Chapter VIII (2)

With reference to the proposed boulevard link on Michigan Avenue, connecting the north and south sides, it is to be borne in mind that the city under its general powers can enlarge Michigan Avenue to any desired width and can alter the grade of the whole or any portion of the street. There were, however, passed by the legislature May 25, 1907, four acts which were designed to facilitate the construction of this boulevard link. It was in contemplation at that time that the South Park and Lincoln Park boards would do part of the work and defray part of the expense, and that the city would meet the balance of the cost by annual appropriations extending over a series of years.

The first of these four acts[62] was designed to enable the South Park board to contribute such part of the expense as to it might seem best. This bill provides that the corporate authorities of any public park district having control of any park in a city wherein other park districts and parks are situated, but not connected therewith by any boulevard or driveway or other park thoroughfare, may from time to time in their discretion issue and sell additional bonds, not exceeding the five per cent limitation, in order to defray the expense of connecting any park under their control with any other public park or parks by means of a boulevard and driveway in the city, and altering and improving any connection or connections between such parks. Such bonds must, however, be authorized by the voters of the park district at an election.

By the second act,[63] the Lincoln Park board is authorized to issue, upon a favorable vote of the electors of the district, bonds not exceeding $1,000,000 for the purpose of constructing surface and elevated boulevards and the approaches thereto over or along streets and alleys, when authorized to do so by any city having control thereof.

The other two acts referred to were passed in order to dispel any doubt about the power of municipalities to erect an elevated structure in a public street. One[64] empowers any city to grant, by ordinance, to any board having jurisdiction over parks and boulevards the right to take and improve, by means of surface or elevated ways, a street not more than one mile in length, with all convenient or necessary approaches, inclines, and superstructures; while the other[65] confers power upon any city to construct and maintain an elevated way in any street, with all necessary approaches, inclines, and superstructures, and to authorize any commission or board having jurisdiction of a public park to take over, maintain, and control, upon terms fixed by ordinance, any street and any incline, approach, or superstructure therein.

An alternative method of constructing a surface or elevated boulevard link would be found in a proceeding by the city under the Local Improvement Act. The city has ample power to condemn property for widening the street and to assess the land damages against all property specially benefited thereby. Having thus added contiguous property to the street as a part thereof, the city could, under the enabling act already alluded to, if not under its general powers, construct the proposed improvement. It must be borne in mind, however, that even if the method of special assessment were resorted to in order to defray the cost, a substantial percentage of that cost would, no doubt, be designated by the court to be paid by the city as public benefits.

LAKE SHORE DEVELOPMENT

The treatment of the shore of Lake Michigan within the city limits involves comparatively little difficulty from a legal point of view. Ample legislation has been provided under which the Lincoln Park and South Park boards can extend their driveways and parks over the bed of Lake Michigan, subject to the consent of the Secretary of War. An Act of May 14, 1903,[66] expressly confers upon every board of park commissioners having control of any park, boulevard, or driveway bordering upon any public waters in the state the power to extend the same over the bed of such waters, and to connect two parks under their control by a boulevard or driveway over the bed of the water. Private riparian rights or titles may for such purpose be acquired by contract with or deeds from the owners, and may be paid for out of the general revenues of the park board. By Section 4, the title of the state to the submerged lands between the shore and the boulevard or parkway—in other words, the bed of the intervening lagoon—is granted to the board of park commissioners. Several other statutes on this subject were enacted on the same date. One authorizes the South Park Commissioners to extend any park under their control out into the lake over the adjacent submerged lands;[67] another conveys to the South Park Commissioners Grant Park from Randolph Street to Park Row, together with the submerged lands lying between those streets extended east to the harbor line established by the Secretary of War;[68] another grants to the South Park Commissioners title to all submerged and artificial lands between the south boundary of Jackson Park and the south line of Seventy-ninth Street extended one thousand feet into Lake Michigan, and to the land included within a triangle formed by the shore of Lake Michigan, the extension of Ninety-fifth Street and the extension of the state boundary line.[69]

This legislation did not authorize the condemnation of riparian rights, but only the acquisition of such rights by negotiation. To facilitate settlement, an Act passed May 2, 1907,[70] empowered the park commissioners, with the approval of the Circuit Court, to agree with the riparian owners upon a boundary line between the public park and the private shore lands, and to convey to the riparian owners all submerged land lying inside of the boundary line thus fixed by agreement; in other words, the park board, having received from the state a grant of its title to the bed of the lake, is authorized to sell and convey to the shore owners so much thereof as may be necessary to induce them to release their riparian rights. If any shore land is owned by persons who are incompetent to contract or who are unknown, the power is given to condemn their riparian rights, pursuant to the provisions of the statute of eminent domain. That power should not be limited to the lands of unknown or legally incompetent owners. Under this legislation, the park board has power to build a boulevard far out into the lake and to settle with the riparian owners by conveying to them as wide a strip of the submerged lands as may be deemed expedient; and the shore owners will then have the right to fill in such submerged strip, thus adding extensive areas of valuable shore land to their present holdings. The constitutionality of this legislation is virtually settled by the case of _People_ v. _Kirk_, 162 Ill. 138, sustaining a similar arrangement between the Lincoln Park board and the proprietors of the shore south of Oak Street. The Lincoln Park board has been given power to condemn shore lands and riparian rights under an amendment of Section 2 of an act passed June 15, 1895, and court proceedings are authorized for the establishment of the boundary line between the park lands and the lands of private owners.[71]

