The only precedent that has been cited to support the validity of the right in the public which is asserted in this legislation is the Massachusetts case of Attorney General vs. Williams, 174 Mass. 476, decided in 1899. This case arose under the Massachusetts statute of 1898 above cited. The defendants were owners of a building abutting on Copley Square, Boston, which had been built in violation of the statute prohibiting the construction of buildings above 90 feet in height on this square. The action was brought to restrain the maintenance of the building at the height above the statutory line. The court decided that the statute was constitutional and that the height of the building should be made to conform with the statutory provision. The language of the court has been generally interpreted to mean that rights in private land and buildings in the nature of an easement may be taken by eminent domain solely for the protection of the public’s esthetic sense.[11]
“It hardly would be contended that the same reasons which justify the taking of land for a public park do not also justify the expenditure of money to make the park attractive and educational to those whose tastes are being formed and whose love of beauty is being cultivated.... It is argued by the defendants that the legislature in passing this statute was seeking to preserve the architectural symmetry of Copley Square. If this is a fact and if the statute is merely for the benefit of individual property owners, the purpose does not justify the taking of a right in land against the will of the owner. But if the legislature, for the benefit of the public was seeking to promote the beauty and attractiveness of a public park in the capital of the Commonwealth and to prevent unreasonable encroachments upon the light and air which it had previously received, we cannot say that the law-making power might not determine that this was a matter of such public interest as to call for an expenditure of public money, and to justify the taking of private property. While such a determination should not be made without careful consideration, and while the growing tendency toward an enlargement of the field of public expenditure should be jealously watched and carefully held in check, a determination of this kind once made by the legislature cannot be lightly set aside.”
The court says merely that the taking of private property is justified to promote the beauty of a park and prevent encroachments on its light and air. It is very doubtful if any broader meaning should be given to its language, but, if it is, it is believed that there have been no decisions in other jurisdictions involving the same principle. If the decision is generally followed it will be no great extension of this principle to declare constitutional the legislation previously cited which has been enacted in Missouri and proposed in Washington. It may be as clearly for the benefit of the public to promote the beauty of a street or boulevard, as is attempted by the St. Louis and Washington legislation, as to promote that of a park, which was declared to be one of the aims of the Massachusetts legislation in Attorney General vs. Williams. Education may so increase esthetic sentiment as to compel a general extension of the power of municipalities to interfere with the rights of owners for purely esthetic reasons, just as education compelled a judicial sanction of the right to take private property for purposes of public recreation. The framing of an esthetic test which will adequately protect the sense of beauty and still withstand the assaults of property owners, will puzzle the most astute law makers. An impartial administration of the newly sanctioned power will also be difficult. Neither of these difficulties, however, will stand in the way if the public demands a universal recognition that esthetic purposes are sufficient to justify condemnation.
FOOTNOTES:
[6] Report of New York City Committee on Congestion of Population, p. 49 and Appendix. (Appendix is in manuscript.)
[7] Op. cit., p. 56.