RUSSELL SAGE
FOUNDATION

CARRYING OUT
THE CITY PLAN

THE PRACTICAL APPLICATION
OF AMERICAN LAW IN THE
EXECUTION OF CITY PLANS

By
FLAVEL SHURTLEFF
OF THE BOSTON BAR

In Collaboration with
FREDERICK LAW OLMSTED
FELLOW AMERICAN SOCIETY OF LANDSCAPE
ARCHITECTS

NEW YORK
SURVEY ASSOCIATES, INC.
MCMXIV

INTRODUCTION

The reason for preparing this book is the astonishing variation in the practical efficiency of methods actually employed and prescribed by law or legal custom in different parts of the United States in acquiring land for public purposes, in distributing the cost of public improvements, and in other proceedings essential to the proper shaping of our growing cities to the needs of their inhabitants. Mere variation in method would be of little more than academic interest in itself, but variations that result in obstructing the path of progress in one community and clearing it in another are of large practical importance. The extent and significance of these practical variations have impressed themselves more and more strongly on the writer in the course of an extended practice as a landscape architect, especially in connection with the design and execution of such municipal improvements as parks, playgrounds, public squares, parkways, streets, the placing of public buildings and the improvement of their grounds. Even more notable than the variation in method and in relative efficiency has been the close preoccupation of public officials, especially in the city law departments, with the constantly recurring problem of finding the way of least resistance for navigating a specific improvement through the maze of obstacles imposed by the existing local legal situation, accompanied by an almost fatalistic acceptance of these obstacles as a permanent condition. There has been evident in most cities a very limited acquaintance with conditions and methods to be found elsewhere, and a general lack of strong constructive effort for the improvement of the local conditions and methods on the basis of general experience. Of late years, however, there has been a growing tendency to break away from this indifference and to face these problems in a larger spirit.

Feeling the importance of stimulating and assisting such constructive local effort by calling attention to the more important of the variations in actual use, and lacking both the time and the legal training to himself prepare a proper presentation of the subject, the writer of this preface urged the Russell Sage Foundation, some three years ago, to provide the funds for making a systematic survey of the field and for publishing its results. The response was cordial and effective and enabled Mr. Flavel Shurtleff of the Boston Bar to devote a large part of his time for two years to the undertaking.

Mr. Shurtleff has done the real work of the book from beginning to end and is responsible for its accuracy from a legal point of view. The writer of this preface has been compelled to limit his collaboration to a general guidance in the gathering and selection of material and its arrangement for presentation, and to a somewhat careful and detailed revision of the manuscript and proofs for the purpose of making the impressions conveyed by the book conform in a common sense way with the observations and conclusions to which he has been led in dealing with actual problems of municipal improvement in many different cities.

There has been no attempt to compile a comprehensive treatise on city planning; and some subjects properly within the title of this volume have not, for many reasons, been examined with as great a detail as their importance may seem to justify. This is particularly true of the subject of building regulations.

Since city building is primarily a question of the acquisition of land by the municipality, or else of the power to regulate its use by others, the search for precedents in codes, reports, and legal text books has been concerned with three well defined subjects: the acquisition of land, the power to tax, and the police power. In respect to these there has been no attempt to compile a complete digest, but only to present the more significant variations revealed by a fairly systematic and intelligent search. The practice of municipal departments has been much more difficult to discover. The examination of state codes and the results obtained from a questionnaire sent to most of the larger cities in the United States made it possible to determine upon a limited number of states as typical of the rest, and by selecting the most promising cities in each state, to make up a list of cities for study on the ground. The data obtained in one city by consultation with city officials and otherwise often led to the addition of a new city to the list. The following cities were visited for a few days each: New York, Buffalo, Cleveland, Indianapolis, Chicago, Milwaukee, Minneapolis, St. Louis, Kansas City, Denver, Los Angeles, San Francisco, Portland (Oregon), Seattle, Houston, Dallas, New Orleans, Baltimore, Philadelphia, and Pittsburgh. An opportunity to make a more intensive study in one city presented itself in connection with an investigation conducted by the city planning committee of the Boston Chamber of Commerce into the methods employed in extending the street systems in the metropolitan district of Boston, and the information thus secured has been made use of in this report.

The material for the book was gathered between January, 1910, and January, 1912, a time of extraordinary activity in city planning legislation. Some of the text became obsolete before the book was completed and some of the conclusions have been made a basis of legislation during the past year (1913). Thus, Ohio has written into its constitution the power of excess condemnation of land[1] and the right to assess the cost of improvements on territory especially benefited.[2] Massachusetts, New York, and Wisconsin have amended their constitutions to incorporate the principle of excess condemnation.[3] The Pennsylvania law of 1907, allowing excess condemnation, has been tested and the supreme court has declared it to be unconstitutional.[4] Plan commissions have been made mandatory in Massachusetts and have been authorized in New York, New Jersey, Pennsylvania, and some cities of Connecticut.[5]

This activity in the gradual and experimental reshaping of legal mechanism will doubtless continue until it shall have been forged into an instrument of much higher average efficiency than at present for the accomplishment of the social purposes of city planning. It is as a help toward the successful working out of this process that the present book is offered.

Frederick Law Olmsted.

Brookline, Mass.,
30th April, 1914.

FOOTNOTES:

[1] See Appendix A, III, p. [280].

[2] Constitution of Ohio, Article XVIII, Section 11.

[3] See Appendix A, III, pp. [248], [278], [279].

[4] See Appendix A, III, pp. [272], [275].

[5] See Appendix, pp. [283], [284], [290], [294].

CHAPTER I
THE PUBLIC OWNERSHIP OF LAND

The ownership of land by the municipality is essential to the execution of many parts of a city plan. Certain acts of private owners which have a tendency to prevent the realization of a plan, either temporarily or for all time, may be enjoined by municipal regulation. Certain other acts in the furtherance of a plan may be induced by persuasion or compelled by administrative pressure. But at an early stage land or rights in land must be acquired for the public, and a municipality will be called upon to consider, first, whether it has a right to acquire or use land for a desired purpose; second, the methods of acquiring the land; and third, the equitable distribution of the cost of its acquisition.

THE RIGHT OF A MUNICIPALITY TO ACQUIRE AND HOLD LAND

It is well to emphasize at the start that the municipal ownership of land is subject to important limitations in the United States. It is customary to cite German examples of town planning and point out that the success of the plan is due to the large percentage of land under municipal ownership. German cities are encouraged to enter into the real estate field for the avowed purpose of checking speculation, and of reducing the over-crowding of lots, by releasing from private ownership land for building purposes. However desirable this may be in German cities, it is not permitted in any municipality in the United States.

In Germany as well as in the United States the purchase money at the disposal of any municipality is but the return from the taxation of the citizens, and the income of all can be spent only for a use that can be shared by all. German cities have reached a broad conception of a “public use” and have emphasized in this conception the rights of the community. The Constitution of the United States, on the other hand, was written when the individual was paramount in philosophy and politics, and the clause which protects the individual at the expense of the community has proved an effective check to the democratic tendencies which would substitute in importance the community for the individual. Consequently a “public use” in the United States has been more narrowly interpreted by the courts.

But new public needs have been recognized by the legislatures and sanctioned by the courts since the growth of great centers of population in the United States. To satisfy recreational needs the appropriation of the community’s money has been authorized both for the purchase and the condemnation of land for parks, boulevards, and playgrounds. It is not inconceivable that more radical needs will be recognized by legislatures and courts in the next twenty years. The need for the protection of the community against the selfishness of a few large property owners, for instance, may bring about the creation of a municipal board representing all the people of a community as a factor in the real estate market.

A municipality in the United States may become the owner of land by gift, dedication, or devise, and may use such land for any purpose whatsoever not inconsistent with the conditions of the gift, dedication, or devise. But land or rights in land can be acquired by the municipality out of public revenue only for a specific public purpose, whether the acquisition be by purchase or by appropriation under the power of eminent domain. If the city has acquired a complete ownership in land either by purchase or appropriation, it may make any use of the land so long as that use carries out some public purpose; except in the jurisdictions where it has been held that a city has only a qualified ownership which limits its right of use to the specific purpose for which the land was acquired.

METHODS OF ACQUIRING LAND

1. ACQUISITION BY GIFT, DEDICATION, OR DEVISE

There is nothing to prevent a city from taking and holding land for other than a public purpose, provided the tax payers’ money is not spent in the acquisition or holding of the land for the desired purpose. If in any specific case it were desired to grant real estate to a city for a purpose not covered in the city charter, the legislature would usually be found willing to pass enabling legislation. The character of most municipal administrations has not been promising enough to induce large holders of land to create trust estates which cities shall administer for the benefit either of all or of a certain class of their citizens; but there is nothing in legal theory which would prevent the acceptance on the part of a city, as trustee, of either real or personal property which the donor desires should be devoted to a certain use; as, for instance, to the providing of cheap and sanitary dwellings for its citizens. This is but one illustration of what might be done by the city as trustee, but the validity of any such trust would depend entirely on its administration without expense to the city.

2. ACQUISITION BY PURCHASE AND CONDEMNATION

The acquisition of land by the city for an unrestricted purpose either by gift, dedication, or devise is unusual, but its acquisition out of public revenue, for other than a public purpose either by purchase or by condemnation, is prohibited in all cities. In the latter case the city may take a fee, which is complete ownership of land, or an easement, which is the right merely to use the land for a specific purpose and one which will be interpreted as “public.” These restrictions on the right to acquire land by condemnation or purchase have a decided influence on a city plan.

RESTRICTION TO A SPECIFIC USE

If land is acquired for specific purposes in accordance with a well conceived city plan, and if the terms on which it is acquired prevent its use in any manner inconsistent with these original purposes, an important safeguard is thereby set up against an ill considered abandonment of the original plan. A subsequent administration can not then sacrifice the deliberate progress made along the lines of the original plan by confiscating any of the land so acquired and diverting it to the service of some new project which may for the moment seem more important but for which the city is unable or unwilling to buy additional land. Clearly this makes for a conservative stability of purpose which is wholly in accord with the spirit of city planning.

On the other hand the normal and healthy modification of the city plan to meet new conditions may be seriously hampered by any restriction of municipal land holdings to a specific use. Owing to the great physical changes due to the growth of a city the use for which land was originally acquired may be entirely outgrown. This situation may arise when land originally transferred to the city for park or school purposes becomes absolutely unsuited for such use and useful for another public purpose or for private corporations or individuals. It is on the one hand undesirable to devote a considerable area to a use which prevents the best all-round development of the city,—commercial, industrial, and residential; it is equally undesirable to allow a decrease in park or school lands except for the best of reasons.

Cities have adopted at times a very short-sighted real estate policy. They have sold their valuable holdings at a low figure, have seen the buyer realize a tremendous profit, and have been obliged to purchase sites at a greatly increased figure when by retaining their holdings they would have had adequate land for their needs. Buildings have been planted in parks in the supposed interest of economy, and by filling up the site the building has been robbed of distinction and the people of needed open space. Such offenses against good taste and true economy, which are two of the compounds of city planning, are committed even now when the need of parks is more fully recognized by the public and is being championed by the press. This mistaken idea of economy probably explains the location of many city halls, in cities large and small, in downtown squares where open spaces should be preserved for the benefit of the community and public buildings arranged to face upon them. Worcester, Massachusetts, used part of its old common for a city hall; Philadelphia appropriated for the same purpose one of the public squares set aside by William Penn; the city hall in St. Louis occupies six acres that were once a public square; Charleston, South Carolina, whose city hall dates from early times, took for its site one of four small parks; Pittsburgh placed on land originally used as a public square two market buildings; Delaware Park, in Buffalo, has been encroached upon by an art gallery and historical building in a manner seriously impairing its value for the purposes which controlled its original acquirement; another five-acre park in Buffalo has been used in part for a school house site.

