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INSTRUCTOR’S SOLUTIONS MANUAL
BEVERLY FUSFIELD

C ALCULUS & I TS A PPLICATIONS

and
B RIEF C ALCULUS & I TS
A PPLICATIONS
THIRTEENTH EDITION

Larry J. Goldstein David C. Lay

Goldstein Educational Technologies University of Maryland

David I. Schneider Nakhlé Asmar

University of Maryland University of Missouri

Boston Columbus Indianapolis New York San Francisco Upper Saddle River
Amsterdam Cape Town Dubai London Madrid Milan Munich Paris Montreal Toronto
Delhi Mexico City São Paulo Sydney Hong Kong Seoul Singapore Taipei Tokyo
The author and publisher of this book have used their best efforts in preparing this book. These efforts include the
development, research, and testing of the theories and programs to determine their effectiveness. The author and publisher
make no warranty of any kind, expressed or implied, with regard to these programs or the documentation contained in this
book. The author and publisher shall not be liable in any event for incidental or consequential damages in connection with, or
arising out of, the furnishing, performance, or use of these programs.

Reproduced by Pearson from electronic files supplied by the author.

Copyright © 2014, 2010, 2007 Pearson Education, Inc.

Publishing as Pearson, 75 Arlington Street, Boston, MA 02116.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or
by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the
publisher. Printed in the United States of America.

ISBN-13: 978-0-321-87879-3
ISBN-10: 0-321-87879-5

www.pearsonhighered.com
 CONTENTS
Chapter 0 Functions ............................................................................................ 1
Chapter 1 The Derivative.................................................................................. 26
Chapter 2 Applications of the Derivative ......................................................... 77
Chapter 3 Techniques of Differentiation ........................................................ 115
Chapter 4 The Exponential and Natural Logarithmic Functions .................... 141
Chapter 5 Applications of the Exponential and Natural Logarithm
Functions ........................................................................................ 168
Chapter 6 The Definite Integral ...................................................................... 182
Chapter 7 Functions of Several Variables ...................................................... 215
Chapter 8 The Trigonometric Functions......................................................... 245
Chapter 9 Techniques of Integration............................................................... 263
Chapter 10 Differential Equations .................................................................... 302
Chapter 11 Taylor Polynomials and Infinite Series.......................................... 334
Chapter 12 Probability and Calculus ................................................................ 356
 
      


    
  
   
    

   
 
   
  
  
  
 
  
    
  
      

         

         
             

        
    
       
      
        

                 
           
   
       
        
      
       
             

            


       
         
             
   
 
    
    
           
 
         

           
 
 
         
 
       
 
     
 
     
      
  
    
  
     
   
   
   
      

  


   
     
                
 
               

      
     

       
  

         
      
 
 
        
 
 
     
     
  
      
 
       
    
  
  
 
    
 

  
    
 
 

        
  
 

    
  
   
     
   
 
  
 
 

 
        
  
 
  
      
 
        
    
 
      

 
        
 
 
      
       
 
            
        

        

     
            
        
       
    
    

 
  

   
   
           
 
  

     
        
  
   
  
 
      
           
       

    
  



 
 
           

 
    
  

  
 

     

       

           
  
    

 

  
  

   
 

  

 



 

 
     
 
 
 
  
 
     
       

 
 
  
   

  
   
  
     
 
 
    
      
 
    
 
 
 
  

    

 
 
  
  
  




  

       
      
  

    

  
 
      
 

  


  
   
     
        
    
 

 
      
 
     


       


   

  
 
       
    
 
   
 
  
      
    
   
     
 
 
   

   
  


    
        
    

  
   
         
   
       
   
   
   
      
 
   
 
   



 

  

            
 

        
    
  
  
          
 
 
      
    
 
   
          
  
     
      

  
       
 
  
 
   


   
        

 
         
 


 
      
 
     
      
   

    

         

     
     
      
 
    


       

  
     
     
  
 
    
 

        



  

      
     
    
    
   
 
          
 
      
     
   
         
    

    

              
     
   
      
   
 
       
    
     
 

          
      
      
      
 
   


  
        

   

   
        
     

             
 
      

     
         
                 
 

    
       
   
  

            

     


 

         
          
         
   
 
       
          
  
        

   
 
          
    
        
     
  
               
  
          
   
 

          
  
         
     
  
        
    
      
    
   
                 
 
  
                     

      
                       
  

         
               

               
       

                  
 
   
    
     
      
    

             
  
          
 
         
     
           
            
  
           
 
   


  

           
     

                
   

          
              
 
               
   
         
       
    
          
  

       
      

  
         
    

             
     
   
          


 
          
 

         
   
     

          
   


              
   
  
  
        
 
       

   
 
   
              

   
                           
 
  
  
       
     


     
 

   
         
     
       
 
 

                

              

   



 

   
  



   
     


        



  

   

  
        


   

 



  

 


   
     
  

 

  
  


  

           

 
    

                
 
       
      

   
     
              
  
            
 
           
     
     
  

             

             

    
    
 
          
      
                
 
  
  
    

 
    
  
       
    
   
     


   
      
    
 
 
    

  

  
      
           
   
     
 
  
    
   
       

 
         


 
   
 
   
 
  


 


          
      
          
 
 
          
  
      
 
        
  
             
   
              
 

          


          
         
            
    
         

             
 
        
                      
          
        
               
         
      
             
  
                   

                    
     

     
             
         

           

   
               
  
           
         

                   

   
      
   

         


