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Other documents randomly have
different content
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

T HE 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.
Year Award Remitted
1906 $1,786,785 $147,821
1907 2,273,867 118,973
1908 2,719,691 208,173

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
Amount of
Location of Parties Claims for Claims settled by street
damages
improvement involved increase commissioners
awarded
Huntington $230,353 58 34 26
Ave.
Audubon Rd. 26,472 1 1 ..
Columbus Ave. 926,986 177 122 92
Boylston St. 10,039 8 7 ..
Brighton Ave. 103,165 26 26 23
South
Huntington 56,195 11 1 ..
Ave.
Dorchester St. 307,193 52 5 5
Walter St. 6,000 33 14 6
Brookline Ave. 26,000 20 9 2
Tremont St. 12,000 25 8 1
Cambridge St. 30,000 25 12 ..
Queensberry
112,904 7 6 ..
St.
Total $1,847,307 443 245 155

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]