statute in New Hampshire was retrospective, and extended to past improvements made before it was passed, it has been ad

Ohio R. 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 bona 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 bona 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 bona 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 enforce it, and provision is made for the case. The Revised Statutes of Illinois, edit. 1833, p. 416, and of Indiana, 1838, p. 261, exempt the person evicted from land to which his record title appeared plain, from any action for mesne profits prior to notice of adverse claims, and they allow him, on eviction, for lasting and valuable improvements made before due notice, first deducting damages (if any) for waste, &c. See Jones v. Jones, 4 Gill, R. 87. Held, in Ohio, that where an agent, without sufficient power, sold land, his vendee cannot claim compensation for improvements. Reynolds v. Cordery, 4 McLean, 159. In Georgia, a vendee legally evicted may recover in equity the value of his improvements. Bryant v. Hambrick, 9 Geo. R. 133. The claim of a subvendee for the value of his improvements is superior to that of the vendee for repayment of the purchase-money. Madeira v. Hopkins, 12 B. Monroe R. 595.

To constitute a person occupant of lands so as to entitle him to the notice prescribed by law, on sales for taxes, he must hold the land with intention to enjoy it. Smith v. Sanger, 4 Comst. R. 576.

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 Vt. 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. Iowa R. S. 526. See further on the subject of Betterments, Wendell v. Moulton, 6 Fost. 41. Flanders v. Davis, 19 N. H. 149. Drew v. Towle, 10 Tost. 531. Remick v. Butterfield, 11 Fost. 70.

judged, in the circuit court of the United States for the district of New Hampshire, to be unconstitutional, inasmuch as it divested the real owner of a vested title to the possession, and vested a new right in the occupant, upon considerations altogether past and gone. (a) The statute in New Hampshire applied only to cases of a bona fide possession of more than six years' standing, and only to the increased value of the land by means of the improvements; and the real owner is allowed the mesne profits. The justice of that statute has been ably vindicated in the case of Withington v. Corey, (b) in cases not within the reach of the decision in the circuit court of the United States.

The rule of the civil law was, that the bona fide possessor was entitled to be reimbursed, by way of indemnity, the expenses of beneficial improvements, so far as they augmented the property in value; and the rule was founded on the principle of equity, that nemo debet locupletari aliena jactura. (c) It is not the amount of the expenses, strictly so considered, but only the amount so far as they augmented the property in value, that the claimant ought, in equity, to refund. But there are difficulties in the execution of this rule. The expenses may have been

very costly, and beyond the ability of the claimant to re* 337 fund, and he may have a *just affection for the property, and it might have answered all his wants and means in its original state without the improvements. The Roman law allowed the judge to modify the rule, according to circumstances, and permitted the occupant to withdraw from the land the materials by which it was improved. (d) In many, and indeed in most cases, that mode of relief would be impracticable; and Pothier (e) proposes to reconcile the interests of the several parties by allowing the owner to take possession, upon condition that the repayment of those expenditures, by instalments, should remain a charge upon the land. (f) There are embarrassments

(a) Society for the Propagation of the Gospel v. Wheeler, 2 Gall. Rep. 105. (b) 2 N. Hamp. Rep. 115.

(c) Dig. 6, 1, 48, 65. Inst. 2, 1, 30, 32. Dig. 50, 17, 206. Grotius, b. 2, ch. 10, sec. 1, 2, 3. Puff. b. 4, c. 7, sec. 6. Bell's Com. p. 139, sec. 538.

(d) Dig. 6, 1, 38.

(e) Traité du Droit de Propriété, No. 347.

