New Jersey. An amendment authorizing excess condemnation was also submitted to a referendum vote in New Jersey during 1914, but, like the California provision, was defeated at the polls. This measure was almost identical in its provisions with the recent Rhode Island amendment and was as follows: The legislature may authorize the State, or counties, cities, towns, boroughs or other municipalities, or any board, governing body or commission of the same to take more land and property than is needed for actual construction in the laying out, widening, extending or relocating the parks, public places, highways or streets; provided, however, that the additional lands and properties so authorized to be taken shall be no more than sufficient to form suitable building sites abutting on such park, public place, highway or street. After so much of the land or property taken has been appropriated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased and reasonable restrictions imposed.1 3. SUMMARY OF CONSTITUTIONAL PROVISIONS. From the above analysis of constitutional provisions dealing with the subject it appears that there is considerable variation as to the nature of the public improvements to which excess condemnation may be applied, the amount of land that may be taken, and as to the requirements for executory legislation. In Massachusetts the application of the right of excess condemnation is limited to streets; in New York and Rhode Island to streets and parks; while in Wisconsin the list of improvements enumerated by the Constitution is more inclusive. Ohio is the only one of the five States which does not restrict the exercise of excess condemnation to a specified list of purposes. As to the amount of land that may be acquired, three of the five States, Massachusetts, New York, Rhode Island, provide that the excess property shall not be more than is necessary to form suitable building lots abutting on the improvement, while the Ohio and Wisconsin amendments do not contain such restrictions. The right of excess condemnation is further limited in 1 Proposed amendment to the New Jersey Constitution, Art. IV, Sect. IX. See Laws of Special Session, 1915, chap. 2, p. 894. Massachusetts, New York and Rhode Island by the fact that the constitutional amendment does not of itself give cities this right, but requires that authorization for its exercise must be obtained from the State Legislature. In the Constitutions of Ohio and Wisconsin the grant of power is made directly to municipalities and it is not necessary to obtain authorization by statute. III. PROVISIONS OF STATE LAWS RELATING TO EXCESS CONDEMNATION. The right of excess condemnation has also been provided for in several States by legislation alone and without amending the constitution. Such legislation may be divided into two classes: first, special acts granting the power to a particular city and secondly general laws conferring the right upon any city in the State. 1. SPECIAL ACTS. The earliest instance of the exercise of excess condemnation in the United States was in 1812 when the New York Legislature passed an act giving the Commissioners of Estimate and Assessment of New York City the power to take and sell remnants of such lots as might be left after the opening of a street or park.1 A similar law was enacted in 1833 applying to Brooklyn, but in 1850 a decision was rendered holding that it was unconstitutional to take and dispose of surplus lands for profit except with the owner's consent. Another early authorization of the right of excess condemnation was in New Jersey in 1870, when the Legislature gave the city of Newark the power to purchase at its discretion "all or any part of the lands, real estate, and buildings and improvements" within a prescribed area in order to enlarge, widen and straighten streets, and to sell such of the land as was not needed for public purposes. More recently the State Legislature of Connecticut has passed a special act giving to the city of 4 1 Laws of New York, 1812, Chap. 174. 2 Laws of New York, 1833, Chap. 319, Sect. 3. 3 Embury v. Connor (1850), 3 N. Y. 511. Laws of New Jersey, 1870, Chap. 117. Hartford rather wide latitude in the taking of excess lands, although it is reported that the city has been most conservative in exercising its authority.1 2. GENERAL LAWS. Of greater importance than the above-mentioned special acts are the general laws which have been enacted in Virginia (1906) and Oregon (1913) permitting the exercise of the right of excess condemnation by any city. The Pennsylvania legislature passed a general law for the same purpose in 1907, but it was declared unconstitutional by the supreme court of the state on the ground that the constitutional provision permitting the appropriation of private property for public use contemplated an “actual use” by the public and not by private individuals.2 The texts of the Virginia and Oregon excess condemnation acts are as follows: Virginia. Any city or town of this Commonwealth may acquire by purchase, gift, or condemnation property adjoining its parks, or plats on which its monuments are located, or other property used for public purposes or in the vicinity of such parks, plats or property, which is used and maintained in such a manner as to impair the beauty, usefulness or efficiency of such parks, plats, or public property, and may likewise acquire property adjacent to any street, the topography of which, from its proximity thereto, impairs the convenient use of such street, or renders impracticable without extraordinary expense, the improvement of the same, and the city or town so acquiring any such property may subsequently dispose of the property so acquired, making limitations as to the uses thereof, which will