gerate the value of such property, in order to throw as great a share as possible of the taxes to be raised within the town upon the non-resident proprietor. The unreclaimed lands, which the owner finds it impossible to cultivate or even to sell, without great sacrifice, and which produce no revenue, are assessed, not only for such charges as may be deemed directly beneficial to the land, such as making and repairing roads and bridges, but for all the wants and purposes of the inhabitants. The lands are made auxiliary to the maintenance of the poor, and the destruction of wild animals; and the inhabitants of each town have been left to judge, in their discretion, of the extent of their wants. Such a power vested in the inhabitants of each town, of raising money for their own use, on the property of others, has produced, in many instances, very great abuses and injustice. It has corrupted the morals of the people, and led to the plunder of the property of non-resident landholders. This was carried to such an enormous extent in the county of Franklin as to awaken the attention of the legislature, and to induce them to institute a special commission to inquire into the frauds and abuses committed under this power, and also to withdraw entirely from the inhabitants of new towns the power of raising money by assessments upon property for the destruction of noxious animals. (a) The *333 ordinance of Congress of July 13th, 1787, (b) passed for the government of the north-western territory, anticipated this propensity to abuse of power, and undertook to guard against it by the provision, that in no case should any legislature within that territory tax the lands of non-resident proprietors higher than those of residents. There is a similar provision in the constitution of Missouri, and one still broader in that of the state of Illinois. It is declared, generally, in that of the latter state, that the mode of levying a tax shall be by valuation, so that every person should pay a tax in proportion to the value of his property in possession.

*

The duty of protecting every man's property, by means of just laws, promptly, uniformly, and impartially administered, is one of the strongest and most interesting of obligations on the part of government, and frequently it is found to be the most difficult in

(a) L. N. Y. sess. 45, ch. 26, sec. 9, 10, ch. 126.

(b) Journals of the Confederation Congress, vol xii. p. 58.

the performance. Mr. Hume (c) looked upon the whole apparatus of government as having ultimately no other object or purpose but the distribution of justice. The appetite for property is so keen, and the blessings of it are so palpable and so impressive, that the passion to acquire is incessantly busy and active. Every man is striving to better his condition; and in the constant struggles and jealous collisions between men of property and men of no property, the one to acquire and the other to preserve; and between debtor and creditor, the one to exact and the other to evade or postpone payment; it is to be expected, especially in popular governments, and under the influence of the sympathy which the poor and unfortunate naturally excite, that the impartial course of justice, and the severe duties of the lawgiver, should, in some degree, be disturbed. One of the objects of the constitution of the United States was to establish justice; and this

it has done by the admirable distribution of its powers, and * 334 the * checks which it has placed on the local legislation of the states. These checks have already, in their operation, essentially contributed to the protection of the rights of property.

Government is bound to assist the rightful owner of property in recovery of the possession of it when it has been unjustly lost. Of this duty there is no question. But if the possessor of land took possession in good faith, and in the mistaken belief that he had acquired a title from the rightful owner, and makes beneficial improvements upon the land, it has been a point of much discussion, whether the rightful owner, on recovery, was bound to refund to him the value of the improvements. This was the question in the case of Green v. Biddle, (a) which was largely discussed in the Supreme Court of the United States, and which had excited a good deal of interest in the state of Kentucky. The decision in that case was founded upon the compact between the states of Virginia and Kentucky, made in 1789, relative to lands in Kentucky, and therefore it does not touch the question I have suggested. The inquiry becomes interesting, how far a general statute provision of that kind is consistent with a due regard to the rights of property. The Kentucky Act of January

(c) Essays, vol. i. p. 35.

(a) 8 Wheaton, 1.

