ment to which the power of excess condemnation is to be applied. In general there are two types of provisions: those which specify in detail the kind of improvement in connection with which the power is to be exercised and those which are phrased generally so as to apply to any public improvement.

The provisions in amendments which were adopted are as follows: Massachusetts, "laying out, widening or relocating highways or streets"; New York, "laying out, widening, extending or relocating parks, public places, highways or streets"; Rhode Island, "establishing, laying out, widening, extending or relocating of public highways, streets, places, parks or parkways"; Ohio, appropriations of property for public use the provision seems to include all local improvements of municipalities; Wisconsin, establishing, laying out, widening, enlarging, extending and maintaining memorial grounds, streets, squares, parkways, boulevards, parks, playgrounds, sites for public buildings.

Proposed amendments which failed of adoption: New York, property taken for public use by municipal corporations; Wisconsin, property taken for public use by municipal corporations; California, any proposed improvement; New Jersey, laying out, widening, extending or relocating parks, public places, highways

or streets.

While most of the discussion of excess condemnation concerns the protection of streets and parks, there have been few, if any, reasons given for excluding other public improvements.

(4) Quantity of land authorized to be taken. As to the amount of land which may be taken in excess there are, in general, two types of provisions: those which limit the taking of land to an amount sufficient to form suitable building sites and those which place either no limitation or a very general one on the amount. Amendments in Massachusetts, New York, Rhode Island, and the proposed but defeated amendment in New Jersey restricted the amount to be taken to suitable building sites. The Ohio amendment and the amendment defeated in California in 1918 placed no limitation upon the amount to be taken. In Wisconsin, the amount of land is restricted to lands in and about, along, and leading to, any improvement. Of the amendments which failed: New York restricted the taking of land to those. that were additional, adjoining and neighboring: Wisconsin, additional, adjoining and neighboring; California, (1914 and 1915) additional, adjoining or neighboring.

If it is sought to provide for the lot remnant problem only, a provision provision which limits. limits the taking to an amount sufficient to make suitable building sites is appropriate. If it is sought to authorize the taking of excess land for the purpose of controlling the character of the neighborhood adjoining a public improvement, a provision which does not attempt to place a definite limit on the amount that may be taken would accomplish this object, but such a provision could also be construed as authorizing the taking of land for purposes of recoupment. This result might be avoided if the

clause authorized the sale of the excess only under restrictions appropriate to preserve the improvement, or it might also be accomplished by an unlimited grant or by a grant, limited to the land which was adjoining or neighboring, with the proviso that the amount of land taken in excess be no more in extent than would be sufficient to protect and preserve the improvement. The clause authorizing the sale under restrictions could then be added.

(5) Interest in land to be taken. The majority of amendments make no provisions as regards the interest in land that may be acquired. Ohio authorizes the condemning authorities to appropriate or acquire; Wisconsin, acquire by gift, purchase or condemnation; New York, to take; Massachusetts, take in fee; Rhode Island, acquire or take in fee. The amendments which failed in New York, Wisconsin and New Jersey used the word "take" only. California, (1914, 1915, 1918) "take and appropriate in fee simple under the power of eminent domain." Under the general rule, a fee could be taken under any of these provisions if the legislature so provided. No proposed amendment has undertaken to limit the taking to easements, but the amendment adopted in Rhode Island provides that the person from whom the excess is taken shall have the first right to purchase the land.

(6) Disposition of the surplus. In all the amendments except those which were defeated in New York and Wisconsin, there is a clause authorizing the sale or leasing of the excess land. The Rhode Island provision, which in effect gives the former owner an option to repurchase, would seem to be desirable where the land is taken for the purpose of sale under building restrictions, but not where the land is taken for the purpose of making suitable building sites, for in this case the object of the taking is to bring about a union of two or more properties which are separately owned.

(7) Restrictions as to use. If only such excess land is taken as is necessary to make suitable building sites, it will not always be necessary to resell the excess under restrictions. In those states where the taking is restricted to lot remnants, the usual provision authorizes the sale of the land with or without restrictions. Such provisions are found in the amendments adopted in Massachusetts and Rhode Island. The New York amendment contains no provision dealing with the matter of restrictions, nor do the amendments which were defeated in New York in 1911, Wisconsin in 1914, and in California in 1918. The proposal defeated in New Jersey, which was limited to the taking of lot remnants, provided for sale under reasonable restrictions. Those amendments which authorize the taking of excess land for the purpose of protecting and controlling the character of the neighborhood obviously must contain provisions authorizing the sale of the excess under restrictions. Ohio provides that the surplus may be sold with such restrictions as shall be appropriate to preserve the improvement made; the Wisconsin amendment authorizes the sale of the surplus with reservations concerning the future use and occupation of such real estate so as to protect such public improvements and their environs and to preserve the view, appearance, light, air and usefulness of such public works; the California proposal, defeated in

1913 and 1915, authorized the sale under such terms and restrictions as may be appropriate to preserve or further the improvement made or proposed to be made; the California amendment, defeated in 1918, authorized the sale under such procedure as is prescribed by law. Amendments defeated in New York and in Wisconsin contained no provisions relating to restrictions. For simplicity and clearness the Ohio provision seems preferable, but there should be added to it a provision which will give to the former owner the first right to repurchase.

