Third, the large power entrusted to administrative boards, both in the awards for damages and in the negotiation and sale of excess land, is open to great abuse. Charges of maladministration in the Metropolitan Board of Works were made the subject of investigation by a royal commission in 1888, and in spite of the finding by the commission that the board was not corrupt, a great deal of uncontradicted evidence of dishonest practice was offered.
Difficulties in the United States. In considering whether excess condemnation is justifiable on the ground of securing to the city such profit from the resale of excess land as will enable it to recoup a large part of the cost of the improvement, it must be borne in mind that “failure of administration” is as likely to defeat expectations in the United States as in Europe. Certainly jury awards in many jurisdictions, and particularly in older jurisdictions, where reconstruction is most necessary, are excessive, and municipal administrations in the United States are no more above temptation than was the London Metropolitan Board of Works.
2. PHYSICAL VALUE OF EXCESS CONDEMNATION
Irrespective of its value as a financial expedient, excess taking allows the municipality to secure the greatest physical benefit from an improvement. The widening or relocating of a built-up street is likely to involve a complete rearranging of lot lines, particularly in older cities where the lot line is irregular and the depth of lots varies greatly. To limit the taking of land to that actually acquired for the construction of the street results inevitably in remnant lots, and the one effective way to unite these remnants with larger parcels is to put their control in the hands of the municipality, and to provide for an impartial appraisal of their value. It should be an exceptional case where the owner of the lot adjoining the remnants would not take the land at its appraised value, but even if the remnants remained unoccupied their control by the municipality would be more likely to prevent their use for undesirable purposes than if they were left in private ownership.
Control over remnants is possible with a very limited right of excess taking. If the right is enlarged and the municipality permitted to take on both sides of a widened business thoroughfare land enough for suitable building lots, the construction of buildings can be secured which will fit the thoroughfare and will yield the highest possible return in taxation. It is equally desirable for the municipality to control land abutting on parks, parkways, and approaches to public buildings, both to prevent a use of the land which would be disfiguring and to induce by restriction in the deed of sale of such land a type of construction which would harmonize with the public purpose.
Those who oppose the radical extension of the power of eminent domain believe that control over development by the municipality can be as effectively gained by the acquisition of easements in the land abutting on streets, parks, and parkways, which would prohibit certain uses of the land and prescribe the character and even the style of architecture of the buildings constructed upon it. Much has been accomplished by such easements. They may do no more than require an open front yard or garden of minimum depth on the private property[125] or fix an arbitrary height limitation on buildings,[126] or they may require approval in detail by a public authority of the designs of buildings in case they are built above or beyond certain limits.[127] In theory at least they may curtail the freedom of the land owner to any extent which might be found necessary to secure to the public completely satisfactory use of the adjacent public improvement. But practically they are limited by the fact that if they diminish too far the freedom of control which the owner of the fee can exercise over the development and use of the property they will establish a divided responsibility which is fatal to efficiency and initiative, and which absolutely destroys much of the economic value of the property. The fear of such a result may raise the damages for the acquirement of extensive easements almost to the full value of the property. In addition to this practical limitation upon the taking of easements in connection with special assessments as a substitute for excess condemnation in those cases to which the latter is specially applicable, it is to be noted that one important function of the excess condemnation method is not provided for at all; namely, the prompt readjustment of such serious disturbances of the normal size and shape of lots and of the normal relation of property lines to streets as may have been caused by the public action in forcing through an improvement. These disturbances constitute a situation as full of injustice to the owner of the lots as it is unsatisfactory from the point of view of the public.
CONCLUSIONS
1. In the absence of more convincing precedents too much reliance should not be placed on excess condemnation as a method of distributing the cost of public improvements. Where the maximum physical benefit from an improvement can be secured under the present restricted power of eminent domain, excess taking should not be resorted to except in rare cases where it would involve few expensive buildings and where the land value is so low that the inevitable tendency is upward. Rather than introduce excess taking for the purpose chiefly of recouping the city’s investment, the highest possible return should be sought by the American method of special assessment, already proved an eminently successful method of distributing the cost of the acquisition of land for public purposes.
2. But the use of excess taking to protect the value, both economic and esthetic, of a business thoroughfare, park, or parkway is sometimes essential to the full success of a great improvement. Only by its use in some cases can the full advantage of an improved thoroughfare be secured by providing abutting lots of size and shape adapted for suitable structures. Only by selling surplus land under restrictions can the city most effectively control the fringe along the widened thoroughfare. Whether its use results in a net financial profit or not is a secondary consideration if it accomplishes a necessary result more completely and efficiently than can otherwise be done.