(f) The rule in the Roman law, allowing to the bona fide possessor of land compensation for his beneficial repairs and meliorations expended upon his estate, as against the

and difficulties in every view of this subject; and the several state laws to which I have alluded, do not indulge in any of these refinements. They require the value of the improvements to be assessed, and, at all events, to be paid; and they are strictly encroachments upon the rights of property, as known and recognized by the common law of the land. There were, however, peculiar and pressing circumstances which were addressed to the equity of the lawgiver, and led to the passage of those statutes in reference to waste and uncultivated lands in a new country, and where the occupant was not liable to any imputation of negligence or dishonesty. The titles to such lands had, in many cases, become exceedingly obscure and difficult to be ascertained, by reason of conflicting locations, and a course of fraudulent and desperate speculation; and it is impossible not to perceive and feel the strong equity of those provisions. But in the ordinary state of things, and in a cultivated country, such indulgences are unnecessary and pernicious, and invite to careless intrusions upon the property of others. *338 There are but very few cases in which a person may not, with reasonable diligence and cautious inquiry, discover whether a title be clear or clouded; and caveat emptor is a maxim of the common law which is exceedingly conducive to the security of right and title. No man ought to be entitled to these extraordinary benefits of a bona fide possession of land, unless he entered and improved, in a case which appeared to him, after diligent and faithful inquiry, to be free from suspicion. There is no moral obligation which should compel a man to pay for improvements upon his own land, which he never authorized, and which originated in a tort. (a) The provisions of the Napoleon Code on this subject have been adopted in Louisiana; but it has been decided, by the supreme court of that state, that a bona fide possessor ceases to be one, as soon as the defects in his title are made known to him. He is not necessarily in bad faith from the time a suit be commenced, for he still may have a confidence in the goodness of his title. (b)

rightful claimant, is very fully and learnedly discussed in the American Jurist and Law Magazine, No. 4, art. 9. (vol. ii.)

(a) 4 Peters's U. S. Rep. 101, S. P.

(b) In Louisiana the principle of compensation, according to the doctrine of the

But there are many cases in which the rights of property must be made subservient to the public welfare. The maxim of law is, that a private mischief is to be endured rather than a public inconvenience. On this ground rest the rights of public necessity. If a common highway be out of repair, a passenger may lawfully go through an adjoining private enclosure. (a) *339 So, it is lawful to raze houses to the ground to prevent the spreading of a conflagration. (b) These are cases of urgent necessity, in which no action lay at common law by the individual who sustained the injury; but private property must, in many other instances, yield to the general interest. (c) The

Roman law, has been adopted; and if the owner evicts a bona fide possessor, he has his election to pay the person evicted the value of the materials and workmanship employed in putting improvements on the property, or to reimburse him the enhanced value which they confer on it. Civil Code, art. 495; and until they are reimbursed, he has a right to retain the property. Id. 3416. Porter, J., in Daquin v. Coiron, 20 Martin's Louis. Rep. 609, 615-620 Packwood v. Richardson, 13 (1 N. S.) ibid. 405. It is stated in Pearce v. Frantum, 16 Louis. Rep. 423, that by the Spanish law of the Partida, the party evicted, whether he possessed in good or bad faith, was not bound to deliver up the premises to the owner until he was reimbursed for necessary repairs; and Merlin, (1 Répertoire de Jurisprudence verbo amélioration,) lays down the same as a settled rule. The Code Napoleon, art. 1633, declares, that if at the time of the eviction the property sold has risen in value, even without the buyer having contributed thereto, the seller is bound to pay him, not only the original price and the profits, but the amount of the value above the price of the sale, even though the event which had quadrupled the value was not and could not be foreseen. Touillier, title 3 des contrats, No. 285. This was also the law of Louisiana, under the code of 1808. Succession of Dunford, 11 Rob. Louis. Rep. 183.

(a) Absor v. French, 2 Show. Rep. 28. Young's case, 1 Lord Raym. 725. This principle does not apply to the case of a private way. The right is confined to public highways out of repair. Taylor v. Whitehead, Doug. Rep. 745. So, an entry upon another's land may be justified in cases of overruling necessity, or to recover property carried on another's ground by the force of the elements, without the owner's fault or power to prevent it. Choke, J., 6 Ed. IV. 7. Domat's Civil Law, b. 2, tit. 9, sec. 2, art. 3, 4. See infra, p. 568.