The right of the state to authorize structures which might interfere with navigation is subordinate to the paramount control of the War Department of the United States; and the improvements contemplated by the legislation last described cannot be carried out without the consent of the Secretary of War. Proceedings looking to a grant of such consent were temporarily stayed by the remonstrance of Mayor Busse, and the appointment by him, under authority of the city council, of the Chicago Harbor Commission, which has made a comprehensive study and detailed report on the harbors of the city, together with recommendations as to harbor, railway terminal, and park plans along that part of the shore of Lake Michigan between Twelfth Street and Jackson Park. The report is entirely favorable to the essential features of the plan for park and boulevard development on the Lake Front, but with appropriate reservations for future harbor development. It strongly favors the accomplishment of such plans at the earliest possible moment, stating that “there is no real conflict between the harbor and the park interests of Chicago and no artificial or unnecessary discord should be permitted to retard the complete and prompt execution of the plans necessary for the development of both sides of the city’s life.” It recommends that “a detailed plan carrying out this idea should be worked out jointly by the experts of the park authorities and an expert engineer appointed by the city, subject to the approval of the city council and the South Park Commissioners,” and urges immediate action by these authorities. As soon as such a plan can be worked out and the consent of the War Department be secured, there is nothing but the question of ways and means to delay the execution of this plan. The legislature has already authorized the South Park board, upon obtaining authority from the people at an election, to issue bonds up to the constitutional limit for the construction of the Lake Front Park.[72]

TRANSPORTATION PROBLEMS

The readjustment of freight and passenger traffic and the relocation of railroad terminals is a subject which requires little comment from a legal point of view. When railway companies are brought to the point of hearty co-operation with the Chicago Plan, the powers which they already enjoy will be found adequate to the execution of their part. The state has placed at their service all necessary powers of eminent domain, and those portions of streets and alleys required for railway terminals may be vacated by the city. Although the action of the city council in vacating streets to make room for a railway station has been attacked, it has been sustained by the lower courts.

It may be that the legislature should be asked to confer upon the city additional powers that would enable it to acquire property for railway terminals and appropriate connections to be used by the various transportation lines on just terms. A city cannot condemn land for the purpose of turning it over to a railway corporation, but there can be little doubt of the power of the legislature to authorize a city to condemn land in order to create a central clearing place for traffic. Chapter 247 of the Acts of the legislature of Wisconsin for the year 1907 is an example of a law designed for that end. This statute authorizes cities of the first class to acquire, establish, own and operate railway terminals, and to condemn land for that purpose. Having established such a terminal, the city may permit any railroad corporation to use it upon agreed terms, or, if the parties cannot agree, then upon terms to be fixed by the state railroad commission. To meet the first cost, the city is authorized to issue “railway terminal certificates,” payable only out of the revenues derived from the terminals for the acquisition of which they are issued. These certificates may be secured by trust deed, and there are provisions for foreclosure similar in many respects to those contained in the so-called “Mueller Law” enacted by the legislature of Illinois, authorizing municipal ownership of street railways. Under the decision of the Supreme Court of Illinois,[73] such certificates would constitute “indebtedness” of the city, and the amount which could be issued at any time would be controlled by the constitutional limitation of municipal indebtedness. That municipal certificates or bonds secured by revenue-producing utilities and not made a charge upon the other property or general credit of the city should be exempted from the general constitutional debt limit is advocated by men of widely different opinions upon the public-utility question,[74] and is provided in various state constitutions.[75] Constitutional amendments to this effect are being proposed in New York and elsewhere.

CONTROL OF LANDS ADJACENT TO PUBLIC IMPROVEMENTS

In order to secure the full benefit of a park, boulevard, avenue or other place of public recreation or resort, some control of the immediate surroundings is indispensable. The municipal authorities which establish parks, boulevards, and other public places need some power to regulate the use of premises within immediate view of the public grounds, so as to prevent offensive advertising, restrict the kinds of business, if any, to be conducted thereon, and make appropriate regulation of the height, manner of construction, and location of the surrounding buildings. To that end, resort must be had either to the police power or to the power of eminent domain.

