Building lines.

Damages.

the basis of this calculation entirely spoils this nice adjustment. As streets where buildings and land are perhaps too expensive to condemn for street widening approach their capacity, more and more careful traffic regulation may be the only relief from intolerable congestion.

Note C

Setback or Building Line Statutes in the United States

No. I. MASSACHUSETTS

If a city by its city council or a town accepts this section or has accepted corresponding provisions of earlier laws, a building line not more than 40 feet distant from the exterior line of a highway or town way may be established in the manner provided for laying out ways, and thereafter no structures shall be erected or maintained between such building line and such way, except steps, windows, porticos and other usual projections appurtenant to the front wall of a building to the extent prescribed in the vote establishing such building line, and except that buildings or parts of buildings, embankments, steps, walls, fences and gates existing at the time of the establishment of the building line may be permitted to remain and to be maintained to such extent and under such conditions as may be prescribed in the vote establishing such building line. Whoever sustains damage thereby may recover the same under chapter seventynine [eminent domain]. A building line established under this section may be discontinued in the manner provided for the discontinuance of a highway or town way. Whoever sustains damage by the discontinuance of a building line may recover the same under chapter seventy-nine.

Such board [of park commissioners of first or second class cities] may establish a line determining the distance at which all structures to be erected upon any premises fronting any park, parkway, park boulevard or boulevard shall be erected; and may, in the name of the city, acquire by condemnation the right to prevent the erection of,

9

This statute was first passed in 1893 (ch. 462) authorizing a setback of not more than twenty-five feet. Under this law there was no provision, as in the present law, for allowing existing buildings to remain, and it was little used. The law here given is Gen. Laws 1920, ch. 82, sec. 37. For similar provisions with regard to towns with boards of survey, see Gen. Laws, 1920, ch. 41, sec. 80.

10 Acts 1911, p. 566, part of sec. 7; Burns' Annot. Ind. Statutes, 1914, sec. 8753.

and to require the removal of, all structures outside of such lines; and when so condemned, no permit shall be issued authorizing any structure outside of the line or lines so established; and no such permit issued by any department or officer of any such city shall be effective and valid, unless approved by the board of park commissioners of such city. The establishing of any building line outside of any park, parkway, or boulevard, as herein provided, in connection. with the condemnation of the land for the same, shall be understood to be condemnation and the perpetual annihilation of all rights of the owners of property which shall front on such park, parkway or boulevard, or across which such building line shall run, to erect any building or structure whatever or any part thereof between such building line and such boulevard, park or parkway; or such result may be accomplished by absolute condemnation of the land, with perpetual and irrevocable free license to use and occupy such land between any building line established and the outside line of such park, parkway, park boulevard or boulevard for all purposes except the erection of buildings or other structures. No subdivision into lots of any lands lying within five hundred feet of such boulevards, parks or parkways shall be valid without the approval of such board of park commissioners;

...

No. 3. NEW YORK "

The City May Acquire Real Property for Streets, Parks, Etc.

New York City Charter, Sec. 970. The city of New York may acquire title either in fee or to an easement, as may be determined by the board of estimate and apportionment, for the use of the public, to all or any of the real property required for streets and courtyards abutting streets, and for parks, parkways, playgrounds, approaches to bridges and tunnels and sites or lands above or under water for bridges and tunnels, and sites or lands above or under water, for all improvements of the navigation of waters within or separating portions of the city of New York, or for the improvement of the water fronts of the city of New York, or part or parts thereof, heretofore duly laid out upon the map or plan of the city of New York, of the city of Brooklyn, or Long Island City, or of any of the territory consolidated with the corporation heretofore known as the mayor, aldermen and commonalty of the city of New York, or here

"The provision with regard to setbacks (here called "courtyards abutting streets") was made by the statutes of the State of New York of 1917, ch. 631, as an amendment to the sections of the charter for the acquisition of land for streets, parks, etc., and is phrased with a fullness of detail characteristic of legislation in that state. The amendment is here distinguished from the former law by being placed in italics.

after duly laid out upon the map or plan of the city of New York, as herein constituted, and cause the same to be opened, or acquire title as above stated to such interests in real property as will promote public utility, comfort, health, enjoyment, or adornment, the acquisition of which is not elsewhere provided for. The board of estimate and apportionment may specify what use is required of the real property which it may determine shall be acquired for public use, and the extent of such use, and may direct the same to be acquired whenever and as often as it shall deem it for the public interest so to do. The real property required for such purposes may be taken therefor, and compensation and recompense shall be made to the owners thereof. The real property benefited by the improvement may be assessed for the benefit and advantage derived therefrom. In all proceedings authorized by the board of estimate and apportionment prior to the first day of January, nineteen hundred and seventeen, the said board shall determine whether the compensation to be made to the owners of the real property to be acquired shall be ascertained by the supreme court without a jury, or by three commissioners of estimate to be appointed by the said court. In proceedings in which the board of estimate and apportionment shall determine that the compensation to be made to the owners of the real property to be acquired shall be ascertained by the supreme court without a jury, the city of New York shall make application, or cause application to be made to the said court, in a county within the city of New York and within the judicial district in which the real property to be acquired is situated, to have the compensation, which should justly be made to the respective owners of the real property proposed to be taken, ascertained and determined by the said court without a jury, and to have the cost of the improvement, or such portion thereof as the board of estimate and apportionment shall direct, assessed by the court upon such real property as the board of estimate and apportionment may deem to be benefited thereby. In proceedings in which the board of estimate and apportionment shall determine that the compensation, which should justly be made to the owners of the real property proposed to be taken, shall be ascertained by three commissioners of estimate to be appointed by the said court, the city of New York shall make application, or cause application to be made to the said court in a county within the city of New York and within the judicial district in which the real property to be acquired is situated, for the appointments of three commissioners of estimate to ascertain and determine the compensation to be made to the owners of the real property proposed to be acquired, and in a proper case, for the appointment of one of the commissioners of estimate as a commissioner of assessment for the purpose of levying the assessment of the cost of the improvement, or such portion thereof as the board of estimate and apportionment may direct to be assessed upon such real property as

