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the possession, and vested a new right in the occupant, upon considerations altogether past and gone." The sta
te 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 improve ments, and the real owner is allowed the mesne profits as in this state. The justice of that statute has been ably vindicated in the case of Withington v. Corey, 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 fidei posessor 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. It is not the amount of the expenses strictly so considered, but only the amount so far as it has augmented the property in value, that the claimant ought, in equity, to refund. But there are difficulties in the execution of this rule. The expense may have been very costly, and beyond the ability of the claimant to refund, 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 al lowed 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. In many, and indeed in most cases, that mode of relief would be impracticable; and Pothier 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. There are embarrassments and difficulties in
a Society for the Propagation of the Gospel v. Wheeler, 2 Gall. Rep. 105.
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 recognised 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 wild and unsettled lands in a new country, and where the occupant was not liable to any imputation of negligence or dishonesty. The titles to land, in many cases, had 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. 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 fidei possession of land, unless he entered and improved, in a case, which appeared to him, after diligent and faithful inquiry, to be from suspicion. There is no moral obligation, which should compel a man to pay for improvements upon his own land, which he never autho rized, and which originated in a tort.
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 pri
vate enclosure." So, it is lawful to raze houses to the ground to prevent the spreading of a conflagration. These are cases of urgent necessity; but private property must, in many other instances, yield to the general interest. The right of eminent domain, or inherent sovereign power, it is admitted by all publicists, gives to the legislature the control of private property for public uses, and for public uses only. Roads may be cut through the cultivated lands of individuals without their consent, provided it 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. So, lands adjoining the canals which have been recently made in this state, 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 damages. In these, and other instances which might be enumerated, the interest of the public is deemed paramount to that of any private individual; and yet, even here, the constitutions of the United States, and of this state, and of most of the other states of the Union, have imposed a great and valuable check upon the exercise of legislative power, by declaring, that private property should not be taken for public use without just compensation. A provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the lawgiver to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence, is founded in natu
a Absor v. French, 2 Show. 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 745.
b Dyer, 36. b. 1Dallas' Rep. 363.
c. Laws of N. Y. sess. 36. ch. 33.
ral equity, and is laid down by jurists as an acknowledged principle of universal law.a
It undoubtedly must rest in the wisdom of the legislature to determine when public uses require the assumption of private property, and if they should take it for a purposenot of a public nature, as if the legislature should take the property of A., and give it to B., the law would be unconstitutional and void. Real property, and the rights and privileges of private corporate bodies, are all held by grant or charter from government; and it would be a violation of contract, and repugnant to the constitution of the United States, to interfere with private property, except under the limitations which have been mentioned.
But though property be thus protected, it is still to be understood, that the lawgiver has a right to prescribe the mode and manner of using it, so far as may be necessary to prevent the abuse of the right, to the injury or annoyance of others, or of the public. The government may, by general regulations, interdict such uses of property as would create nuisances, and become dangerous to the lives, Unwholeor health, or peace, or comfort of the citizens. some trades, slaughter houses, operations offensive to the senses, the deposit of powder, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbours, and that private interest must be made subservient to the general interest of the community.
a Crolius De Jure B. & P. b. 3. c. 19. s. 7.-c. 20. s. 7. Puff De Jure Nat. et Gent. b 8.c. 5. s. 3. and 7. Bynk. Q. J. Pub. b. 2. ch 15, Vattel, b. 1. ch. 20. s. 246, 255. Cowp. 269. Willes' Rep. 288. The Corporation of New
b Puff b. 8. ch. 5. s. 3. Gom. Dig. tit. By-law, C.
York v. Coates, decided by Judge Irving, October, 1824.
OF THE NATURE AND VARIOUS KINDS OF PERSONAL
PERSONAL property consists of things temporary and moveable, and includes all subjects of property not of a freehold nature, nor descendible to the heirs at law.
The division of property into real and personal, or moveable and immoveable, is too obvious not to have existed in every system of municipal law. Except, however, in the term of prescription, the civil law scarcely made any difference in the regulation of real and personal property. But the jurisprudence of the middle ages was almost entirely occupied with the government of real estates, which were the great source of political power, and the foundation of feudal grandeur. In consequence of this policy, a technical and very artificial system was erected, upon which the several gradations of title to land depended. Chattels were rarely an object of notice, either in the treatises or reports of the times, prior to the reign of Henry VI. They continued in a state of insignificance until the revival of trade and manufactures, the decline of the feudal tenures, and the increase of industry, wealth, and refinement, had contributed to fix the affections upon personal property, and to render the acquisition of it an object of growing solicitude. It became, of course, a subject of interesting discussion in the courts of juctice; and being less complicated in its tenure, and rising under the
a Reeve's Hist. of the English Law, vol. iii. p. 15. 369.