The police power of the state is not available for merely æsthetic purposes, and is quite inadequate to the solution of this special problem. Owners of land, under existing constitutional limitations, can with impunity lease to advertising companies the right to erect safely constructed billboards and paint the sides and roofs of barns with any advertisements not injurious to morals or contrary to public decency; nor can vulgarities which merely offend the sight and shock temperamental susceptibilities be construed as breaches of decency. “It is believed,” says a writer in the Harvard Law Review,[76] “that both on theoretical and practical grounds the law must be taken as settled that, although public æsthetic ends may be effectuated by statute or ordinance through the exercise of eminent domain, the same object may not be accomplished by legislation under the police power without compensation.”

In the case of _Chicago_ v. _Gunning System_, 214 Ill. 628, the Supreme Court of Illinois declared that the legislature, by conferring authority upon the city council to abate nuisances and enforce police ordinances, had given that body ample power to regulate, within reasonable limits, the construction of billboards upon private property; but the court nevertheless condemned a particular ordinance for the reason, among others, that the purpose of certain sections seemed “to be mainly sentimental and to prevent sights which may be offensive to the æsthetic sensibilities of certain individuals residing in or passing through the vicinity of the billboards.”

A broader control may, however, be exerted under the power of eminent domain. It is possibly within the capacity of the legislature to authorize park boards or other governmental bodies to acquire by condemnation proceedings, upon payment of compensation, the right, even in country districts, to restrict the use of all land within view of a driveway or park; but the exercise of that power with respect to property which does not actually front on the park or driveway scarcely falls within the domain of practical consideration in connection with the present Plan.

Nearer the center of urban population, where the billboard nuisance is even more aggravated, the city is now the only effective repository of the police power. The county is not at present a factor in the problem; and park boards, while they have adequate police jurisdiction in their own territory, have none outside. It is competent for the city council, in the exercise of the police power, to regulate the construction of advertising signs for the protection of public decency or public safety by reasonable ordinances, but not to prohibit them altogether, nor restrict their size, construction, or location more than is reasonably necessary to keep them within the limit of safety; nor could land abutting upon parks and boulevards be subjected to substantially different regulations in this respect from those imposed upon property fronting on business streets. In the case of _Chicago_ v. _Gunning System_, already adverted to, a provision forbidding the erection of billboards on residence streets without the consent of residents in the block was condemned by the court as “an arbitrary restriction on the part of the city, depriving an individual property owner of the use of his property as he may choose, without any showing that such use would be injurious to others in the same vicinity.” The city council cannot condemn as a nuisance what the law adjudges not to be a nuisance. In order, therefore, to control offensive advertising by such regulations as the city ought to have power to impose, resort must be had to some other function of government than the police power.

The construction of buildings is also subject to some regulation under the police power. The city is vested with authority to prescribe the strength and manner of constructing buildings, to define fire limits, and to pass and enforce all necessary police ordinances; and the power conferred upon it to pass “all necessary police ordinances” is construed as delegating to the city all the appropriate police power of the state.[77] No question is made but that the city council has power to regulate the height of buildings with a view to health and public safety; but it may be doubted whether the police power would justify the municipal authorities in imposing more rigorous restrictions upon the character of buildings to be constructed along boulevards and around parks than in other parts of the city. The Supreme Judicial Court of Massachusetts has sustained the right of the legislature to delegate to a city the power to regulate the height of buildings, to prescribe different regulations for different districts, and to invest a commission with the right to determine the boundaries between such districts,[78] and has expressed the opinion that certain special regulations of the height of buildings around a public square might be imposed under the police power without making compensation.[79] It is doubtful whether local distinctions of this character would be sustained in Chicago under existing legislation, except in so far as they might be justified by the power to establish fire limits. The legislature might delegate to city councils the power to district the city and prescribe different building limits in different districts; but any distinctions of this sort would have to rest upon real differences, and it remains doubtful whether the police power could be invoked to justify making a special district of the area surrounding a public square or avenue. The council could not be invested with authority to establish building lines without awarding compensation to the owner;[80] nor could the legislature confer the right to regulate arbitrarily the character of the business to be conducted in premises abutting on a boulevard.[81] A business which is an actual nuisance may be prohibited altogether; and the legal machinery exists for excluding saloons and some other kinds of business from limited areas. Such exercise of the police power must, however, bear some reasonable relation to the public health, safety, or morals, and could not, under existing constitutional restraints, be extended to business in general.

Such being the limits of the police power, it is evident that, in order to secure any effective control of the environs of a public place, resort must be had to some authority of wider scope, and the only available power is that of eminent domain, under which the state and its agencies have the right to take any private property for a public use, upon providing just compensation. The areas adjacent to a public place could probably be controlled under this power, either by condemning them outright as a part of the improvement, or by condemning merely a qualified right to regulate and control them. If they were taken outright, the question would arise whether they could be resold subject to the necessary restrictions upon their future use; thus reducing the cost of the improvement to the extent of the increase in the value of this land caused by the improvement.

