House Doc. No. 1096, Supplemental Report pp. 4-10
The effect of these provisions and of those of the French law, which place all administrative matters under the control of the administrative courts of which the Council of State is the highest, and remove them from the jurisdiction of the regular courts, is to make the Council of State practically the sole judge of the extent to which these powers should be exercised, and of the size of the remnants which may be taken, and hence the extent to which such takings may be made under the law is almost entirely dependent on the attitude of the Council of State.
There appears to be no question that at present, and indeed for many years past, substantially since the establishment of the present Republic, the attitude of the Council of State has been to limit as far as possible the application of the law which authorizes the taking of such remnants, and to permit any owner who desired to retain the ownership of the remnant of his estate to do so, provided it were in any way possible to erect on such remnant a building which would comply with the requirements of the building law regarding light and air.
This attitude appears to be taken through solicitude for the wishes of the individual owner, and to a theoretical assumption that, as takings by eminent domain are in derogation of common right, they should be restricted, as far as possible, and is doubtless due in large measure to the reaction from the former régime, when private and personal rights were subordinated to the wishes of the administrative government.
The contrast between the position now taken by the Council of State regarding these matters and that taken under the empire may be gathered from a comparison of the size of the remnants the taking of which was formerly authorized by the Council of State, and of those the taking of which it now refuses to authorize.
In 1896 and 1897 there was constructed that portion of the Rue Reaumur connecting the Place de la Bourse with the Boulevard Sebastopol, which lies between the Place de la Bourse and the Rue St. Denis. Although the actual taking of the land occurred in 1894-95, shortly before the construction, the decree which authorized the taking and determined its limits had been made thirty years before, viz., in August, 1864, under the second empire, and that decree authorized the taking of remnants as large, in some instances, as 5,000 square feet in area.
These remnants were resold for building lots, and in some cases the remnant, which had been taken as being too small to allow the erection of a wholesome building thereon, was divided into two lots, each of which was sold by itself for a building lot.
In contrast with this somewhat extralegal method of procedure, should be set the following example of the present application of the law.
The city of Paris has lately, in connection with the development of the land formerly occupied by the Trousseau Hospital, found it necessary to construct some new streets, the laying out of which left certain remnants of estates which the city desired authority to take.