# Toll Roads and Free Roads/Appendix

Washington, DC: United States Government Printing Office, pages 123–132
APPENDIXES
APPENDIX A. RHODE ISLAND FREEWAY LAW
AN ACT Relative to the Construction, Maintenance, and Improvement of Freeways
[Rhode Island Public Laws, 1937 (January Session), C. 2537]
It is enacted by the General Assembly as follows:
Section 1. A freeway is a way especially designed for through traffic over which abutters have no easement or right of light, air, or access by reason of the fact that their property abuts upon such way.
Sec. 2. The director of public works and the division of roads and bridges shall have full power and authority to lay out, establish, acquire, open, construct, improve, maintain, discontinue, and regulate the use of freeways within this state in the same manner or manners in which said director and said division, respectively, may now lay out, establish, acquire, open, construct, improve, maintain, discontinue, and regulate the use of highways within the state. Said director and division shall also have any and all other additional authority and power relative to such freeways as they now respectively possess relative to highways, including the authority and power to acquire or accept title to the lands or right-of-way needed for the same.
Sec. 3. Where an existing highway has been designated as or included within a freeway by the said director or division, existing easements of access, light, or air may be extinguished by purchase or by taking under eminent domain, in accordance with any existing method now exercised by said director or said division in purchasing or taking land for highway purposes. Access to such freeway from any existing highway, road, or street may be regulated and restricted by the said director or said division of roads and bridges. Access to any such freeway from any new highway, road, or street shall be subject to the consent and approval of said director and said division.
Sec. 4. This act shall take effect upon its passage, and the passage of this act shall be considered supplementary and in addition to any and all other powers now exercised by the director of public works and the division of roads and bridges
APPENDIX B. RESTRICTION OF RIBBON DEVELOPMENT ACT, 1935, GREAT BRITAIN
ACQUISITION OF LAND
13. (1) Any highway authority may acquire any land within two hundred and twenty yards from the middle of any road the acquisition of which is, in their opinion, necessary for the purposes of the construction or improvement of the road or of preventing the erection of buildings detrimental to the view from the road and, if they are unable to do so by agreement on terms which are in their opinion reasonable, they may purchase the land compulsorily by means of an order (in this Act referred to as a “compulsory purchase order”) made by them and confirmed by the Minister and the provisions of sections one hundred and sixty-one and one hundred and sixty-two, one hundred and seventy-four and one hundred and seventy-five of the Local Government Act, 1933, and of paragraph (a) of section one hundred and seventy-nine of that Act, shall apply with respect to any such order in like manner as they apply to orders to be confirmed by the Minister of Health under that Act:
Provided that the Lands Clauses Acts and the Acquisition of Land (Assessment of Compensation) Act, 1919, as incorporated in the order, shall be subject to the ​following modifications, that is to say, in determining the amount of any compensation—
    (a) the arbitrator shall have regard to the extent to which the remaining contiguous lands belonging to the same person may be benefited by the purpose for which the land is authorized to be acquired, and in particular (without prejudice to the generality of the foregoing provisions of this paragraph) shall, in the case of land authorized to be acquired for the widening of any road, set off against the value of the land to be acquired any increase in the value of other land belonging to the same person which will accrue by reason of the creation of a frontage to the road as widened; and
    (b) the arbitrator shall take into account and embody in his award any undertaking given by the highway authority as to the use to which the land, or any part thereof, will be put.
(2) Any highway authority may acquire by agreement any land in the neighbourhood of any road being land which they consider it desirable to acquire for the purposes of preserving the amenities of the locality in which it is situated (including the purpose of preventing the erection of buildings detrimental to the view from the road).