The right to appropriate private property for public use is an attribute of sovereignty, existing in the state independently of written constitutions, and vested in the general assembly by those provisions of the constitution which confer upon that body the legislative power of the state. In Illinois, as in all of the states, the power of the legislature to take private property for the use of the community is subject to two constitutional limitations: one, that just compensation must be provided for all property so taken; the other, that private property cannot be taken, even upon payment of its full value, for any except a public use. These two restrictions are also imposed by the fourteenth amendment of the federal constitution, which declares that no state shall deprive any person of property without due process of law. Subject to these qualifications, the state has unlimited power to appropriate through its legislature any property within its borders which has become the subject of private ownership; and this power of eminent domain the legislature may delegate, with or without restrictions, to any subordinate agency. The expediency of the exercise of that power in any given case is a subject over which the courts have no control, unless they can say that the proposed use is not public. On these general principles all the authorities are agreed.

The United States Supreme Court has frequently stated the principles of the law of eminent domain. In _Boom Company_ v. _Patterson_, 98 U. S. 403, Mr. Justice Field, in delivering the opinion of the court, said:

“The right of eminent domain, that is, the right to take private
property for public uses, appertains to every independent government.
It requires no constitutional recognition: it is an attribute of
sovereignty. The clause found in the constitutions of the several
states providing for just compensation for property taken is a
mere limitation upon the exercise of the right. When the use is
public, the necessity or expediency of appropriating any particular
property is not a subject of judicial cognizance. The property
may be appropriated by an act of the legislature, or the power of
appropriating it may be delegated to private corporations, to be
exercised by them in the execution of works in which the public is
interested.”

Parks, boulevards, and places of recreation are now universally recognized as legitimate objects of public concern, for which the power of eminent domain may appropriately be exercised; and it seems clear that if private property can be taken to create such utilities, it may also be taken for the purpose of realizing the full benefit of these works by adequate control of the surroundings. The legislature might at least authorize a city, park district, or other subordinate agency to exercise the power of eminent domain by imposing upon property in the neighborhood of a public place restrictions upon the location or character of the buildings to be erected, or the kinds of business, if any, to be conducted upon such adjacent land. It could not be successfully argued that such a use was not public.

The conception of a public use must alter and expand with the development of civilization, and especially with the growth of cities. In sustaining an act of Congress providing for the condemnation of land for a public park in the District of Columbia, and assessing part of the cost upon the property specially benefited, the Supreme Court, in the case of _Shoemaker_ v. _United States_, 147 U. S. 282, 297, speaking through Mr. Justice Shiras, said:

“In the memory of men now living, a proposition to take private
property, without the consent of its owner, for a public park, and to
assess a proportionate part of the cost upon real estate benefited
thereby, would have been regarded as a novel exercise of legislative
power. It is true that, in the case of many of the older cities and
towns, there were common or public grounds, but the purpose of these
was not to provide places for exercise and recreation, but places on
which the owners of domestic animals might pasture them in common,
and they were generally laid out as part of the original plan of the
town or city. It is said, in Johnson’s Cyclopedia, that the Central
Park of New York was the first place deliberately provided for the
inhabitants of any city or town in the United States for exclusive
use as a pleasure ground for rest and exercise in the open air.
However that may be, there is now scarcely a city of any considerable
size in the entire country that does not have, or has not projected,
such parks. The validity of the legislative acts erecting such parks,
and providing for their cost, has been uniformly upheld.”

Again, in the case of _Attorney General_ v. _Williams_, 174 Mass. 476, the Supreme Judicial Court of Massachusetts used the following language:

“The uses which should be deemed public in reference to the right of
the legislature to compel an individual to part with his property
for a compensation, and to authorize or direct taxation to pay for
it, are being enlarged and extended with the progress of the people
in education and refinement. Many things which a century ago were
luxuries, or were altogether unknown, have now become necessaries.
It is only within a few years that lands have been taken in this
country for public parks. Now the right to take land for this purpose
is generally recognized and frequently exercised.... The grounds on
which public parks are desired are various. They are to be enjoyed
by the people who use them. They are expected to minister not only
to the grosser senses, but also to the love of the beautiful in
nature, in the varied forms which the changing seasons bring. Their
value is enhanced by such touches of art as help to produce pleasing
and satisfactory effects on the emotional and spiritual side of our
nature. Their influence should be uplifting, and, in the highest
sense, educational. If wisely planned and properly cared for, they
promote the mental as well as the physical health of the people. For
this reason it has always been deemed proper to expend money in the
care and adornment of them, to make them beautiful and enjoyable.
Their æsthetic effect never has been thought unworthy of careful
consideration by those best qualified to appreciate it. 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.”

