In California, Massachusetts, New York, Pennsylvania, and Rhode Island the acquisition of land outside the boundaries of a highway is limited. California authorizes the State or any of its cities or counties to condemn land “in and about and along and leading to public works within 150 feet of the public work or improvement, provided that when parcels lie only partially within the 150 feet such portions may be acquired which do not exceed 200 feet from the closest boundary.”
Massachusetts provides that more land may be taken by the commonwealth, county, or city than is needed for the actual construction, provided that no more land is to be taken than is needed for suitable building lots on both sides of the street.
New York authorizes cities and counties to take more land than is needed for actual construction provided that no more land shall be taken than is needed to form suitable building sites.
Pennsylvania authorizes cities to take more land than is needed for actual construction and also restricts the taking to land not more than sufficient for suitable building sites. It further restricts the authority to streets connecting with bridges crossing, and tunnels under, streams which form State boundaries, and to a point not more than 3 miles from the approach to any such bridge or tunnel.
Rhode Island authorizes the State, city, and town to acquire more land than is needed for public purposes, but confines the taking to lands sufficient for suitable building sites.
Ohio authorizes municipalities to take for public use property in excess of that actually occupied by the improvement. The surplus may be sold with appropriate restriction to protect the improvement.
Wisconsin authorizes the State or its cities to condemn lands in and about and along and leading to public works, and after the completion of the improvement, to sell the remainder with restrictions protecting the improvement.
Michigan provides that municipalities may take land adjacent to an improvement which is appropriate for securing the greatest public advantage from the improvement. The surplus may be sold with or without restriction. Thus, Michigan provides constitutional sanction of recoupment condemnation with less restriction than any other State.
Thus the object of the constitutional amendments in California, Massachusetts, New York, Pennsylvania, and Rhode Island, apparently is to prevent the formation of unusable remnants along a street improvement. In Ohio and Wisconsin, in addition, restrictions can be imposed on the future use of real estate, while in Michigan these objectives and recoupment as well seem to be permissible.
Although there are these contitutional provisions in eight States, and statutory provisions in seven others (Delaware, Illinois, Indiana, Maryland, Nebraska, Oregon, and Virginia), the right to acquire marginal land in connection with highway development is still very limited. The right to resell a surplus of land taken is still more circumscribed; and the right to condemn private property solely for the purpose of recouping the cost of a public-works improvement is left open to question on the point of constitutionality by decision of the highest court. Even to prevent the creation of land remnants and to protect improvements by use of the power of eminent domain, in most States will require constitutional amendments.