(3) The following provisions shall have effect with respect to the acquisition of land under the powers conferred by this section, and with respect to land acquired under those powers—
    (a) except for the purposes of the construction or improvement of a road, a highway authority shall not, under the said powers, acquire compulsorily any land which is required to be retained as part of a park, garden, pleasure ground, or home farm attached to and usually occupied with a mansion house, or is otherwise required for the amenity or convenience of any dwelling house existing when the compulsory purchase order is made, or which is for the time being subject to conditions restricting the planning, development, or use thereof imposed by any agreement enforceable under section thirty-four of the Town and Country Planning Act, 1932;
    (b) whenever land is acquired by a highway authority under the said powers, the authority shall furnish to the Minister, in a form approved by him, sufficient particulars of the purposes for which the land is acquired and of the manner in which it is intended to be used for those purposes and the said particulars shall be so furnished in the case of land to be acquired by means of a compulsory purchase order by specifying them in the order submitted to the Minister, and in any other case in such manner as the Minister may direct;
    (c) a highway authority shall not have power to use in any manner other than that specified in the particulars furnished under the last foregoing paragraph or to let, sell, or exchange any land which has been acquired by them under the said powers for the purposes of preventing the erection of buildings detrimental to the view from a road or for any of the purposes specified in subsection (2) of this section unless they are authorized to do so by an order made by the Minister of Health, and, except in the case of an order authorizing the letting of such land for a term not exceeding seven years for purposes specified in the order, being purposes which, in the opinion of the Minister of Health, are consistent with the preservation of the amenities of the locality, any such order shall be provisional only and shall not have effect unless and until it is confirmed by Parliament.
(4) The powers conferred upon highway authorities by section one of the Roads Improvement Act, 1925 (which relates to the planting of trees and shrubs and the laying out of grass margins), may be exercised upon any land acquired by a highway authority under this section notwithstanding that the land does not form part of the highway.
(5) Where any highway authority are authorised by an order confirmed under this section to purchase land compulsorily, then, at any time after notice to treat has been served, the authority may, after giving to the owner and to the occupier of the land not less than fourteen days’ notice, enter on and take possession of the land or such part thereof as is specified in the notice, without previous consent or compliance with sections eighty-four to ninety of the Lands Clauses Consolidation Act, 1845, but subject to the payment of the like compensation for the land of which possession is taken, and interest on the compensation awarded, as would have been payable if those provisions had been complied with.
(6) Save as is provided in the section of this Act next following, nothing in this section shall authorise the compulsory acquisition of any land which is the ​property of any local authority (including any drainage board) or has been acquired by any statutory undertakers for the purposes of their undertaking.
14. (1) Subject to the provisions of this section, a compulsory purchase order under the last foregoing section may authorise a highway authority to acquire compulsorily, subject to such conditions (including conditions as to the persons by whom any works are to be constructed or maintained) as may be imposed by the order, a right upon, under, or over any land which is the property of any local authority (including any drainage board), or has been acquired by statutory undertakers for the purpose of their undertaking, if the acquisition is—
    (a) for the purposes of the construction of any bridge (not including the reconstruction or alteration of an existing bridge) upon, under, or over such land or of the approaches to any such bridge; or
    (b) for the purposes of any system of road drainage.
(2) A compulsory purchase order for the acquisition of any right for the purposes specified in the last foregoing subsection shall be made subject to such conditions as the Minister, after consultation with the local authority or statutory undertakers from whom the right is to be acquired, considers necessary for securing that the bridge and approaches or the drainage system, as the case may be, to be constructed will be so designed, constructed, and placed as to avoid unreasonable interference with the functions and future development of the local authority or statutory undertakers and shall provide for the bridge and approaches or the drainage system, as the case may be, being constructed and maintained, except so far as may be otherwise agreed, at the expense of the highway authority; Provided, that in the case of any such order authorizing a highway authority to acquire a right for the purpose of substituting a bridge for any level crossing over a railway, the provisions of sections six and seven of the Bridges Act, 1929, shall, as set out with modifications in the Fourth Schedule of this Act, apply with respect to the apportionment of the expenses of the construction and maintenance thereof.
