63 
tion and the further restrictions that takings must be compensated, 
found their way into preconstitutional American law.” 
The fifth amendment to the U.S. Constitution includes both the 
due process and compensation requirements with the ‘public use” 
limitation: 
No person shall be. . . deprived of life, liberty, or property, without due 
process of law; not shall private property be taken for public use, without just 
compensation. 
Nearly all State constitutions have similar provisions. Article X of 
the declaration of rights of the Massachusetts constitution provides: 
aasit No part of the property of any individual can, with justice, be taken 
from him, or applied to public uses, without his own consent, or that of the 
representative body of the people . .. And whenever the public exigencies 
require that the property of any individual should be appropriated tu public uses, 
he shall receive a reasonable compensation therefore. 
The 14th amendment to the U.S. Constitution requires the States 
to comply with due process and this has been interpreted to require 
compensation when private property is taken for public use.” 
Karly interpretations of the public-use limitations were few and 
broad, presumably because of limited governmental activity and an 
abundant supply of land. Historically schools, parks, highways, 
public buildings, and other uses were construed as public, as they in- 
volved actual use by the public,?* but early redevelopment schemes 
where land was to be resold to private developers after taking were 
invalidated.”® 
Thus, during the 19th and early 20th centuries the public-use 
. ? . . . ° ”? 
doctrine was interpreted to require, literally, a ‘use by the public. 
This interpretation began to evolve, however, with increased govern- 
mental activity in urban development and public use came to mean 
public purpose. Government had traditionally relied primarily on its 
police and taxing powers to respond to the pressures of urbanization.* 
The question for new communities, then, is whether their develop- 
ment represents a public purpose that would justify government acqui- 
sition of land for them. Land acquisition by the government, whether 
through eminent domain or purchase, of course necessitates the outlay 
of public money. In order for any legislation mvolving the public 
acquisition of land to be sustained, therfore, the money spent must be 
for public purposes or public use. Allydon Realty Corp. v. Holyoke 
Housing Authority, the leading Massachusetts case sustaining a public 
28To make this point is not to denigrate the quality and scope of their work; on the 
contrary, it only serves to indicate the vast complexity of the land-acquisition issue. 
2 O.B. & Q. Ry v. Chicago, 166 U.S. 226 (1897). 
28 See Nichols, ‘“‘The Meaning of Public Use in the Law of Eminent Domain,” 20 B.U.L. Rev. 615 (1940) . 
29 See Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371 102 N.E. 619 (1913). 
*It is important to ask at this time whether the limitations are more rigid for eminent domain than for 
voluntary sale, or vice versa. On this point, most commentators agree that the requirements for each should 
be the same. (McQuillin, Municipal Corporations, S 44.35 (3d ed. rev. 1963); 2 Nichols, Eminent Domain S 712 
(1) (8d ed. Sachman & Van Brunt 1950). Interestingly, there has been only one court in the Nation that has 
faced the issue directly, and that was the Massachusetts Supreme Judicial Court, when in 1873, it confirmed 
the position of the commentators with the statement: 
“The power of government, thus constituted, to affect the individual in his rights of property, whether 
by exacting contributions to the general means; or by sequestration of specific property, is confined, by 
obvious implication as well as by express terms, to purposes and objects alone which the government was 
established to promote, to wit, public uses and public services. This power, when exercised in one form is 
taxation; in the other is designated as the right of eminent domain.” (Lowell vy. Boston, 1111 Mass. 454, 462 
(1872). [Emphasis added.] 
Thus, the implication for the permissability of government sponsorship of new community development is 
that it won’t make any difference whether the government buys the land from a willing seller or takes it from 
areluctant one. Admittedly, to base such a conclusion ona single case, (and one nearly 100 years old, at that) 
is tenuous, but there do not seem to have been any other cases or changes in circumstances that would indi- 
cate any different result. 
