration or location by it of any public work, if the remnant left after taking such part would from its size or shape be unsuited for the erection of suitable and appropriate buildings, and if public convenience and necessity require such taking.

Section 15. The Commonwealth or the city, as the case may be, shall determine within six months after the completion of any public work for which land is taken under this act, or within six months after the filing of a final decree on an appeal taken under this act, whichever shall happen later, with which of the adjoining properties the public interests require that each parcel of land, if any, taken outside the boundaries of the public work should be united; and shall, within said six months, notify the owner of such adjoining property, if his address is known, of this decision by registered letter mailed to such owner, and shall annex to the notice a copy of this section.

Section 16. If such owner or some person on his behalf shall within two weeks from the mailing of such notice notify in writing the Commonwealth or the city that such owner wishes for an appraisal of such parcel, the Commonwealth or the city shall cause such parcel to be appraised by three competent and disinterested persons, one of whom shall be appointed by the Commonwealth or the city, one by said owner, and one by the superior court for the county: Provided, however, that the Commonwealth or the city and said owner may in writing appoint a sole appraiser. Said appraiser or appraisers shall forthwith after his or their appointment view the property and determine the fair value of such parcel, and shall make written report to the Commonwealth or the city of the same. The reasonable fees and expenses of the appraiser or appraisers shall be paid by the Commonwealth or the city. The Commonwealth or the city shall forthwith by writing mailed to such owner offer such parcel to such owner at the value as determined by the report of a majority of such appraisers, or by that of the sole appraiser in case of the appointment of one appraiser.

Section 17. If such owner shall in writing accept said offer within two weeks after the date when the same is mailed to such owner, the Commonwealth or the city shall convey such parcel to such owner on payment of the purchase money to the Commonwealth or the city, as the case may be, within thirty days after the acceptance of the offer. The conveyance shall be by deed, with or without covenants of title and warranty, executed and acknowledged in the name and behalf of the Commonwealth or the city by the officers or board which have or has taken such parcel, or by their or its successors or successor, and may be made subject to such restrictions as the Commonwealth or city may in writing have notified the appraisers or appraiser at the time of their or his appointment would be imposed on such parcel.

Section 18. If such owner fails to accept the offer within the time limited, or having accepted it fails to make payment or tender of the purchase money within one month thereafter, the Commonwealth or the city, if it does not take said adjoining property under the provisions of section twenty-nine[88] may at any time thereafter sell such parcel at public auction.

Section 29. If the owner of property adjoining a parcel taken under this act and outside the boundaries of a public work fails to accept an offer to sell such parcel to such owner made under the provisions of section sixteen, or, having accepted such offer, fails to make payment or tender of the purchase money within thirty days thereafter, the Commonwealth or city shall cause such parcel to be sold by public auction, subject to such restrictions as the Commonwealth or city may impose. Land sold under this section shall be conveyed to the purchaser in the same manner as land conveyed under the provisions of section seventeen.[90]

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.