Exploring the Variety of Random
Documents with Different Content
was held to be of more general benefit than one of narrower width, and the area
over which the assessment could be spread was bounded by a line midway
between the widened street and the nearest street of the same or greater width.
Thus in widening a street to 80 feet, after the payment out of the general municipal
revenue of one-third of the cost due to excess width and after the assessment on
property in the benefit zone not abutting on the widened street, it was found that
abutting property was paying only the equivalent of the cost of a street 51 feet
wide. For this reason, therefore, and because of the greater burden on the
municipality, the rule adopted in 1907 was to assess the entire cost of the
acquisition of land for street purposes on the property specially benefited, in so far
as a special benefit could be established, provided that the amount assessed
would not result in confiscation of the property.[69]
In Boston previous to 1891 special assessments to defray the cost of street
improvements were levied entirely according to the discretion of the board of street
commissioners, whose practice was to assess private property only in the case of
improvements which had more than a local character and to pay for strictly local
street improvements out of the general appropriation. In 1891 a board of survey
was created and that board in its discretion was allowed to assess on abutting
property the entire cost of improvement.[70] In practice the board used this right
only on purely local streets, applying the theory that on such streets the general
public received no appreciable benefit. In 1902 large land holders and their
representatives insisted on changing the law and were helped by the decision in
Lorden vs. Coffey, 178 Mass. 489, which declared unconstitutional that part of the
board of survey act which allowed the assessment of the entire cost of
improvements, holding that a special assessment might exceed the special benefit
to property under the provision of the act. There was no finding that the entire cost
could not be assessed on a benefited area, and had the board of survey act
included the words “but no assessment shall be levied in excess of the actual
special benefit to the property” the law would probably have been declared
constitutional. The statute of 1902[71] limited the amount of a special assessment
to 50 per cent of the cost of an improvement, no matter what the width or the use
of a street.
The evolution in New York is toward a proper rule of apportionment, and in
Boston, away from it. Either the assessing board should be given discretion in the
matter of assessments, with the usual limitation that there should be no special
assessment exceeding special benefit, or a system of apportionment should be
adopted based on the width of streets as evidence of their character and use and
as a measure of their public and private benefit.[72]
The Area of Special Benefit. The determination of the specially benefited area
is left to the discretion of the assessing board, with very few exceptions. In
Philadelphia this area is limited to such properties as abut on the improvement; in
Boston[73] it is fixed by the statute of 1902 to 125 feet on either side of the
improvement;[74] in Milwaukee it is limited in practice to 1,000 feet on either side of
the improvement. Under the boulevard law in St. Louis only the properties abutting
on boulevards can be assessed specially for their cost.[75] The improvement
known as the “King’s Highway” was assessed under this law with the result that the
city would have had to pay 80 per cent of the total cost of improvement, and was
forced either to abandon it or to repeal the law. Subsequently the King’s Highway
was opened as an ordinary street with the same assessment provision as in street
openings, which leaves the benefit area to the discretion of the commissioners.
Though it may be generally stated that the size of the benefit district and the
amount of the special assessment levied are both legislative questions which are
finally determined by the body to which is delegated this duty, and that in the
absence of special constitutional limitation the legislative finding will not be
reviewed by a court unless there is evidence of gross error or fraud, judicial
decisions in several states have held that this legislative authority is not unlimited.
Courts on appeal have asserted the right to review the apportionment of the
assessment and declare it invalid.
(1) Where the benefit of an improvement is entirely general: Hammett vs.
Philadelphia, 65 Pa. St. 146; Thomas vs. Gain, 35 Mich. 155; Detroit vs. Daly, 68
Mich. 503.
(2) Where the rule of assessment would be inequitable for any reason: In re
Washington Av. 69 Pa. St. 352; Scranton vs. Pa. Coal Co. 105 Pa. St. 445;
Chicago vs. Learned, 34 Ill. 203; White vs. Gove, 183 Mass. 333.
(3) Where the special assessment exceeds the special benefit: Seely vs.
Pittsburgh, 82 Pa. St. 360; Lorden vs. Coffey, 178 Mass. 489; Norwood vs. Baker,
172 U. S. 269.