31st, 1812, declared, that the bona fide possessor of land should be paid, by the successful claimant, for his improvements, and that the claimant must pay them, or elect to relinquish the land to the occupant on being paid its estimated value in its unimproved state. (b)

By the English law and the common law of this country, the owner recovers his land by ejectment, without being subjected to the condition of paying for the improvements which may have been made upon the land. The improvements are considered as annexed to the freehold, and passed with the recovery. Every possessor makes such improvements at his peril. (c). But if the owner be obliged to resort to chancery for assistance in the recovery of the rents and * profits, Lord Hardwicke *335 once intimated, in Dormer v. Fortesque, (a) that the rule of the civil law, which is more equitable on that point than the English law, would be adopted; and consequently the bona fide possessor would be entitled to deduct the amount of his expense for lasting and valuable improvements, from the amount to be paid, by way of damages, for the rents and profits. The same intimation was given in the Court of Errors in New York, Murray v. Governeur; (b) and that in the equitable action at law for the mesne profits, the defendant might have the value of his improve

(b) This Act, or occupant law, was held by the Supreme Court of the United States to be unconstitutional. The legislature of Kentucky then passed the Act of January 7th, 1824, with a view to counteract the decision in Green v. Biddle; and it subjected to forfeiture, without office found, or judgment, all patented lands of more than one hundred acres, unless the owner, by the 1st of August, 1825, caused a ratable portion of the land to be cultivated, and, on forfeiture, the title was to vest in the occupant. This Act was held by the Kentucky courts to impose an arbitrary, unjust, oppressive, and illegal condition upon the patentees, and was in violation of their grants, and unconstitutional and void. Gaines v. Buford, 1 Dana (Ken.) 481.1

(c) Frear v. Hardenbergh, 5 Johns. 272. This is the rule in the Scotch law, as to improvements made by a tenant for his accommodation. Lord Stair's Institutions, vol. i. 137, edit. 1832.

(a) 8 Atk. 134.

(b) 2 Johns. Cas. 441.

1 In Ohio, an Act giving the real owner his choice whether to take the land and pay for improvements, or to release the land on being paid its value, was held to be constitutional, though changing the common law. But an amendment giving to the tenant the choice whether to keep the land or surrender it, was held invalid, as an unjustifiable taking of private prop erty. McCoy v. Grandy, 3 Ohio, 463. See, also, Arrowsmith v. Burlingim, 4 McLean, 489. Albee v. May, 2 Paine C. C. 74.

ments deducted by way of set-off. These were extra-judicial dicta; and there is no adjudged case, professing to be grounded upon common-law principles, and declaring that the occupant of land was, without any special contract, entitled to payment for his improvements, as against the true owner, when the latter was not chargeable with having intentionally laid by and concealed his title. (c) We have a statute in New York relative to lands, in what was formerly called the military tract, which declares that the settler on those lands, under color of a bona fide purchase, should not be divested of his possession on recovery by the real owner, until the former had been paid the value of his improvements made on the land, after deducting thereout a reasonable compensation to the owner for the use and occupation of the land. (d) This Act is as broad, and liable to the same objections

that have been made against the Kentucky statute. There * 336 are similar statute provisions in Maine, Massachusetts, *New Hampshire, Vermont, Virginia, Alabama, Ohio, and Illinois. (a) So far as the statute in New Hampshire was retrospec

(c) The suggestions in the cases referred to in the text, have been considered as forming just ground for mitigation of damages in an action for the mesne profits; and the value of permanent improvements, made in good faith, has been allowed, to the extent of the rents and profits claimed by the plaintiff. Hylton v. Brown, 2 Wash. C. C. 165, April, 1808. Wharton's Dig. tit. Ejectment, H. Jackson v. Loomis, 4 Cowen, 168. Ruffin C. J., in Dowd v. Fawcet, 4 Dev. (N. C.) 95. A court of equity, on a bill for rents and profits, after a recovery at law against a bonâ fide possessor, for valuable consideration, will allow for beneficial improvements.1 Green v. Biddle, 8 Wheaton, 7781. Bright v. Boyd, 1 Story C. C. 478, 495. Mathews v. Davis, 6 Humph. (Tenn.) 324. Judge Green, in this last case, said, that the case of Bright v. Boyd was the first case in which the bonâ fide purchaser was allowed compensation against the true owner for his beneficial improvements.

(d) L. N. Y. April 8th, 1813, ch. 80.