These are instances where good city building demands the protection of the original purpose through stringent limitations on municipal authority. But it would be unfortunate if park lands or any other public lands which have become unsuited for their original purpose, or which even though still suitable would block a desirable change in the city plan, could not be diverted to a new use without too great expense or delay. Some public lands are easily leased for a long term at good rentals and may thus bring in an income which, if applied to the purpose for which the lands were originally acquired, would accomplish more than the direct use of the land itself. The return from former school house property now in the retail section of Chicago swells the school funds by $637,569 every year. The appreciation of one lot at the corner of La Salle and Adams Streets, bought for $8,750 for purposes of the water department and now occupied by the Rookery, is $2,142,000.

The trouble comes when, for instance, the plans for a new civic center, as in Cleveland, provide for a union terminal station on park land, or where Chicago wishes to locate a Field Columbian Museum in Grant Park. Controversies aroused by cases like these only after years of delay reach the supreme court for a determination of the conflicting rights of the city and the grantors or their heirs. The principles as evolved from cases that have been decided recognize clearly a distinction founded on the legal character of the ownership of the land in question.

Case 1.—Where the city has acquired merely a right in the land, for instance a right to use the land for park purposes, and the ownership has remained in the grantor, there is a unanimity of decision that the land must be used for park purposes only, and that any other use operates to leave the land in the ownership of the original grantor free from the incumbrance of the city’s use. This reversionary right may be purchased or, if necessary, condemned, since the power of eminent domain is paramount to any kind of ownership, but it must be paid for.

Case 2.—Where the city has acquired all right, title, and interest in land by condemnation, it is the law in New York, at least, that the legislature may change the use and provide even that land formerly used as a park may be conveyed to private individuals or corporations for a private use.

In the case of Brooklyn Park Commission vs. Armstrong, 45 N. Y. 234, the city of Brooklyn had acquired a fee simple—absolute ownership—by condemnation to lands which were to be henceforth used as Prospect Park. Subsequently when the park plans were more fully developed it was found best to include some additional lands and exclude some of those originally acquired. The city sold one lot to the defendant, who refused to take title on the ground that the city could not convey a clear title. The court held that since the title was received in trust for an especial public purpose the city could not convey without the sanction of the legislature, but that it was within the power of the legislature to relieve the city from the trust and authorize it to sell and convey:

“Doubtless in most cases where land is condemned for a special use on the score of public utility, the sequestration is limited to that particular purpose. But this is where the property is not taken but the use only. There, the right of the public being limited to the use, when the use ceases the right ceases; when the property is taken, though a particular use may be abandoned, the right to the property remains.” “The public had the right of the land in making payment, and as soon as the owner was paid he was disseised. There is no reverter.” “By legislative sanction, it may be sold, be changed in its character from realty to personalty, and the avails be devoted to general or special purposes.”

Cases in other jurisdictions which seem to establish a different rule, namely, that the legislature can not divert property held by a municipality in trust for one purpose to another and inconsistent purpose, will be found to depend on the language of the particular statute or to be based on the conception that the complete ownership was never in the municipality.

Case 3.—The most perplexing situation arises where the land has been dedicated in fee for a particular public use, as for park purposes. The state of the law in this situation is by no means clear. Various state courts have come to different conclusions.

The Ohio court, in the case of Louisville and Nashville Railroad vs. Cincinnati, 76 Ohio St. 481, held that when a common, legal title of which was in the city in trust for its inhabitants, was no longer desired or the purpose for which it was dedicated was no longer obtainable, it would revert to the dedicator. But the Minnesota court in City of St. Paul vs. Chicago, Milwaukee and St. Paul Railroad, 63 Minn. 330, concluded that in attempting to divert property dedicated in fee simple for a specific purpose, the property would not revert to the dedicator but that the act of the legislature would be a mere nullity.

The most surprising decision on this point is that of South Park Commissioners vs. Ward, 248 Ill. 299. The case arose out of an attempt by the South Park commissioners of Chicago to locate the Field Columbian Museum in Grant Park.

The park had been dedicated forever to the use of the public by a platting in accordance with which there had been sold certain abutting lots, some of which had come into the possession of the defendants Ward et al. The right of the owners of the abutting lots to keep the park free from buildings was by a special statute of 1861 made enforceable by a bill in equity. Subsequent to 1893 an area many times the size of the original park was added to it by filling into Lake Michigan. The district abutting on the park had also undergone a radical change from its original residential character. The commissioners decided in 1909 to locate the museum on the addition to the park but were enjoined by Ward et al. The commissioners then proceeded under an act of 1903 which authorized them to condemn the rights in the park possessed by any lot owners under the original conveyance, but the petitions brought to condemn these rights were dismissed in the superior court.

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]

The dates of acquisition of the sites considered in the table varied from 1812 to 1900. Of the 406 pieces of property which showed no increase over purchase price, 230 had been acquired since 1900.

The committee pointed out that the city could do a great deal of purchasing for its park and playground accounts, even in comparatively unsettled districts, and these holdings would have influence in the carrying out of a city plan. The same is true of the purchase of land for school house sites. It has been very generally agreed that at least 30 square feet should be provided for every pupil registered in the city schools, but it is safe to say that very few cities have bought land to this amount. In 1905, Manhattan borough, New York City, lacked 65 acres for school houses alone on this basis. Almost 3000 acres were needed for playgrounds in boroughs outside of Manhattan, while Manhattan itself was hopelessly behind its recreation requirements. It would be a very good investment for New York as well as for any other city in the United States to buy school house sites at 43 cents a square foot, the price for which they can be bought in the borough of Richmond, instead of at $10.69 per square foot, which they cost in Manhattan.[7]

But it is impracticable to determine far in advance exactly which will be the best sites for schools and which for other purposes. All that can be safely said is that the total land needed for miscellaneous local uses will be at least equal to a certain minimum, and the acquirement of that minimum area by the city from time to time as favorable opportunities arise is a wise policy—provided that its ownership by the city does not withhold it for a long time from economic use pending its assignment to definite public service.

Both San Francisco and San Diego have saved considerable money by the inheritance from their Spanish founders of so-called “pueblo lands,” which they have in part used as parks and public building sites, in part have sold, and in part retain as an unapportioned reserve. Chicago’s investments in sites on Dearborn, State, and Clark Streets are returning large dividends and would yield much more if the rentals were graduated in accordance with increasing ground values. Los Angeles is proposing to use some of its landed inheritance for a housing experiment. If its plan is carried out, the city would loan the land, and the construction and maintenance of the houses be privately financed.

Limitations in law and practice on the power of the city to acquire land are for the protection of the tax payers against official extravagance and corruption. But finance commissions have well checked many kinds of municipal waste, and they can as effectively prevent a misuse of the purchasing and condemning power. City building can undoubtedly be carried out more economically through the purchase of a reasonable amount of land by the municipality for a reserve account.

THE ACQUISITION OF LAND FOR AN ESTHETIC PURPOSE

By an amendment to the charter of the city of St. Louis in 1901, the right was given the municipal assembly of St. Louis by ordinance to “prohibit the erection or establishment or maintenance of any business house or the carrying on of any business vocation” on property fronting on a boulevard which might thereafter be opened.[8] By an act of the legislature of Massachusetts in 1898, buildings “now being built or hereafter to be built, rebuilt or altered” on land abutting on a public square known as Copley Square, in Boston, were limited to the height of 90 feet.[9] By a bill presented in the national house of representatives in 1910, the commissioners of the District of Columbia were authorized to designate certain streets or avenues within the District as Class A highways, and on such highways to establish certain special restrictions which might include the prohibition of any kind of business, and might require that buildings should be of certain height, certain materials of construction, and of such architectural design “as shall secure the beautiful and harmonious appearance, as viewed from the public streets, of all structures to be erected or altered on land to which said restrictions shall apply.”[10]

In all this legislation provision was made for compensation to owners for the right in land thus taken, and herein the legislation partakes of the character of ordinary eminent domain statutes. But the interference with private property which this legislation authorized is at least an unusual application of the power of eminent domain, if not an extension of it for a new purpose.

The condemnation of private property for parks, playgrounds, and boulevards has been upheld as justified in the exercise of the power of eminent domain, but the decisions are for the most part very careful to point out that esthetic purposes were merely incidental, allowing the inference to be drawn that the taking would not be justified for purely esthetic reasons. Under the legislation cited, developments of private property may be to a considerable extent controlled, bill-boards may be abolished, structures may be limited in height, the design of private buildings may be modified, solely in the interest of the public’s sense of beauty.

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.

[8] See Appendix, p. [211].

[9] See Appendix, p. [218].

[10] See Appendix, p. [213].

[11] See text of decision, Appendix, p. [219].

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.

1. INITIAL PROCEEDINGS

Milwaukee. After the city council passes an ordinance authorizing the taking of land by eminent domain, there must be first, a finding by a jury of 12 that the taking is necessary for public use; second, a hearing before the board of public works on the question of damages; and third, there may be an appeal from this hearing to a jury which reviews the entire evidence. The following docket entries were made in a normal street opening case:

Sept. 30, 1907, first resolution of common council referred to committee.

Oct. 14, 1907, first resolution adopted by common council.

Oct. 15, 1907, first resolution approved by mayor.

Oct. 28, 1907, second resolution adopted and approved.

Feb. 17, 1908, third resolution adopted and approved.

May 7, 1908, proof of publication and service of resolution on land owners returned to court.

May 16, 1908, list of owners filed.

May 23, 1908, jury sworn and premises viewed.

June 5, 1908, jury hears evidence and returns a verdict that the opening is a public necessity.

July 2, 1908, papers in the case go to the board of public works for award of damages after the hearing of evidence.

Thus, in a typical Milwaukee street opening almost a year elapses before the point of beginning to ascertain compensation is reached.

Los Angeles.[12] The city council passes an ordinance of intent to take private property by eminent domain and sets out the purpose for which the land is to be taken. The ordinance is published and thirty days are given for protest, either against the taking or against the district which has been marked out as benefited by the improvement. A protest against the improvement from the owners of a majority of the frontage of property proposed to be taken or damaged puts an end to the proceedings, and the improvement can not be initiated again for at least six months except on petition by the owners of a majority of the frontage. Not until the protests have been disposed of can the city council proceed to pass an ordinance authorizing the filing in court of a petition for condemnation. Sixty days from the time of the passing of the ordinance are allowed for filing the petition, and the details required in the petition are such that even this time usually has to be extended. It is impossible for the city to acquire land in less than a year.

Minneapolis.[13] The first hearing on the question of damages under the park procedure in Minneapolis is held before five appraisers appointed by the park commissioners. The second hearing is before the park commission. At the second hearing the park commissioners consider objections to the appraisers’ report on the ground either of irregularity in the proceedings or of inadequacy of the award of damages. The third hearing is before the court on the question of irregularity of the proceedings. The fourth hearing is before three appraisers appointed by the court to review the evidence and bring in a report on the question of damages. If this appraisal is unsatisfactory there may be even a fifth hearing before three new appraisers, but in the practice of the present counsel for the board of park commissioners, which has extended over several years, there has been only one instance of the court’s granting this fifth hearing.

St. Louis. In St. Louis there is a curious anomaly making for delay. Ordinarily the findings of the eminent domain commission are taken up on appeal to a justice sitting without a jury, but a corporation is allowed to appeal to a common law jury on the question of damages although not on the question of benefit. It is not infrequent for the appeal of a single corporation to result in a jury’s overthrowing the finding of the eminent domain commission in respect to one item, in which case all the work of the commission goes for nothing. A new commission must be appointed and the evidence must be entirely reviewed. A corporation has the same right in Kansas City but, by statute,[14] it must exercise that right before the eminent domain commissioners report, and if it elects to have its damages assessed by a jury the commissioners have no jurisdiction over that part of the case, but accept the finding of the jury and incorporate it in their own report.

Denver. In Denver, where in other details the condemnation procedure is satisfactory, there is much time wasted over the formality of notice and hearing. After the passing of the ordinance and the formal negotiation by the mayor for the purchase, a petition is brought in the district court. Two months, at least, are required for service on residents, and a month more for publication on absent defendants. The hearing is then begun before the commissioners, who are allowed thirty days to report, but this time can be extended. Thirty days are allowed for the publication of the report and thirty days more for the filing of petitions by parties interested. These petitions are usually tried out by a common law jury, but may be heard by a jury of six. It is impossible for the city to get possession of land inside of a year and, where many property owners are involved, much more time is required.