When once it is conceded that a use is public, the courts have no control over the character of the estate or easement to be taken for the purpose. The constitution of Illinois provides, indeed, that when a railroad company condemns a right-of-way the fee shall remain in the former owner; but, subject to that restriction as to these particular corporations, the legislature has unlimited power to specify the nature, extent, and duration of the estate that shall be taken for any public use. Having the right to authorize the taking of an absolute title, it could direct the appropriation of any lesser interest, and could confer upon public bodies power to condemn the right to restrict the use and improvement of property contiguous to public grounds.

It does not appear, however, that the present statutes of Illinois do confer upon municipalities any express power to condemn such easements over lands contiguous to a street, boulevard, park or other public place. In the legislation under which the West Chicago Park Commissioners were incorporated and organized, there were sections expressly directing the park commissioners to impose building lines upon property adjacent to the parks and boulevards authorized thereby, and in the condemnation proceedings compensation was to be included for this burden. The West Park board, however, never undertook to avail itself of these extensive powers, which were limited to the acquisition of the original parks and boulevards authorized by the act. It might be argued that the city, under its present authority to establish and enlarge parks, boulevards, and streets, could condemn such easements directly, or that it could condemn a wide strip for a new street or land contiguous to an old street, and, by the familiar device of a stipulation entered of record in the condemnation suit, limit the appropriation to a restricted control of the use of the property. The latter method, if lawful, would be clumsy and inadequate, and additional legislation would be desirable to enable public authorities effectively to acquire, under the power of eminent domain, a qualified jurisdiction or control over property of which the exclusive use is not taken.

Even such a law, however, would fall short of the public need. To give the city or other agency a free hand in controlling the environs of a public place, the authorities should be invested with power to acquire the actual title, and then to dispose of it subject to such restrictions as might be deemed expedient. This course offers the double advantage of giving the public agency absolute control of the future use and improvement of the surrounding property, and of enabling it, if the price of acquisition is not too great, to recoup in some measure the cost of the improvement by selling the residual title. A lot abutting on a park or boulevard might be worth much more after it had become part of a larger area subject to uniform building lines and restrictions than it was in its unencumbered condition; and the public authorities, by treating the whole improvement and its environment as a unit, might reap a pecuniary advantage which they could not have conferred upon individual owners even if they had desired to do so. An examination of the power of municipalities to take land in excess of physical requirements involves two questions: first, whether extra land can be taken merely for the purpose of selling it and defraying the cost of the improvement; and, second, whether, even if that right is denied, such land can be condemned and resold for the purpose of imposing upon it building or sanitary restrictions and limitations of use.

As already stated, it may be accepted as elementary that neither the state, through its legislative department, nor any subordinate agency of the state can take a man’s property against his will, under the power of eminent domain, merely for the purpose of giving it or selling it to another man. Such a taking would not be for public use and would violate the state and federal constitutions. It by no means follows, however, that a state agency, exercising the power of eminent domain, is always forbidden to derive profit from the sale of property not found to be actually needed. The activities of the Sanitary District of Chicago suffice to show how an area larger than is demanded by the ultimate needs of the public work may be acquired and converted into a source of revenue. A municipal corporation enjoys a large discretion in determining for itself how much land it needs for its public works, and courts will not ordinarily curb its freedom of action unless the exercise of the power of eminent domain is clearly excessive. If the city council saw fit to condemn a strip of land five hundred feet wide for an avenue or boulevard, the courts would have no right to question its decision unless, in the particular instance, there was some “manifest injustice, oppression or gross abuse of power”;[82] nevertheless, if it did clearly appear as a fact that the ultimate object was to lay out an avenue only one hundred feet in width, the question would be squarely presented whether the margins on each side could be taken outright in order to govern their future use and development.

In an early New York case, a legislative attempt to authorize the taking of more land than was actually needed was condemned by the court in the following language:

“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 part of but little value in the hands
of the owner. In such case the corporation has been supposed best
qualified to take and dispose of such parcels, or gores, as they have
sometimes been called; and probably this assumption of power has been
acquiesced in by the proprietors. I know of no case where the power
has been questioned and where it has received the deliberate sanction
of this court. Suppose a case where only a few feet or even inches
are wanted from one end of a lot to widen a street, and a valuable
building stands upon the other end of such lot, would the power be
conceded to exist to take the whole lot, whether the owner consented
or not? Or suppose the commissioners had deemed it expedient and
proper in this case, in the language of the statute, to take the
whole of the churchyard, the act would have been equally within the
letter of the statute with their act in the present case; and yet
no one would suppose that the legislature ever intended to confer
such a power. The quantity of the residue of any lot cannot vary the
principle. The owner may be very unwilling to part with only a few
feet; and I hold it equally incompetent for the legislature thus to
dispose of private property, whether feet or acres are the subject of
this assumed power. I am clearly of opinion that the commissioners
have no right to take the strip of land in question against the
consent of the corporation of Trinity Church.”[83]

