Carrying out the city plan

by Flavel Shurtleff

This right of the private owner to require the taking of the whole estate, when the residue, after deducting what is actually needed for the public work, is unsuited for the erection of appropriate buildings or is reduced below a certain area, is almost universally recognized both in England and on the continent of Europe. It has also received recognition in this State, in chapter 159 in the Acts of 1867, relating to the widening of Oliver Street in the city of Boston, which act, after empowering the city to assess the cost of the improvement upon the abutting estates, provided that any owner, part of whose land was taken, might before the assessment elect to surrender his whole estate to the city, which should pay therefor its full value as it was before the improvement was made, and should have the right to resell the portion not required for the new street.

The constitutionality of this act was upheld in the case of Dorgan vs. Boston, 12 Allen, 223.

With regard to the acquirement by compulsory taking of land beyond the limits of a given public work, we find that two different systems have prevailed:—

1. The taking, in addition to the land actually required for the public work, of all the property within certain bounds in the neighborhood of the proposed work; the rearranging of the lot lines of the property so acquired; and the disposal of this property by sale or lease for the benefit of the city.

2. The taking, in addition to the land actually required for the public work, of such residues or remnants of lots only which, in consequence of the taking for the public work, will be left of such shape and size as to be unsuited for the erection of proper buildings; and also of such portions of the adjoining properties as it may, in consequence of the refusal of their owners to purchase these remnants, be necessary to acquire, in order to make proper building lots abutting on the proposed street.

In favor of the first system, it has been urged that, in consequence of the carrying out of the proposed public work, there will be an increase in value of the surrounding property, caused by no act of its owner, but entirely by the act of the public body, and at the public expense; that it is inequitable that such increase in value should not accrue to the public, to the expenditure of whose money it is solely due; that the method of acquiring the abutting property in the neighborhood is the best method of securing such benefit to the public; that it is far simpler and more equitable than any system for the collection of betterments; and that, if the owners of the abutting property are paid its full value as it was before the improvement took place, they have no cause to complain.

This is the system which, in substance, has been adopted for important street improvements in many cities of Great Britain, Belgium, Switzerland and Italy and has, we are informed, been on the whole successful in its operation, and is believed in certain cases to have materially reduced the cost of public improvements.

As against this system it is urged that the State ought not to dispossess the private owner of his property simply in order that the public work may be carried on at less cost, through resale of the property so acquired; that the expense of public works should be met by taxation, and not by the taking of private property for no other purpose than to benefit the public exchequer by its resale; that the power to take property for such purposes as is contemplated by the first system is practically a power to enter into a land speculation, which may result disastrously.

In the case of our cities, there is the further objection that the adopting of such a system might easily carry the initial cost of an undertaking beyond the debt limit of the municipality.

In support of the second system, it is urged that the ends of public necessity and convenience, for which private property may properly be taken, can all be accomplished by limiting the taking, in addition to the land actually required for the public work, to such remainders of lots as are by themselves unsuited for proper building purposes, and by uniting them to the adjoining properties, compulsorily, if necessary; and that the right to take private property should not be extended beyond these salutary limits.