In sustaining the decision the supreme court of Illinois held:
“If the legislature had no power to change the uses of Grant Park and to disregard the terms of the dedication by authorizing the erection and maintenance of buildings in the park, there could be no condemnation of the rights of the defendant that the park should be kept free from buildings whatever the nature of such rights might be.”
This decision is a denial of the sovereign power of eminent domain as is pointed out in the strong dissenting opinion. If the legislature could appropriate by eminent domain the property comprised in Grant Park before it was dedicated, it is impossible to see why it could not do the same thing after it was dedicated. Whatever the rights of the original dedicators or their heirs or those holding contract rights under them, those rights can be taken under the power of eminent domain like any other property right in any other jurisdiction but Illinois.
To avoid legal complications in the event of a change in use it is not enough to have inserted in the original dedication “for the use of the inhabitants as a park or for any other public use which the duly constituted authorities shall ordain.” Even under this provision, lands held in complete ownership by the city might become so dedicated to a specific use that the public, and perhaps in some jurisdictions private interests, would gain rights which later must be condemned if the land were desired for a different public use. This was the case in State vs. Woodward, 23 Vt. 92. A certain town had full ownership in a piece of land which could be used for any public purpose. An uninterrupted use by the public as a public common for twenty years had been allowed by the town, and the town survey described the land as a common. The court held that these facts amounted to a dedication of the land to the public use as a common, which was irrevocable. Cities must therefore be as guarded in preserving their control of the use of property as dedicators must be in the language of their grant if they wish to avoid restricting it to a special use.
Since such restrictions may either be valuable in maintaining a consistent city plan or may seriously impair the proper flexibility of such a plan, no general rule can be laid down as to their wisdom. They have proved an important protection in the case of many raids on park property, but it would seem that at least some portion of the lands acquired by a city ought to be readily transferable from one use to another without the delay and expense imposed by such a safeguard.
THE ACQUISITION OF LAND FOR A RESERVE ACCOUNT
The procedure in condemnation and the practice in purchasing prevent a city from taking advantage of the many opportunities which it has of becoming possessor of lands at an advantageous price, even though the need for such lands may be only a few years distant. In appropriating land against the will of its owner the purpose for which the land is acquired must be specified, and that purpose is closely scrutinized in some states by a jury which must find that the acquisition is necessary before the city can take further steps. In purchasing, cities usually come into the market for land, particularly for the sites of public buildings, when prices are high, a procedure which no well conducted business corporation would adopt. Bargains in land are taken advantage of only rarely and only indirectly. It is possible to buy small areas for one purpose and later use them for another; but there is little purchasing on the part of cities for what might be called a reserve account, although a very accurate forecast can usually be made of needs for lands for various public purposes based on the direction and rate of growth of the population. Considerable areas, to be sure, may be purchased for park lands and later, by authorization from the legislature, be diverted in part to other uses, thus accomplishing the purpose by indirection; but this is a bad public policy since it makes park lands, even when they become inadequate in area, subject to unlimited inroads in favor of any and every other purpose.
How much money might be saved to the city by purchase of land at favorable opportunities in advance of actual need is apparent in any city from the increase in property values due to growth in population. The congestion commission appointed by the mayor of New York in 1911 looked into the value of 943 city sites and found that the assessed value in 1908 in 537 cases had increased in value over the price paid.
Table 1 shows the percentage of increase in the values of these sites.
TABLE 1.—INCREASE IN VALUE, FROM DATE OF ACQUISITION TO 1908, OF 537 PUBLIC SITES IN NEW YORK CITY, ACQUIRED FROM 1812 TO 1900[6]