While there is a dearth of modern authority on this subject, it is believed that the courts would still accept the reasoning of this Albany Street case, and would sustain the position of an owner who refused to surrender his property in order merely to diminish the cost of a public improvement. Such enactments, however, though void as to an unwilling property owner, are valid in so far as they confer authority on the city to take and pay for the whole parcel with the owner’s consent, and to spend the people’s money for that purpose.[84] A plan for acquiring a large area by private purchase could not be successfully carried out if one or two of the proprietors could refuse to part with their property, and such a scheme must therefore be confined within the limits of the power of eminent domain.

In order to justify the appropriation of a zone outside of the actual lines of the public space, it must appear that the property is to be made, in some sort, a part of the improvement; and that fact does appear when the control of the debatable zone is sought in order to save the environment of the public place from disfigurement or objectionable use. That end suffices to justify the condemnation of some interest in the zone; and it is well established by the authorities that when the public good requires the appropriation of some interest, the legislature is sole judge of the particular nature of the interest that shall be taken, and may, without being answerable to any court, declare that the interest to be taken shall be a fee simple absolute. A railway company does not require the title, or even the exclusive use, of its entire right-of-way; yet it is not doubted that, in the absence of a constitutional restriction, the legislature might authorize a railway company to take the entire title. In most states, the fee of a street remains in the owner of the property over which the street is laid out under the power of eminent domain; yet there is no question but that the legislature has power to vest the fee in the city. The Supreme Court of Minnesota, in the case of _Fairchild_ v. _St. Paul_, 46 Minn. 540, where the question was raised whether the city acquired through condemnation proceedings the actual title to the street or only an easement, stated the established principles of the law in the following language:

“There is nothing better settled than that, the power of eminent
domain being an incident of sovereignty, the time, manner and
occasion of its exercise are wholly in the control and discretion
of the legislature, except as restrained by the constitution. It
rests in the wisdom of the legislature to determine when and in what
manner the public necessities require its exercise; and with the
reasonableness of the exercise of that discretion the courts will
not interfere. As the legislature is the sole judge of the public
necessity which requires or renders expedient the exercise of the
power of eminent domain, so it is the exclusive judge of the amount
of land, and of the estate in land, which the public end to be
subserved requires to be taken. * * *

“When the use is public, the necessity or expediency of appropriating
any particular property is not a subject of judicial cognizance.
Consequently, if in the legislative judgment it is expedient to do
so, it has the power expressly to authorize a municipal corporation
compulsorily to acquire the absolute fee simple to lands of private
persons condemned for street or any other public purpose. The
authorities are so numerous and uniform to this effect that an
extended citation of them is unnecessary. * * * It is often laid down
as the law that the taking of property must always be limited to the
necessity of the case, and, consequently, no more can be appropriated
in any instance than is needed for the particular use for which the
appropriation is made. But it will be found that this is almost
invariably said, not in discussing the extent of the power of the
legislature, but with reference to the construction of statutes
granting authority to exercise the right of eminent domain, and where
the authority to take a certain quantity of land or a particular
estate therein depended, not upon an express grant of power to do
so, but upon the existence of an alleged necessity, from which the
disputed power is to be implied.”

The city of Brooklyn acquired land for public parks under a statute authorizing the acquisition of the title, and the court, in sustaining the validity of a subsequent act of the legislature authorizing the sale of portions of the land no longer needed, said:

“Doubtless, in most cases, when land is condemned for a special
purpose on the score of public utility, the sequestration is limited
to that particular use. But this is where the property is not taken,
but the use only. Then, the right of the public being limited to
the use, when the use ceases the right ceases. Where the property
is taken, the owner paid its true value, and the title vested in
the public, it owns the whole property, and not merely the use; and
though the particular use may be abandoned, the right to the property
remains.”[85]

Land acquired for canal purposes has often been held to have vested absolutely in the state, so that upon abandonment of the canal the premises could be devoted to a different use or sold to a private purchaser.[86]

Some courts have intimated that land condemned for park purposes is presumptively dedicated to that use forever; and, hence, that authority to condemn for such a use implies authority to take the absolute title. Moreover, if a statute provided that land acquired for a public purpose could be sold when no longer needed, the implication would seem to be unavoidable that the title acquired under the statute was absolute. No general authority, however, has as yet been conferred upon municipalities in this state to take under the power of eminent domain a title that would survive the public use.

