ceptance by the city; and the city, by controlling its own acts, can see to it that to this extent these features are in accord with its plan. The semi-public features, such as the privately owned utilities, are planned and constructed by private interests but their location, in so far as it is on, over or under city property, is usually subject to the city's consent, which may be made dependent upon conformity to the city plan.3 The improvements of private land for private use are made by the private owners of this land. To some extent these improvements may be controlled indirectly by the planning of the city's public features, to some extent directly by building and zoning regulations, which are a part of the city plan. The legal right of the city to pass such regulations seems clear. This subject is taken up fully in that part of this work devoted to the planning of the private features of the city.1

A measure of public control over land which is, and is to remain, in private ownership and use is essential not only to the regulation of its planning for such use in the public interest, but also to the carrying out of the public features of the city. If feasible the city could insure the possibility of the construction of its public features as planned by purchasing the land needed for them; but prudent planning must always anticipate present needs by many years. Cities, for lack of the necessary funds, seem never able to purchase more land than is required for the immediate future; and to attempt to assess the cost of improvements on land so long before these improvements are needed would be most unjust. Unless, therefore, the city can, by some method, make adherence to the public features of the plan binding upon the owners of the land affected by it, this land is sure to be used in ways which will make it very expensive and therefore practically impossible, when the time comes, to construct these features as they were originally planned.

The state also has the right to grant or refuse a charter to a utility and to amend its charter; and also to prescribe, within certain limits, the character of service and the rates to be charged for it. A portion of this power the state usually delegates to the city; and could delegate more. All these powers could be used to obtain conformity to the city plan.

'Part IV.

This the history of many American cities only too clearly proves.5

6

Foreign Methods and American Attempts to Attain Similar Results. In foreign countries where city planning has been most successful, adherence by the land owners to a plan of streets, and in some cases a few of the other main features, of the future city is secured either by forbidding the land owner, between the time of the official adoption of the plan and the taking of his land, to make any improvements likely to interfere with the execution of that plan or by providing that when subsequently his land is taken, he shall receive no compensation for any such improvements. This system has been in operation for many years, not only in Roman Law countries, but in England and Canada, whose laws and traditions are so like our own; and has not been found to be unjust to the land owner. The street is essential to the land owner in the profitable use of his land. The only right of which the plan deprives him is the right to build in the bed of mapped streets between the time when the plan is adopted and the time when it is carried out. In the vast majority of cases this right is worthless both because if the plan is a good one it indicates where the street and the building should be for the best interests of the land owner and because if the plan is carried out seasonably the street will be built before there is an economic demand for the building.

The need of protecting planned streets from the encroachments of land owners has always been appreciated in this country, and, at various times many of our states have passed laws for that purpose. Everywhere in the United States, however, except in Pennsylvania, these laws have been held to be a taking from the land owner of a right of use in his land and, therefore, to be contrary to the provision of our Constitution that

'See the report of Dr. Robert H. Whitten, at that time Secretary of the Committee on the City Plan of the Board of Estimate of New York City, to that committee, dated November 20, 1917, on the Erection of Buildings within the Lines of Mapped Streets.

Temporary structures, etc., are therefore usually permitted, and there are other modifications in various jurisdictions of the strictness of the rule; see pp. 30 and 453, ff.

no man shall be deprived of property for a public use without just compensation. The increased interest in city planning within recent years in this country has revived and strengthened the demand for some method of establishing the street plan on a secure basis, as is done abroad; and many suggestions have been made for the accomplishment of this result in a constitutional manner. It has been proposed that the city, when the plan is adopted, purchase or condemn an easement or option in the land, to acquire it, when needed, at its unimproved value; but the expense of the purchase of this right, with the proceedings to acquire it, added to the expense of taking the land, later on, would unquestionably make the land cost the city too much, and laws authorizing cities to adopt such a course would remain a dead letter. It has been suggested that the land owner, intending to improve land in the bed of mapped streets, should be required to give the city six months' notice, within which to acquire the land; but this, instead of protect

'See report just cited (Erection of Buildings within the Lines of Mapped Streets, Dr. Robert H. Whitten, November 20, 1917). The law is settled to the effect as stated in the text everywhere in the United States where the question has arisen, except in Pennsylvania. The cases are given in Lewis, Eminent Domain, 3d ed., sec. 226; Nichols, Eminent Domain, Sec. 101 (at p. 282); See also Windsor v. Whitney, 95 Conn. 357 (1920), considered on page 36 of this work.

Of interest in this connection is the dictum in State v. Carragan, Collector, 36 New Jersey Law Reports 52 (1872) that "If the improvements should be made in bad faith, with intent to throw an undue burden on the public, another element would enter into the consideration of the question which might, perhaps, produce a different result"; but see, Matter of City of New York (Briggs Avenue), 118 Appellate Division Reports (N. Y.) 224 (1907); and notes on same, 36 L. R. A. N. S. 273, and 17 Annotated Cases 1034.

