proved property, the municipality is allowed to take just enough land for the actual construction of the street irrespective of the size or shape of the lots left on either side of the improvement.

The disadvantage to the municipality is both physical and financial. The land owner receives as compensation both the value of land actually taken and the damage to his remaining land, and consequently often gets as much for a part of his lot as he would for the whole of it. Even where special assessment laws work effectively it is often impossible to show ground for such an assessment against a remnant that is distinctly inferior to the customary marketable lot in size or shape. In the absence of any effective control over remnants left by the construction of the improvement, the new highway is likely to be bordered by ugly vacant lots of irregular shape and size which are totally unsuited for use and likely to remain vacant until they can be brought under the same ownership with parts of adjacent lands so as to provide adequate building lots. One of the most marked instances of this was in the widening of Delancey Street to make a proper approach for the Williamsburg Bridge in New York City, where lots were left in some cases less than 10 feet deep. The plan for the establishment of a new traffic thoroughfare between the north and south terminal stations in Boston shows remnants, the entire length amounting to 48,274 feet, absolutely unsuited for independent development.

In so far as remnants are unsuited for proper development a use of them is induced which robs an improvement of much of its effectiveness. Financially the city loses because the sort of development which will increase assessed valuations is prevented. Esthetically the city suffers because it can not protect its streets, its parks, and boulevards by an effective control over the abutting land, and its show places are disfigured by a use of this land not in keeping with the character of the surroundings. It is for this reason that cities have been forced to see approaches to public buildings lined with ill-assorted structures, and park areas surrounded by unsightly dumps and bill-boards. The net benefit to the city of a given expenditure for park purposes may easily be reduced by these means to a small fraction of what was reasonably expected when the investment was made. To overcome these disadvantages and to secure the maximum of benefit from an improvement appears to be the primary aim of excess condemnation legislation in the United States.

It will clear the way for a discussion of the subject to point out the nearest substitute for the excess condemnation method which is ordinarily available in America today. The absorption by the public of the increase of property values directly resulting from an improvement made at public expense, at least up to an amount equal to the cost of the improvement, may be more or less successfully accomplished by special assess

ments as set forth in Chapter III. The control over property adjacent to a public improvement just in so far as that control is needed to enable the public to get the full use and enjoyment of the public property, may be obtained without acquiring title by the purchase or condemnation of easements. The combination of the two is believed by the more conservative thinkers on the subject to afford all the power that is necessary without the dangers of excess condemnation.

THE HISTORY OF EXCESS CONDEMNATION IN THE UNITED STATES

The Massachusetts legislature of 1903* provided for an examination and report upon legislation needed to enable a city, town, or state commission to take in fee, to purchase, or otherwise to acquire for public purposes and in connection with any public work all or any part of the land within certain defined limits, and after appropriating as much of the land as necessary to sell or lease the remainder. The commission sub- sequently appointed by the governor did a thoroughgoing piece of work and their conclusions, embodied in two reports to the legislature of 1904, both now out of print, contained very valuable contributions on a subject on which there is scant literature.†

* Resolves of 1903, Chapter 86.

† Several of the conclusions are found in the Appendix, pp. 308 ff. House Document No. 288 of 1904.

House Document No. 1096 of 1904.

The commission found no precedent and little of value on the subject of excess condemnation in this country, and in the cities of Europe they found the principle applied in two very different ways. In France, according to the letter of the law, only remnants of such size and shape as to be unsuited to the erection of buildings could be taken in addition to the land actually needed for the construction of the improvement. In England, Belgium, Switzerland, and Italy, municipalities were allowed to take all the property within certain bounds in the neighborhood of a proposed work, to use what was necessary, and to dispose of the remainder by sale or lease. In the bill which was submitted by the Massachusetts commission, the French method was adopted as sufficiently broad to carry out the purposes of the municipality and as being more fair than the other method cited to the property owner whose land would be taken. The draft of the bill was passed with modifications by the Massachusetts legislature of 1904 and is known as the "Remnant Act," the principle of which is contained in the following clauses:

Section 2. The Commonwealth, or any city in the Commonwealth may take in fee by right of eminent domain the whole of any estate, part of which is actually required for the laying out, alteration or location by it of any public work, if the remnant left after taking such part would from its size or shape be unsuited for the erection of suitable and appropriate

buildings, and if public convenience and necessity require such taking.

Section 15. The Commonwealth or the city, as the case may be, shall determine within six months after the completion of any public work for which land is taken under this act, or within six months after the filing of a final decree on an appeal taken under this act, whichever shall happen later, with which of the adjoining properties the public interests require that each parcel of land, if any, taken outside the boundaries of the public work should be united; and shall, within said six months, notify the owner of such adjoining property, if his address is known, of this decision by registered letter mailed to such owner, and shall annex to the notice a copy of this section.

Section 16. If such owner or some person on his behalf shall within two weeks from the mailing of such notice notify in writing the Commonwealth or the city that such owner wishes for an appraisal of such parcel, the Commonwealth or the city shall cause such parcel to be appraised by three competent and disinterested persons, one of whom shall be appointed by the Commonwealth or the city, one by said owner, and one by the superior court for the county: Provided, however, that the Commonwealth or the city and said owner may in writing appoint a sole appraiser. Said appraiser or appraisers shall forthwith after his or their appointment view the property and determine the fair value of such parcel, and shall make written report to the Commonwealth or the city of the same. The reasonable fees and expenses of the appraiser or appraisers shall be paid by the Commonwealth or the city. The Commonwealth or the city shall forthwith by writing