Under appropriate legislation, then, a city could take the absolute fee to any property in which it required an interest for the public use. It is equally well settled that the legislature can authorize the sale of any such land when it is no longer needed for the purpose for which it was acquired. The property, it is true, is held in trust for the public, but that trust could be relinquished by authority of the legislature, which represents the public, and the property could then be sold; and the authority to sell such surplus when no longer needed could be contained in the act authorizing the original condemnation. Of such a statute it was said in _Matter of City of Rochester_ 137 N. Y. 243:

“It is claimed that this provision is in conflict with the provisions
of the constitution respecting the taking of private property for
public use, as it in fact authorizes the city to take it for a
purpose not public. We think the objection is without merit or
substance. Of course, the city could not take private property for
the purpose of selling it or dealing in it; but, having once acquired
it for a park, and it becoming, in the course of time, unnecessary or
useless for that purpose, by the growth of the city or other changes
in the situation, a sale in the manner prescribed by the statute
would be within the legitimate functions of the city as a municipal
corporation, and power to that end, conferred by the legislature at
any time, or in the act authorizing the taking, cannot invalidate the
delegated right to exercise the power of eminent domain.”

The power of the municipality to sell superfluous land under the authority of such a statute could not be challenged at the time of sale. If the title had been acquired, it could be sold. The only question that could be raised would be one in the original condemnation proceeding as to the power to take the land at all. That question would be merely the question of good faith. The petitioner could be made to file plans showing some reasonable need for the property sought to be condemned; and the courts would not permit an obvious abuse of the power of eminent domain either by the state legislature or by any of its agencies. It is believed, however, that no question of abuse or bad faith could arise when the legislature was shown to have authorized, in its sovereign discretion, the taking of the whole title as the most direct and convenient method of controlling the use.

An instructive case bearing upon this argument is that of _Dingley_ v. _Boston_, 100 Mass. 544. For the purpose of draining and grading up a part of the Back Bay district, the Massachusetts legislature authorized the city of Boston to take land within a certain area, and provided that the title should vest in the city. The contemplated use, although extensive, was merely temporary; when the land was filled and the surface raised to a higher grade, the purpose for which it was taken would have been accomplished. The Supreme Court, nevertheless, holds that it was the object of the statute to authorize the taking of a fee simple absolute, and that after the filling had been completed the title remained in the city, subject to such use or disposition as the authorities might deem expedient. The use being public, it could not be said that the taking of a fee simple was any the less for public use than the taking of a smaller estate would have been; the legislature was sole judge of the expediency of taking one or the other. The court speaks as follows:

“The act provides that the city government may first take the land,
and thereby transfer to the city a title in fee simple, without the
consent of the owners. It is contended that, as the only object of
the act is to abate a nuisance, the act ought only to have granted
the power to occupy the land temporarily until the object of the act
should be effected, and it should then be restored to the owners,
with a provision that the benefit done to the land should be applied
in offset to the damages. It is true that the raising of the grade
does not require an occupation of the land for a great length of
time. When this work is completed the nuisance will be abated, and
the land will be in a condition to be occupied by private persons.
But its condition will be greatly changed; almost as much so as
raising flats into upland. The former surface will be deeply buried
under the earth that will have been brought upon it, and the changed
condition is to be perpetual. If the old property is restored, the
new property which has been annexed to it must go with it. This
would be very unjust to the city, who have been compelled to incur
the great expense of destroying the nuisance, unless the owner were
required to make a reasonable compensation, which might be far beyond
the amount of the damages to which he would be entitled.

“It would be difficult to adjust the matter; and in many cases it
might operate harshly upon the owner to compel him to take and pay
for the improvements. On the whole, therefore, the plan of compelling
the city to take the land in fee simple, and the owner to part with
his whole title for a just compensation, would seem to be the most
simple and equitable that could be adopted; unless there is some
objection on the ground that a fee simple is more sacred than an
estate for life or years, or than an easement of greater or less
duration. We can see no ground for regarding one of these titles as
more sacred than another, or for regarding land as more sacred than
personal property. * * *

“Whether land be taken under the clause authorizing the making of
wholesome and reasonable laws, or by virtue of the clause authorizing
the appropriation of private property to public uses, it must in
either case be left to the legislature to decide what quantity of
estate ought to be taken in order to accomplish its purpose, and do
the most complete justice to all parties.”

If a municipality were justified in taking an area in order to control the surroundings of a park or boulevard, the proceeding would not be rendered illegal by the fact, if fact it was, that the hope of pecuniary profit was a strong, or even the controlling, motive. If there is a sound basis which justifies the action of public officials, the motive by which those officials are actuated is not open to judicial inquiry.[87]

If, then, it be a legitimate part of a public improvement—as few would question that it is—to impose appropriate restrictions upon the use and improvement of adjacent property, and if, as seems probable, the condemnation of the entire title can be authorized for that purpose, a municipal body could be empowered by the legislature to acquire title to land outside of the physical area of improvement; and if the municipality had also been authorized by the legislature to sell any interest no longer needed in any of its land, it could sell the land subject to all necessary conditions or restrictions; nor would it lie in the mouth of any court to question the proceeding or brand it as illegal because the real, efficient motive may have been to get the benefit of the enhancement in the value of the property.

