ing its parks or streets, the city desires to take title in this land and hold it until it can be resold under suitable arrangements and restrictions. Excess condemnation, as defined by Mr. Cushman,"

is the power to condemn more land than the city actually needs for the creation of a street, park, or other improvement, to hold this surplus land until the improvement itself has caused an increase in the surrounding land values, and then sell the surplus at a profit with or without restrictions in the deeds of resale regarding its subsequent use.

It has been extensively used in Europe and was early introduced and used in New York City.1 Later it was declared that purchases under the excess condemnation law were for other than a public use and consequently that it was unconstitutional.2

In the years following 1900 the taking of excess land primarily for the purpose of making effective the purpose for which the land otherwise taken was to be used as has been authorized by a statute in several states. In 1907 Pennsylvania passed an act permitting Philadelphia to condemn an area two hundred feet wide on either side of Fairmount Parkway and to resell it with restrictions for the protection of the appearance and usefulness of the boulevard. This the court declared to be not for a public use. In 1910 the Justices of Massachusetts handed down an advisory opinion," of similar purport, with the result that in 1911 the following constitutional amendment was adopted,

6

The legislature may by special acts for the purpose of laying out, widening or relocating highways or streets, authorize the taking in fee by the

Op. cit., 96. For an exhaustive treatment of the subject see Mr. Cushman's forthcoming monograph, Excess Condemnation (doctorial dissertation, Columbia University).

1N. Y., Acts of 1812, ch. 174, sec. 3.

In matter of Albany Street, 11 Wend. (N. Y.), 148 (1834); see, also, Dunn v. Charleston, Harp. L. Rep., 189 (S. C.. 1824).

3Acts of Mass., 1904, ch. 443, especially; also O., 1904. p. 333; Md., 1908, ch. 166; Va., 1906, ch. 194, and others. For the texts of these laws and for an intensive study of the working of excess condemnation in European and American cities, see Herbert S. Swan's report on excess condemnation prepared for the National Municipal League and published by the Committee on Taxation of the City of New York, 1915. In 1867 both Pennsylvania and Massachusetts passed acts permitting the acquisition of remnants of land that might be left in the alteration of thoroughfares.

Acts of 1907, No. 315, p. 466. Penn. Mutual Life Insurance Co. v. Philadelphia, 242 Pa. St., 47.

"Opinion of Justices, 204 Mass., 606.

Article X. Part 1.

295.

Constitu

tional

Clauses.

Commonwealth, or by a county, city, or town, of more land and property than are needed for the actual construction of such highway or street; provided, however, that the land and property authorized to be taken are specified in the act and are no more in extent than would be sufficient for suitable building lots on both sides of such highway or street, and after so much of the land or property has been appropriated for such highway or street as is needed therefor, may authorize the sale of the remainder for value with or without suitable restrictions.

In 1913 New York adopted a similar amendment,'—

The legislature may authorize cities to take more land and property than is needed for actual construction in the laying out, widening, extending or re-locating parks, public places, highways or streets; provided, however, that the additional land and property so authorized to be taken shall be no more than sufficient to form suitable building sites abutting on such park, public place, highway or street. After so much of the land and property has been appropriated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased.

In 1912 Ohio declared thats

A municipality appropriating or otherwise acquiring property for public use may in furtherance of such public use appropriate or acquire an excess over that actually to be occupied by the improvement, and may sell such excess with such restrictions as shall be apropriate to preserve the improvement made. Bonds may be issued to supply the funds in whole or in part to pay for the excess property so appropriated or otherwise acquired, but said bonds shall be a lien only against the property so acquired, for the improvement and excess, and they shall not be a liability of the municipality nor included in any limitation of the bonded indebtedness of such municipality prescribed by law.

Finally, in the same year, Wisconsin' added an excess condemnation clause in the following language,—

The State or any of its cities may acquire by gift, purchase, or condemnation lands for establishing, laying out, widening, enlarging, extending, and maintaining memorial grounds, streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings, and reservations in and about and along and leading to any or all of the same; and after the establishment, layout, and completion of such improvements, may convey any such real estate thus acquired and not necessary for

71, 7.

SXVIII, 10.

XI, 3a.

such improvements, with reservations concerning the future use and occupation of such real estate, so as to protect such public work and improvements, and their environs, and to preserve the view, appearance, light, air, and usefulness of such public works.2

In noting the varied details of these essentially similar clauses it will be observed that Ohio3 and Wisconsin stress the idea that the excess condemnation is for the purpose of protecting the improvement or furthering its object whilst Massachusetts and New York, the former in specifically authorizing the sale of the excess land without restrictions and the latter by permitting it to be leased as well as sold, seem to be conscious, also, of possible financial gains to be had in disposing of the excess property at enhanced prices because of the added value given it by the improvement. These diverse objects express the double reason why the power of excess condemnation may be desired in carrying out the city plan.

296. Discussion of

demnation.

The earliest use of excess condemnation was to solve the problem of unusable remnants of property left when new streets Excess Conwere cut or old ones widened. Obviously the ability of the city to join or replot these pieces of land whenever possible is economically imperative. The condemnation of easements furnishes only a very expensive method of controlling the use of lands adjoining parks and boulevards or the approaches to public buildings and so preventing their use for unsightly structures, unless, indeed, the value to the landowner of the improvement-and its protection-is set off against the price paid for the easement.

