If the use be determined to be a public use, the courts will not control the character of the estate or the easement to be taken for the purpose. The state has no power, however, to take a man's property against his will merely for the purpose of giving it or selling it to another. Such a taking would not be for a public use but for a private use. The acquisition of more land than is actually needed for the establishment of a street or public park, the appropriation of the excess being for the purpose of enjoying any appreciation in values, is unlawful. In the establishment of a street or highway in this State through unimproved areas, the easiest and most direct method is the best, which is to condemn and take the area actually needed and assess the cost for such acquisition and improvement against the property specially benefited in proportion to the amount of actual benefits received. Here the property owners pay for the acquisition of the land and the improvement of the street and as any increase in values is due to the expenditure of their money, they are in equity and good conscience entitled to receive all the benefits that come from such investment. There are cases, however, in the opening of streets, where the street area is not coincident with the lines of the lots as platted, resulting in the taking of a part or parts of lots, leaving fragments and remnants that are of little or no value, which not only materially interfere with the proper development of the property abutting such highway, but as the part taken by the city has destroyed the value of the remnant the city is compelled to pay the value of the whole, while only receiving a part. In such cases, the application of the principle of excess condemnation as to these remnants would be justified by wise business policy and by consideration of the welfare of the community. So, too, in opening highways on hillside property, it often happens that after the city has acquired the area for the roadway-always at a high price-it is subjected to claims for damages by reason of slides affecting ownerships both above and below the highway. The owner above the highway, in most cases, is without remedy, but the owner below the highway who suffers damages either through the negligent construction of the highway or the adoption by the council of a faulty design, has, since the ruling made by our Supreme

Court in the Gioconi cases, a legal claim against the city for the damages sustained. It would be of great advantage to the city in hillside construction to acquire excess areas both above and below the highway. This can be done by taking such areas for for park purposes where needed. In the opening of arterial streets through densely settled portions of the city the method of excess condemnation is of immense benefit to the public, not only in reducing the cost of such construction, but of controlling the environment so as to secure from the investment of beneficial use. In the establishment of parks, or in the protection of parks, it may become necessary to control the use of a reasonable marginal area surrounding such park so as to protect the public in the enjoyment of the park. This was accomplished in Boston, Mass., by an enactment which gave to the city of Boston the right to limit the height of buildings surrounding Copley Square to five stories and providing for adequate compensation to be paid to the owners for the restriction upon their property rights. This law was vigorously contested through the state courts of Massachusetts and the United States Supreme Court and was upheld as being a proper exercise of the right of eminent domain. The court said that it was equivalent to the impressment of an easement upon the property, which easement was attached to the park. Under the authority of state's right of eminent domain authority was given to the city of Boston to acquire in fee simple certain mud flats that were injurious to health, to fill and to dispose of them at public or private sale. After these flats had been brought to grade and were offered for sale, the prior owners brought suit to recover them on the theory that when private property is acquired for a special purpose the right to enjoy the land is limited to that particular use, and in this case the purpose had been accomplished, whereupon the public right automatically ceased. The courts determined, however, that the title of the city was good and that it had the right of disposition. In imposing restrictions or conditions on the right of property adjacent to a boulevard or a park, where the same is permissible, this can be accomplished in one or two ways by condemning an easement, such as for light and air, or by acquiring the

fee and reselling the excess upon such conditions and restrictions as will protect the public in the enjoyment of air and light. The law that governs these two methods is different. In Oregon, a railroad in condemning a right-of-way acquires only an easement and the public enjoys only an easement in the streets of the cities and the title to the streets is in the grantor or his successors in interest, usually the abutting owners. Elliott, the author of roads and streets, evidently thinks the estate that may be taken by right of eminent domain depends upon the public necessity, and says:

"Unless the purpose for which the taking of the land is authorized is in itself such as requires that a fee should be seized, or the statute plainly authorizes that such an estate may be seized, then no more than an easement can be appropriated."