Chicago. In Chicago, where land for streets is commonly dedicated without expense to the city, the only considerable taking for street purposes in the past fifteen years was in connection with the widening of Randolph Street. The docket entries show that the ordinance was passed March 16, 1903, and the petition filed in court in June of the same year. The commission was appointed in July, 1903, and finished its work in September, but the time allowed for petitions and the actual trying of these petitions by jury so delayed the proceedings that an order of possession was not issued to the city until June, 1906.[15]

Oregon. In contrast with the cumbersome methods illustrated above, the state code of Oregon shows the possibilities of a more direct method of condemnation procedure.[16] Without preliminary notice or hearing a petition is filed in court and issues may be joined within fifteen days before a common law jury, and even in cases of non-resident owners the interval between the filing of petition and the trial before the jury is not over two months. The city may come into possession of the land within two months after filing the petition, unless the court docket is crowded. Delays are occasioned chiefly because of insufficient judges.

2. APPEALS TO HIGHER COURT

Even after the award of damages is finally determined by a court sitting with or without jury, a hearing on appeal is allowed on questions of law in condemnation cases as in any other civil case. Such appeals are relatively infrequent, because the determination by the legislature that a proposed taking is for a public use is held not appealable, and because a finding of fact by the lower court on the question of damages will not be disturbed unless there is evidence of gross error or fraud. The questions that go up to the supreme court usually are:

1. Is the statutory provision under which property is condemned constitutional?

2. What is the legal meaning of the language of the statute?

3. Have the municipal authorities strictly complied with the details of the procedure as outlined by the statute?

4. Is the rule of damages as announced in the lower court inequitable either to the city or to the land owner?

The additional expense of appeals to a court of last resort can not be avoided; but possession of land by the city should not wait on the outcome of this appeal, particularly where the only question in issue is the amount of damages. It is the law of most jurisdictions that ownership of the land passes to the city on the payment of the final judgment in the lower court.

THE TRIBUNAL

1. A SPECIAL BOARD SUBJECT TO REVIEW BY THE COURT WITH JURY

A common law jury is apt to lack the knowledge of real estate values and the experience in handling technical evidence which are important in the tribunal which is to ascertain the compensation in land damage cases, and therefore most condemnation codes provide a special tribunal. Some of the codes also see the necessity of a tribunal as far removed as possible from the influence of the parties to the suit and provide for its non-partisan appointment, usually by the court which has jurisdiction over the proceedings. There is a wide difference in the character of these judicial commissions in different cities and even in successive commissions in the same city.

Denver. In the opinion of the city attorney’s office, Denver gets excellent commissioners, or appraisers as they are called. The procedure is a semi-judicial one from the start. The petition is filed in the district court and three appraisers are appointed by the presiding justice, who endeavors to get men of the highest qualifications for this work. The bill which is submitted by the appraisers for their services is usually allowed without much question. On the average, only 15 per cent of the findings of the appraisers are appealed from. A commission was appointed in 1911 to ascertain damages in connection with the extension of the Denver park system. Property for this purpose was taken to the amount of $2,523,463, as estimated by the report of the appraisers. Of this sum $1,814,539 was paid for land taken for the site of the civic center. Considering the size of the undertaking there were very few protesting owners, and these were for the most part owners of property involved in the taking for the civic center. Out of 50 owners only 18, representing $527,428, protested against the awards, and one of these alone represented $265,000. The common law jury which heard the first protest found against the petitioners, and all the rest of the protesting owners withdrew their appeals.[17]

St. Louis. The same procedure as in Denver is followed in St. Louis, the three commissioners being appointed by the judge of the circuit court presiding over the case. A majority of the commissioners has full power to act and make a report. Unlike the practice in Denver, the compensation is fixed at $3.00 a day. It is not to be expected that excellent men will be attracted by such low pay, and perhaps for this reason some of the commissioners have not given satisfaction. It is reported to be not an unusual thing in cases involving less than $1,000 for the commission to take six months in reaching a decision and then to have its finding overturned on review. On the other hand, there have been notably good commissioners in cases involving heavy damages. The commissioners who sat in connection with the condemnation of the site of the municipal courts building took two days to reach a decision, although the property of 400 defendants was taken and over $1,000,000 in damages was paid. Appeals from the commissioners’ findings may be taken to a common law jury only by a corporation land owner—an anomaly in procedure which we have already noticed.[18]

Philadelphia. The municipalities of Pennsylvania in takings for street purposes replace the commission, which may be regarded as somewhat expert in the knowledge of real estate values, by a so-called “road jury” of three appointed by the judge of the court where the petition is filed. Philadelphia, with a population of 2,000,000, and the hill towns of a few hundred inhabitants, have the same procedure.

The awards of road juries are, in the opinion of the city solicitor’s office, on the whole satisfactory. Excessive awards to land owners are appealed from by the city, and in a large per cent of these appeals land owners, to avoid the danger of litigation, remit some portion of the award. The following shows the total amount of awards and total remitted in Philadelphia in 1906, 1907, and 1908.

The appeal from the awards of road juries is heard by a common law jury in the superior court and results, in a considerable number of cases, in a substantial increase over the award. The report of the city law department in 1906 shows that there were 76 cases heard by a road jury in 41 of which appeals were taken. In this same year awards in 130 cases heard in the superior court were increased from $132,054, as fixed by the road jury, to $225,758. In nine cases the amount of the award remained the same and in one there was a decrease of $2,256. The reports of the law department of 1907, 1908, and 1909 do not give the whole number of cases appealed from the road jury, but in the 23 appealed cases heard in the superior court for 1907 there were increases in awards in 17 cases from $49,169 to $91,551; in the 22 appealed cases heard in the superior court for 1908 there were increases in awards in 20 cases from $61,550 to $85,877; in 1909 out of 19 cases there were increases in awards in 14 cases from $119,650 to $153,907.

It is significant that in a considerable number of the cases appealed from a road jury the evidence is heard by a referee, particularly where a large sum is in dispute, and the common law jury acts on his report. Almost half the appealed cases of 1906 were sent to a referee.

Portland, Oregon. In taking land for street purposes Portland does not use the state code, the advantages of which were described on page [30], but follows the provisions of the city charter,[19] which prescribe a procedure much like that in Philadelphia. Its three “viewers” correspond to the Philadelphia “road jury,” except that they are not appointed by the court but by a committee of the common council and usually for political reasons. The result is that a body of professional viewers has developed who are peculiarly open to the charge that their findings may be influenced by the political strength of the parties to the proceeding. The report of the viewers goes to the city council which usually adopts it as the easiest course to pursue. At any time within twenty days from the confirmation of the report of the viewers by the council, an appeal may be made to the court sitting with jury, the only questions open to appeal being the amount of damages and, where assessments for benefit are also made, the amount of the assessment. Since any number of persons may join in the appeal the proceeding is so complicated that the jury is ordinarily glad to confirm the report as a whole and avoid the rather difficult task of revising it. Two out of three recent cases had that result.

There are two types of commission which for convenience will be placed in this group, though they differ essentially from the Denver and St. Louis commissions. The first is illustrated by the street commissioners in Boston, or the board of public works in Milwaukee; the second, by the Chicago commission specially appointed under the local improvement act. Like judicially appointed commissions, those of Boston and Milwaukee conduct hearings, but unlike judicially appointed commissions they sit as arbiters in a case in which they, as representing the city in the capacity of administrative bodies, are interested parties.

Boston. In proceedings for the condemnation of land needed for streets, and for school houses and other public buildings in Boston, awards of damages are made by the street commissioners after public hearing. The street commissioners are elected for three years and receive a fixed salary. There may be much or little significance in the fact that appeals are frequent from the awards of this elected commission which is apt to be regarded as closely allied with the city administration. Before the jury the city undoubtedly is handicapped by the fact that the awards of damages have been made by a department of the city administration sitting as a tribunal in a cause in which the city is an interested party. The number of appeals from the findings of the Boston street commission compares very unfavorably with those from the St. Louis and Denver judicially appointed commissions, or even with the Indianapolis park commission, a board which, like the Boston street commission, is a department of the city administration. The different result in Indianapolis may be due altogether to the strong demand for the completion of the park system and to the conviction in the minds of land owners that parks create land values; but contributing factors to this result are doubtless, first, the strictly non-partisan character of the Indianapolis commission, which serves without compensation, and its reputation for fair dealing; second, the elimination of the jury in cases appealed from the park commission; and third, the assessment of the cost of land taking on the property specially benefited, which compels the interest of the land owner “specially benefited” in every verdict for land damages and makes appeals to increase verdicts extremely unpopular.

Data in 35 proceedings for street openings, widenings, and relocations in Boston, taken at random from the records of the last fifteen years, show that in 31 cases the awards of the street commissioners were not accepted by the owners. In 28 of these cases there were 1,065 parties to the proceedings, of whom 462 refused to accept awards. Approximately 175 of these claims for additional compensation were settled by the street commissioners, 287 were entered in court and either tried by jury or settled by the law department. Thus 26 per cent of all owners interested in the proceedings appealed to a common law jury and a considerable portion of these appeals were actually tried. Complete figures were obtained from the records of the street commissioners in 12 proceedings and are given in the following table:

TABLE 2.—DAMAGES AWARDED, PARTIES INVOLVED, CLAIMS FOR INCREASE, AND CLAIMS COMPROMISED OR SETTLED, IN 12 PROCEEDINGS FOR STREET IMPROVEMENTS. BOSTON, 1895 TO 1913

Milwaukee. Although in Milwaukee the board of public works is the tribunal before which evidence is presented on the question of damages on account of the taking of property for public purposes, a finding that a taking proposed is necessary and that the purpose is a public one must be made by a jury of twelve men before the case gets to the board of public works. From the awards of the board of public works appeal is allowed to a common law jury, but in the last eight years every appeal has been settled before the case reached trial. It may be said in this connection that there have been no very extensive takings for either street or park purposes.

Chicago. The second type of commission is provided for in the procedure for street improvements in Chicago. Like the Denver and St. Louis commissions, it is judicially appointed but is more in the nature of a board of advisory experts to the jury, since its report is made without a hearing and on the basis of its own appraisal of valuations. The court frequently follows the suggestion of the city attorney in making the appointments to this commission. The report of the commission is filed in court, summonses are immediately issued to all persons whose land is damaged or taken, and the trial proceeds before a common law jury. There have been so few cases of takings for street openings, widenings, and extensions in Chicago that the data are insufficient to form the basis for an opinion as to the merit of the Chicago method of ascertaining compensation. The only proceeding that has involved considerable land taking within the past twenty years was the widening of Randolph Street, in which case the work of the commission was on the whole well done, if judged by the result of the review by the court. Many owners were concerned in that proceeding, but the finding of the commissioners as to compensation for land taken or damaged was increased only from $314,000 to $367,000, and the finding of the commissioners that there “was no public benefit” and that, therefore, the total expense of the improvement should be assessed on private owners was not altered on appeal. For their services in this case, the commissioners received $1,000 each.

2. A COURT WITH JURY HAVING ORIGINAL JURISDICTION

Although an appointed commission is more likely to consider intelligently the evidence and to come to a fairer conclusion than if the proceedings are brought directly before a jury, this advantage may be more than offset and the preliminary hearing be a waste of time if the commission’s findings are overturned by an inexperienced jury of twelve men. It is therefore not surprising to find in several jurisdictions where the right to a jury is granted in eminent domain cases that the expense of a first hearing before a commission is entirely eliminated. This is so in the state codes of Louisiana, Ohio, Washington, and California. In the city of Chicago for some public purposes, and in Portland, Oregon, for all public purposes except street openings, widenings, and extensions, the same procedure is followed.

Cleveland. In Ohio, the procedure in appropriating land for all public purposes is regulated by the state law.[20] When an ordinance authorizing the appropriation of land is passed by a two-thirds vote of the common council of any city, the city solicitor makes application to the court of common pleas, to a judge in vacation, to the probate court, or to the insolvency court, for the appointment of a jury to award compensation, giving five days’ notice of such application to the owners of property affected by the ordinance. The judge applied to sets a time for the hearing of evidence by the jury and the trial proceeds as in other civil actions. Appeal lies from the finding of the jury, but the right to take and use the property condemned is not affected by the appeal. Upon payment of the judgment or upon depositing the money in court, a fee simple vests in the city unless a lesser estate is asked for in the ordinance of appropriation.