THE RELATION OF SPECIAL ASSESSMENTS TO AWARDS FOR LAND

TAKINGS

In our review of the practice in special assessments we have seen that in some
jurisdictions the determination of awards for land takings and the apportionment of
the special assessment are distinct functions performed either by the same body or
by different bodies at times which may be widely separated. Thus in Denver the
park commissioners spread the assessment which is based on their estimate of
the land cost before the appraisers who determine the land awards are appointed;
in Boston the street commissioners have both functions, but assessments can not
be levied until the completion of the improvement. In Seattle three assessors, or
three eminent domain commissioners, levy the special assessment at least a year
from the time when the jury’s awards for land takings have been finally confirmed;
under the Minneapolis park procedure assessors are not appointed by the court
until the cost of land is finally determined by confirmation of the appraisers’ report.
In other jurisdictions both the awards for land and the assessment for its cost are
functions performed in the same proceeding by the same body. Thus in Kansas
City a jury of six, and in Indianapolis commissioners, have these duties.
The disadvantage of deferring the time of levying the assessment is generally
considered to outweigh the advantage of a more certain knowledge of the amount
of the land awards, which is the largest item of the cost to be assessed. But the
necessity of keeping separate the items of awards for damages and of assessment
for special benefit, though they may be best fixed at the same time, appears from
the methods in very general use of offsetting benefits against damages in arriving
at verdicts in condemnation cases.
In Pennsylvania the jury in condemnation cases must find:
1. The value of the premises before the taking.
2. The value of the premises after the taking, which includes the benefit to the
premises by the taking. The difference is the compensation to the owner.
In Portland, Oregon, a verdict is made up of:
1. How much, if any, less valuable the land will be rendered by the taking.
2. The damage to the improvements; that is, to buildings, and so forth.
Both of these rules of damage are open to either of two objections: First, in some
jurisdictions juries are averse to finding any benefit, in which case a much greater
sum than is just is spread over a benefit district, and owners who have justly
received as damages large sums for land taken or damaged pay entirely
inadequate assessments for the special benefit which they have received. Second,
if the jury gives full consideration to the benefit which a piece of property receives
and subtracts the full amount of benefit from the compensation awarded for
damages to the property, the owner has a decided grievance because he may be
paying $100 for one hundred dollars’ worth of special benefit, but his neighbor on
the other side of the street whose property has not been taken is paying in a
special assessment only 25 per cent or 30 per cent of the special benefit to his
property.
The commissioners appointed in street cases in Minneapolis are directed to find:
1. The value of land taken.
2. The damage to the land or buildings not taken.
3. The special benefit which accrues to each parcel.
The owner of the property receives as compensation the excess of
compensation for damages over the special benefit. This rule is open to the
second objection which we have discussed above and only in a less degree is the
code of California objectionable which requires the finding of:
1. The value of the land and buildings taken.
2. The damage to the land and buildings not taken.
3. The benefit to the remainder, which must be deducted from (2).
 Thus in California the owner of property taken will have as damages at least the
value of the land taken, whereas in the Minneapolis street procedure it is
conceivable that the owner might not receive as compensation the value of the
land taken.
The better rule in these cases is illustrated by the Kansas City procedure where
the jury must find:
1. The actual value of land or easement taken.
2. The actual damage to land or buildings remaining.
3. The assessment which is to be levied against the city at large.
4. Special assessment against each parcel of land found specially benefited.

Only this special assessment (4) may be deducted from the owner’s
compensation for damage (1) and (2).

THE EFFICACY OF SPECIAL ASSESSMENTS

It is clear that the value of the special assessment method differs considerably in
different communities and depends greatly on local conditions. The land owners of
Kansas City and Denver pay special assessments practically without litigation, and
as a general rule, in most cities, collection of assessments is attended with little
difficulty, even where the burden is heaviest on the land owner.
The process of collection in New York City, for instance, is very effective. Like
most cities where the cost of street improvement is assessed wholly or in part on
property specially benefited, the owners of the land assessed may pay the entire
assessment at once or in annual instalments. On the failure in payment of any
instalment, the land becomes charged with the city’s lien. For three years the
owner may pay interest on the amount he owes the city, but at the end of this
period the city’s lien for all charges against the land is sold at auction to the person
who bids the lowest rate of interest for which he will pay the face value of the lien
and carry it three years more. Thus the city gets its money and the land owner
merely has, in addition to the face of his assessment, an interest charge which is
apt to be ridiculously low since the bidding in on city liens is usually active.
Boston is one of the few exceptions to the rule in the collection of special
assessments. Property owners contest special assessments wherever a contest is
made worth while by the size of the special assessment, and reductions in
assessments by juries on appeal go far to destroy the effectiveness of this method
as a means of providing funds for the acquisition of land; and yet land owners in
Boston are treated much more leniently under the law of 1906 than they are in
New York, Kansas City, Denver, or Indianapolis. One explanation of the
unpopularity of the special assessment principle is that the funds used for
improving the old city and opening and widening the streets were taken out of the
general appropriation, and property owners, therefore, in the newer sections, or
property owners in older sections where openings and widenings are necessary,
are opposed to any innovation which puts on them a heavier burden. But the
ineffectiveness of the special method in Boston is due chiefly, first, to the statutory
limitation on the discretion of the assessing board; and second, to the provision
which postpones the apportioning of the assessment until after the completion of
the improvement.
The fixing of the proportion which the city must pay irrespective of the character
of the street in question and the narrow limitation of the benefit area, work together
to place upon a very few owners an altogether disproportionate burden. These are
the unfair features of the Boston assessment law: (a) The city must pay 50 per
cent at least of the cost of a purely local street, even a street 30 feet in width, the
only direct benefit from which is to abutting properties; (b) the city in practice pays
as high as 80 per cent of the cost of such streets, because in the opinion of the
commissioners the value of the property within 125 feet on either side is
sometimes so low that to assess 50 per cent on it would amount to confiscation; (c)
the property that receives the most benefit is assessed nothing, particularly in the
case of a widened thoroughfare where the benefit accrues certainly no more to the
abutters than to the termini of the thoroughfare, or to abutters on the streets
leading off from the thoroughfare whose property has been made more accessible.
The time which is allowed to elapse between the opening or widening of the
street and the levying of the assessment is a further handicap to the success of
special assessments in Boston as to a less degree in Seattle. The chance of
offsetting benefits against damages is lost, and consequently the labor of collection
is increased. Property owners who get their damages for land taken, alienate the
property, and the owner not a party to the condemnation proceedings who has paid
to his predecessor in title an increased price on account of the improvement to the
property, naturally opposes payment of a special assessment. That most of the
action under the law is a perversion of the special assessment principle has been
recognized in recent Massachusetts special legislation, where the limitation on the
assessment area has been removed and the size of the area left to the discretion
of the street commissioners.[76]
A comparison of the returns from special assessments in Boston, in Seattle, and
in Minneapolis, may be made by means of the subjoined tables:
TABLE 3.—RETURNS FROM SPECIAL ASSESSMENTS ON STREET
IMPROVEMENTS. BOSTON, 1895-1906
Location of Cost of Amount Amount of
Year Amount paid
improvement improvement assessed reduction
Lauriat Ave. 1895 $45,779 $41,201 $34,811 $6,390
Brighton Ave. 1895 201,699 117,270 42,506 74,764
Columbus Ave. 1895 1,818,901 373,127 [77] [77]
Peterboro St. 1896 187,264 95,457 78,983 16,474
Queensberry St. 1897 196,568 87,565 32,448 55,117
Charlestown St. 1898 696,673 212,229 81,830 [78]
North Harvard St. 1898 70,443 23,721 11,162 12,559
Bennington St. 1899 831,816 54,812 [79] [79]
Florida St. 1903 16,120 4,392 2,668 1,724
Columbia Rd. .. 1,792,891 296,493 13,307 [80]
About 50 per
Hyde Park Ave. 1906 225,000 28,000 About 50 per cent
cent