(3) Where by means of a compulsory purchase order a highway authority has acquired from any local authority or statutory undertakers a right for any of the purposes specified in subsection (1) of this section, any additional expense which is thereafter, in consequence of the construction of the bridge or approaches or of the drainage system, as the case may be, incurred by the local authority or statutory undertakers in connection with the widening or alteration upon land which was vested in them before the confirmation of the order of any railway, canal, inland navigation, dock, harbor, works, or apparatus belonging to them, shall be defrayed by the highway authority, and any question whether such additional expense has been so incurred or as to the amount thereof shall, in default of agreement, be determined by arbitration.
(4) A compulsory purchase order for the acquisition of any right for the purposes specified in paragraph (b) of subsection (1) of this section shall be made, subject to such conditions as the Minister considers necessary for securing that no road shall be drained into any watercourse under the control of a drainage board without the consent of that board or into any reservoir, river, canal, dock, harbor, basin, or other work which belongs to or is under the jurisdiction of any local authority or statutory undertakers without their consent. ******* 15. Where land subject to restrictions in force under section one or section two of this Act is acquired by a highway authority by means of an order made under this or any other Act authorizing compulsory purchases of the land, any compensation payable in respect of any estate or interest in the land shall be assessed as if the restrictions were not in force if compensation in respect of injury to that estate or interest occasioned by the restrictions has been paid under this Act neither to the person having that estate or interest nor to any of his predecessors in title.
PARKING PLACES AND MEANS OF ACCESS
16. (1) The powers of a local authority under section sixty-eight of the Public Health Act, 1925 (which relates to the provision of parking places for the purpose of relieving or preventing congestion of traffic) shall include power to provide and maintain buildings for use as parking places, and to provide and maintain underground parking places for the like purpose and also to provide and maintain cloakrooms and other conveniences for use in connection with parking places, and in that section the expression “parking place” be construed accordingly as including such buildings, underground parking places, cloakrooms and other conveniences, so, however, that for the purposes of that section an underground ​parking place shall not be deemed to be part of a street by reason only of its being situated under a street. (2) The powers of a local authority under the said section sixty-eight to acquire, utilise, and adapt land shall include powers to acquire, utilise, and adapt land (including any right in, over, or under land) for the purpose of providing means of entrance to and egress from any parking place and, notwithstanding anything in subsection (4) of the said section, the said power to adapt land shall include power to adapt land being part of a street for the purpose aforesaid with the consent of the authority or person responsible for the maintenance of the street.
(3) The powers of a local authority under the said section sixty-eight shall include powers to let for use as a parking place any parking place provided by them not being part of a street.
(4) Subsection (6) of the said section sixty-eight (which relates to the power of a local authority to make regulations as to the matters therein specified) shall have effect as if for the word “regulations” there were therein substituted, in all places where that word occurs, the word “byelaws” and in relation to any byelaws made under the said subsection references in section two hundred and fifty of the Local Government Act, 1933, to “the confirming authority” shall be construed as references to the Minister of Health. *******
APPENDIX C. EXCESS CONDEMNATION FOR PURPOSE OF RECOUPMENT
SUPREME COURT DECISION, STATE CONSTITUTIONAL PROVISIONS, AND EXPERIENCE IN PRACTICE
Following is a digest of the decision of the Supreme Court of the United States in the case of Cincinnati v. Vester (281 U. 8. 439 (1929)): ******* These three cases were heard together. The suits were brought by owners of land in the city of Cincinnati to restrain the appropriation of their property by the city, upon the grounds that the taking was not in accordance with the applicable provisions of the constitution and statutes of Ohio and would constitute a deprivation of property without due process of law in violation of the fourteenth amendment, it being alleged that the appropriation was not for a public use. Under the law of Ohio these questions could be raised only by injunction proceedings. P. C. C. & St. L. Railway Co. v. Greenville (69 O. S. 487, 496); Sargent v. Cincinnati (110 O. S. 444). Decrees in favor of plaintiffs for a permanent injunction were entered in the district court and were affirmed by the circuit court of appeals (33 F. (2d) 242). This court granted writs of certiorari, 280 U. S. 545. ******* The controversy relates to what is known as “excess condemnation,” that is, the taking of more land than is needed to be occupied by the improvement directly in contemplation. The constitution of Ohio provides (art. XVIII, sec. 10):
“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 appropriate 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 be included in any limitation of the bonded indebtedness of such municipality prescribed by law.” ******* Among the statutory provisions of Ohio relating to the condemnation of property by municipal corporations is the following with respect to the declaration of the purpose of the appropriation (General Code of Ohio, sec. 3679):
“Sec. 3679. Resolution shall be passed. When it is deemed necessary to appropriate property, council shall pass a resolution, declaring such intent, defining ​the purpose of the appropriation, setting forth a pertinent description of the land, and the estate or interest therein desired to be appropriated. For waterworks purposes and for the purpose of creating reservoirs to provide for a supply of water, the council may appropriate such property as it may determine to be necessary.”
