THE TRIBUNAL
1. A SPECIAL BOARD SUBJECT TO REVIEW BY THE COURT WITH JURY
A common law jury is apt to lack the knowledge of real estate values and the experience in handling technical evidence which are important in the tribunal which is to ascertain the compensation in land damage cases, and therefore most condemnation codes provide a special tribunal. Some of the codes also see the necessity of a tribunal as far removed as possible from the influence of the parties to the suit and provide for its non-partisan appointment, usually by the court which has jurisdiction over the proceedings. There is a wide difference in the character of these judicial commissions in different cities and even in successive commissions in the same city.
Denver. In the opinion of the city attorney’s office, Denver gets excellent commissioners, or appraisers as they are called. The procedure is a semi-judicial one from the start. The petition is filed in the district court and three appraisers are appointed by the presiding justice, who endeavors to get men of the highest qualifications for this work. The bill which is submitted by the appraisers for their services is usually allowed without much question. On the average, only 15 per cent of the findings of the appraisers are appealed from. A commission was appointed in 1911 to ascertain damages in connection with the extension of the Denver park system. Property for this purpose was taken to the amount of $2,523,463, as estimated by the report of the appraisers. Of this sum $1,814,539 was paid for land taken for the site of the civic center. Considering the size of the undertaking there were very few protesting owners, and these were for the most part owners of property involved in the taking for the civic center. Out of 50 owners only 18, representing $527,428, protested against the awards, and one of these alone represented $265,000. The common law jury which heard the first protest found against the petitioners, and all the rest of the protesting owners withdrew their appeals.[17]
St. Louis. The same procedure as in Denver is followed in St. Louis, the three commissioners being appointed by the judge of the circuit court presiding over the case. A majority of the commissioners has full power to act and make a report. Unlike the practice in Denver, the compensation is fixed at $3.00 a day. It is not to be expected that excellent men will be attracted by such low pay, and perhaps for this reason some of the commissioners have not given satisfaction. It is reported to be not an unusual thing in cases involving less than $1,000 for the commission to take six months in reaching a decision and then to have its finding overturned on review. On the other hand, there have been notably good commissioners in cases involving heavy damages. The commissioners who sat in connection with the condemnation of the site of the municipal courts building took two days to reach a decision, although the property of 400 defendants was taken and over $1,000,000 in damages was paid. Appeals from the commissioners’ findings may be taken to a common law jury only by a corporation land owner—an anomaly in procedure which we have already noticed.[18]
Philadelphia. The municipalities of Pennsylvania in takings for street purposes replace the commission, which may be regarded as somewhat expert in the knowledge of real estate values, by a so-called “road jury” of three appointed by the judge of the court where the petition is filed. Philadelphia, with a population of 2,000,000, and the hill towns of a few hundred inhabitants, have the same procedure.
The awards of road juries are, in the opinion of the city solicitor’s office, on the whole satisfactory. Excessive awards to land owners are appealed from by the city, and in a large per cent of these appeals land owners, to avoid the danger of litigation, remit some portion of the award. The following shows the total amount of awards and total remitted in Philadelphia in 1906, 1907, and 1908.
| Year | Award | Remitted |
| 1906 | $1,786,785 | $147,821 |
| 1907 | 2,273,867 | 118,973 |
| 1908 | 2,719,691 | 208,173 |
The appeal from the awards of road juries is heard by a common law jury in the superior court and results, in a considerable number of cases, in a substantial increase over the award. The report of the city law department in 1906 shows that there were 76 cases heard by a road jury in 41 of which appeals were taken. In this same year awards in 130 cases heard in the superior court were increased from $132,054, as fixed by the road jury, to $225,758. In nine cases the amount of the award remained the same and in one there was a decrease of $2,256. The reports of the law department of 1907, 1908, and 1909 do not give the whole number of cases appealed from the road jury, but in the 23 appealed cases heard in the superior court for 1907 there were increases in awards in 17 cases from $49,169 to $91,551; in the 22 appealed cases heard in the superior court for 1908 there were increases in awards in 20 cases from $61,550 to $85,877; in 1909 out of 19 cases there were increases in awards in 14 cases from $119,650 to $153,907.
It is significant that in a considerable number of the cases appealed from a road jury the evidence is heard by a referee, particularly where a large sum is in dispute, and the common law jury acts on his report. Almost half the appealed cases of 1906 were sent to a referee.