There have been remarkably few contests on any assessments in Minneapolis.

The park board has been able to pay every instalment on every certificate as it
matured without a moment’s delay. All the assessments are collectible as a part of
the annual tax for state, county, and city purposes.
In Minneapolis, Kansas City, and Denver the amount collected shrinks but little
from the
TABLE 4.—RETURNS FROM SPECIAL ASSESSMENTS ON STREET
IMPROVEMENTS. SEATTLE
COST OF LAND TAKING
AND LAND DAMAGE
Amount
assessed on Amount paid
Location of Cost of property out of
Regrading Widening Total Cost
improvement Construction specially general
appropriation
benefited[81]
Second Ave.
from Pike St.
$20,501.00 $32,165.00 $91,579.06 $168,100.97 $144,245.06 $23,855.91
to Denny
Way
Third Ave.
from Yesler
27,959.00 1,533,888.00 42,175.55 1,612,074.55 1,604,022.55 8,052.00
Way to Pike
St.
Fourth Ave.
from
64,007.00 623,158.00 299,547.16 987,212.16 986,712.16 500.00
Washington
to Park St.
Fifth Ave.
from
Washington
St. to 217,824.56 .... 155,058.92 377,461.48 372,883.48 4,578.00
Madison St.
[82]
Pine St. from
First Ave. to 54,871.50 592,773.36 108,297.68 761,065.68 755,942.54 5,123.14
Twelfth Ave.
Dearborn St. 15,945.00 277,509.50 343,063.18 678,218.11 636,517.68 41,700.43
from Seattle
Boulevard to
Rainier Ave.
Total $401,108.06 $3,059,493.86 $1,039,721.55 $4,584,132.95 $4,500,323.47 $83,809.48

TABLE 5.—RETURNS FROM SPECIAL ASSESSMENTS ON IMPROVEMENTS.

MINNEAPOLIS, 1889-1908
Location of improvement Year Cost of improvement Amount assessed Amount paid
Glenwood Park 1889 $295,825 $100,000 $100,000
Van Cleve Park 1890 75,348 75,000 75,000
Loring Park 1890 343,693 105,000 105,000
Powderhorn Lake Park 1891 262,387 145,099 145,099
Columbia Park 1892 220,447 213,041 213,041
St. Anthony Parkway 1893 150,337 102,911 102,911
The Parade 1904 280,225 103,127 72,189[83]
Kenwood Park 1907 162,846 162,187 64,875[84]
The Gateway 1908 634,510 634,510 126,902[85]

amount assessed. In Indianapolis and in Chicago a five per cent delinquency is

figured in the amount of the total assessment, so that the return adequately meets
the cost of the improvement. Indianapolis has collected in the past three years
(1909 to 1912) by the assessment method $476,487. Kansas City has collected
$8,724,919 in twenty years.

CONCLUSION

Special assessments as an equitable method of distributing the cost of land

acquirement have the great advantage of a thorough testing. Judicial decisions
universally sustain their legality. Ample precedents prove their practicability as
financial expedients. Several cities in the United States are so completely satisfied
with the results of an experience of from five to fifteen years with this “American
device” that the suggestion of experimenting with the European method of
distributing the cost known as excess condemnation meets with little enthusiasm. It
remains, however, to consider the applicability of excess condemnation to
American conditions.

FOOTNOTES:

[29] Constitution of Wisconsin, Article XI, Section 3.