(a) Jones v. Carter, 12 Mass. 314. Stat. of Mass. 1807, ch. 75. Withington v. Corey, 2 N. Hamp. 115. Brown v. Storm, 4 Vermont, 37. Gaige v. Ladd, 5 Ibid. 266. Statutes of Ohio, 1831, p. 261. Bank of Hamilton v. Dudley's Lessee, 2 Peters U. S. 492. The statute law in Massachusetts, New Hampshire, and Vermont, is called the Betterment Law, and it is admitted in 2 Pick. 507, to have altered the common law in this respect. In the Massachusetts Revised Statutes of 1836, part 3, tit. 3, ch. 101, it is provided generally in the writ of entry upon diseisin for the recovery of any estate or freehold, that the tenant shall be entitled, in case of judgment against him, to compensation for the value of buildings or improvements made by him, or those under whom he claims, provided he, or those under whom he claims, had been in possession for six

1 See Lamar v. Minter, 13 Ala. 31.

1 See Strong v. Hunt, 20 Vermont, 614. Whitney v. Richardson, 31 Vermont, 300.

tive, and extended to past improvements made before it was passed, it has been adjudged in the Circuit Court of the United

years before suit brought, or for a less time, if he held them under a title which he had season to believe good. The amount is to be assessed by the jury on suggestion on record of the claim. The amount allowed may be set off against the rents and profits. The demandant may also require to have the value of the land, without the improvements, ascertained, and he may relinquish the land on being paid the price, and which the tenant must pay, or lose the value of his improvements. In Maine, it is held that betterments are not an interest in land, within the statute of frauds, and they pass by a parol assignment. Lombard v. Ruggles, 9 Greenl. 62. The statute law of the several states, allowing the bonâ fide occupants entering, under the idea that they had purchased a title in fee, confines the claim to the value of the increase of the land by reason of the improvements made. The statutes of Ohio, under the occupying claimant law, allow a defendant possessing lands under claim of title, as well for his improvements made before his title commenced as for those made after. Lessee of Davis v. Powell, 13 Ohio, 308. The statute of Virginia of 1832 is confined to the case of lands lying west of the Alleghany Mountains, and it is confined to the bonâ fide occupants of land under government grants. So, the claim on the part of the defendant to have the improvements assessed, and paid before execution issues, on recovery in ejectment, is confined, in Alabama, to defendants deriving title under the United States or a Spanish grant. Toulmin's Dig. 1823, p. 470. In Tennessee they continue to adhere to the sterner English rule; and, in the case of Nelson v. Allen and Harris, (1 Yerger, 360,) it was held that a statute of 1813, giving to the defendant in ejectment, as against the rightful owner, the value of improvements made upon the land, was unconstitutional and void. But it was admitted, that upon a bill in equity for mesne profits, after a judgment in ejectment, the defendant might avail himself of a bonâ fide possession, and limit the account to the commencement of the suit, provided he was ignorant of all the facts and circumstances relating to his adversary's title. See the provisions of the Act of 1813, Statute Laws of Tennessee, 1836, pp. 267, 381; and see the Acts of 1797 and 1805, giving to the bonâ fide possessor, under color of title, and duly evicted by better title, a right to recover the value of his improvements. Statute Laws of Tennessee, p. 380. On the other hand, the commissioners appointed to revise the civil code of Pennsylvania, in their Report in January, 1835, proposed, that on a recovery in ejectment of lands against a defendant, who entered and held and improved the same under color of title and with good faith, he might suggest upon record, in the nature of a bill in equity, his claim to allowance for his improvements; and if the court should deem the facts alleged sufficient in equity to entitle him to the relief sought, they should have power to afford and

* See Baggot v. Fleming, 10 Cush. 451.

3 In Humphreys v. Holtsinger, 3 Sneed, 228, the Supreme Court of Tennessee held that the vendee, in a conditional sale of land which the vendor afterwards annulled, might be allowed in equity, the value of improvements made in the mean time. See, also, Pope v. Henry, 24 Vermont, 560. In Iowa, improvements are allowed to be set off against damages; but nothing can be allowed for them where the plaintiff waives all claim to damages. Daniels v. Bates, 2 Greene (Iowa,) 151. Wright v. Stevens, 3 Iowa, 63. Iowa R. S. 526. See further on the subject of betterments, Wendell v. Moulton, 6 Foster, 41. Flanders v. Davis, 19 N. Hamp. 149. Drew v. Towle, 10 Foster, 531. Remick v. Butterfield, 11 Foster, 70. Thomas v. Thomas, 16 B. Mon. (Ky.) 420. Pratt v. Churchill, 42 Maine, 471. Lawrence v. Grout, 12 La. Ann. 835. Ford v. Holton, 5 Cal. 319.