Portland, Oregon. In taking land for street purposes Portland does not use the state code, the advantages of which were described on page [30], but follows the provisions of the city charter,[19] which prescribe a procedure much like that in Philadelphia. Its three “viewers” correspond to the Philadelphia “road jury,” except that they are not appointed by the court but by a committee of the common council and usually for political reasons. The result is that a body of professional viewers has developed who are peculiarly open to the charge that their findings may be influenced by the political strength of the parties to the proceeding. The report of the viewers goes to the city council which usually adopts it as the easiest course to pursue. At any time within twenty days from the confirmation of the report of the viewers by the council, an appeal may be made to the court sitting with jury, the only questions open to appeal being the amount of damages and, where assessments for benefit are also made, the amount of the assessment. Since any number of persons may join in the appeal the proceeding is so complicated that the jury is ordinarily glad to confirm the report as a whole and avoid the rather difficult task of revising it. Two out of three recent cases had that result.
There are two types of commission which for convenience will be placed in this group, though they differ essentially from the Denver and St. Louis commissions. The first is illustrated by the street commissioners in Boston, or the board of public works in Milwaukee; the second, by the Chicago commission specially appointed under the local improvement act. Like judicially appointed commissions, those of Boston and Milwaukee conduct hearings, but unlike judicially appointed commissions they sit as arbiters in a case in which they, as representing the city in the capacity of administrative bodies, are interested parties.
Boston. In proceedings for the condemnation of land needed for streets, and for school houses and other public buildings in Boston, awards of damages are made by the street commissioners after public hearing. The street commissioners are elected for three years and receive a fixed salary. There may be much or little significance in the fact that appeals are frequent from the awards of this elected commission which is apt to be regarded as closely allied with the city administration. Before the jury the city undoubtedly is handicapped by the fact that the awards of damages have been made by a department of the city administration sitting as a tribunal in a cause in which the city is an interested party. The number of appeals from the findings of the Boston street commission compares very unfavorably with those from the St. Louis and Denver judicially appointed commissions, or even with the Indianapolis park commission, a board which, like the Boston street commission, is a department of the city administration. The different result in Indianapolis may be due altogether to the strong demand for the completion of the park system and to the conviction in the minds of land owners that parks create land values; but contributing factors to this result are doubtless, first, the strictly non-partisan character of the Indianapolis commission, which serves without compensation, and its reputation for fair dealing; second, the elimination of the jury in cases appealed from the park commission; and third, the assessment of the cost of land taking on the property specially benefited, which compels the interest of the land owner “specially benefited” in every verdict for land damages and makes appeals to increase verdicts extremely unpopular.
Data in 35 proceedings for street openings, widenings, and relocations in Boston, taken at random from the records of the last fifteen years, show that in 31 cases the awards of the street commissioners were not accepted by the owners. In 28 of these cases there were 1,065 parties to the proceedings, of whom 462 refused to accept awards. Approximately 175 of these claims for additional compensation were settled by the street commissioners, 287 were entered in court and either tried by jury or settled by the law department. Thus 26 per cent of all owners interested in the proceedings appealed to a common law jury and a considerable portion of these appeals were actually tried. Complete figures were obtained from the records of the street commissioners in 12 proceedings and are given in the following table:
TABLE 2.—DAMAGES AWARDED, PARTIES INVOLVED, CLAIMS FOR INCREASE, AND CLAIMS COMPROMISED OR SETTLED, IN 12 PROCEEDINGS FOR STREET IMPROVEMENTS. BOSTON, 1895 TO 1913
| Location of improvement | Amount of damages awarded | Parties involved | Claims for increase | Claims settled by street commissioners |
| Huntington Ave. | $230,353 | 58 | 34 | 26 |
| Audubon Rd. | 26,472 | 1 | 1 | .. |
| Columbus Ave. | 926,986 | 177 | 122 | 92 |
| Boylston St. | 10,039 | 8 | 7 | .. |
| Brighton Ave. | 103,165 | 26 | 26 | 23 |
| South Huntington Ave. | 56,195 | 11 | 1 | .. |
| Dorchester St. | 307,193 | 52 | 5 | 5 |
| Walter St. | 6,000 | 33 | 14 | 6 |
| Brookline Ave. | 26,000 | 20 | 9 | 2 |
| Tremont St. | 12,000 | 25 | 8 | 1 |
| Cambridge St. | 30,000 | 25 | 12 | .. |
| Queensberry St. | 112,904 | 7 | 6 | .. |
| Total | $1,847,307 | 443 | 245 | 155 |
Milwaukee. Although in Milwaukee the board of public works is the tribunal before which evidence is presented on the question of damages on account of the taking of property for public purposes, a finding that a taking proposed is necessary and that the purpose is a public one must be made by a jury of twelve men before the case gets to the board of public works. From the awards of the board of public works appeal is allowed to a common law jury, but in the last eight years every appeal has been settled before the case reached trial. It may be said in this connection that there have been no very extensive takings for either street or park purposes.
