Chapter VIII (3)

It thus appears that it would require an extreme case of manifest abuse of the power of eminent domain to lead the Supreme Court of the United States to condemn as private a use which a state legislature had recognized as public, and which had been sustained by the Supreme Court of the state. If the abuse of power were manifest, the United States courts would not hesitate to condemn the proceeding, even though expressly sanctioned by the constitution of a state; but there is every reason to believe that any method of taking and selling land justified by the reasonable purpose of controlling the environs of a public place would withstand the scrutiny of the United States Supreme Court if sanctioned by the legislative and judicial departments of the state government.

In concluding this topic, some experiments made in other states towards taking more property than was demanded by the physical requirements of an improvement, either to control the environs or for mere pecuniary considerations, may be passed briefly in review. The experience of foreign countries need not be recounted here, since some governments, unlimited by constitutional restrictions, have conducted real estate transactions of a wide range, far beyond anything that could reasonably be contemplated in America. The State of New York had upon its statute books early in the last century an act already adverted to, purporting to authorize municipalities to take all of a connected tract of land when only part was needed and to sell the surplus. This statute was adjudged by the courts to be unconstitutional, in so far as it sought to authorize the taking, against the owners’ consent, of land not actually needed. A resolution, however, has, after many years, been introduced (January 27, 1909), in the senate of the State of New York for the submission of a constitutional amendment in the following language:

“When private property shall be taken for public use by a municipal
corporation, additional adjoining or neighboring property may be
taken, under conditions to be prescribed by the legislature by
general law. Property thus taken shall be deemed to be taken for
public use.”

In Massachusetts, Section 4 of Chapter 50 of the revised laws provides that the owner of abutting land liable to assessment may at a certain stage of the proceedings give notice that he elects to surrender his land; in which event the board may, if it thinks expedient, take the whole parcel at its estimated value, and any part not required may be sold. A somewhat similar statute, authorizing an owner to convey to the city his entire property at its appraised value when part of it was taken for widening a street, was involved, and by implication sustained, in the case of _Dorgan_ v. _Boston_, 12 Allen, 223.