Lewis, in his book on Eminent Domain, Callaghan and Co., Chicago, 3d ed., 1909, Sec. 226, Note 23, says, in explanation of the Pennsylvania decisions:

"Such an Act was held valid in New York on the ground that it was passed before there was any limitation in the Constitution of that State upon the power of eminent domain, and compensation for improvements placed within the lines of a proposed street was denied, although the street was not actually laid out until seventeen years after the map was made. Matter of Furman Street, 17 Wend, 649. This case was followed in Pennsylvania without noticing the ground on which it rested. Forbes Street, 70 Pa. St. 125." See in this connection People ex rel N. Y. C. & H. R. R. R. Co. v. Priest, 206 N. Y. 274 at 288 (1912). 'There is such a law in Connecticut for the planning of towns; Revised Stats. 1918, Sec. 391-396. There are also laws for zoning by eminent domain; see Tables of Statutes.

ing the city, would furnish the land owner altogether too easy a method of forcing the city to buy his land at his pleasure, instead of at the pleasure of the city.9

In a number of states laws exist which provide that the owner of land, wishing to lay out streets with lots abutting on them for sale, shall submit his subdivision to the city for approval before the plan shall be recorded; and also forbid utilities in streets until such approval is obtained.10 The private street, laid out by the land owner, all too often for his immediate profit, with no regard for the interests of the city as a whole or those of the people who are to live on the tract in question, while by no means the only offender against the city plan, is probably the commonest one; and when the lots on such a street are sold to innocent purchasers and houses built on them, the city is practically forced to accept the street as a part of its public system, giving up its own plan in that locality; the only alternative seeming to be to allow the street to remain in private control,11 thus continuing one evil without lessening the others. The provision for approval as a prerequisite to record is effective; it is impossible in this country to sell land without a record title. The provision is also constitutional; 12 record being not a right but a privilege which the law, for reasons of public policy, may withhold.13 Evidently such a provision can be used to the best advantage only in connection with an accepted city plan, as otherwise the planning of any given plot would not be related to the plan of other tracts of land and of the city as a whole.

9

Useful as are the laws providing for the approval of the

See the report on the Erection of Buildings within the Lines of Mapped Streets already referred to; and for a more radical suggestion, see "A Survey of the Legal Status of a Specific City in relation to City Planning" by Edward M. Bassett, in the Proceedings of the Fifth Conference on City Planning (Chicago, 1913), pp. 46 at 48.

10 For precedents see pp. 32, 578, 583, 587.

11

Unquestionably the city has the legal right to condemn the land for its own system of streets regardless of the existing private streets, and the buildings abutting on them; but it would be seldom indeed that any city would exercise such a right.

12 Bauman v. Ross, 167 U. S. 548 (1897).

13 See cases cited in 18 Corpus Juris, p. 247 (Sec. 186) and 248, note 65, (a); also State v. Register of Deeds, 26 Minn. 521 (1880); Van Husan v. Heames, 96 Mich. 504; Contra, State v. Moore, 7 Wash. 173 (1893).

subdivisions of owners desiring to sell land, as a prerequisite to record of the deeds, they do not prevent the owner who does not wish to sell from improving his land in such ways as often practically force changes in important features of the plan, and in some cases their entire abandonment; as, for instance, by encroaching upon a mapped street, or building a factory or a row of costly houses entirely across it.14 In order that the plan may be adequately guarded its main features must be protected by the police power of the state. It has therefore been suggested that an amendment to our state constitutions be urged giving cities the right to adopt plans binding land owners, as in Pennsylvania. At best, such amendments could be passed only after a long struggle; and it is to be feared that they would be held by the Supreme Court of the United States (which has not as yet passed on the question) to be contrary to the federal Constitution. It is true that with proper city planning a good plan will be made for undeveloped territory and will be carried out seasonably; but in this country the probability of good administration is not regarded as a sufficient safeguard against injustice in exceptional cases, as it is abroad. And there are many cases, especially in portions of the city already more or less built up, where injustice might be done. Take for instance a lot, all or an undue portion of which lies in the bed of a future street. The owner has nothing to gain by the street; and if, as often happens, its construction is delayed beyond the time when the lot might with profit be built up, the owner for many years must pay taxes on the lot, but cannot get any return on it. Again, suppose a deep lot on an existing street with a factory on the front portion of the lot and a proposed street planned to occupy its rear portion. The entire lot would hold with advantage perhaps two additional factory buildings. If the owner wishes to construct one such building, he can put it in the middle of the lot, and there is no loss to him in depriving him of the use of the bed of the mapped street; but if, in course of time, he needs a third building, the only land for it is the land devoted to the future street; and

"See the Report on the Erection of Buildings within the Lines of Mapped Streets just referred to.