By means of special assessments, however, the cost of improvements may be placed upon the landowners whose property is especially benefited; but often the increase in value in adjoining property exceeds the cost of the improvement. In such a case there seems no reason why particular persons and not

2Excess condemnation amendments submitted to the voters of California and New Jersey in 1915 were not accepted. The former contained the express stipulation that "For the purpose of acquiring, constructing, enlarging or improving a public park, playground, boulevard, street, building or grounds therefor, any county, city and county, incorporated city or town may condemn lands outside of its boundaries and within the distance of ten miles therefrom; provided, that no lands within any other county, city and county, incorporated city or town shall be taken without its consent, to be given in any manner that may be provided by law." Furthermore, the taking and disposing of property was to be regulated by general law. An excess condemnation amendment is pending in R. I.

"The O. authorization of bond issues should be especially noted.

the community as a whole should receive the benefit-in other words why the excess value should not accrue to the city. By means of excess condemnation the city acquires for itself the land especially benefited and so the opportunity for recoupment at its subsequent sale. Instances are, indeed, on record where large net profits have been thus made in opening and improving streets. The sum total of experience in Europe, however, does not indicate that a net profit can be hoped for regularly, though substantial assistance in making the improvement may fre quently result from excess condemnation.

Another argument in favor of allowing the city this power is expressed in the following paragraph from the California publicity pamphlet, setting forth the amendments to be voted upon in 1915, among them, one allowing excess condemnation,— Inasmuch as the erection or construction of the original public improvement creates, in a large measure, the increased values in the adjoining properties, it is manifestly unfair that the public, when seeking to enlarge such improvement, should be compelled to pay an enormously increased price for the adjoining property.

Where an enlargement is to be expected speculation in adjoining lands is, of course, probable.

Needless to say the succesful use of excess condemnation depends upon the good judgment and honesty of municipal officials and where correct administrative methods are not rigidly enforced there is little likelihood that it can furnish more than an effective means of protection to public improvements. As in the case of extension of the police power, excess condemnation must be measured by the due process test of the federal constitution and its future in the United States consequently awaits the pronouncement of the federal courts. As in the case of extension of the police power, likewise, the city needs the power of excess condemnation to complete its ability to carry out whatever plan it may adopt. In providing means for accomplishing the plan, as well as in making the plan itself, the realization

e. g., Montreal.

Similarly land may well be reserved in suitable locations for future public buildings.

Interesting problems of evidence in condemnation proceedings may grow out of attempts to speculate. See Union R. Co. v. Hunton, 114 Tenn., 609, 88 S. W.,

must always be present that, if there seems to be any conflict, "the convenience and enjoyment of the community should take precedence of the whim of the private owner.”

"No new constitution may be deemed a liberal instrument," says a thoughtful financial official of New York,8

which does not enable the state and its subdivisions to absorb those values accruing through the exercise of governmental functions, and community effort.

An excess condemnation clause, as he says, is a step in this direction.

TENNESSEE NOTE.-The usual clauses preventing individuals from being deprived of their property but by the judgment of their peers or the law of the land and guaranteeing just compensation when their property is taken for public use1 are found in the Tennessee constitution. Otherwise it is silent upon all subjects connected with city planning. The cities of the state have also been negligent, but in recent years several of them have made considerable progress in the planning and development of parks and boulevards.

The city of Chattanooga, for instance, recently secured the services of the famous landscape architect John Nolen to draw up a plan for a park system. Memphis has been most active among the Tennessee cities. Its charter provides for a Board of Park Commissioners, to be appointed by the city commission to serve without compensation. They must not hold other office. The board may employ a landscape architect and determine his salary. The board is given the duty, among others, "to devise and adopt a system of public parks, parkways, and boulevards for the use of the city and its inhabitants, and select and designate lands to be used and appropriated for such purposes, within or without the city limits, and to select routes and streets for boulevards, and to cause the same to be opened and widened as hereinafter set forth, and by and with the approval and authority by ordinance of the Municipal Council,

A. E. Marling, Ch'man, in letter transmitting to the Mayor the report on Excess Condemnation of the New York City Committee on Taxation, 1915. Deputy Treasurer Ernest Cawcroft, Proceedings of the Academy of Political Science, V, 241 (250).

I. 8. 1I, 21.

"Law of the land" means the same as "due process of law."

Memphis v. Hastings, 113 Tenn., 142; 86 S. W., 609.-Acts of 1899, ch. 142, authorizing taxing districts and cities to condemn land not more than ten miles beyond their corporate limits for parks and parkways was not invalid as authorizing condemnation of land for mere public convenience as distinguished from a public necessity or public use.

General Features of a Park System for Chattanooga, Tennesee, report to the board of park commissioners, by John Nolen.

4See Acts of 1907, ch. 184, art. VII; Acts of 1909, ch. 298, sec. 52. For Nashville park commission, Acts of 1913, reg. sess. ch. 22, sec. 39.