The courts, however, seldom interfere with the legislative branch of the government which has determined the estate to be taken in the property and the great weight of modern authority is now decidedly in favor of the power to authorize the seizure of the fee, and it is a familiar principle of law that when the fee is thus acquired the absolute right of disposition accompanies it as an incident. Whenever, therefore, more land is sought to be appropriated than lies between the lines of the lands actually to be used, it must appear that the excess land is to be made in some sort a part of the improvement and that the acquisition of such excess land, or an easement therein, tends to advance and promote the use of the space actually intended to be used by the public. Just how far such appropriation may extend and just what uses of the excess lands may be deemed public uses will at all times depend on the enlightened view of the citizens of the community reflected in their laws and the decisions of their courts. It is perfectly clear that uses measured by our present day standards may be adjudged by the courts to be within the restrictions imposed by the constitution, but with the broadening of the public view, the increase in the public needs and the birth of new conditions of society, the words a "public use" will receive a new and enlarged interpretation by the courts fitting the development and advancement of civilization. As our land laws stand today the excess land appropriated must be needed as a part of the improvement or in some material way tend

to advance, promote or protect the use of the main improvement. When so taken in good faith by the public, both the state courts and the United States courts will be loath to interfere with the deliberate judgment of the authorities so appropriating the land. This is apparent from the decisions of the United States Supreme Court wherein it sustained a status of the State of Utah by the terms of which an individual land owner was empowered to condemn the right of conveying water in a ditch across his neighbor's land for the purpose of irrigating his own farm, and the court said:

"We are always, where it can be fairly done, strongly inclined to hold with the state courts when they uphold a state statute providing for such condemnation."

And so, in the case of Hairston v. Danville and Western Ry. Co., 208 U. S. 598, where the Supreme Court of the United States sustained a proceeding by which a railroad condemned land for a spur track to a tobacco factory, the owner of which agreed to reimburse the company for the cost of acquiring the land. The act of the General Assembly of Oregon, passed in 1913, authorizes "incorporated cities of ten thousand or more inhabitants to condemn private property for the purpose of public squares, parks, playgrounds or comfort stations, and for enlarging any public park, playground or comfort station within the limits of such city, authorizing any such incorporated city to appropriate more land than will be needed therefor and to sell the remainder of such land and to impose restrictions in the deeds of resale." This act prescribes "that the restrictions in a resale shall be such as will fully insure the protection of such public square, park or playground, their environs, the preservation of the view, appearance, light, health or usefulness thereof," and declares that such taking is for a public use.

The power given by this act will doubtless be used, and notwithstanding the restrictions imposed by our constitutions and land system, it will be found that ample power exists to undertake and perform public works really needed and for the best interests of our people.

Rural Credit Organization for Oregon

BY HON. W. K. NEWELL, PRESIDENT STATE BOARD OF HORTICULTURE That the present day farmer is in need of better credit facilities, few will deny. There are many who are incapable of handling their business and would be better off if they had never been able to borrow money, but that is true in all lines, and the farmer who would buy or improve a farm, or purchase better stock and equipment is just as much in need of more capital as the merchant who would increase his operations, and should be able to obtain it with equal facility and on equal terms. Aside from the land, farm capital consists of tools, stock and other equipment in the way of fences and buildings, and the need for greater capital comes largely because of the improvement in farm machinery and the need of sanitary housing for livestock. Fifty years ago a farmer required but a few simple tools which he could make himself or could obtain of the local blacksmith at a small cost, and land was to be had for the taking. There were no costly and complicated machines, and had there been the farmer of that day would not have had the skill to use them. Therefore but little money was needed to make a start on the farm, but at the present time there is no more free land and but little cheap land, and a large amount of expensive equipment is absolutely necessary to success. Hand labor can no longer compete with improved machinery on the farm any more than it can in the factory.

Take the average Western Oregon farm of 100 acres, worth, say, $10,000, and it needs fully an equal amount to properly equip it with tools and stock, and if modern buildings are to be included, even more. There are, of course, only two ways to secure capital-accumulate it by consuming less than is produced, or by borrowing it. The former process is often so slow that it is impossible ever to secure the better stock or implements, and a lifetime of effort may be largely wasted. But in borrowing it is absolutely essential to consider carefully the purpose for which the loan is to be made and the time for which it should run, as well as the rate of interest and the security. It is undoubtedly bad business for anyone