[30] Acts of Wisconsin, 1891, Chapter 179, Section 8. Special laws of
Minnesota, 1889, Chapter 30, Section 2.
[31] Quarterly Journal of Economics, April, 1893.
 [32] Colonial Laws of New York, Vol. I, pp. 269-271.
[33] 4 Massachusetts Colonial Records, Part I, p. 327.
[34] Cited in Hammett vs. Philadelphia, 65 Pa. St. 158.
[35] Ancient Charters of Massachusetts, pp. 389, 651.
[36] Tenth Session Laws of New York, Chapter 88, p. 544.
[37] Theory and Practice of Special Assessments. Transactions. American
Society of Civil Engineers, Vol. 38. Paper 817.
[38] Constitution of Ohio, with Amendments proposed by Constitutional
Convention of 1912, Article XVIII, Section 11.
[39] Acts of Massachusetts, 1882, Chapter 154, Section 7.
[40] Report of the Chief Engineer of the Board of Estimate and
Apportionment, October 19, 1907, pp. 15 ff.
[41] Op. cit. pp. 20 ff.
[42] Rose Reis vs. City of New York, et al., 188 N. Y. 58.
[43] See Appendix, p. 249 for text.
[44] Special Laws of Minnesota, 1889, Chapter 30, Section 4.
[45] Charter of Kansas City, Article 13, Section 8 ff.
[46] Charter of Kansas City, Article 13, Sections 33 and 34.
[47] Charter of Kansas City, Article 13, Section 23.
[48] See p. 28.
[49] See Appendix, p. 250.
[50] Charter of Kansas City, Article 13, Section 19.
[51] Charter of Kansas City, Article 13, Section 24.
[52] Report of Board of Park Commissioners, 1909, Table 22.
[53] Londoner vs. City and County of Denver, decided November 22, 1911.
[54] Denver Municipal Facts, 1911, Vol. 23, p. 14.
[55] Op. cit. Issue of March 11, 1911, p. 8.
[56] Londoner vs. City and County of Denver.
[57] Acts of Indiana, 1911, Chapter 231.
[58] Ibid., Chapter 231, Section 14. Parts of the text are given in Appendix, p.
254.
[59] Acts of Indiana, 1911, Chapter 231, Section 17.
[60] Acts of 1911, Chapter 231, Section 19.
[61] Acts of 1911, Chapter 231, Section 20.
[62] Acts of Massachusetts, 1906, Chapter 393; and Revised Laws, Chapter
50, Section 1.
[63] Acts of Washington, 1907, Chapter 153, Section 20.
[64] Charter of New York City, 1901, Article 950.
 [65] Acts of Massachusetts, 1906, Chapter 393, Section 5.
[66] Changed by Chapter 536, Acts of 1913.
[67] Report of Chief Engineer, Board of Estimate and Apportionment,
October 19, 1907, p. 3.
[68] Ibid., p. 14.
[69] Report of Chief Engineer, Board of Estimate and Apportionment,
October 19, 1907, pp. 5 ff.
[70] Acts of Massachusetts, 1891, Chapter 323, Sections 14, 15.
[71] Acts of Massachusetts, 1902, Chapter 521, Section 14.
[72] Acts of Massachusetts, 1913, Chapter 536, gives the street
commissioners discretion and removes the limit of 50 per cent.
[73] Acts of Massachusetts, 1902, Chapter 521, Section 1.
[74] This restriction was removed by Acts of Massachusetts, 1913, Chapter
536.
[75] Charter of St. Louis, 1901, Act VI, Section 1.
[76] Acts of Massachusetts, 1913, Chapter 536, removes both limitations on
the discretion of the Boston street commissioners in the special case covered
by the act.
[77] Fifteen petitions for reduction of assessment are pending and no
payments have been made.
[78] Thirteen petitions for reduction of assessments and two writs of certiorari
are pending. The latter question the validity of the assessment.
[79] Acts of 1912, Chapter 537, compels the street commissioners to reduce
this assessment. See Appendix, p. 268, for the text of act.
[80] Sixty petitions for reduction of assessments are pending. Acts of 1912,
Chapter 339, authorized a reduction of assessments. See Appendix, p. 267.
[81] For each specified improvement the amount assessed on property
specially benefited equals the sum of the cost of land taking and land damage
and cost of construction.
[82] Widening not yet done. Amounts are those used in making assessment
roll.
[83] Three instalments unpaid.
[84] Six instalments unpaid.
[85] Eight instalments unpaid, January 1, 1912.
 CHAPTER IV
EXCESS CONDEMNATION

E XCESS condemnation, or the taking by a public agency under

the power of eminent domain of more land and property than are
needed for the actual construction of a contemplated public
improvement with a view to selling the excess at such increase of
value as may result from the improvement, offers, as suggested in
the last chapter, a method of relieving the burden of the tax payers at
large, and it is this feature that is likely to be emphasized in any
discussion of the merits of the excess condemnation principle; but,
entirely apart from its financial aspect, it has an importance in the
execution of plans which is too little considered. We have seen in the
first chapter that a serious obstacle to the realization of plans for
improvement is the universal constitutional limitation on the power of
eminent domain through the provision that land can not be taken
unless it is “necessary for the public use.” The usual narrow
construction of this phrase allows a public agency to take only the
land or rights in land required for the actual use of the public. When
a comprehensive plan of reconstruction involves the widening of a
built-up street or the opening of a new street cutting through
improved property, the municipality is allowed to take just enough
land for the actual construction of the street irrespective of the size
or shape of the lots left on either side of the improvement.
The disadvantage to the municipality is both physical and financial.
The land owner receives as compensation both the value of land
actually taken and the damage to his remaining land, and
consequently often gets as much for a part of his lot as he would for
the whole of it. Even where special assessment laws work effectively
it is often impossible to show ground for such an assessment against
a remnant that is distinctly inferior to the customary marketable lot in
size or shape. In the absence of any effective control over remnants
left by the construction of the improvement, the new highway is likely
to be bordered by ugly vacant lots of irregular shape and size which
are totally unsuited for use and likely to remain vacant until they can
be brought under the same ownership with parts of adjacent lands
so as to provide adequate building lots. One of the most marked
instances of this was in the widening of Delancey Street to make a
proper approach for the Williamsburg Bridge in New York City, where
lots were left in some cases less than 10 feet deep. The plan for the
establishment of a new traffic thoroughfare between the north and
south terminal stations in Boston shows remnants, the entire length
amounting to 48,274 feet, absolutely unsuited for independent
development.
In so far as remnants are unsuited for proper development a use
of them is induced which robs an improvement of much of its
effectiveness. Financially the city loses because the sort of
development which will increase assessed valuations is prevented.
Esthetically the city suffers because it can not protect its streets, its
parks, and boulevards by an effective control over the abutting land,
and its show places are disfigured by a use of this land not in
keeping with the character of the surroundings. It is for this reason
that cities have been forced to see approaches to public buildings
lined with ill-assorted structures, and park areas surrounded by
unsightly dumps and bill-boards. The net benefit to the city of a given
expenditure for park purposes may easily be reduced by these
means to a small fraction of what was reasonably expected when the
investment was made. To overcome these disadvantages and to
secure the maximum of benefit from an improvement appears to be
the primary aim of excess condemnation legislation in the United
States.
It will clear the way for a discussion of the subject to point out the
nearest substitute for the excess condemnation method which is
ordinarily available in America today. The absorption by the public of
the increase of property values directly resulting from an
improvement made at public expense, at least up to an amount
equal to the cost of the improvement, may be more or less
successfully accomplished by special assessments as set forth in
Chapter III. The control over property adjacent to a public
improvement just in so far as that control is needed to enable the
public to get the full use and enjoyment of the public property, may
be obtained without acquiring title by the purchase or condemnation
of easements. The combination of the two is believed by the more
conservative thinkers on the subject to afford all the power that is
necessary without the dangers of excess condemnation.