(b) Dyer's Rep. 36, b. 2 Bulst. 61, Arg., and several cases from the Year Books, there cited. Case of the King's Prerogative v. Saltpetre, 12 Co. 13. Mouse's case, 12 Coke, 63. 1 Dallas's Rep. 363, M'Kean, Ch. J. Buller, J., in Governor, &c. v. Meredith, 4 Term Rep. 797.

(c) In the city of New York, by statute, (2 R. L. 368,) in case a building be destroyed by order of the city magistracy, to stop a conflagration, the city must indemnify the owner, unless it be a case in which the building would have been inevitably destroyed by the fire if it had not been pulled down or blown up. Mayor of New York

1 Surocco v. Geary, 3 Cal. 69. American Print Works v. Lawrence, 1 Zabr. 248.

right of eminent domain, or inherent sovereign power, gives to the legislature the control of private property for public uses, and for public uses only. (a) Roads may be cut through the cultivated lands of individuals without their consent; but in New York, and generally in the other states, it must be done by town officers of their own appointment, upon the previous application of twelve freeholders; and the value of the lands and amount of the damages must be assessed by a jury, and paid to the owner. (b) So lands adjoining the New York canals were made liable to be assumed for the public use, so far as was necessary for the great object of the canals; and provision was made for compensation to the individuals injured, by the assessment and payment of the

v. Lord, 17 Wendell, 285. But the remedy of the owner is said to be limited to the amount of the assessment made according to the statute, and the corporation of New York is not liable to an action at common law for compensation for the loss of property so destroyed by order of the magistracy. Russell v. The Mayor of New York, 2 Denio, 461. The remedy under the act does not extend to allow a recovery in damages for merchandise in the building when destroyed, and being the property of a third person. Stone v. The Mayor, &c., of New York, 25 Wendell, 157.1

(a) Grotius, b. 1, ch. 1, sec. 6. Ibid. b. 2, ch. 14, sec. 7. Ibid. b. 3, ch. 19, sec. 7 ch. 20, sec. 7. Puff. b. 8, ch. 5, sec. 7. Bynk. Quæst. Jur. Pub. b. 2, c. 15. Vattel, b. 1, ch. 20, sec. 244. Esprit des Loix, tom. iii. 203. Gardner v. Village of Newburgh, 2 Johns. Ch. Rep. 162. Louisville C. & C. Railroad v. Chappell, 1 Rice's S. C. Rep. 383. Ce Domain Eminent, n'a lieu que dans une nécessité de l'état. Puff. par Barbeyrac, ibid. Biens publics qui appartiennent à l'état, qui doivent servir pour la conservation de l'état, s'appellent le Domain de l'Etat. Puff. ibid. sec. 8. Here the distinction is clearly marked between the eminent domain and the public domain, or domain of the state; and for the rights of the latter, as vested in the United States, see vol. i. 257. But M. Proudhon, in his Traité du Domain Public, makes a material subdivision of this second branch of domain, and applies the public domain to that kind of property which the government holds as mere trustees for the use of the public, such as public highways, navigable rivers, salt springs, &c., and which are not as of course, alienable; and the domain of the state, which applies only to things in which the state has the same absolute property as an individual would have in like cases. See the American Jurist, No. 37, p. 121, (vol. xix.)

(b) N. Y. Revised Statutes, vol. i. pp. 514, 515.

1 The right to destroy property in cases of extreme emergency, as to prevent the spread of a conflagration, is not the exercise of the right of eminent domain, nor the taking of it for public use; but is a right existing at common law, founded on the plea of necessity, and may be exercised by individuals. The American Print Works v. Lawrence, 1 Zabr. (N. J.) R. 248. But it was held by the Court of Errors that a statute authorizing the destruction of property by the municipal officers under such circumstances was not a regulation of the common-law right, but an act of eminent domain and consequently void