In Cleveland, when the state insolvency court was legislated out of existence by operation of the federal bankruptcy law, that court took over jurisdiction in juvenile and condemnation cases. The docket of the court is not overcrowded and a speedy trial is assured in every case. So rarely have the offers made by the city been exceeded by the jury’s findings that owners have learned the economy of accepting the city’s offer in the first instance and avoiding the delay and expense incident to litigation. The result is that less than one-tenth of the land needed for public purposes is acquired by condemnation procedure.

Chicago. Chicago gets practically all of its sites for school houses by condemnation. The offer of the school board to purchase land desired is hardly more than formal, and on its rejection the petition for condemning the land is brought immediately in court and evidence of the value of the site is presented directly to the jury. This method has been in use for some years and counsel for the board, who has served during the history of this method of procedure, is convinced that the city is in substantially as advantageous a position as a private buyer. During the past five years (1907-1912), with an average of at least 20 cases a year, the jury has, with practically no exception, accepted the valuation of the site as fixed by the law department of the school board. Settlements with property owners have consequently been much more common. Ten years ago 90 per cent of the cases involving condemnation for school purposes in Chicago were tried through to a verdict. Today more than 90 per cent are settled and subsequent proceedings are merely formal, to perfect the title.

San Francisco.[21] In San Francisco, too, the procedure is begun by filing a complaint and issuing summonses thereon in the superior court. If the owners affected by the process do not demand a trial by jury it is waived and three appraisers are appointed by the court to ascertain the compensation. In practice, however, more than 80 per cent of the land needed in San Francisco for public purposes is acquired directly by deed from the owners without resort to condemnation procedure.

3. A COURT WITHOUT JURY HAVING ORIGINAL OR APPELLATE JURISDICTION

New York.[22] When the board of estimate and apportionment of New York City authorizes the taking of land for street or park purposes, application is made to the supreme court for the appointment of three commissioners of estimate and assessment, to determine the compensation to owners and to assess as damages the cost of the proposed improvement, or such a proportion thereof as the board of estimate and apportionment directs, on lands deemed specially benefited. After hearing evidence an abstract of the report of the three commissioners or of a majority of them is filed in court at least thirty days before being presented formally to the court for confirmation, in order that petitions in writing against the confirmation of the report may be filed. The court gives a public hearing to remonstrants who have filed their written objections, and confirms or modifies the report, or in some cases sends it back to a new commission. The commissioners are directed by the statute to complete their work within six months unless granted an extension by the court for good cause. Their compensation is $10 a day.

This procedure was long regarded as unsatisfactory. In 1911 it was characterized by the New York press as “inordinately expensive,” because of the financial interest of the commissioners in protracting the proceedings; “generally inefficient,” because of the many incompetent commissioners selected for political reasons; and open to “flagrant abuse,” because the commissioners thus selected were likely to favor property owners who had political influence. By the adoption of a constitutional amendment at the general election November 4, 1913, the legislature is permitted to pass an act which will give to a justice of the supreme court the power to dispose of all matters concerning condemnation formerly in the hands of the commissioners of estimate and assessment.[23] In the opinion of the corporation counsel, Archibald R. Watson, “A justice of the supreme court with undivided responsibility, with no interest to prolong the proceedings, not susceptible to influence and generally of high grade character and capacity, should be able to dispose of condemnation matters with results far preferable than by means of commissioners.”

Minneapolis. We have already described the procedure in appropriating lands for park purposes in Minneapolis up to the time of the confirmation of the awards by the district court.[24] The results are on the whole quite satisfactory. The appraisers are usually competent men and, although appeals are taken from their awards as confirmed by the board of park commissioners to the district court sitting without jury, the percentage of such appeals is not large, not more than 15 per cent in any proceeding, and the increase in awards on appeal is often merely nominal and rarely more than 20 per cent. There seems, however, little justification for two preliminary hearings, one before the appraisers and one before the park commissioners, on the question of land awards. The appraisal could as well be done by the park commissioners through the agency of a competent clerical force, as in Indianapolis, and the expense of appraisals and reappraisals would be avoided.

Kansas City. In Kansas City, Missouri, the petition for taking land for street purposes is brought in the municipal court which sits with a jury of six appointed by the presiding justice.[25] The verdict of the jury is confirmed by the common council of the city and appeals are allowed to the circuit court. In practice not more than 25 per cent of such actions are appealed from the municipal court. In the newer procedure for the taking of land for park purposes a saving of both time and expense, by eliminating the preliminary trial in the municipal court, is brought about by allowing the petition to be filed directly in the circuit court.[26] As in St. Louis, a corporation is allowed a hearing on the question of damages for land taken before a common law jury, but in Kansas City corporations do not demand common law juries. When the procedure was new, a corporation tried the experiment and the result was so disastrous that it is said never to have been attempted since. Presiding justices both in the municipal and circuit courts take care to appoint competent men. That satisfactory jurors can be obtained for $2.50 a day, which is the compensation allowed, is ample evidence that jury service in these cases is regarded as a civic duty and not as a desirable “job.”

Indianapolis. In Indianapolis the board of public works in takings for street purposes, and the board of park commissioners in takings for park purposes, have the same duties which in Kansas City are performed by a jury of six men. All objections to the taking, awards for damages, and the size of the specially benefited area as marked out by the commissioners, are disposed of in one hearing.[27] From the findings of the commissioners appeal lies directly to the circuit or superior court sitting without jury, and the amount of the judgment as found on appeal is final. The businesslike practice which has been adopted by the park commission under the act of 1909, appeals to the sense of fairness of the property owner and has proved most helpful in arriving at awards. In every taking the park board has the assistance of real estate experts as an advisory committee, and is kept in close touch with valuations by a complete card catalogue system which registers the actual consideration in transfers of property.

Although the act is only three years old, there has been at least one considerable taking in each park district. In the North Park there have been two, one involving an expense of $154,420 and the other $131,662. In all the takings for park purposes under the new act involving over $600,000 worth of property and several thousand owners, there have been only four appeals from the findings of the board, two of which have been decided by the superior court. In one an award of $10,000 was increased to $17,000 and in the other an award of $6,925 was increased to $9,800. In one proceeding alone there were 1,600 owners involved and only 50 were present at the hearing given remonstrants.[28]

CONCLUSIONS

The New York constitutional amendment provides the simplest method of ascertaining compensation. Owners of land are given one day in court in which all questions concerning the regularity of procedure and the amount of compensation are determined. There is in such a procedure the least chance for waste of time or money in preliminary hearings, and all the responsibility for decisions is put on the justice who presides in the case. But no judicial decision has sufficiently tested whether the land owner’s rights are properly safeguarded. The procedure in Indianapolis has had the advantage of a thorough testing. Its results are satisfactory enough both to the city and to the land owner to recommend its adoption in any jurisdiction contemplating a change in procedure. But where a common law jury is prescribed by the constitution the adoption of the Indianapolis procedure in its entirety would not be possible without a constitutional amendment. No comment is necessary to emphasize the difficulty of passing such an amendment, and there is considerable question whether it would be necessary or expedient in the light of experience in Chicago and Cleveland where the awards of common law juries have been fair both to the municipality and to property owners.

The worst that can be said of the jury in condemnation cases is that in some jurisdictions it has a lively prejudice against the city as a petitioner in eminent domain cases. The opinion is also generally held by those who have had experience in the presentation of evidence to a jury that the usual uncertainty in a jury’s findings in any civil case is only increased by the technical nature of the evidence presented in condemnation cases. The jury is asked to estimate land values without having had any previous experience. It must depend entirely on its view of the premises and on the opinion of real estate experts for its decision. About all a fairminded jury can do in such cases beyond striking a mechanical average of the widely divergent expert testimony is to discount the several claims in proportion to the impression made upon the jury by the individual experts,—and the jury is asked to measure the relative elasticity of conscience of experts after a too meager character study.

Where condemnation cases must continue to be tried before a jury, the important question in revising methods of procedure is whether there is any advantage in a preliminary hearing, either before a permanent board or before a board specially appointed for each case. From the data which we have just reviewed it is obvious that however excellent the preliminary tribunal, it results in increased cost and delay in those cases where its findings are not accepted by the land owners. But it is just as clear, first, that before a preliminary tribunal well constituted and acting under favorable conditions, the procedure is simpler and less expensive; second, that appeals from its findings are few; and third, that not infrequently its awards are sustained on appeal. Thus the preliminary hearing at its best has the positive merit of being the means in a great majority of cases of a large saving in time and expense, and, even in cases that are appealed, of influencing the jury’s verdict. In jurisdictions where preliminary boards are unsatisfactory, changes in method of appointment or in minor details should be tried before the principle of a preliminary hearing is condemned. If the tribunal has a political bias or is too closely affiliated with either of the parties to the proceeding, it should be replaced by a strictly non-partisan tribunal appointed by the court. A tribunal of permanent tenure is likely to handle cases with more dispatch, because of longer experience, than one appointed for each case. A properly paid tribunal is a surer guarantee of competent service than one paid an entirely inadequate sum or one induced to prolong its deliberations by a per diem compensation.

Whatever reason may justify the continuance of commissioners in eminent domain cases is not applicable to procedure in Philadelphia and other cities and towns of Pennsylvania and in Portland, Oregon. There seems to be no good reason for allowing damages to be ascertained in the first instance by a jury indifferently qualified to pass upon the evidence and then to have the same evidence reviewed by a larger jury that is if anything less qualified to reach a fair verdict.

Even where it can be shown that awards of commissions of acknowledged excellence are generally appealed from and are increased by a jury on appeal, the reform that is needed is likely to be more fundamental than the abolition of the commission. A very large factor in determining the attitude both of the general tax payer and of the owner of land, and consequently in determining the number of appeals from a commission’s findings and the advantage or disadvantage of the city’s position before a common law jury, is the method of distributing the cost of an improvement. A summary of these methods in several jurisdictions should, therefore, indicate ways and means to reduce the initial investment of capital in the land required for an improvement, the problem which has just been considered, as well as the way of providing capital, which will be discussed in the next chapter.

FOOTNOTES:

[12] For streets, see Acts of California, 1909, Chapter 684.

For parks, see Acts of California, 1909, Chapter 697.

[13] Special Laws of Minnesota, 1889, Chapter 30.

[14] Charter of Kansas City, 1908, Article 13, Section 12.

[15] Original papers filed in the case.

[16] Lord’s Oregon Laws, Title XLV, Of the Condemnation of Land, Section 6859. Acts of 1909, Chapter 171.

[17] Denver Municipal Facts, Vol. III, No. 20, p. 10.

[18] See page [28].

[19] Charter of Portland, Chapter VI, Section 348 ff.

[20] General Code of Ohio, Section 3677 ff.

[21] California Code of Civil Procedure, paragraph 1243 ff., Acts of California, 1909, Chapter 684.

[22] Greater New York Charter as amended in 1901, Section 970 ff.

[23] Amendment to Constitution of New York, Section 7, Article 1. For text see Appendix, p. [248].

[24] See p. [27].

[25] Charter of Kansas City, 1909, Article 6, Section 1 ff.

[26] Charter of Kansas City, 1909, Article 13, Section 8 ff.

[27] Acts of Indiana, 1911, Chapter 231, Sections 17 and 19.

[28] Records of Indianapolis Park Commissioners.

CHAPTER III
THE DISTRIBUTION OF THE COST OF LAND ACQUIREMENT

Cities may pay for improvements as they go along, appropriating the funds out of the general tax levy, or they may make special issues of bonds from time to time, and draw upon the general tax levy gradually for the interest charges and the redemption of the bonds. The income applicable to improvements derived from the tax levy, both directly and through the sale of bonds payable out of the tax levy, is likely to prove inadequate in almost any city in the United States, since a limit to the borrowing ability of a city is usually fixed in the state constitution at from 2 per cent to 10 per cent of its assessed valuation, and the amount available from taxation is just as effectively limited by the inelasticity of the tax rate above a certain figure. The most obvious way out of the financial difficulty is to remove the limitation on borrowing power, and there are precedents for this in nearly every progressive city. It is in fact the usual thing when comprehensive plans are proposed involving considerable financing, for the legislature to allow a bond issue and provide that it shall not be reckoned in determining the amount of the municipal indebtedness.

