PARK AND CEMETERY. 
269 
RESTRICTIONS FOR PROPERTY ON PARKWAYS 
From a report on an Essex County (N. J .) Park 
System, by Olmsted Brothers, Landscape Architects. 
One of the most important considera- 
tions in connection with the laying out of 
parkways is that of the appearance of its 
borders and of the neighborhood through 
which it passes. The designers of park- 
ways are fully aware of this, but many 
citizens come to realize it only after com- 
mercial and manufacturing or other un- 
suitable buildings have been erected along 
a parkway, or after flats and apartment 
houses, stores and other buildings (suit- 
able as to use but often ugly as to side 
and rear walls) have been erected right 
out to the sidewalk line. Then everyone 
exclaims, “What a shame !” 
It does not seem reasonable, after the 
county and landowners have co-operated 
to lay out and improve a park or parkway, 
that the enjoyment of its beauty, in which 
very largely its value and justification lie, 
should be greatly injured by ugly things 
on adjoining private land. 
True, the present county park commis- 
sion law authorizes the Park Commission 
to establish building lines along parkways 
and to take easements on adjoining private 
property. But this part of the law is 
practically a dead letter, because the courts 
will not allow regulation of private land 
under this law as an exercise of the police 
power, so-called, which does not involve 
compensation for damages, so that the on- 
ly way of acting under it is either by vol- 
untary agreement with landowners or un- 
der the right of eminent domain, which 
involve the liability for paying damages 
for easements taken. Voluntary agreement 
with landowners has scarcely been tried. 
It is too much trouble. If landowners 
were favorable, some good might be ac- 
complished by voluntary agreement in a 
very limited way in exceptional cases. But 
most landowners, being short-sighted, pre- 
fer to take advantage of the present atti- 
tude of the courts against the extension of 
the police power to regulation of private 
real estate for the good of the public in 
all matters of appearance. By declining 
to voluntarily restrict their land, the land- 
owners apparently feel that they are better 
off because they retain a wider market for 
their land, and no doubt some also feel 
that if the Park Commission wishes :o 
establish restrictions, let it pay heavily 
for the interference with private property 
rights. As long as they see “money in it," 
there will be some landowners who will 
hate to agree to restrictions for nothing. 
Very properly, under these conditions, the 
Park Commission has been so reluctant to 
enter upon what would be criticised as the 
mistaken and extravagant policy of taking 
and paying heavily for easements on pri- 
vate land, which any disinterested student 
of the subject would testify would, in the 
great majority of cases, result indirectly in 
greater benefit than damage that they have 
done nothing. 
The existing law may be ample to cover 
much that park designers would advise in 
the way of restrictions, but, as in the case 
of the Sherman Anti-Trust Law, it might 
take years and much trouble and expense 
to obtain sufficiently favorable court de- 
cisions under the existing law to make it 
easy to secure the desired regulation of 
the use of private property for the purpose 
of ensuring agreeable and suitable condi- 
tions in the vicinity of parks and parkways. 
In order to make progress in the direc- 
tion of protection to esthetic rights of in- 
dividuals and of the public, the courts 
would have to reverse their past decisions 
that the public has no right to regulate the 
use of private property in the directions of 
appearance, under the police powers, ex- 
cept under the plea that it is necessary for 
public health or safety. The courts are, 
very properly, conservative and so are con- 
trolled by precedent. Fortunately there is 
precedent for some esthetic regulation of 
private real estate, especially in Europe, 
but mostly on the continent, whence few 
precedents are drawn by our courts. Broad- 
ly speaking, it is probable that the courts 
will ultimately extend the application of 
the police power to the regulation of pri- 
vate land in esthetic matters — that is to 
say, when public opinion becomes so un- 
mistakably and powerfully in favor of it 
as to clearly make it inevitable. The com- 
mon law has been extended by the courts 
more in England in the way of preventing 
the use of private land detrimentally to the 
value of adjoining land, especially as re- 
gards light and air. In this country the 
courts have held back in this respect and 
seldom help a land owner to keep up the 
character of a suburban neighborhood hav- 
ing an established character, as for in- 
stance, by enjoining the erection of a tall 
building with a blank, ugly side wall ex- 
actly upon the side boundary of its lot 
next to a suburban residence, or with its 
front wall exactly upon or too close to the 
street, or by enjoining undesirable types 
of buildings. No doubt the courts have 
been quite right in going slowly in that 
direction, because it is not the right meth- 
od, as a matter of public policy. Each 
"case” is apt to be too individualistic — too 
much a matter of accidents, whims, senti- 
ments and selfishness, and too little a mat- 
ter of manifest public benefit. 
It is questionable whether it is good pub- 
lic policy to depend upon this indirect way 
of changing the common law. It would 
seem to be more straightforward to get 
public opinion to act in this matter by 
means of a constitutional amendment and 
laws in furtherance thereof, to the effect 
that the State Legislature, and through it 
the local governments, shall have the right 
to regulate the occupation and use of land 
in all matters of esthetics under the police 
power and without compensation, unless 
in any particular case the exercise of such 
right should clearly be unreasonable and 
confiscatory considering the existing and 
probable future local conditions, in which 
case money damages should be paid for 
the excess, if any, of damages above bet- 
terments. 
If this were the law. it could be applied 
gently and soothingly at first, like the lim- 
itation of height of fireproof buildings in 
parts of New York, to 300 feet (200 feet 
in other parts), so that land owners and 
real estate agents, courts, referees and 
juries would get used to it. Before many 
years the restrictions would be much more 
severely framed and more frequently ap- 
plied, especially in residential districts. 
Thus, in time, Essex County could be made 
a much more attractive and civilized place 
for poor people, as well as the well-to-do, 
to live in, and at comparatively little greater 
cost than that of the present haphazard, 
hit-or-miss way of doing things. 
But even if the laws were adequate and 
the courts favorable, the laws would only 
be permissive. They would not be self ex- 
ecuting. Nor would public street officials, 
as a rule, have either time or money for 
executing them. The trouble begins in- 
sidiously in the custom of permitting the 
land owners too much freedom in subdi- 
viding and in using their land. But in the 
narrower field of developing a park and 
parkway system, it is certain that better 
conditions can be secured much more eas- 
ily and fully and at far less cost, if the 
land owners will acquaint themselves with 
the advantages which can be secured by 
restrictions, and if they put themselves in 
a favorable attitude of mind toward them. 
The art of subdividing land can be made 
an extremely interesting pursuit and all 
landow-ners should give a due amount of 
attention to its advancement. 
There should be no unduly exaggerated 
idea that the desirable restrictions would 
be exclusively or even mainly for the bene- 
fit of the rich and well-to-do. There would, 
unquestionably, be much of the parkway 
frontage that would be more available for 
the residenpes of families of relatively 
small incomes, and in some such Cases 
there need be no prohibition of two or 
more family houses or of single houses 
in solid blocks, only it would be necessary 
to hold them up in construction and ap- 
pearance to a reasonable standard suitable 
for a parkway frontage. 
The law and customs should be such as 