The excess condemnation of the properties in question is proposed by the resolution adopted by the city council, but the purpose of the appropriation is stated in the resolution only in the most general terms as being “in furtherance of the said widening of Fifth Street” and “necessary for the complete enjoyment and preservation of said public use.” The ordinance providing for the excess appropriation was not more specific, declaring simply that it is “in furtherance of the public use,” described as the widening of Fifth Street, and “for the more complete enjoyment and preservation of the benefits to accrue from said public use.” In what way the excess condemnation of these properties was in furtherance of the widening of the street, and why it was necessary for the complete enjoyment and preservation of the public use of the widened street are not stated and are thus left to surmise.
The plaintiffs alleged in their bills of complaint that the excess condemnation is “a mere speculation upon an anticipated increase in the value of the properties adjacent to said improvement,” and that the properties were taken “with the design of reselling the same at a profit to private individuals to be used for private purposes, and no use of said property by or for the public is intended or contemplated.” The answers of the city denied these allegations and summed up the position of the city by saying that the application of the principle of excess condemnation in these cases would enable the city (1) “to further the appropriate development of the south side of Fifth Street” by using or disposing of the excess properties in tracts ”with such size and with such restrictions as will inure to the public advantage,” and (2) that the increase in value of the properties in question which may accrue by reason of the improvement contemplated by the city “will pay in part the very heavy expense to which the city will be put in effecting the improvement.” ******* The city argues that in resorting to excess condemnation legislative bodies generally have had in view the following three purposes (1) the avoidance of remnant lots, (2) the preservation and amplification of the improvement, and (3) the recoupment of expense from increased values. Both the district court and the circuit court of appeals concluded that the theory of remnants, and of the protection and preservation of the improvement, were not applicable to the present cases. Both courts considered that the sole purpose of the city was the recoupment by the resale of the properties in question of a large part of the expense of the street widening. In this view, both courts held that the excess condemnation was in violation of the constitutional rights of the plaintiffs upon the ground that it was not a taking for a public use “within the meaning of that term as it heretofore has been held to justify the taking of private property.” The circuit court of appeals added that the provision of the Constitution of Ohio relating to excess condemnation, supra, “would seem to mean in furtherance of the normal use to which the property that is occupied by the improvement is devoted here the use and preservation of the street for the purposes of travel,” and the court held that if the provision means that property may be taken ”for the purpose of selling it at a profit and paying for the improvement it is clearly invalid.”