DEVICES EQUIVALENT TO BORROWING OUTSIDE THE DEBT LIMIT

The city of Milwaukee employs a somewhat different expedient in stretching its borrowing ability. The constitution of the state of Wisconsin allows cities to incur indebtedness up to 5 per cent of their valuation,[29] provided that the bond issue is approved by the people at a special election. Counties are also given the right to become indebted up to 5 per cent of their valuation and no approval of the people is required. These provisions give Milwaukee the right practically to borrow money up to 10 per cent of its assessed valuation, since most of the county’s valuation is included within the city’s limits. Improvements are construed whenever possible to be county improvements in order to give the city a greater borrowing power and avoid the submission of the bond issue to the people.

But Milwaukee and other cities of Wisconsin have also worked out a method of purchase of land by contract, which amounts really to purchase on the instalment plan, as a further relief from the exigencies of the financial situation. The same practice is sanctioned by legislation in Minnesota and is employed at least in Minneapolis. This method is useful where a city is close up to its limit of indebtedness. The legislation of both states specifically provides that the contract shall not create a corporate liability or constitute a pledge of the general credit of the city. In construing this language the supreme court in both states has held that there is no obligation on the part of the city to meet unpaid instalments, since the city has merely an option to purchase, with the right of possession till default in payment.[30]

It was argued in Burnham vs. Milwaukee, 98 Wis. 128, that a land contract was merely a scheme to evade the constitutional limitation on municipal indebtedness, but the supreme court sustained the contract, holding that in spite of the weight and persuasiveness of the argument the legal meaning of the statute was definite and could not be twisted or enlarged. Its conclusion was, “that the unpaid instalments upon the park land contracts do not constitute a corporate indebtedness within the meaning of the constitution because the payment thereof is entirely optional on the part of the city.” To the same effect are Perrigo vs. Milwaukee, 92 Wis. 236; Milwaukee vs. Milwaukee County, 95 Wis. 424; and in Minnesota, Kelley vs. City of Minneapolis, 63 Minn. 125.

Cities often have opportunities to secure a tract of land at a low figure subject to immediate acceptance of the offer. The offer will not stand until a bond issue, which must be submitted to popular vote, has been secured, and the amount of such an issue might increase the indebtedness beyond the limit of the borrowing power. In such an emergency the cities of Wisconsin and Minnesota may enter into a contract with the owners of land, paying 5 per cent of the purchase price at the date of contract and the balance in annual instalments. A piece of land costing $100,000 may be paid for by an initial instalment of $5,000 and 19 annual instalments of $5,000 each. In providing for these payments, the city issues bonds each year, bearing 4 per cent interest, the issues being for twenty years, of which 5 per cent is redeemed each year. The amount of each bond issue is made up of the annual instalment of $5,000 and the interest on the balance of the purchase price at 4 per cent. The last bond in the issue will be redeemed forty years after the purchase of the land. Each year the amount required for sinking fund and interest charges on each annual bond comes out of the tax levy.

There are several advantages in the contract method of paying for land: First, the payment is distributed over forty years without the necessity of legislative sanction for a long term bond; second, desirable tracts of land may be purchased at any time during the year at an advantageous price and the city is not compelled to wait for the time-wasting formality incident to bond issues; third, the city’s borrowing power is in effect considerably extended.

Leaving out of consideration financially self-sustaining municipal investments, like many municipal water works, which are usually reckoned apart from the municipal debt and which do not impose a burden upon the tax payers as such, the temporary relief from financial difficulties secured as above described, by extending the limit of a city’s borrowing power or by expedients such as the contract method of paying for land, leaves the ultimate burden on the municipality and substantially distributes it over the whole of the taxable property of the city in accordance with valuation. Conservative policy will never allow a very great stretching of the debt limit, and any considerable increase beyond the customary annual tax rate is bitterly resisted. Sources of municipal revenue other than the general property tax are practically negligible in this connection in American cities. It is therefore very important to relieve the general tax payer of a portion of the cost of public improvements wherever they can be found to be of so much special benefit to the owners of a limited area as to justify a special assessment.

SPECIAL ASSESSMENTS

1. DEFINITION

“A special assessment is a compulsory contribution paid once for all to defray the cost of a special improvement to property undertaken in the public interest and repaid to the government in proportion to the special benefits accruing to the property named.”[31]

Though a special assessment is an exercise of the taxing power, it differs from a tax in two particulars: First, the nature of a special assessment makes it a charge for a real benefit to property and one which can be more or less accurately measured in money values; second, it has been almost uniformly held by judicial decisions that special assessments need not conform to the constitutional requirement that taxation shall be equal and uniform.

The equity of this species of taxation is defended on the theory that the individuals of the community whose holdings have been made more valuable by the expenditure of the community’s money should repay at least some portion of that outlay. Specific application of the principle may produce an unfair result. If an assessment for street improvement is figured by the front foot, it is unfair to the man with a long, shallow lot. If it is levied in accordance with the area of lots, it is unfair to the land with much depth and small frontage. It is impossible to devise any method of taxation which distributes the financial burden automatically with perfect and indisputable justice. If a lot which was worth $1,000 before a public improvement can be sold for $1,100 after it, and if the lot is assessed any amount up to $100, the method of arriving at this amount is immaterial, since the result is just enough.

2. HISTORY

A special assessment law enacted for New York City in 1691 is said to be the first true special assessment law in the United States, and to have been based on a law passed in 1667 to aid the rebuilding of London after the great fire of 1666.[32] This law of 1667 was one of three special assessment laws enacted in Great Britain before 1900 and their use was very infrequent. But in 1658 the general court of Massachusetts appointed a committee “to lay out the way through Roxbury lots to Boston farms, and to judge what is meet satisfaction to the proprietors for the way, and that they have power to impose an equal part upon all such of Boston or other towns as shall have benefit of such way.”[33] Whatever may have been the origin of the principle, because of its general use and extensive development in the United States it is recognized even in Great Britain as an “American device.”

The New York law of 1691 assessed the cost of street pavements and sewers on the property specially benefited, in proportion to the benefits received. Pennsylvania passed a similar law in 1700: “To defray the charge of pitching, paving, graveling, and regulation of said streets ... each inhabitant was to pay, in proportion to the number of feet of his lots ... adjoining, on each or either side of the said streets.”[34] Massachusetts in 1709 and 1761 provided that “Persons receiving any benefit from common sewers, either direct or remote, were obliged to pay such proportional part of making or repairing the same as should be assessed to them by the Selectmen of the towns.”[35] The old New York law was little used until 1787 when it was amended and made somewhat more definite.[36]

The adoption of the principle was extensive after the war of 1812. The following dates indicate about the time when the legislation was passed in different states and territories, the dates usually indicating the incorporation of the principle in the charter of some city, followed usually by court decisions in the main upholding the assessment. The active use of the special assessment principle may be considered as dating in New York from 1813; Kentucky, 1813; Michigan, 1827; Pennsylvania, 1832; Louisiana, 1832; New Jersey, 1836; Ohio, 1836; Illinois, 1837; Maryland, 1838; Connecticut, 1843; Wisconsin, 1846; Indiana, 1846; Mississippi, 1846; California, 1850; Oregon, 1851; Missouri, 1853; Rhode Island, 1854; Iowa, 1855; Delaware, 1857; Kansas, 1864; Massachusetts, 1865; District of Columbia, 1865; Virginia, 1866; Vermont, 1868; West Virginia, 1868; Minnesota, 1869; New Hampshire, 1870; Texas, 1871; Maine, 1872; Nebraska, 1873; Florida, 1877; Georgia, 1881; Nevada, 1881; Washington, 1883; Alabama, 1885; North Carolina, 1887; North Dakota, 1887; South Dakota, 1887; Montana, 1887; Idaho, 1887; Wyoming, 1887; Utah, 1888; Colorado, 1889; Oklahoma, 1890; North Mexico, 1891; Arizona, 1893.[37]

In early times special assessments were most frequently used only to defray the cost of construction of improvements, but the language of the first Massachusetts act is broad enough to allow also an assessment to cover the cost of land acquirement. It is only the use of special assessments to defray the cost of land acquirement with which we are concerned in the present survey, although a special assessment for a more restricted purpose is based on the same principle.

3. SPECIAL ASSESSMENTS IN ACQUIRING LAND FOR PARK PURPOSES

It is generally agreed that parks judiciously acquired in a city are a benefit to the whole community, but the use of some of them, especially of small parks, is confined almost wholly to the people of the locality in which they occur, while other parks, especially the large ones, may be used by people from all parts of the city.

It is also a real estate axiom that residence property contiguous to parks commands a higher price, other things being equal, than similar property several blocks away. We should therefore expect the cost of park acquisition to be distributed, first, by an assessment on such property as really receives a special increase in value because of the nearness of the park; and second, either by assessment on a much larger area assumed to include practically the whole public served by the park as a local institution, or else by general taxation on the whole city.

In the case of small parks, it is logical and fair to subdivide a large city into local “park districts” or “improvement districts” and to make each district pay for its own local park. This practice is not only fair but extremely salutary. It forces a clearer understanding of what each dollar of the tax payer’s money has gone to secure, thus checking a loose extravagance in the acquirement of park lands, and at the same time makes it possible for a progressive and prosperous locality which is in need of parks to proceed with their acquirement unhampered by the resistance of other parts of the city which are satisfied with the existing situation or are really unable to afford further taxation for park purposes. The principle is the same as that which justifies the subdivision of a state into municipalities for the localization of taxes required for local purposes, and it becomes more and more important, as the size of municipal units is increased, for dealing with affairs that affect large groups of contiguous communities having many conflicting interests.

But although the amount and kind of benefit resulting from large and small parks is about the same in all cities similarly situated, the practice in paying for the cost of park areas shows the greatest divergence. It is usual in the United States to assess no part of the cost of acquiring park lands on property specially benefited. In some cities the law does not permit such assessment. In other cities the assessment is made in so limited a way as to give the community little relief from the financial burden. In several cities, notably Seattle and Portland of the western cities, and Baltimore in the east, which assess private property very liberally for street improvement, including the cost of land takings, there is no assessment for the acquisition of land for parks.

In the cities of Ohio, it was illegal up to 1912 to raise the cost of land acquired by condemnation by a special assessment. The case that establishes this law in Ohio is City of Dayton vs. Bauman, 66 Ohio St. 379. In that case the city appropriated land for the extension of two streets and assessed the cost on abutting lots. In deciding against the validity of the assessment the court based its decision entirely on Section 19, Article I of the Ohio constitution, holding that a special assessment was an indirect method of evading that constitutional limitation. This section provides:

“Private property shall ever be held inviolate, but subservient to the public welfare ... where private property shall be taken for a public use, a compensation therefor shall first be made in money, or first secured by deposit of money, and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner.”

The court said:

“The limitation of Section 19 goes to the full extent of prohibiting the assessment of compensation, damages and costs of land appropriated upon any real estate whatever. In short, money cannot be raised by assessment to pay such compensation, damage and costs, but such money must be raised by taxation. The public appropriate land for public use, and the public must pay. Nothing less than the public can appropriate lands by legal process for public use. If an assessment district should be formed and a petition filed by such district to appropriate private property for the use of such district, or the public, a demurrer to such petition would be sustained on the ground that the constitution gives no power of appropriation of private property to such assessment district, such district not being the public and the power of appropriation being given by Section 19 by the public only.

“The power of appropriation being given to the public only and only for the public use, it follows that the public, the taker, must pay for what it takes, because he who takes from another should himself make restitution, not compel others to pay for what they have not taken.”

The language of the decision is given since it is believed to be the most pointed judicial expression of the chief argument against the validity of special assessments. It is in substance a decision that a tax, unless uniformly levied, amounts to an illegal taking of private property. In this respect the decision is contra to the great weight of authority in the United States.

