The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1866-08-04
Augmentation of Private Property for
PubIic Uses.


Mr.. EDITOR I'm your paper of Wednesday.
YOU request somebody 70 inform you, whether
the CITY Engineers assertion, that the city of
Boston accomplshes its improvements with
out cost is erroneous. In answer refer you
to the act'of the Legislature of Massachusetts,
passed the last winter,-Sec 5,-by which it
is provided that "the Board of Aldermen may
adjudge ard determine the value OF the pene-
fits and Improvements to an estate ana may
assess upon the same, a portion OF the expense
but NOT EXCEEDING IN AMOUNT ONE HALF
THE AMOUNT OF SUCH ADJUDaED BENEFIT BEN
AND ADVANTAGE"
This is an extract from the act. oniy W ne
HALF of the benefit can be assessor upon S,o
owner, and of course, If the aldermen a. oa,,
not he assessed upon the land owners, anu Ifie
citv thereby relieved from all COST. :.
Int II is doubtful whether this provision
a,,,,,a Sustained. A suit of equity was brought,
Soon after the passage OF the bill, by land
owner to restrain the city OF Boston from pro-
ceeding under 1t. and we are not informed
that it has yet been determined.
Very erroneous ideas prevail as to the au-
tllority, which the Legislature can confer on
SLty SONClAuSAAL ICi61fC ~ ehhh9 F.
property, for alleged public purposes. Inc
Legislature cannot, confer unlimited power on
the city, to take such estates as itpleases, pay
ing the owner therefor and afterwards use ior
a street such portions of the estate as IS neces-
sary and sell the residue. More than TWEEN
ty wears since. it was decided by the supreme
Court of New York that fhe city ofNew 1ork
had not power to take more, of the lands OF IN
dividuals than is sctualy required tor slieet,
and that portion of tn; act OF the LeglsialuTe'
relating to the city ofNew York Whi me- auInor-
lied the CITY to assess and pay to the owners
the value of the whole lot, and thereby acquire
title to it, when only part was required ior
the street was unconstitutional ana vold, III
taken without consent of the owner.
The Chief Justice, in delivering the opin-
ion. saws. 1.-The Legislature have undertaken TO
confer power to take more land than is neces-
sary for the street. 1t is enacted, thai In an
cases where part only OF any parcel OF ianu
shall be required, if the commissioners deem
it expedient to include the whole iot IN tne
assessment, they shall have power to DO SO,
and the part not wanted for the streets, shall
be vested in the corporation, who may arpro-
pirate the same to iblic uses, or sell the same.
@Thls assumes power, which, with all re-
spect. the Legislature did not possess. The
constitution, by authorizing the appropriation
of private property to public use, implicitly
declares that for any other use private proper
| ty shall not be taken from one and apl Leu 10
| the use of another 1t is in violation of nat
ura right and of the spirit OF the constitu-
ton, and cannot be supported. This power
has been supposed to be convenient when the
greater part of a lot is taken, and only a
small part left, not required for public use,
and that small pant OF but little value in the
hands of the owners The quantity OF the
| residue of a lot cannot vary the principle.
| The owner may be very unwilling to part
with only few feet, and hold it equally in
competent for the Legislature thus to dispose
of private property, whether feet or acres are
the subject of this assumed power, and am
clearly OF opinion that the commissioners have
no right to take the lots of land in question"
This decision has been repeatedly recognize
ed, and under it our Legislature cannot con-
fer on cur city, authority to take an inch of
| land outside OF the limits of the streets.
| With such restrictions on its power, most OF
the proposed changes would be attended with
great expense, the whole of which must ne
cessarily be borne by the city. x.