protect the beauty, usefulness, efficiency or convenience of such parks, plats or property.3 Oregon. SECTION 2. It shall be lawful for, and the right is hereby conferred upon any incorporated city of this State having 10,000 or more inhabitants to purchase, acquire, take, use, enter upon and appropriate land and property in excess of what may be needed for any such public squares, 1 Laws of Connecticut, 1907, No. 61. See also Report on Excess Condemnation by Herbert S. Swan, issued by the Committee on Taxation of the City of New York, 1915, p. 59. Laws of Pennsylvania, 1907, No. 315. See also Pennsylvania Mutual Life Insurance Co. v. Philadelphia, 88 Atlantic Rep. 904. Acts of Virginia, 1906, Chap. 194, Sect. 1. parks, or playgrounds; provided, however, that in the ordinance providing therefor the municipal authorities thereof shall specify and describe the land authorized to be taken, purchased, acquired, used and appropriated, which land shall not embrace more than 200 feet beyond the boundary line of the property to be used for such public squares, parks, or playgrounds, in order to protect the same by the re-sale of such neighboring property with restrictions whenever the councils thereof shall by ordinance determine thereon; provided, further, that in the said ordinance the councils thereof shall declare that the control of such neighboring property within 200 feet of the boundary lines of such public squares, parks, or playgrounds, is reasonably necessary, in order to protect such public squares, parks or playgrounds, their environs, the preservation of the view, appearance, light, air, health or usefulness thereof. SECTION 3. That after so much of said land and property referred to in Section 2 of this act has been appropriated, as is needed, for public squares, parks or playgrounds aforesaid, the municipal authorities of such city may by ordinance authorize the sale of the remainder of such land or property and impose such restrictions in any deed or deeds of resale as may be deemed necessary or proper; provided, however, that such ordinance shall specify correctly and describe the land or property to be sold, and the restrictions in regard to the use thereof whenever the councils thereof shall by ordinance determine thereon and which are to be imposed and inserted in such deed or deeds of re-sale. SECTION 4. That the taking, using, acquiring and appropriating of private property for any of the purposes herein specified, is hereby declared to be taking, using and appropriating such private property for public use; provided, however, that the proceeds arising from the resale of any neighboring property taken in excess of what may be necessary for the actual construction, opening, widening, extending and laying out of any such public square, park or playground, as in this act provided, shall be deposited in the treasury of said city and be used in the payment of the interest and as a sinking fund to retire any bond issues herein authorized. Any surplus arising from such transaction shall be turned over to and for the use of the park department of such city.1 IV. MASSACHUSETTS EXPERIENCE. Excess condemnation has received more attention in Massachusetts than in any other State with the exception, perhaps, of New York. In 1903 the General Court appointed a legislative Committee on Eminent Domain which made an exhaustive study of land takings abroad and recommended a bill providing that remnants of lots unsuitable for building purposes 1 Laws of Oregon, 1913, Chap. 269. cannot amend the charter of that city. This act does not apply to Portland, as the Legislature might be acquired in connection with the acquisition of land for public improvements.1 A measure based in part upon the recommendations of this committee was enacted by the Legislature in 1904. The essential provision of this statute (omitting various sections relating to the award of damages, etc.) is as follows: The Commonwealth, or any city in the Commonwealth so far as the territory within its limits is concerned, may in the manner hereinafter set forth, take in fee by right of eminent domain the whole of any estate, part of which is actually required for the laying out, alteration or location by it of any public work, if the remnant left after taking such part would from its size or shape be unsuited for the erection of suitable and appropriate buildings, and if public convenience and necessity require such taking.2 On account of its doubtful constitutionality there was considerable hesitancy in making use of the statute of 1904. The matter was further complicated by an advisory Opinion of the Justices of the Supreme Court in 1910 which expressed the view that the acquiring and re-allotting of land on either side of a thoroughfare in parcels of suitable size and shape for sale to private individuals bore no direct relation to the construction or use of the street and would be unconstitutional. The result was that in 1911 a constitutional amendment permitting the General Court to authorize excess condemnation of land for public purposes was submitted to the voters and adopted, thus removing all question of constitutionality.1 Excess Condemnation at Worcester. As noted above the exercise of the right of excess condemnation in Massachusetts necessitates the special permission of the Legislature. So far there has been only one instance of the application of this power in the State, namely in Worcester. In 1912 the General Court granted this city the right to take excess property in the widening of Belmont Street by an act which reads in part as follows: 1 House Document, No. 288, Dec. 28, 1904. 2 Acts and Resolves of Massachusetts, 1904, Chap. 443, Sect. 2. The text of this amendment may be found ante, p. 112. |