In 1912 the people of Ohio ratified the following constitutional amendment which makes the law of Ohio uniform with that of the rest of the country:

“Section 11. Any municipality appropriating private property for a public improvement may provide money therefor in part by assessments upon benefited property not in excess of the special benefits conferred upon such property by the improvements. Said assessments, however, upon all the abutting, adjacent, and other property in the district benefited, shall in no case be levied for more than fifty per centum of the cost of such appropriation.”[38]

In Missouri we find St. Louis making no special assessment for the cost of taking park lands, but in the same state Kansas City assesses the entire cost of park acquisition on the land specially benefited.

In Massachusetts, since 1882, park commissioners have been allowed to assess an amount not exceeding one-half of the special benefit, but no assessment can be laid upon any land except such as abuts on a park or on a way bounded by a park.[39] Whether because of official inertia, or because of the ineffectiveness of the legislation due to its cumbersome machinery or to the limitation on the assessment area, special assessments have been rarely levied. Inquiry in ten of the largest cities in the state shows that only in two has there been any use of this power, and that quite infrequent. In takings by the Metropolitan Park Commission of Massachusetts, the practice is to levy no assessment; but where owners are compensated for land taken or damaged, the amount of their compensation is reduced by the amount representing the special benefit to the land remaining by reason of the improvement. Owners whose land is not taken may be equally benefited, but the benefit is not assessed.

The New York practice shows interesting changes from the time of the acquisition of Central Park to the present. Both the creation of Central Park in 1853 and of Prospect Park, Brooklyn, in 1865 were considered to benefit property in the vicinity, and that benefit was held to diminish with the distance from the park. Of the entire land cost of Central Park, $1,657,590, or 32 per cent, was assessed on property specially benefited, and the assessment was collected in one instalment. Of the entire cost of Prospect Park, $1,236,655, or 38.5 per cent, was assessed on private property specially benefited.

The report of the park commissioners for 1867 does not give the valuation of the property in the area assessed because of special benefit due to the creation of Prospect Park, and it is now possible only to approximate the proportion of increase in value which the special assessment represented. Roughly, the special assessment district in the Prospect Park case included 30 per cent of the area of ward 8, 12 per cent of ward 9, and 20 per cent of ward 20. The value of the assessed portion of ward 8 in 1865 has been reckoned at 30 per cent of the entire valuation of the ward, or at $1,200,000. The increase in value in the area assessed in ward 8 is estimated to be 400 per cent as against an increase in value of 100 per cent in other parts of the city since 1865. At this rate its assessed value in 1905 would be $6,000,000; estimated value at the ratio of increase of the rest of the city, $2,400,000; increase in value assumed to be largely due to the improvement, $3,600,000. Since the entire assessment over the three wards was only $1,236,655, we may conclude with due allowance for inflation of values and inaccuracy of estimates that the special assessment was not in excess of the special benefit to the property.[40]

The figures for Central Park are even more striking. Value of land assessed for benefit (half the valuation of wards 12, 19, and 22), $13,250,000; estimated value of land of this same area in 1873, $118,000,000; estimated value at the ratio of increase of the rest of the city at 100 per cent, $26,500,000; increase in value due to the improvement, $91,500,000; amount of special assessment, $1,657,590. Here, too, the valuations are probably inflated and the estimate of the valuation of assessed property is no better than a rough guess, but the margin of increase over the special assessment is wide enough to justify the conclusion that land owners were not unfairly burdened by the share of the cost of the improvement levied against their property.[41]

From the consolidation of Greater New York under the charter of 1901 to the year 1907, there was a legal reason for the city assuming the entire cost of acquiring title to parks, since a resolution of a “local improvement board” was considered necessary before any part of the expense of acquiring land could be assessed as a special benefit on a local district. The decision of the court of appeals of March 5, 1907, seems to change the impression in this regard. The case was Rose Reis vs. City of New York,[42] which is held to have decided that the board of estimate and apportionment has the right to initiate local improvements and to provide for the assessment of their cost against property deemed to have received a special benefit. Following this decision the board of estimate and apportionment resolved that property specially benefited by parks should be assessed for their cost. Previous to that time requests for parks frequently had come from local sources, and the first striking result of the action of the board was the falling off in such requests.

Legislation of 1911 gives full recognition to the benefit theory by allowing the board of estimate and apportionment to determine what portions of the costs of park lands shall be paid by the city of New York, what proportion by one or more boroughs, or parts of one or more boroughs, and what proportions by owners whose land is particularly benefited.[43]

In Minneapolis the board of park commissioners determines what percentage, if any, of the amount required for the acquisition of land for park purposes shall be assessed on the land specially benefited. The fixing of the area of benefit and the determination of the amount which each lot benefited shall pay are the duty of the three park assessors appointed by the district court. After hearing evidence the assessors make findings and file them in the district court, which has power to hear objections and confirm or revise the assessment or send the case to new assessors.[44] It is the practice for the courts to confirm assessments, unless satisfied that the assessors have been governed by improper motives or have proceeded on erroneous principles, or have based their findings on a mistake of facts. The percentage which private land owners have paid under park takings has varied greatly under this procedure.

4. PARK DISTRICTS FOR ASSESSMENT PURPOSES

In the comparatively recent practice of some cities “park districts” have been laid out, each treated as a separate entity, both for the purpose of locating park areas and for assessing the cost of their acquisition.

Kansas City. In 1908 the entire city was divided into six park districts, administered as one system by three commissioners appointed by the mayor. The commissioners’ duties are to devise and adopt a system of parks, parkways, and boulevards, and to select such lands as are appropriate for these purposes within or without the city limits. They must provide at least one park in each park district. Responsibility for the selection of areas is left with the park commissioners, since only on their recommendation can the common council provide for the acquisition of the necessary land by ordinance, and it is made the duty of the common council to carry out the park commissioners’ recommendation.[45]

The cost of acquiring land outside of the city limits must be paid out of the general tax levy or by a bond issue which is a charge on future general tax levies; but within the city limits land for parks, parkways, public squares, and boulevards, whether acquired by purchase or condemnation, may be paid for by special assessment on the land specially benefited. Special assessments are also used to defray the cost of construction of boulevards and park roads on which private property abuts and are levied directly on such property, as in an ordinary street improvement. The remainder of the cost of construction and all the maintenance cost is met by a tax not to exceed 2½ mills levied over each park district in accordance with its valuation, and by a special maintenance tax of 10 cents a front foot on the property which fronts on parkways, boulevards, roads, or avenues.[46] The funds of each district are kept separate.[47]

Kansas City is fortunate in the provisions of its law regarding condemnation proceedings and special assessment for benefit. The ordinance of council following the recommendation of the park commission describes all the properties to be acquired for the proposed improvement or group of improvements and the area which is deemed specially benefited. This area may include one or more park districts or a part or parts of such district or districts. The proceedings are initiated by petition of the city in the circuit court, and when the parties have properly joined issues the case is heard by a jury of six which ascertains the compensation for property taken and for the damage sustained by property not actually taken. The same jury assesses the benefit of the improvement, first charging to the city that portion of the cost which represents the benefit that accrues to the city at large, and then distributing the balance of the cost by special assessment against the parcels of private property found specially benefited. The verdict of the jury is reviewed by the circuit court and may be appealed from to the court of appeals on any question; but, curiously, only corporations have a right to appeal to a common law jury and this right is almost never taken advantage of.[48]

In legal theory the assessments are approximately in proportion to and not exceeding the special benefit, and if the cost of land acquirement should exceed the estimated special benefit the difference would be paid by a general tax on the whole park district or on the whole city. As a matter of practice the assessing juries have with almost absolute unanimity found that the entire benefit from the acquisition of park land is to private property. The right to assess the entire cost of a “public improvement” on a specially benefited area—to find, in other words, that there has been no “public benefit”—has been declared constitutional in several cases.[49] The city, through its right to have the proceedings discontinued at any time before the first assessment is paid into the city treasury by repealing the ordinance of condemnation,[50] is protected against the finding of a jury that the benefit is entirely a public one and that no assessment shall be laid against the private property.

The special assessment method as applied in Kansas City makes unnecessary an appropriation by the council or a bond issue, both of which would increase the general tax rate. Payments for the purchase of land are met either directly by park fund certificates or these certificates are sold to provide purchase money at a price not less than the face value of the amount of special assessment, excluding interest. The payment of special assessments is usually by instalments, and distribution of the amount collected is made at least semi-annually to certificate holders who are entitled to the proportional share of the special assessment represented by their certificate with interest at 6 per cent.[51]

The Kansas City park system has not been secured any more cheaply than other park systems, with the exception that the simplicity of condemnation procedure has probably resulted in some saving in the cost of land, but the financial burden has been distributed with more fairness. Practically the entire amount of special assessments has been collected. From the beginning of the history of the park system in 1892 to April, 1911, its cost was $10,372,876. Of this sum, $500,000 was raised by a bond issue in 1903; $496,181 was appropriated for construction and maintenance in Swope Park, the city’s largest park; and $651,776 which was spent for miscellaneous items entirely separate from the expense of acquiring the land or improving it, was also appropriated out of the general tax levy. Deducting these three items, there is left $8,724,919, representing the funds raised by special assessment.[52]

The significant thing about the Kansas City method of financing its park system is that 85 per cent of the total cost was distributed over the district which received the benefit, and that the entire cost of acquiring the land was assessed strictly on the land found to be specially benefited.

Denver. By the charter adopted March 29, 1904, Denver was divided into four park districts administered by an appointed commission of five, one from each district in addition to the chairman. The cost of acquiring land for parks is met, as in Kansas City, by a special assessment based entirely on the benefit theory, and the cost of improving the park areas is covered by a uniform park tax not to exceed two mills. Occasionally the park fund is increased by the revenue from other sources of taxation. Compared with Kansas City, Denver is at a disadvantage in choosing one commissioner from each district, since this method is too much like that of electing representatives to the city council from each ward and is apt to result in the same difficulties. Where the make-up of the commission emphasizes separate localities rather than the whole city, the distribution of park areas and the distribution of appropriations for improvements over these areas may present troublesome questions.

The second important difference is in the procedure for acquiring land and assessing the cost on specially benefited property. The board of park commissioners in Denver prepares a preliminary estimate of the cost of acquiring the land for each improvement. This report, which contains a full description of the property to be taken and the estimated special assessment on each lot in the entire park district, is formally served by publication on all owners whose property is affected either by being taken or by being assessed to pay for the improvement. If the owners of 25 per cent of the area thus affected object, in writing, to the report, the project may be defeated for at least a year. Upon the certification to the city council by the board of park commissioners that the objections are insufficient in number, the council proceeds to pass the ordinance of condemnation. The ordinance of council has been held to be a finding of fact conclusive on every other tribunal that the land is acquired for a public purpose and that the protests of land owners are insufficient.[53]

It is noteworthy that the park commissioners are the judges of the amount of assessment to be levied against each parcel of property. No assessment in excess of those fixed in the preliminary report can be levied, and if the estimate of cost proves too low the difference must be assumed by the city or the project abandoned. After the petition for the land taking is in court, three appraisers are appointed, corresponding to the jury of six in Kansas City, except that their duty is merely to appraise the damages caused by the taking. Their report is reviewed by the court, which may modify their awards for damages and at the same time may declare inequitable the rule of assessments as fixed by the park commission.