There is probably no constitutional obstacle to legislation investing a city, park board, county, or other appropriate agency with power to condemn as part of or supplementary to a public improvement such contiguous area as the reasonable needs of the improvement itself might require to be subjected to proper restrictions; nor could such a law be condemned by reason of its also authorizing the sale of the land subject to such conditions or restrictions as the public authorities saw fit to impose upon it.[88]

If any local legislation authorizing the condemnation and sale of surplus lands were brought to the test, the question for the courts would be whether the use for which the property was taken was a public one; and it must be borne in mind that upon this point the judgment of the Supreme Court of a state would not be final. By the Fourteenth Amendment to the Constitution of the United States it is provided that no state shall deprive any person of property without due process of law; and it is now settled that this clause prohibits the taking of private property for any use that is not public. The United States Supreme Court, however, has always paid the greatest deference to the opinions of state legislatures and the state judiciary as to what uses are public. The power of the United States Supreme Court to review a state decision in this particular, and also the extreme respect which will be paid to local decisions, are both well illustrated in the case of _Clark_ v. _Nash_, 198 U. S. 361, sustaining a statute of the state of Utah, by the terms of which an individual land owner was empowered to condemn the right of conveying water in a ditch across his neighbor’s land for the purpose of irrigating his own farm. Mr. Justice Peckham, delivering the opinion of the court, said:

“In some states, probably in most of them, the proposition contended
for by the plaintiffs in error would be sound. But whether a statute
of a state permitting condemnation by an individual for the purpose
of obtaining water for his land or for mining should be held to be
a condemnation for a public use, and therefore a valid enactment,
may depend upon a number of considerations relating to the situation
of the state and its possibilities for land cultivation, or the
successful prosecution of its mining or other industries. Where the
use is asserted to be public, and the right of the individual to
condemn land for the purpose of exercising such use is founded upon
or is the result of some peculiar condition of the soil or climate,
or other peculiarity of the state, where the right of condemnation is
asserted under a state statute, we are always, where it can fairly
be done, strongly inclined to hold with the state courts, when they
uphold a state statute providing for such condemnation. * * *

“We do not desire to be understood by this decision as approving of
the broad proposition that private property may be taken in all cases
where the taking may promote the public interest and tend to develop
the natural resources of the state. We simply say that in this
particular case, and upon the facts stated in the findings of the
court, and having reference to the conditions already stated, we are
of the opinion that the use is a public one, although the taking of
the right of way is for the purpose simply of thereby obtaining the
water for an individual, where it is absolutely necessary to enable
him to make any use whatever of his land, and which will be valuable
and fertile only if water can be obtained.”

Again, in the very recent case of _Hairston_ v. _Danville & Western Railway Co._, 208 U. S. 598, the facts were that the Supreme Court of Virginia had sustained a proceeding by which a railroad condemned land for a spur track to a tobacco factory, the owner of which agreed to reimburse the company for the cost of acquiring the land. The decision of the federal court sustaining the judgment of the state court was delivered by Mr. Justice Moody, who said:

“When we come to inquire what are public uses for which the right
of compulsory taking may be employed, and what are private uses
for which the right is forbidden, we find no agreement, either in
reasoning or conclusion. The one and only principle in which all
courts seem to agree is that the nature of the uses, whether public
or private, is ultimately a judicial question. The determination of
this question by the courts has been influenced in the different
states by considerations touching the resources, the capacity of
the soil, the relative importance of industries to the general
public welfare, and the long-established methods and habits of the
people. In all these respects, conditions vary so much in the states
and territories of the Union that different results might well be
expected.... No case is recalled where this court has condemned as a
violation of the Fourteenth Amendment a taking upheld by the state
court as a taking for public uses in conformity with its laws.... We
must not be understood as saying that cases may not arise where this
court would decline to follow the state courts in their determination
of the uses for which land could be taken by the right of eminent
domain. The cases cited, however, show how greatly we have deferred
to the opinions of the state courts on this subject, which so closely
concerns the welfare of their people. We have found nothing in the
Federal Constitution which prevents the condemnation by one person
for his individual use of a right of way over the land of another
for the construction of an irrigation ditch; of a right of way over
the land of another for an aerial bucket line; or of the right to
flow the land of another by the erection of a dam. It remains for
the future to disclose what cases, if any, of taking for uses which
the state constitution, law and court approve will be held to be
forbidden by the Fourteenth Amendment to the Constitution of the
United States.”