CHAPTER II
THE ACQUISITION OF LAND
The great obstacle to the execution of any plan, whether for the orderly extension of a city or for the reconstruction of its older sections, is usually the expense of acquiring the necessary land. This difficulty may arise because the cost of the land is excessive, due to bad methods of acquisition, or because the cost of land acquirement is unfairly distributed. Either or both of these conditions will place an excessive burden on the tax payers. If this cost must be borne wholly or mainly by the tax payers at large while a few land owners absorb a wholly disproportionate share of the financial benefit from the improvements, there will result a strong popular sentiment against such improvements, and a city government that is at all responsive will refuse to undertake them, even though the city as a whole may suffer for lack of them in the long run.
We are considering here only well conceived plans, the execution of which will be a real advantage to the community as a whole if the initial difficulties of financing them can be overcome. The execution of any plan which would result in a net damage or loss to a community can not properly be called an improvement. A real improvement is an investment on which the return to the community may be immediate or may be deferred.
The financial problem in acquiring land for any contemplated improvement is, therefore, in the first place, to avoid excessive cost, and in the second place, to distribute the cost in an equitable manner. To determine whether the city is paying an excessive price for land, a careful consideration of the details in condemnation procedure is essential.
PROCEDURE IN THE CONDEMNATION OF LAND
The extraordinary right of the community to take private land even against the will of the owner necessitates extraordinary protection to the individual. This protection is written into every state constitution excepting that of North Carolina, and the clause is interpreted, not as a declaration of the power of eminent domain, which is inherent in sovereignty, but as a limitation on that power. This protection is further guaranteed to the citizens of every state by the Fourteenth Amendment of the Federal Constitution. Private property can be taken for a public purpose only after “due legal process” and the payment of compensation, but the guarantee of the Federal Constitution does not compel uniformity in the provisions of all states. “Due legal process” in condemnation proceedings is satisfied by a great variety of statutory requirements, the only essential being that they shall contain provisions for determining compensation, for giving proper notice, and for hearing remonstrants. On the methods of determining these three essentials depend the simplicity and economy of condemnation procedure.
Most states give the further right to the land owner at some stage of the proceedings of having his compensation ascertained by a common law jury. In the absence of specific language to that effect it is generally held that the owner has no right to a jury in land damage cases, since at common law before 1787, in both England and America, compensation in such cases was ascertained by other tribunals without the right of appeal to a jury of twelve. Constitutions giving in general terms a right of trial by jury are interpreted to refer only to such cases as were tried by jury at the common law. Many states, however, have granted jury trials in eminent domain cases by statute, while other states have construed clauses of their constitutions as applicable to eminent domain proceedings and have allowed a jury trial.
The method of ascertaining the compensation is the first consideration of a municipality endeavoring to reduce the cost of taking land for public purposes, but the other elements of “due legal process” are responsible for much of the delay in condemnation procedure and may affect considerably the amount of compensation. Every hearing requires either a notice to property owners or legal service in hand, by mail, or by publication. After every hearing, time must be allowed for protest and appeals and the report of every hearing must be published. As the hearings grow more numerous the expense of advertising becomes a large item, and every addition to the length or complexity of the procedure involves an increase of counsel and witness fees or other legal expenses. Consequently, the elimination of any one of the steps in condemnation procedure has an important bearing on the question of reducing the size of the city’s investment. We may best consider the provisions for notice and hearing together.
PROVISIONS FOR NOTICE AND HEARING
After authority has been given by the proper administrative body, the steps in condemning land for public use are notoriously many before the city can take possession of the land. Property owners are given not one day in court for the protection of their rights, but many days.