Instead of issuing park certificates as in Kansas City, the park commissioners in Denver are authorized to issue bonds for the cost of land. The cost of construction is met by appropriations from the park fund, and in Denver the proceeds of taxation for park purposes in one district may be used in any other; which again is unlike the rule in Kansas City, where the funds of each district are kept separate for that district’s needs.[54]

In 1911 Denver finished the condemnation of land for the completion of its park system. All the land included in the petition lies in the East Denver Park District, and consists of park areas, playgrounds, parkways and boulevards, and a civic center site. In August, 1909, the board of park commissioners reported an estimated cost of land for the whole project of $2,780,000, and assessed this entire amount over the East Denver Park District. The district was for this purpose subdivided into 38 parts, each assessed a varying amount depending on its distance from the various improvements, the unit of assessment being a standard Denver lot of 25 feet by 125 feet. For instance. District No. 1, being the nearest to the civic center site, was assessed a maximum of $96 each year for ten years on some lots, and from this amount the sums varied down to $10 a year for ten years on lots least benefited. In District No. 36, on the other hand, which is most remote from any of the proposed improvements, the average assessment was 30 cents a lot each year for ten years.[55] The first instalment of the assessment was made payable five years after the passage of the assessing ordinance. On November 23, 1909, the park commissioners certified to the city council that protests of the property owners were insufficient, and on December 23 the council passed the ordinance of condemnation. Meantime an action had been brought in the district court to restrain the city council from passing the ordinance on the ground that the charter provisions under which the land for park purposes was acquired were unconstitutional, and further, that the commissioners’ apportionment of the cost was inequitable. The city demurred to this action and the demurrer was sustained in the district court, from which decision the property owners appealed to the supreme court of the state. In November, 1910, appraisers were appointed by the district court, and on March 2, 1911, they made their report, estimating the total damages for the acquisition for lands in the East Park District at $2,523,463. Of this sum $1,814,539 was for the civic center site.

Considering the size of the undertaking, there were very few protesting owners and those for the most part owners of property involved in the taking for the civic center. Out of a total of 50 owners whose lands were taken for any of the purposes set forth in the council’s ordinances, only 18, representing $527,428, protested against the awards and one of these alone represented $265,000. In May, 1911, the first protest was heard by a common law jury, which found against the petitioner. All the other protesting owners then withdrew their petitions. In November, 1911, the state supreme court sustained the decision of the lower court above referred to[56] and on March 2, 1912, “civic center bonds” for $2,696,600, which amount included the cost of appraisement, the cost of survey, and other incidentals, were offered for sale.

In spite of the bitterness of opposition from some interested land owners, the time from the initiation of the proceedings to the advertising of the bond issue was short, but this was not so much because of the simplicity of the procedure, which suffers in this respect by comparison with that in Kansas City, as because the civic center project and the plans for the completion of the park system had the backing of public opinion and of the strongest organization in the city of Denver.

Indianapolis. The most recent park law which provides for payment of land acquirement by the special assessment method was passed by the legislature of Indiana in 1911 for cities of 100,000 or over. Under the provisions of this act the entire area of Indianapolis is divided into four districts administered by a commission of four appointed by the mayor. Only such features of practice as are peculiar to Indiana are here noted.

The park commissioners have the duties which in Kansas City were given to a jury of six and in Denver to three appraisers. Without action on the part of the city council the board of park commissioners may adopt a resolution for the condemnation of land and the assessment of its cost on private property.[57] Opportunity is given to land owners to defeat the undertaking by the written remonstrance of a majority of the resident land owners in the proposed benefit district.[58] If the commissioners find the protest insufficient they prepare a roll in which are included the estimated damages for land taking, the estimated cost of construction, and other miscellaneous items. To this amount 5 per cent is added to cover any delinquency in the collection of assessment. This entire amount is then spread as a special assessment over the area which in the judgment of the park commissioners is specially benefited by the improvement. This may be an entire park district or may be limited to a few blocks. The act provides that no assessment of benefits may be made in excess of 15 per cent of the value of the land so assessed, exclusive of the improvement conferred upon it.[59] The roll must show in separate amounts the damages awarded and the benefits assessed in the case of each parcel of land.

After the roll is made up, a notice describing the location of the lands appropriated, the character of the improvement, and the boundaries of the district to be assessed, is published once a week for two weeks in some daily newspaper. This notice also names a day, not earlier than ten days after the date of the last publication, for hearing remonstrants, and states that the assessment roll with the names of the owners to whom damages have been awarded and against whom assessments have been made is on file in the office of the board of park commissioners. A written notice is served upon the owner of each piece of land which is taken or damaged and a notice is mailed to the persons against whom assessments have been made.

After the hearing, the assessment roll is confirmed with or without changes by the park board, and aggrieved owners then have fifteen days to perfect an appeal to the superior court. This is the first important difference between the procedure in Indianapolis and that in Kansas City and Denver, and is one of the reasons for its extraordinary effectiveness. Land taking in Kansas City and Denver is from the start a court proceeding, but in Indianapolis the details of procedure, such as the making up of the award of damages and the spreading of the special assessments, are almost entirely taken care of by the clerical force connected with the board of commissioners. Only rarely is a judicial tribunal called upon to exercise jurisdiction. Even in appeal cases the jurisdiction of the superior court is limited.[60] It may decide whether the park board has properly taken jurisdiction by the observance of the formalities imposed in the act; it may review awards of damages and assessments for benefits; but there is no appeal from the finding of the park commissioners that it is necessary to take private land, and that it is necessary to take the particular land included in their resolution.

Owners of land which is taken or which is assessed for benefit have no constitutional or statutory right in Indiana to have their damages or their assessments fixed by a common law jury, but in its discretion the superior court in appeal cases may appoint a small board of appraisers to pass upon the evidence. This is the second advantage in procedure.

Finally, in Indiana the superior court is a court of last resort in condemnation cases under the park act. By the terms of the act the judgment of the superior court can not be appealed from,[61] and there is no other legal process in the state by which a case can be reviewed by a higher tribunal. The court of appeals said in the case of City of Indianapolis vs. L. C. Thompson Manufacturing Co., 40 Ind. App., 535:

“In this state since the adoption of the code of 1852, the use of the right of certiorari has not been authorized and the only procedure by which the judgment of a lower court may be reviewed by the court is by way of appeal.... Judgment, in a proceeding where the right of appeal is specifically denied by the legislature is not reviewable by the supreme court or this court.... Whether the lower court committed error in the measurement of damages, the admission of testimony in assuming jurisdiction over the person or subject matter, or in any other matter, is not subject to our review on appeal.... There is no vested right in an appeal and the legislature has the power to grant or deny appeals as it deems best.”

Besides possessing the advantages in legal procedure which eliminate the usual delay and expense in land taking, the Indianapolis park commission has adopted a businesslike practice which is most helpful in arriving at awards and which appeals to the sense of fairness of the land owner. A complete card catalogue of owners and valuations is kept in the office of the commission, and in the case of every taking the commission has the assistance of real estate experts as an advisory committee on valuations.

Although the act is only three years old, there has been at least one considerable taking in each district. In the North Park District there have been two, one involving an expense of $154,420 and the other $131,662. In takings involving over $600,000 worth of property and several thousand owners, there have been only four appeals from the findings of the park board, two of which have been decided by the superior court. In one an award of damages of $10,000 was increased to $17,000 and in the other an award of $6,925 was increased to $9,800. In one proceeding 1,600 owners were involved and only 50 were present at the hearing of remonstrants.

All these advantages contribute to excellent results under the park act, but a factor which is quite as positive in its influence is the effect on the community of distributing the cost of land acquirement by levying it as a special assessment entirely on the district specially benefited. Petitions either to have damages for land takings increased or to have assessments decreased are not popular when the bill is to be paid not out of the returns from the general tax but out of the pockets of the petitioners’ neighbors.

The combination of a simplified legal procedure, a wise business practice, and an equitable method of distributing the cost of an improvement has made it possible for the city of Indianapolis to take land needed for public use at a fair price and with little delay. The park board is, however, limited in its activities by the terms of the act which provide that the aggregate amount of benefits which may be assessed against property in a ten-year period can not exceed $1,250,000, and that in any one year it can not exceed $200,000.

5. SPECIAL ASSESSMENTS IN ACQUIRING LAND FOR STREET PURPOSES

The right to levy a special assessment for such street improvements as do not involve the taking of land, such as grading, paving, curbing, and sidewalk construction, is almost universally granted to municipalities by legislation in the United States. But the use of the special assessment, although common in New York, New Jersey, Pennsylvania, and the central and western states, is most limited in the cities of the South and in New England. It is practically unknown in New Hampshire; and in the other New England states only the cost or a portion of the cost of some one improvement, very often the construction of sewers, is assessed specially on private property. There is, to be sure, in Massachusetts, a rather general practice of accepting streets as public highways only after they have been brought by the abutters to an established grade.

Speaking generally, in street improvements which require the taking of land, as in openings, widenings, or extensions, more often than in takings for parks, the cost of the land is defrayed by a special assessment. The practice in this regard is likely to follow the practice in defraying merely construction cost. We have already seen that the cities of Ohio are prohibited from employing such assessment; in other cities, of which Philadelphia and Boston are the best examples, although the right to levy a special assessment is given to the municipality, in practice little if any of the cost of land taking gets assessed, because in Philadelphia juries are averse to finding a benefit, and in Boston the right to assess specially is limited and the procedure ineffective. Where assessments are made, the practice is as varied as in assessments for the acquisition of land for parks.

Agency which Assesses the Benefits. Ordinarily the same agency which awards damages for land taking determines the amount of the special assessment which is to be levied for the special benefit resulting from the improvement, whether that agency be a small board of appraisers, commissioners, or viewers, as in New York, Chicago, St. Louis, Kansas City, Portland (Oregon), and other cities; or a department of the city administration, as in Milwaukee, Indianapolis, Los Angeles, and Boston. The usual practice is to assess the benefits at the same time that the damages are awarded and thus offset the benefits against the damages wherever possible. In cases where the damages awarded are increased or assessments are decreased on appeal, either the city must assume the deficiency or the assessing board must find more benefited territory on which to spread the required amount.

The street commissioners of Boston, however, and boards with like powers in the other cities of Massachusetts, are compelled by statute to postpone the assessment of benefit until the completion of the improvement,[62] a practice the disadvantage of which is evidenced by the difficulty in collecting the assessments, as will be seen later.

In Seattle and other cities of Washington, the special assessments are apportioned by eminent domain assessors, a different tribunal from that which awards damages.[63] Sometimes a year elapses from the time of the final award for damages to the appointment of assessors, and during this year the amounts of the award are bearing interest. The eminent domain assessors review the same evidence that was heard by the jury in the land damage cases. An amendment has already been proposed which will allow the board of eminent domain assessors to award damages and apportion assessments at one hearing.

The Proportion Assessed. It is the general practice to leave the proportion of the cost of land which is to be assessed on the municipality and the proportion which is to be assessed on property specially benefited to the discretion of the board which levies the assessment, limited only by the provision that the special assessment shall not exceed special benefit and shall not exceed a certain percentage of valuation of the property assessed. But in New York the board of estimate and apportionment is given this duty in all cases,[64] and in Boston[65] the proportion which private property shall pay is fixed by law, not to exceed 50 per cent of the cost of improvement,[66] which cost includes both the amount awarded for land damage and the cost of construction. Theoretically, the proportion assessed on the municipality at large and on private property should depend on the extent to which the improvement, as, for instance, the widening or opening of a street, serves a general or a purely local purpose. Practice does not follow theory. Some jurisdictions assess specially the whole or a large portion of the cost of all ordinary street openings on the property particularly benefited. In Milwaukee it is the unwritten rule to assess two-thirds of the cost on private property. In Kansas City it is the exception for the city to pay any part of the cost of street improvement out of its general revenue.

The history of special assessments for street purposes in New York and Boston furnishes an interesting comparison. Previous to 1902 the policy of the board of estimate and apportionment in New York City was to assess the entire cost of opening proceedings on the property specially benefited, and subsequently to grant relief, depending usually on the skill with which property owners were represented at the hearing. The result was that almost all the expense of opening streets over 50 feet wide was borne by the city.[67] The city’s bonded indebtedness was greatly increased and it became impossible to execute important improvements.

