By a law of April 12, 1816, section 18, a survey of the village of Brooklyn was to be made and the resulting map was to constitute a permanent plan for laying out the streets of Brooklyn. The act provided that owners who violated the plan were not to receive damages.
The court, in upholding this provision, found that unless damages were withheld from owners building in designated lines of streets, section 18 of the act would be nugatory. The legislation clearly intended that improvements within the street lines should not be paid for. “By expensive erections an owner otherwise might bring an enormous burden upon others for opening the street.”
This decision was cited with approval and followed in the case of Re Dist. of City of Pittsburgh, decided in 1841, 2 W. & S. 320. This language is found in the opinion: “The mere laying out of streets cannot be said of itself to be a taking of the property of individuals, upon which they are laid out, for public use at some future day, but rather a designation of what may be required for that purpose thereafter, so that the owners of the property may in due time be fully apprised of what is anticipated and regulate the subsequent improvements, which they shall make thereon accordingly.
... Until the actual opening “the owners thereof continue not only to hold the same interest in them, but likewise to have the right to enjoy and in the same manner as they did previously.”
In the case of Bush vs. McKeesport, City, 166 Pa. 57, the court upheld the validity of the following clause: “No person shall hereafter be entitled to recover any damages for any buildings or the improvements of any kind which shall or may be placed or constructed upon or within the lines of any located street or alley, after the same shall have been located or ordered by counsel.”
But the New York court has since come to a different conclusion in the case of Forster vs. Scott, 136 App. Div. 577, and the Massachusetts court has also found against the constitutionality of such a provision. In Forster vs. Scott, the plaintiff had given a deed to the defendant warranting against incumbrances. A proposed street was located on the plaintiff’s land. The court held that this was not an incumbrance since the act of 1882, chapter 419 was unconstitutional in providing that “No compensation shall be allowed for any building, erection or construction which at any time, subsequent to the filing of the maps, plans, etc., may be built in part or in whole upon or through any street, avenue, road, public square, or place.”
“Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value without legal process or compensation it deprives him of his property within the meaning of the constitution.”
Edwards vs. Bruorton, 184 Mass. 529
Knowlton, C. J.