Chicago. The second type of commission is provided for in the procedure for street improvements in Chicago. Like the Denver and St. Louis commissions, it is judicially appointed but is more in the nature of a board of advisory experts to the jury, since its report is made without a hearing and on the basis of its own appraisal of valuations. The court frequently follows the suggestion of the city attorney in making the appointments to this commission. The report of the commission is filed in court, summonses are immediately issued to all persons whose land is damaged or taken, and the trial proceeds before a common law jury. There have been so few cases of takings for street openings, widenings, and extensions in Chicago that the data are insufficient to form the basis for an opinion as to the merit of the Chicago method of ascertaining compensation. The only proceeding that has involved considerable land taking within the past twenty years was the widening of Randolph Street, in which case the work of the commission was on the whole well done, if judged by the result of the review by the court. Many owners were concerned in that proceeding, but the finding of the commissioners as to compensation for land taken or damaged was increased only from $314,000 to $367,000, and the finding of the commissioners that there “was no public benefit” and that, therefore, the total expense of the improvement should be assessed on private owners was not altered on appeal. For their services in this case, the commissioners received $1,000 each.
2. A COURT WITH JURY HAVING ORIGINAL JURISDICTION
Although an appointed commission is more likely to consider intelligently the evidence and to come to a fairer conclusion than if the proceedings are brought directly before a jury, this advantage may be more than offset and the preliminary hearing be a waste of time if the commission’s findings are overturned by an inexperienced jury of twelve men. It is therefore not surprising to find in several jurisdictions where the right to a jury is granted in eminent domain cases that the expense of a first hearing before a commission is entirely eliminated. This is so in the state codes of Louisiana, Ohio, Washington, and California. In the city of Chicago for some public purposes, and in Portland, Oregon, for all public purposes except street openings, widenings, and extensions, the same procedure is followed.
Cleveland. In Ohio, the procedure in appropriating land for all public purposes is regulated by the state law.[20] When an ordinance authorizing the appropriation of land is passed by a two-thirds vote of the common council of any city, the city solicitor makes application to the court of common pleas, to a judge in vacation, to the probate court, or to the insolvency court, for the appointment of a jury to award compensation, giving five days’ notice of such application to the owners of property affected by the ordinance. The judge applied to sets a time for the hearing of evidence by the jury and the trial proceeds as in other civil actions. Appeal lies from the finding of the jury, but the right to take and use the property condemned is not affected by the appeal. Upon payment of the judgment or upon depositing the money in court, a fee simple vests in the city unless a lesser estate is asked for in the ordinance of appropriation.
In Cleveland, when the state insolvency court was legislated out of existence by operation of the federal bankruptcy law, that court took over jurisdiction in juvenile and condemnation cases. The docket of the court is not overcrowded and a speedy trial is assured in every case. So rarely have the offers made by the city been exceeded by the jury’s findings that owners have learned the economy of accepting the city’s offer in the first instance and avoiding the delay and expense incident to litigation. The result is that less than one-tenth of the land needed for public purposes is acquired by condemnation procedure.
Chicago. Chicago gets practically all of its sites for school houses by condemnation. The offer of the school board to purchase land desired is hardly more than formal, and on its rejection the petition for condemning the land is brought immediately in court and evidence of the value of the site is presented directly to the jury. This method has been in use for some years and counsel for the board, who has served during the history of this method of procedure, is convinced that the city is in substantially as advantageous a position as a private buyer. During the past five years (1907-1912), with an average of at least 20 cases a year, the jury has, with practically no exception, accepted the valuation of the site as fixed by the law department of the school board. Settlements with property owners have consequently been much more common. Ten years ago 90 per cent of the cases involving condemnation for school purposes in Chicago were tried through to a verdict. Today more than 90 per cent are settled and subsequent proceedings are merely formal, to perfect the title.
San Francisco.[21] In San Francisco, too, the procedure is begun by filing a complaint and issuing summonses thereon in the superior court. If the owners affected by the process do not demand a trial by jury it is waived and three appraisers are appointed by the court to ascertain the compensation. In practice, however, more than 80 per cent of the land needed in San Francisco for public purposes is acquired directly by deed from the owners without resort to condemnation procedure.