From 1902 to 1907 the opening and widening of streets 60 feet wide and under was regarded as a purely local benefit and the entire cost assessed on property benefited; but for streets over 60 feet in width[68] there was a different distribution of cost. In the case of new streets the city assumed one-third of the cost due to the excess in width over 60 feet. Where the streets were old and were widened to over 60 feet, the city assumed one-half of the cost due to the excess width. During these years the city was called upon for a contribution of $9,471,550 toward the cost of widening and opening streets, which put upon the city a greater burden than the old method where assessments were reduced on a plea for relief. The board of estimate and apportionment found also that this method was inequitable to the owners of land abutting on the 60-foot street. A street over 60 feet in width was held to be of more general benefit than one of narrower width, and the area over which the assessment could be spread was bounded by a line midway between the widened street and the nearest street of the same or greater width. Thus in widening a street to 80 feet, after the payment out of the general municipal revenue of one-third of the cost due to excess width and after the assessment on property in the benefit zone not abutting on the widened street, it was found that abutting property was paying only the equivalent of the cost of a street 51 feet wide. For this reason, therefore, and because of the greater burden on the municipality, the rule adopted in 1907 was to assess the entire cost of the acquisition of land for street purposes on the property specially benefited, in so far as a special benefit could be established, provided that the amount assessed would not result in confiscation of the property.[69]

In Boston previous to 1891 special assessments to defray the cost of street improvements were levied entirely according to the discretion of the board of street commissioners, whose practice was to assess private property only in the case of improvements which had more than a local character and to pay for strictly local street improvements out of the general appropriation. In 1891 a board of survey was created and that board in its discretion was allowed to assess on abutting property the entire cost of improvement.[70] In practice the board used this right only on purely local streets, applying the theory that on such streets the general public received no appreciable benefit. In 1902 large land holders and their representatives insisted on changing the law and were helped by the decision in Lorden vs. Coffey, 178 Mass. 489, which declared unconstitutional that part of the board of survey act which allowed the assessment of the entire cost of improvements, holding that a special assessment might exceed the special benefit to property under the provision of the act. There was no finding that the entire cost could not be assessed on a benefited area, and had the board of survey act included the words “but no assessment shall be levied in excess of the actual special benefit to the property” the law would probably have been declared constitutional. The statute of 1902[71] limited the amount of a special assessment to 50 per cent of the cost of an improvement, no matter what the width or the use of a street.

The evolution in New York is toward a proper rule of apportionment, and in Boston, away from it. Either the assessing board should be given discretion in the matter of assessments, with the usual limitation that there should be no special assessment exceeding special benefit, or a system of apportionment should be adopted based on the width of streets as evidence of their character and use and as a measure of their public and private benefit.[72]

The Area of Special Benefit. The determination of the specially benefited area is left to the discretion of the assessing board, with very few exceptions. In Philadelphia this area is limited to such properties as abut on the improvement; in Boston[73] it is fixed by the statute of 1902 to 125 feet on either side of the improvement;[74] in Milwaukee it is limited in practice to 1,000 feet on either side of the improvement. Under the boulevard law in St. Louis only the properties abutting on boulevards can be assessed specially for their cost.[75] The improvement known as the “King’s Highway” was assessed under this law with the result that the city would have had to pay 80 per cent of the total cost of improvement, and was forced either to abandon it or to repeal the law. Subsequently the King’s Highway was opened as an ordinary street with the same assessment provision as in street openings, which leaves the benefit area to the discretion of the commissioners.

Though it may be generally stated that the size of the benefit district and the amount of the special assessment levied are both legislative questions which are finally determined by the body to which is delegated this duty, and that in the absence of special constitutional limitation the legislative finding will not be reviewed by a court unless there is evidence of gross error or fraud, judicial decisions in several states have held that this legislative authority is not unlimited. Courts on appeal have asserted the right to review the apportionment of the assessment and declare it invalid.

(1) Where the benefit of an improvement is entirely general: Hammett vs. Philadelphia, 65 Pa. St. 146; Thomas vs. Gain, 35 Mich. 155; Detroit vs. Daly, 68 Mich. 503.

(2) Where the rule of assessment would be inequitable for any reason: In re Washington Av. 69 Pa. St. 352; Scranton vs. Pa. Coal Co. 105 Pa. St. 445; Chicago vs. Learned, 34 Ill. 203; White vs. Gove, 183 Mass. 333.

(3) Where the special assessment exceeds the special benefit: Seely vs. Pittsburgh, 82 Pa. St. 360; Lorden vs. Coffey, 178 Mass. 489; Norwood vs. Baker, 172 U. S. 269.

THE RELATION OF SPECIAL ASSESSMENTS TO AWARDS FOR LAND TAKINGS

In our review of the practice in special assessments we have seen that in some jurisdictions the determination of awards for land takings and the apportionment of the special assessment are distinct functions performed either by the same body or by different bodies at times which may be widely separated. Thus in Denver the park commissioners spread the assessment which is based on their estimate of the land cost before the appraisers who determine the land awards are appointed; in Boston the street commissioners have both functions, but assessments can not be levied until the completion of the improvement. In Seattle three assessors, or three eminent domain commissioners, levy the special assessment at least a year from the time when the jury’s awards for land takings have been finally confirmed; under the Minneapolis park procedure assessors are not appointed by the court until the cost of land is finally determined by confirmation of the appraisers’ report. In other jurisdictions both the awards for land and the assessment for its cost are functions performed in the same proceeding by the same body. Thus in Kansas City a jury of six, and in Indianapolis commissioners, have these duties.

The disadvantage of deferring the time of levying the assessment is generally considered to outweigh the advantage of a more certain knowledge of the amount of the land awards, which is the largest item of the cost to be assessed. But the necessity of keeping separate the items of awards for damages and of assessment for special benefit, though they may be best fixed at the same time, appears from the methods in very general use of offsetting benefits against damages in arriving at verdicts in condemnation cases.

In Pennsylvania the jury in condemnation cases must find:

1. The value of the premises before the taking.

2. The value of the premises after the taking, which includes the benefit to the premises by the taking. The difference is the compensation to the owner.

In Portland, Oregon, a verdict is made up of:

1. How much, if any, less valuable the land will be rendered by the taking.

2. The damage to the improvements; that is, to buildings, and so forth.

Both of these rules of damage are open to either of two objections: First, in some jurisdictions juries are averse to finding any benefit, in which case a much greater sum than is just is spread over a benefit district, and owners who have justly received as damages large sums for land taken or damaged pay entirely inadequate assessments for the special benefit which they have received. Second, if the jury gives full consideration to the benefit which a piece of property receives and subtracts the full amount of benefit from the compensation awarded for damages to the property, the owner has a decided grievance because he may be paying $100 for one hundred dollars’ worth of special benefit, but his neighbor on the other side of the street whose property has not been taken is paying in a special assessment only 25 per cent or 30 per cent of the special benefit to his property.

The commissioners appointed in street cases in Minneapolis are directed to find:

1. The value of land taken.

2. The damage to the land or buildings not taken.

3. The special benefit which accrues to each parcel.

The owner of the property receives as compensation the excess of compensation for damages over the special benefit. This rule is open to the second objection which we have discussed above and only in a less degree is the code of California objectionable which requires the finding of:

1. The value of the land and buildings taken.

2. The damage to the land and buildings not taken.

3. The benefit to the remainder, which must be deducted from (2).

Thus in California the owner of property taken will have as damages at least the value of the land taken, whereas in the Minneapolis street procedure it is conceivable that the owner might not receive as compensation the value of the land taken.

The better rule in these cases is illustrated by the Kansas City procedure where the jury must find:

1. The actual value of land or easement taken.

2. The actual damage to land or buildings remaining.

3. The assessment which is to be levied against the city at large.

4. Special assessment against each parcel of land found specially benefited.

Only this special assessment (4) may be deducted from the owner’s compensation for damage (1) and (2).

THE EFFICACY OF SPECIAL ASSESSMENTS

It is clear that the value of the special assessment method differs considerably in different communities and depends greatly on local conditions. The land owners of Kansas City and Denver pay special assessments practically without litigation, and as a general rule, in most cities, collection of assessments is attended with little difficulty, even where the burden is heaviest on the land owner.

The process of collection in New York City, for instance, is very effective. Like most cities where the cost of street improvement is assessed wholly or in part on property specially benefited, the owners of the land assessed may pay the entire assessment at once or in annual instalments. On the failure in payment of any instalment, the land becomes charged with the city’s lien. For three years the owner may pay interest on the amount he owes the city, but at the end of this period the city’s lien for all charges against the land is sold at auction to the person who bids the lowest rate of interest for which he will pay the face value of the lien and carry it three years more. Thus the city gets its money and the land owner merely has, in addition to the face of his assessment, an interest charge which is apt to be ridiculously low since the bidding in on city liens is usually active.

Boston is one of the few exceptions to the rule in the collection of special assessments. Property owners contest special assessments wherever a contest is made worth while by the size of the special assessment, and reductions in assessments by juries on appeal go far to destroy the effectiveness of this method as a means of providing funds for the acquisition of land; and yet land owners in Boston are treated much more leniently under the law of 1906 than they are in New York, Kansas City, Denver, or Indianapolis. One explanation of the unpopularity of the special assessment principle is that the funds used for improving the old city and opening and widening the streets were taken out of the general appropriation, and property owners, therefore, in the newer sections, or property owners in older sections where openings and widenings are necessary, are opposed to any innovation which puts on them a heavier burden. But the ineffectiveness of the special method in Boston is due chiefly, first, to the statutory limitation on the discretion of the assessing board; and second, to the provision which postpones the apportioning of the assessment until after the completion of the improvement.

The fixing of the proportion which the city must pay irrespective of the character of the street in question and the narrow limitation of the benefit area, work together to place upon a very few owners an altogether disproportionate burden. These are the unfair features of the Boston assessment law: (a) The city must pay 50 per cent at least of the cost of a purely local street, even a street 30 feet in width, the only direct benefit from which is to abutting properties; (b) the city in practice pays as high as 80 per cent of the cost of such streets, because in the opinion of the commissioners the value of the property within 125 feet on either side is sometimes so low that to assess 50 per cent on it would amount to confiscation; (c) the property that receives the most benefit is assessed nothing, particularly in the case of a widened thoroughfare where the benefit accrues certainly no more to the abutters than to the termini of the thoroughfare, or to abutters on the streets leading off from the thoroughfare whose property has been made more accessible.

The time which is allowed to elapse between the opening or widening of the street and the levying of the assessment is a further handicap to the success of special assessments in Boston as to a less degree in Seattle. The chance of offsetting benefits against damages is lost, and consequently the labor of collection is increased. Property owners who get their damages for land taken, alienate the property, and the owner not a party to the condemnation proceedings who has paid to his predecessor in title an increased price on account of the improvement to the property, naturally opposes payment of a special assessment. That most of the action under the law is a perversion of the special assessment principle has been recognized in recent Massachusetts special legislation, where the limitation on the assessment area has been removed and the size of the area left to the discretion of the street commissioners.[76]

A comparison of the returns from special assessments in Boston, in Seattle, and in Minneapolis, may be made by means of the subjoined tables:

TABLE 3.—RETURNS FROM SPECIAL ASSESSMENTS ON STREET IMPROVEMENTS. BOSTON, 1895-1906

There have been remarkably few contests on any assessments in Minneapolis. The park board has been able to pay every instalment on every certificate as it matured without a moment’s delay. All the assessments are collectible as a part of the annual tax for state, county, and city purposes.

In Minneapolis, Kansas City, and Denver the amount collected shrinks but little from the

TABLE 4.—RETURNS FROM SPECIAL ASSESSMENTS ON STREET IMPROVEMENTS. SEATTLE

TABLE 5.—RETURNS FROM SPECIAL ASSESSMENTS ON IMPROVEMENTS. MINNEAPOLIS, 1889-1908

amount assessed. In Indianapolis and in Chicago a five per cent delinquency is figured in the amount of the total assessment, so that the return adequately meets the cost of the improvement. Indianapolis has collected in the past three years (1909 to 1912) by the assessment method $476,487. Kansas City has collected $8,724,919 in twenty years.

CONCLUSION

Special assessments as an equitable method of distributing the cost of land acquirement have the great advantage of a thorough testing. Judicial decisions universally sustain their legality. Ample precedents prove their practicability as financial expedients. Several cities in the United States are so completely satisfied with the results of an experience of from five to fifteen years with this “American device” that the suggestion of experimenting with the European method of distributing the cost known as excess condemnation meets with little enthusiasm. It remains, however, to consider the applicability of excess condemnation to American conditions.

FOOTNOTES:

[29] Constitution of Wisconsin, Article XI, Section 3.