VI. CONCLUSION.

Changes introduced by the Constitution of 1870. The constitutions of 1818 and 1848 contained but one clause dealing with the power of eminent domain. This provision required the payment of just compensation when property was taken for public use. Several changes were introduced in the constitution of 1870: (1) The right to compensation was extended to cases where property was merely damaged for public use. This action has since been followed by about half of the states. (2) As a second result of this change the court has held that where a part of a tract of land has been taken and the remainder part has been specially benefited, the amount of this special benefit cannot be set off against the value of the part taken, thus changing the constitutional rule as it was under the constitutions of 1818 and 1848. As applied to private corporations this is the general rule in other states, but in about half of the states, in takings by the state or by other governmental agencies, special benefits to the part of a tract not taken may be set off against the value of the part taken. It has been urged that this rule should be changed primarily in the interest of all governmental agencies which do not possess the power of levying special assessments, i. e., all agencies other than cities, towns, villages, park districts and drainage districts. (3) Jury trial to determine compensation was for the first time guaranteed in the constitution of 1870. The state is exempted from this provision but it does apply to all other governmental agencies. Similar provisions are found in about one-third of the states, but in most of these states the provisions do not apply to governmental agencies. The provision has been the subject of some criticism in other states. (4) The constitution of 1870 provided that the fee of land taken for railroad tracks should remain in the owner. This provision is found in the constitutions of but three other states. Since the abandonment of an easement causes the property to revert to the owner of the fee, it has been urged that this provision should be eliminated and that the roads be given power to condemn the fee in lands. One unfortunate effect of the existing provisions is that in the carrying out of general municipal improvement plans, railroads cannot be induced nor compelled to relocate their tracks where a relocation would be desirable. There is no other constitutional limitation upon the power of the general assembly to condemn the fee, but the Supreme Court has held that a statute which in general terms grants the power to condemn land does not authorize the taking of a fee. The inference is that the general assembly has power to authorize the taking of the fee but there never has been any express holding in this state that the fee may be taken. There is a

possibility that the Supreme Court may construe the eminent domain clause in the constitution as preventing the taking of a fee unless the court finds, in the particular case, that a fee is necessary. (5) A separate section was inserted in the constitution of 1870 which authorizes the condemnation of the property and franchises of corporations and which guarantees a jury trial on the issue of compensation in proceedings by and against corporations. This provision is found in several states but the Supreme Court of Illinois has said that this provision adds nothing to the general eminent domain clause. The elimination of this clause, however, might be construed as affecting the law in some way. (6) The taking and damaging of lands for drainage purposes was authorized by a separate provision in the constitution of 1870. The clause was later amended so as to authorize th organization of drainage districts, and the levying of special assessments to pay the cost of such improvements. Similar provisions are found in the constitutions of about one-third of the states; in many others the same result is attainable under the general eminent domain clause. (7) A special provision was inserted in the constitution of 1870 which authorized the taking of land for roads for public and for private use. It had been held, under the constitution of 1848, tha the taking of land for a private road was not a public use and that a statute which authorized such a taking was unconstitutional. Similar provisions are found in several states.

Construction placed upon other features of the eminent domain clause. (1) Property is taken for public use when it is taken by an agency of the state and actually employed by it in the discharge of governmental functions. It is also taken for public use when the property so acquired is made available for actual use, by the public or by a relatively large group of persons, under governmental supervision, in a manner which is in furtherance of an otherwise legitimate governmental function exercised in the interests of the general welfare. Public parks furnish an illustration. Property is also taken for public use when it is actually employed by private persons in connection with enterprises in which the public possesses such an interest that the law is justified in imposing upon them the duty to serve all upon conditions prescribed by law. The taking of property by public service companies is justified on this ground. Property is also taken for public use when it is actually employed by private persons in some private enterprise, not a public utility, but which is of a nature that the interests of the public are thereby promoted. The taking of land which is both for private and public use as a road and the taking of land for drainage purposes fall within this group, although the power to take in these cases is based on express provisions of the constitution of Illinois. Generally speaking, the term "public use" as used in the general eminent domain clause does not include such purposes.