specifically sanctioned by law in only a few States.[1] Cases in which such proposed takings have been tested in the courts have been complicated with a purpose to resell a portion of the land acquired and with the presumption of a motive to recoup a portion of the cost of the land retained by profiting on the sale of the excess. It is evident the courts have not been persuaded that the acquisition of marginal strips, even for future roadway widening or for present border protection, is an appropriation for a "public use," the test to which they firmly adhere in determination of the validity of all expropriation. It must be admitted, however, that the necessities of such acquisition have not been clearly presented for judicial determination.
The Committee is of the opinion that if marginal land is acquired for border protection and to make provision for definitely anticipated future roadway widening, its employment for these purposes will constitute a “public use” in the narrowest sense of the term. A reasonable and proper development of the interregional system requires the acquisition of such marginal areas, and they cannot be acquired in the fullness nd continuity essential without use of the power of expropriation in at least some cases. The right to exercise the power of eminent domain for these purposes should be promptly established in all jurisdictions, either by State constitutional amendments or preferably by a discerning interpretation of the concept of “public use”; and, however established, the power should be sufficiently broad to encompass the public disposal by sale or lease of unneeded remnants unavoidably acquired with the needed lands.
Alternatives to outright marginal acquisition.—Various exercises of the police power for control of roadside land use, as exemplified by present practices of zoning and billboard regulation, may serve temporarily and partially as substitutes for the outright public acquisition of road-bordering strips. They can never constitute a permanent over-all solution of the problems involved, but with proper revision, enlargement, and effective application they can become valuable auxiliary devices for the regulation of land uses detrimental to the safe and efficient use of the highways. A good example of legislation providing for such use of the police power is to be found in the statutes of Pennsylvania.[2]
As a better substitute for outright acquisition, the Committee recommends the public appropriation of what may be termed “highway development rights,” i. e., the rights of owners of private property abutting on highways to improve road-marginal strips of their property in any manner inconsistent with present or future traffic requirements. Because of the legal limitations of the police power, establishment of the right to acquire such control should be conceived rather as an exercise of the power of eminent domain, for which compensation would be forthcoming. It is taken for granted that State enabling legislation would be necessary, and a prototype of such legislation exists in a Maryland law enacted in 1941[3]
Compensation for such rights would be nominal in most instances, because the payment would be made only for actual demonstrable injury, and because the right would be acquired usually at the time when land is being taken for immediate highway improvement,