THE HISTORY OF EXCESS CONDEMNATION IN THE

UNITED STATES

The Massachusetts legislature of 1903[86] provided for an

examination and report upon legislation needed to enable a city,
town, or state commission to take in fee, to purchase, or otherwise to
acquire for public purposes and in connection with any public work
all or any part of the land within certain defined limits, and after
appropriating as much of the land as necessary to sell or lease the
remainder. The commission subsequently appointed by the governor
did a thoroughgoing piece of work and their conclusions, embodied
in two reports to the legislature of 1904, both now out of print,
contained very valuable contributions on a subject on which there is
scant literature.[87]
The commission found no precedent and little of value on the
subject of excess condemnation in this country, and in the cities of
Europe they found the principle applied in two very different ways. In
France, according to the letter of the law, only remnants of such size
and shape as to be unsuited to the erection of buildings could be
taken in addition to the land actually needed for the construction of
the improvement. In England, Belgium, Switzerland, and Italy,
municipalities were allowed to take all the property within certain
bounds in the neighborhood of a proposed work, to use what was
necessary, and to dispose of the remainder by sale or lease. In the
bill which was submitted by the Massachusetts commission, the
French method was adopted as sufficiently broad to carry out the
purposes of the municipality and as being more fair than the other
method cited to the property owner whose land would be taken. The
draft of the bill was passed with modifications by the Massachusetts
legislature of 1904 and is known as the “Remnant Act,” the principle
of which is contained in the following clauses:
Section 2. The Commonwealth, or any city in the Commonwealth ...
may take in fee by right of eminent domain the whole of any estate,
part of which is actually required for the laying out, alteration or
location by it of any public work, if the remnant left after taking such
part would from its size or shape be unsuited for the erection of
suitable and appropriate buildings, and if public convenience and
necessity require such taking.
Section 15. The Commonwealth or the city, as the case may be,
shall determine within six months after the completion of any public
work for which land is taken under this act, or within six months after
the filing of a final decree on an appeal taken under this act,
whichever shall happen later, with which of the adjoining properties
the public interests require that each parcel of land, if any, taken
outside the boundaries of the public work should be united; and shall,
within said six months, notify the owner of such adjoining property, if
his address is known, of this decision by registered letter mailed to
such owner, and shall annex to the notice a copy of this section.
Section 16. If such owner or some person on his behalf shall within
two weeks from the mailing of such notice notify in writing the
Commonwealth or the city that such owner wishes for an appraisal of
such parcel, the Commonwealth or the city shall cause such parcel to
be appraised by three competent and disinterested persons, one of
whom shall be appointed by the Commonwealth or the city, one by
said owner, and one by the superior court for the county: Provided,
however, that the Commonwealth or the city and said owner may in
writing appoint a sole appraiser. Said appraiser or appraisers shall
forthwith after his or their appointment view the property and
determine the fair value of such parcel, and shall make written report
to the Commonwealth or the city of the same. The reasonable fees
and expenses of the appraiser or appraisers shall be paid by the
Commonwealth or the city. The Commonwealth or the city shall
forthwith by writing mailed to such owner offer such parcel to such
owner at the value as determined by the report of a majority of such
appraisers, or by that of the sole appraiser in case of the appointment
of one appraiser.
Section 17. If such owner shall in writing accept said offer within two
weeks after the date when the same is mailed to such owner, the
Commonwealth or the city shall convey such parcel to such owner on
payment of the purchase money to the Commonwealth or the city, as
 the case may be, within thirty days after the acceptance of the offer.
The conveyance shall be by deed, with or without covenants of title
and warranty, executed and acknowledged in the name and behalf of
the Commonwealth or the city by the officers or board which have or
has taken such parcel, or by their or its successors or successor, and
may be made subject to such restrictions as the Commonwealth or
city may in writing have notified the appraisers or appraiser at the time
of their or his appointment would be imposed on such parcel.
Section 18. If such owner fails to accept the offer within the time
limited, or having accepted it fails to make payment or tender of the
purchase money within one month thereafter, the Commonwealth or
the city, if it does not take said adjoining property under the provisions
of section twenty-nine[88] may at any time thereafter sell such parcel
at public auction.
Section 29. If the owner of property adjoining a parcel taken under
this act and outside the boundaries of a public work fails to accept an
offer to sell such parcel to such owner made under the provisions of
section sixteen, or, having accepted such offer, fails to make payment
or tender of the purchase money within thirty days thereafter, the
Commonwealth or city shall cause such parcel to be sold by public
auction, subject to such restrictions as the Commonwealth or city may
impose. Land sold under this section shall be conveyed to the
purchaser in the same manner as land conveyed under the provisions
of section seventeen.[90]