In this court, the city challenges the propriety of the assumption upon which these rulings below were based, that is, that the city was proceeding on the theory of the recoupment of expense by resale of the properties. While contending that this would be a valid purpose under the constitution of Ohio, and would constitute a taking for public use and therefore would be consistent with the fourteenth amendment, the city insists that its purpose in the present cases cannot thus be delimited. The city calls attention to the general statements in the resolution and ordinance adopted by the city council and declares that these broad declarations constitute “practically all the evidence which directly shows the purpose of the city.” While reference is made to what is said in its pleadings with respect to its position, the argument for the city adds that “obviously an impersonality such as a city cannot very well testify as to what its plans and hopes are.” The court is asked to take judicial notice of certain desirable objects which the city might have in view. The city urges that, when the improvement is completed, the city council will doubtless be in a position to determine what sized tracts and what kinds of restriction will be best suited for the harmonious development of the ​south side of Fifth Street. But the city also insists that it may never resell the excess; that it is not compelled to so by the constitution; that the question is one to be determined in the future; that recoupment can come only from a sale, and that until by some act the city evidences an intent to sell it cannot be said to be proceeding only on a theory of recoupment. The city says that it may preserve the public use in many ways, and that sale with restrictions is one that may hereafter be chosen, but that there is no warrant upon this record for discarding every possible use in favor of a use by sale that may, among other things, result in a possible recoupment.
We are thus asked to sustain the excess appropriation in these cases upon the bare statements of the resolution and ordinance of the city council, by considering hypothetically every possible, but undefined, use to which the city may put these properties, and by determining that such use will not be repugnant to the rights secured to the property owners by the fourteenth amendment. We are thus either to assume that whatever the city, entirely uncontrolled by any specific statement of its purpose, may decide to do with the properties appropriated, will be valid under both the State and Federal Constitutions, or to set up some hypothesis as to use and decide for or against the taking accordingly, although the assumption may be found to be foreign to the actual purpose of the appropriation as ultimately disclosed and the appropriation may thus be sustained or defeated through a misconception of fact.
It is well established that in considering the application of the fourteenth amendment to cases of expropriation of private property, the question what is a public use is a judicial one. In deciding such a question, the court has appropriate regard to the diversity of local conditions and considers with great respect legislative declarations and in particular the judgments of State courts as to the uses considered to be public in the light of local exigencies. But the question remains a judicial one which this court must decide in performing its duty of enforcing the provisions of the Federal Constitution. In the present instance, we have no legislative declaration, apart from the statement of the city council, and no judgment of the State court as to the particular matter before us. Under the provision of the constitution of Ohio for excess condemnation when a city acquires property for public use, it would seem to be clear that a mere statement by the council that the excess condemnation is in furtherance of such use would not be conclusive. Otherwise, the taking of any land in excess condemnation, although in reality wholly unrelated to the immediate improvement, would be sustained on a bare recital. This would be to treat the constitutional provision as giving such a sweeping authority to municipalities as to make nugatory the express condition upon which the authority is granted. *******  * * * It is an established principle governing the exercise of the jurisdiction of this court, that it will not decide important constitutional questions unnecessarily or hypothetically. Liverpool, New York & Philadelphia Steamship Company v. Commissioners of Emigration, (113 U. S. 33, 39); Siler v. Loutsville & Nashville Railroad Company (213 U. S. 175, 191, 193); United States v. Delaware & Hudson Company (213 U. S. 366, 407). The present cases call for the application of this principle. Questions relating to the constitutional validity of an excess condemnation should not be determined upon conjecture as to the contemplated purpose, the object of the excess appropriation not being set forth as required by the local law.
We conclude that the proceedings for excess condemnation of the properties involved in these suits were not taken in conformity with the applicable law of the State, and in affirming the decrees below upon this ground we refrain from expressing an opinion upon the other questions that have been argued.
STATE CONSTITUTIONAL AMENDMENTS
The decision of the Supreme Court came after the adoption of amendments of the constitutions of seven States, which specifically authorize the excess taking of land and its resale under certain conditions; and it was followed by an amendment of the constitution of Pennsylvania to the same effect.
In California, Massachusetts, New York, Pennsylvania, and Rhode Island the acquisition of land outside the boundaries of a highway is limited. California authorizes the State or any of its cities or counties to condemn land “in and about and along and leading to public works within 150 feet of the public work or improvement, provided that when parcels lie only partially within the 150 feet such portions may be acquired which do not exceed 200 feet from the closest boundary.”
Massachusetts provides that more land may be taken by the commonwealth, county, or city than is needed for the actual construction, provided that no more land is to be taken than is needed for suitable building lots on both sides of the street.