may be deemed by the said board of estimate and apportionment to be benefited thereby. The board of estimate and apportionment may authorize two or more streets to be included in one proceeding. The moneys collected upon the assessment for benefit shall be paid into the city treasury. The damages awarded as compensation shall become due and payable immediately upon the entry of the final decree of the court, or upon the entry of the order confirming the report of the commissioners of estimate, as the case may be. In proceedings authorized by the board of estimate and apportionment after the first day of January, nineteen hundred and seventeen, the compensation to which the owners of the real property to be acquired for the use of the public for the purposes specified in this section, shall be ascertained and determined by the supreme court without a jury in the manner and according to the procedure prescribed by this title, and on and after said date the city of New York shall make application to the court, or cause application to be made to the supreme court in a county within the city of New York and within the judicial district in which the real property to be acquired is situated, to have the compensation, which should justly be made to the respective owners of the real property proposed to be acquired, ascertained and determined by the said court without a jury, and to have the cost of the improvement, or such portion thereof as the board of estimate and apportionment shall direct, assessed by the court upon the real property deemed by the board of estimate and apportionment to be benefited thereby."

Vesting of Title in the City to Real Property Taken for Streets or Parks or Other Purposes

SEC. 976. Should the board of estimate and apportionment at any time deem it for the public interest that the title to the real property required for any improvement, authorized herein, should be acquired by the city of New York at a fixed or specified time, the said board of estimate and apportionment may direct, by a three-fourths vote, that upon the date of the entry of the order granting the application to condemn or upon the date of the filing of the oaths of the commissioners of estimate, as the case may be, as provided for in this title, or upon a specified date after either, the title to any piece or parcel of real property lying within the lines of any improvement herein authorized, shall be vested in the city of New York. Upon the date of the entry of the order granting the application to condemn, or upon the date of the filing of such oaths, as the case may be, or upon such subsequent date as may be specified by said board, the city of New York shall become and be seized in fee of, or of the easement, in, over, upon or under, the said real property described in the said resolution, as the board of estimate and apportionment

may determine, the same to be held, appropriated, converted and used to and for such purpose accordingly. In such cases interest at the legal rate upon the sum or sums to which the owners are justly entitled upon the date of the vesting of title in the city of New York, as aforesaid, from said date to the date of the final decree of the court or to the date of the report of the commissioners of estimate, as the case may be, shall be awarded by the court or by the commissioners, as the case may be, as part of the compensation to which such owners are entitled. In all other cases, title as aforesaid shall vest in the city of New York upon the filing of the final decree of the court or upon the entry of the order confirming the report of the commissioners of estimate, as the case may be, and the reversal on appeal of the final decree of the court or of the order of confirmation, as the case may be, shall not divest the city of title to the real property affected by the appeal. Upon the vesting of title the city of New York, or any person or persons acting under its authority, may immediately, or any time thereafter, take possession of the real property so vested in the city, or any part or parts thereof, without any suit or proceeding at law for that purpose. The title acquired by the city of New York to real property required for a street shall be in trust, that the same be appropriated and kept open for, or as part of a public street, forever, in like manner as the other streets in the city are and of right ought to be. The board of estimate and apportionment may, at the time of the adoption of the resolution instituting the proceeding in which lands are to be acquired for courtyard purposes, determine whether the fee or an easement shall be acquired in lands required for courtyards, and it may prescribe such conditions and limitations on the title so to be acquired and as to the temporary or permanent use of the land so to be acquired as it may deem proper, and the title which the city shall acquire to the lands required for courtyard purposes shall be such as the board of estimate and apportionment shall determine, and such title shall be held by the city subject to such limitations and conditions as to title thereto or as to the use thereof as the board of estimate and apportionment shall prescribe. If not inconsistent with such limitations and conditions as to title or as to use, land acquired for courtyard purposes may be devoted to general street uses whenever the board of estimate and apportionment shall determine that the public interest requires such If any individual or corporation before the entry of the order granting the application to condemn or before the appointment of the commissioners of estimate, as the case may be, has acquired by private grant, prescription or otherwise, any easement for the purpose of laying or maintaining in the real property to be acquired for street purposes as herein provided, underground pipes or conduits for the distribution of water, gas, steam or electricity, or for pneumatic service, such easement shall not be extinguished, but the title to

use.