In Ohio[91] and Maryland[92] the principle is incorporated in

legislation for the protection of parks, parkways, and approaches to
public buildings and, as far as the language of the acts indicates,
excess taking can be made only for these specific purposes. The
Virginia Assembly of 1906 passed an act[93] giving the power to
condemn and take more land than is necessary “when the use of the
land proposed to be taken would impair the beauty, usefulness, or
efficiency of the parks, plats, or public property, or which by the
peculiar topography would impair the convenient use of a street or
render impracticable without extra expense the improvement of the
same.”
The nearest approach to the European idea of excess
condemnation is found in the acts of Connecticut, 1907.[94] The
language of this clause puts no limit on the amount of land which can
be taken. Unless the courts establish such a limit a broad power is
given. The city is allowed, in fact, to embark on a real estate
speculation. By No. 315 of the acts of Pennsylvania, 1907, cities are
allowed to acquire by appropriation private property within 200 feet
of the boundary of parks, parkways, and playgrounds. This act also
allows the resale of surplus land with restrictions in the deed.
The Massachusetts act is the only one directed specifically to the
acquisition of remnants which are made practically unsalable
because of the taking for public use, but only on this ground is it to
be distinguished from the other legislation above cited. In all this
legislation the purpose is to provide a more effective method of
accomplishing an improvement. A primary purpose in every case is
either to lay out or widen a public street or to acquire or protect
parks, parkways, or approaches to public buildings. All of these
purposes are without question public, and the taking of excess land
is but an incident to an acknowledged public purpose; namely, to
insure a more useful wide street or a more attractive parkway. There
is no suggestion either directly or by inference in any of this
legislation that the excess taking is anything more than an incident to
a public purpose and a means of securing the more perfect and
successful realization of that purpose.

THE CONSTITUTIONALITY OF EXCESS TAKING

The Pennsylvania act is the only one which has been tested by
judicial decision.
In July, 1912, the City Council of Philadelphia authorized the
taking of excess land under the legislation of 1907, in connection
with the proposed parkway from City Hall to Fairmount Park. The
question of the constitutionality of the act was squarely raised and
the lower court decided in favor of its validity, but this decision was
reversed by the supreme court of the state.[95]
That the “remnant act” of Massachusetts would be declared
constitutional is suggested in the answer of the Massachusetts
supreme court to a question of the legislature in 1910. The question
arose out of the necessity for a traffic thoroughfare between the
north and south terminal stations in Boston. It appeared to the
legislature impossible to construct a direct thoroughfare between
these stations, unless a power of eminent domain were given which
would allow the acquirement and reallotment of the land adjacent to
the thoroughfare in lots suitable for mercantile buildings. As
presented to the court the question was as follows:
“Is it within the constitutional power of the legislature to authorize
the city of Boston, or such other public authority as the legislature may
select, to lay out such a thoroughfare and rear streets, and to take not
only the land or easements necessary for the same, but also such
quantities of land on either side of said thoroughfare or between the
same and said rear streets as may be reasonably necessary for the
purposes hereinbefore set out, with a view to the subsequent use by
private individuals of so much of the property taken as lies on either
side of said thoroughfare, under conveyances, leases, or agreements
which should embody suitable provisions for the construction on said
land of buildings suited to the objects and purposes hereinbefore set
out and for the use, management and control of said land and
buildings in such manner as to secure and best promote the public
interests and purposes hereinbefore referred to; assuming that the act
provides just compensation for all persons sustaining damages by the
said takings.”[96]
The supreme court interpreted the question briefly as meaning
“Can land be taken with a view to its subsequent use by private
individuals?” and its holding is that where the purpose of excess
taking is primarily the creation of lots suitable for use of private
individuals, such a taking is clearly unconstitutional. The court seems
to make a distinction near the end of the opinion between cases
where the excess taking is merely incidental to the main purpose,
and cites the remnant act as such an example. We have therefore
the suggestion that the remnant act might be found to be a
constitutional exercise of power. The suggestion is of course of no
value as a precedent, but is helpful as showing the sentiment of the
justices of the supreme court of Massachusetts.
The doubtful constitutionality of the acts containing the excess-
taking principle and the dissatisfaction with the limitation on the
exercise of the power of eminent domain, have resulted in the effort
to modify the limitation on the powers as now contained in state
constitutions by constitutional amendment. Both the Massachusetts
and New York legislatures have passed such amendments, which
were submitted to the people of both states in the fall of 1911.[97]
The New York amendment was defeated[98] but it is valuable for
purposes of comparison. The Massachusetts amendment was
passed by a large vote, and at the legislative session of 1912 a
special act gave the city of Worcester the right to take excess land
for a street widening.[99] The people of Wisconsin and Ohio in 1912
adopted amendments containing similar wide powers[100] of excess
condemnation.
The New York amendment provided that when private property
was taken for public use by a municipal corporation “additional
adjoining and neighboring property may be taken under conditions to
be prescribed by the legislature by general laws; property thus taken
shall be deemed to be taken for a public use.”
From the viewpoint of the believer in excess taking as an easy
means of correcting a defective street system and as the
handmaiden of reconstruction, the amendment offered in 1911 which
was not accepted by the people of New York was ideally phrased.
Any excess taking which the legislature saw fit to authorize was
made constitutional, whether that taking was a mere incident to a
better realization of a public purpose or whether it was primarily a
speculation to recoup the city’s investment in reconstruction. It is not
an answer to the extreme radicalism of the amendment to say that
the legislature would probably hedge the power of excess taking with
limitations. Radical legislation even in New York is not impossible,
and a most radical act of a radical legislature would have had the
stamp of constitutionality placed upon it by this amendment if the
people had accepted it.
The Massachusetts amendment, on the other hand, limits both the
application of the principle and the extent of the excess taking. It
applies only to the “laying out, widening or relocating of highways”
and the amount of land in excess which may be taken is “not more in
extent than would be sufficient for suitable building lots on both sides
of such highway or street.” The amendment leaves open for dispute
the question of what shall be “a suitable building lot,” but this can
best be defined by special act when the peculiar needs of each
improvement are considered.
The Wisconsin amendment makes constitutional an excess taking
of neighboring property for streets, squares, public parks, parkways,
civic centers, and playgrounds and their surroundings, and after the
improvement surplus land may be conveyed with restrictions to
protect the improvement.
Before these amendments to the constitution were proposed, court
decisions were frequent that it was the province of the legislature to
determine whether a proposed taking was necessary for the public
use. When once the legislature had so determined, only in case of a
manifest injustice or where the legislature had obviously overstepped
the bounds of the constitution would the supreme court interfere with
the legislative action. The amendments take away the limitation set
in the state constitution and therefore leave no constitutional
question for the state judicial tribunal to determine. Whether the
federal courts would take jurisdiction of such a case from the state
court on the ground that property is taken without due process of law
in violation of the fourteenth amendment, is still undetermined.