3. A COURT WITHOUT JURY HAVING ORIGINAL OR APPELLATE JURISDICTION
New York.[22] When the board of estimate and apportionment of New York City authorizes the taking of land for street or park purposes, application is made to the supreme court for the appointment of three commissioners of estimate and assessment, to determine the compensation to owners and to assess as damages the cost of the proposed improvement, or such a proportion thereof as the board of estimate and apportionment directs, on lands deemed specially benefited. After hearing evidence an abstract of the report of the three commissioners or of a majority of them is filed in court at least thirty days before being presented formally to the court for confirmation, in order that petitions in writing against the confirmation of the report may be filed. The court gives a public hearing to remonstrants who have filed their written objections, and confirms or modifies the report, or in some cases sends it back to a new commission. The commissioners are directed by the statute to complete their work within six months unless granted an extension by the court for good cause. Their compensation is $10 a day.
This procedure was long regarded as unsatisfactory. In 1911 it was characterized by the New York press as “inordinately expensive,” because of the financial interest of the commissioners in protracting the proceedings; “generally inefficient,” because of the many incompetent commissioners selected for political reasons; and open to “flagrant abuse,” because the commissioners thus selected were likely to favor property owners who had political influence. By the adoption of a constitutional amendment at the general election November 4, 1913, the legislature is permitted to pass an act which will give to a justice of the supreme court the power to dispose of all matters concerning condemnation formerly in the hands of the commissioners of estimate and assessment.[23] In the opinion of the corporation counsel, Archibald R. Watson, “A justice of the supreme court with undivided responsibility, with no interest to prolong the proceedings, not susceptible to influence and generally of high grade character and capacity, should be able to dispose of condemnation matters with results far preferable than by means of commissioners.”
Minneapolis. We have already described the procedure in appropriating lands for park purposes in Minneapolis up to the time of the confirmation of the awards by the district court.[24] The results are on the whole quite satisfactory. The appraisers are usually competent men and, although appeals are taken from their awards as confirmed by the board of park commissioners to the district court sitting without jury, the percentage of such appeals is not large, not more than 15 per cent in any proceeding, and the increase in awards on appeal is often merely nominal and rarely more than 20 per cent. There seems, however, little justification for two preliminary hearings, one before the appraisers and one before the park commissioners, on the question of land awards. The appraisal could as well be done by the park commissioners through the agency of a competent clerical force, as in Indianapolis, and the expense of appraisals and reappraisals would be avoided.
Kansas City. In Kansas City, Missouri, the petition for taking land for street purposes is brought in the municipal court which sits with a jury of six appointed by the presiding justice.[25] The verdict of the jury is confirmed by the common council of the city and appeals are allowed to the circuit court. In practice not more than 25 per cent of such actions are appealed from the municipal court. In the newer procedure for the taking of land for park purposes a saving of both time and expense, by eliminating the preliminary trial in the municipal court, is brought about by allowing the petition to be filed directly in the circuit court.[26] As in St. Louis, a corporation is allowed a hearing on the question of damages for land taken before a common law jury, but in Kansas City corporations do not demand common law juries. When the procedure was new, a corporation tried the experiment and the result was so disastrous that it is said never to have been attempted since. Presiding justices both in the municipal and circuit courts take care to appoint competent men. That satisfactory jurors can be obtained for $2.50 a day, which is the compensation allowed, is ample evidence that jury service in these cases is regarded as a civic duty and not as a desirable “job.”
Indianapolis. In Indianapolis the board of public works in takings for street purposes, and the board of park commissioners in takings for park purposes, have the same duties which in Kansas City are performed by a jury of six men. All objections to the taking, awards for damages, and the size of the specially benefited area as marked out by the commissioners, are disposed of in one hearing.[27] From the findings of the commissioners appeal lies directly to the circuit or superior court sitting without jury, and the amount of the judgment as found on appeal is final. The businesslike practice which has been adopted by the park commission under the act of 1909, appeals to the sense of fairness of the property owner and has proved most helpful in arriving at awards. In every taking the park board has the assistance of real estate experts as an advisory committee, and is kept in close touch with valuations by a complete card catalogue system which registers the actual consideration in transfers of property.
Although the act is only three years old, there has been at least one considerable taking in each park district. In the North Park there have been two, one involving an expense of $154,420 and the other $131,662. In all the takings for park purposes under the new act involving over $600,000 worth of property and several thousand owners, there have been only four appeals from the findings of the board, two of which have been decided by the superior court. In one an award of $10,000 was increased to $17,000 and in the other an award of $6,925 was increased to $9,800. In one proceeding alone there were 1,600 owners involved and only 50 were present at the hearing given remonstrants.[28]