New York authorizes cities and counties to take more land than is needed for actual construction provided that no more land shall be taken than is needed to form suitable building sites.
Pennsylvania authorizes cities to take more land than is needed for actual construction and also restricts the taking to land not more than sufficient for suitable building sites. It further restricts the authority to streets connecting with bridges crossing, and tunnels under, streams which form State boundaries, and to a point not more than 3 miles from the approach to any such bridge or tunnel.
Rhode Island authorizes the State, city, and town to acquire more land than is needed for public purposes, but confines the taking to lands sufficient for suitable building sites.
Ohio authorizes municipalities to take for public use property in excess of that actually occupied by the improvement. The surplus may be sold with appropriate restriction to protect the improvement.
Wisconsin authorizes the State or its cities to condemn lands in and about and along and leading to public works, and after the completion of the improvement, to sell the remainder with restrictions protecting the improvement.
Michigan provides that municipalities may take land adjacent to an improvement which is appropriate for securing the greatest public advantage from the improvement. The surplus may be sold with or without restriction. Thus, Michigan provides constitutional sanction of recoupment condemnation with less restriction than any other State.
Thus the object of the constitutional amendments in California, Massachusetts, New York, Pennsylvania, and Rhode Island, apparently is to prevent the formation of unusable remnants along a street improvement. In Ohio and Wisconsin, in addition, restrictions can be imposed on the future use of real estate, while in Michigan these objectives and recoupment as well seem to be permissible.
OUTSTANDING INSTANCES OF RECOUPMENT TAKINGS
The English experience.—The first attempt of excess condemnation for recoupment purposes was made by the Metropolitan Board of Works, which had charge of public improvements in London from 1857 to 1889. This organization applied directly to Parliament for authority to condemn land in each instance. During this period, the board widened 14.13 miles of streets in London, condemning land worth $58,859,000; it recovered $26,608,000 from the sale of surplus land, which was 43.5 percent of the construction cost.
Northumberland Avenue improvement.—This is the only street opening or improvement in London where it has thus far been possible to recoup the entire cost of the project. Northumberland Avenue was opened through a section of rather low economic development between Trafalgar Square and the Embankment. Expensive properties and established businesses were not involved; the property was therefore acquired at a reasonable cost. The avenue created new economic utilities in its neighborhood and it was thereby possible to dispose of frontages at good prices. The project was completed in 1875 at a cost of £711,911 including the price of the land. The recovery from the land was £831,310. The profit to the public was about £120,000 or $600,000.
The Kingsway improvement.—The Kingsway is a wide thoroughfare connecting Holborn and the Strand. The improvement was proposed in 1836 but was a matter of controversy until, in 1899, when the serious opposition to the project was finally eliminated and the empowering law enacted.
The law gave the London County Council power to condemn more land than was actually needed. This land could be taken specifically to recoup the cost of the undertaking, to protect the improvement, and to secure sites for necessary housing. The excess land could be sold or leased at any time within 60 years, and was subject to designated protective restrictions.
The street itself was about three-fourths of a mile in length and 100 feet wide. About 600 estates were acquired and demolished, entailing the freeholds, leaseholds, or trade interests of about 1,500 persons. Over 6,000 persons of the working class were displaced and had to be rehoused. The area directly affected comprised 28 acres, of which 15¾ acres constituted the surplus to be leased or sold as building sites. From these lands the London County Council is understood to receive about £143,000 annually in ground rents and the buildings erected on the lands have cost approximately £5,000,000. A sum of £966 a year is received by the council in respect of betterment charges.
A total of £735,507 has been received from the sale of sites andother sites valued at £225,191 were transferred in settlement of claims on a reinstatement basis. The total debt charges incurred for the improvement to March 31, 1936 (£5,209,563), plus the net debt outstanding at that date £3,208,607), amounted to £8,418,170. Against this the aggregate rents received, plus the value of the leased sites, amounted to £6,009,931. The difference (£2,408,239) may therefore be said to represent the net cost to the taxpayer up to March 31, 1936.