THE EXPEDIENCY OF ADOPTING IN THE UNITED STATES

THE EXCESS CONDEMNATION PRINCIPLE

We are not here considering the value of excess taking where the
sole or even primary purpose is to recoup the municipality’s
investment in a public improvement. Such a use of the power would
probably not pass the constitutional test, would be too open to
abuse, and would tend to draw municipalities into such large
speculative holdings of real estate as might easily overstrain their
credit. But in the cases where excess taking is made primarily to
secure the greatest physical benefit from the improvement, the
community is able incidentally to reap a portion of the increase in
values caused by the investment of the community’s money through
the sale of such land as is not actually needed for the improvement.
This method of distributing the cost of an improvement is supposed
to produce a larger financial return to the city than the special
assessment method, and at the same time to avoid the expense of
litigating with property owners the question of benefit.

1. FINANCIAL VALUE OF EXCESS CONDEMNATION

In cities where special assessments to cover a large portion of the

cost of acquiring land are levied and collected, and the tax payers
are not restive, there is little enthusiasm over the European method
of financing reconstruction. But cities in which special assessments
are ineffective or non-existent, as in Boston, Philadelphia, and cities
of Ohio, see in excess condemnation an opportunity to get for the
community a large portion of the increment resulting from
reconstruction with less chance for litigation by the land holders. No
city in the United States has yet experimented with such
condemnation,[101] but precedents from abroad are confidently cited
as establishing its financial value. To determine the soundness of
this opinion would require an analysis of European reconstructions in
which excess takings have been made, and such an analysis
depends for its value so much on a first hand acquaintance with
many various sets of local conditions that to attempt it here is
impossible. A review of the available sources of information on the
subject does not make out an overwhelming case for the financial
success of excess condemnation.
Financial Results in France. From 1852 to 1869 new streets
were laid out in Paris which required a total surface of 2,726,000
square yards. Under the law, the authorities were allowed to take in
excess of actual need for street purposes only when the lots left after
the taking were unsuitable in shape or size for the erection of proper
buildings; but the policy of the French government allowed a very
liberal construction of the law, and ‘remnants’ were taken in some
cases 5,000 square feet in area. Remnants which were at the time of
the taking considered unsuitable for building purposes were
subsequently subdivided into at least two lots, each of which was
sold for a building lot. Just how much excess land was taken for the
purpose of new streets in this period is not known. In 1869 the sales
of such land had totaled $51,800,000, and there was still on hand
728,400 square yards, valued at $14,400,000. The cost of all the
land taken was $259,400,000. Valuing the excess taking at
$66,200,000, the land actually used for street purposes cost
$193,200,000.[102] “In other words, the sale of lands purchased in
excess of the requirements for the purpose of making new streets,
together with the sale of 390,000 square yards obtained through the
discontinuance of old streets, yielded only 25.5 per cent of the
original outlay upon land—$259,400,000. That means that the efforts
to secure a part of the increase in values resulting from the laying
out of 56.25 miles of streets proved unsuccessful.”[103]
No period offered a better opportunity for a successful test of the
principle of excess taking as a method of recoupment. The years
from 1852 to 1869 were marked by rapid increase in values. The
prices received by the city for the sale of surplus land were
considered excellent, but the initial cost of all the land condemned
had been enormously heavy and for this the juries were responsible.
M. Brelay, a former member of the Commission des Indemnités, a
body established by the state for the purpose of bringing together
without recourse to the jury, public authorities and owners of land
says: “The proceedings before the juries are among the most
discouraging symptoms of the day. In these proceedings cheating
almost has come to be honorable; the juries willingly accept
scandalous statements as to value and inventories and leases
prepared by lawyers and expert valuers who display a profound
knowledge of the extent to which human folly will go in the person of
the juror.” In 1890 awards were so excessive to owners of land that
an award of 50 per cent more than the fair market value was
commented upon as honest by Brelay in his survey of public
improvements in Paris.[104] Awards to tenants, whether merchants or
householders, were even more excessive. In 1888 the city took 48
houses occupied by tenants who paid an average rental of $54 a
year. The owners of property had the right to dispossess the tenants
on three months’ notice. The tenants’ holdings were therefore worth
$13.50—three months’ rent; the juries awarded an average of $169.