Paris, France.—The decree of 1852 gave to the city of Paris the power to use excess condemnation in its improvements. It is not only provided that fragments of land, unsuitable for development, were to be condemned, but also that land outside the lines of an improvement could be taken where needed to replat these remnants. Between 1852 and 1869, among others, Baron Hausmann, as prefect of the Seine, executed improvements which left the city of Paris indebted to the extent of some $193,200,000, 56.25 miles of new streets being constructed with an average width of about 80 feet. The city condemned land worth $259,400,000. In 1869, the city had sold part of the land which it did not need for $51,800,000 and had on hand 728,000 square yards valued at $14,400,000, 390,000 square yards of surplus land having been acquired by the discontinuance of old streets which had cost the city nothing. Therefore, in the building of 56.25 miles of streets, the city had recovered about one-fourth of what it had paid originally for the land.
Brussels, Belgium.—In 1867, a law was passed in Belgium granting cities the right to condemn land, not only needed for public improvements, but also for a surrounding zone to improve sanitary conditions or to protect public improvements. To relieve the congested city of Brussels, the statute facilitated the construction of a through highway. The work, commenced in 1868, was completed in the late seventies and forms the present new or inner boulevards. Many of the loans which were advanced by the city to encourage development of adjacent properties were never repaid, the public being forced to take over half-finished buildings and complete them. As a net result, a public debt of some $50,000,000 accrued. In 1904, the city had title to about 400 buildings with a net debt of $6,400,000, about a million dollars in excess of a resale price. Several similar undertakings in the early eighties resulted in a like financial loss.
Montreal, Canada.—The city of Montreal, Canada, has carried out three excess condemnation projects.
The first of these improvements was the extension of St. Lawrence Boulevard from Notre Dame Street to the river front. This new highway covered an area 67 feet wide and about 650 feet long. In 1912 the city condemned all land lying between the north line of this highway and the next parallel street for an average depth of about 75 feet. A similar zone was taken on the south side of the new thoroughfare. The purchase price was $690,850 for 102,002 square feet of condemned land. Of this 49,258 square feet were used for street purposes, the surplus being sold at public auction for $722,194; the cost of sale amounted to $6,344; the city therefore, made a profit of $25,000 which could be applied to construction costs. The area of land taken in the two other projects was somewhat larger than in the St. Lawrence Boulevard instance, but the profit accruing was small, being $12,817 for one sale and $16,780 for the other.
In 1913, Montreal embarked upon a fourth project, in the opening of the St. Joseph Boulevard Improvement. About 794,000 square feet of land were acquired at a cost of about $2,500,000. The surplus land constituted an area of about 100,556 square feet.
The Massachusetts Back Bay Flats reclamation project.—Over 60 years ago, the State of Massachusetts reclaimed the so-called Back Bay Flats, which were lowlands washed by tides from Boston Harbor. ​The lands were absolutely unusable; in fact, their existence prevented the efficient use and development of the harbor. The State condemned the area, drained it, and provided proper protection with the result that usable land was created. A large portion was sold at a profit to the State. In a test case the court of Massachusetts upheld the project as constitutional.
Philadelphia, Pa.—An effort to take marginal land for the protection of an improvement began in Philadelphia in 1903. In 1907, Fairmount Parkway was begun, and the legislature passed a law giving the city the right to take property within 200 feet of the boundaries of the improvement. In 1912, the city condemned certain areas abutting on the parkway. Such land-taking was declared illegal in 1913 in the case of the Pennsylvania Mutual Life Insurance Co. v. City of Philadelphia (22 Pa. Dist. Reports, 195). However, the city continued the work by purchasing without condemnation all the land possible, and by 1916 had acquired all but about 160 of the 1,000 parcels desired. After this unfavorable decision, the attempt to obtain legal sanction for marginal condemnation was continued, and in 1933 Pennsylvania adopted a constitutional amendment permitting the extended use of the power of eminent domain.