Statement of the Case.

squatter title and against the validity of the United States patent; that, believing said so-called squatter title to be better than the title conveyed by United States patent, petitioner purchased the same; that after said purchase petitioner subscribed to the funds of an association organized for the purpose of endeavoring to defeat said patent title.

"Eleventh. That prior to the commencement of and during the erection of the school building now standing on the land sought to be condemned, the board of school directors of petitioner was notified on behalf of respondent, who at that time owned an equitable interest in the said property, and on behalf of respondent's grantors, that any building said school district might erect on said lots would be erected at the peril of the said school district, and would be claimed, when completed, by said respondent and his grantor; but the said school district, having purchased the said lots of the squatters in possession as aforesaid and believing that it had the better title thereto, proceeded, notwithstanding such notice, and made and erected said improvements as aforesaid.

"And in view of the statute, (Dawson's Colorado Code, p. 80, sec. 253,) and for the purpose of putting as speedy an end to contention as possible, it is further stipulated that the foregoing values may be taken as the actual values at the time of the trial of this suit, and that the property sought to be condemned is for public use, and within the meaning of the law is necessary for the school district.

"Twelfth. That R. S. Searl is now, and was at the time of the commencement of these proceedings, a citizen and resident of the State of Kansas."

The bill of exceptions also stated that "the said defendant, R. S. Searl, introduced further evidence tending to show that he became the legal owner of the premises on the 2d day of February, 1884, and commenced his action of ejectment on the 24th of March, 1884, which was at issue and set for trial in this court on the 11th day of June, 1884; that petitioner filed bill for injunction and obtained writ of injunction restraining trial of ejectment suit on the 7th of June, 1884, and commenced these proceedings on the 9th of June, 1884."

Argument for Plaintiff in Error.

The defendant requested the court to give to the jury a number of instructions, which are omitted in view of the grounds of decision here.

The court refused these instructions and charged the jury generally, and instructed them that the form of their verdict should be as follows: "We, the jury, find, first, that the accurate description of the property sought to be condemned in this action is lots 812, 814, 816, 818, and the north 13.6 feet, and the east 35 feet of lot 810, North Poplar Street, and lots 211 and 213 East 9th Street, in Cooper's subdivision of the surface of the Sizer placer, U. S. survey No. 388, situate in the county of Lake and State of Colorado, together with the improvements thereon. Second, That the value of said property at this date is $3000."

To the giving of this instruction, and to the refusal to give those prayed by the defendant, the defendant by his counsel then and there excepted. The jury thereupon returned a verdict in the sum of three thousand dollars, and judgment was rendered thereon that the petitioner upon "the payment of the amount of the said verdict to the said respondent or the deposit of the said amount in this court within thirty days hereafter, shall be, and it hereby is, invested with the fee in and to said premises. And it appearing that the said petitioner is in possession, it is further considered by the court that upon the payment or deposit of the said sum of money within the time aforesaid [said petitioner shall] retain posses. sion of and hold the premises aforesaid, with all the rights and interests thereto belonging and appertaining."

To review this judgment a writ of error was sued out from this court.

Mr. Samuel P. Rose and Mr. Frank W. Owers for plaintiff in error.

The common law always gave the buildings erected by a trespasser with full knowledge of the condition of the title to the land on which he built to the legal owner of that land. The weight of authority in condemnation suits follows the

Argument for Plaintiff in Error.

common law. United States v. Tract of Land, 47 California, 515; Graham v. Connersville Railroad, 36 Indiana, 463; N. Y. & West Shore Railroad v. Gennet, 37 Hun, 317; Meriam v. Brown, 128 Mass. 391; Dietrich v. Murdock, 42 Missouri, 279; Ilibbs v. Chicago &c. Railroad, 39 Iowa, 340; Farrar v. Stackpole, 6 Maine (6 Greenl.) 154; S. C. 19 Am. Dec. 201.

In the case of United States v. Tract of Land, 47 California, 515, the United States entered upon property claimed by one "Jack" under an unconfirmed Mexican grant and against his protest erected a light-house thereon. The grant was subsequently confirmed and thereupon the United States proceeded to condemn the property and sought to pay only the value of the land. The Supreme Court of California held that the value of the buildings, being part of the realty, as well as the value of the land, must be paid. The case at bar is infinitely stronger than the light-house case. In that case Jack's title was unconfirmed, and the United States was, at the time of entry, endowed with the power to condemn. In the case at bar the title of plaintiff in error was evidenced by a patent, regular upon its face, and defendant in error was not empowered to condemn.

The case of Graham v. Connersville Railroad, 36 Indiana, 463, is precisely like the light-house case. In the last case the railroad company, having at the time the right to condemn, and knowing the condition of the title, entered upon Graham's land, against his protest, and built upon it a hotel and depot. In subsequent proceedings to condemn, the railroad company was compelled to pay the value of the hotel and depot. The other cases cited are to the same effect.

The section of the constitution of Colorado relating to the taking of private property for public use is practically word for word identical with the relative section in the constitution of Missouri. Were it not so, the Federal Constitution and that of each of the States mentioned guarantees "that no person shall be deprived of life, liberty or property without due process of law." It is evident that plaintiff in error has been deprived of his property rights without due process of law, and that he is still divested of those rights by defendant in

Opinion of the Court.

error without even an attempt on its part to comply with the requirements of the statute law.

The certainty of compensation is the primary requisite to the appropriation of lands for public use under the right of eminent domain. Potter's Dwarris on Statutes 390; Cooley's Const. Lim. 699.

That compensation must be not only certain but provided for prior to or pending the proceedings, see 2 Kent Com. 339; Bloodgood v. Mohawk & Hudson Railroad, 18 Wend. 17; S. C. 31 Am. Dec. 313; Bonaparte v. Camden & Amboy Railroad, 1 Baldwin C. C. 205; Garrison v. City of New York, 21 Wall. 196, 204; Potter's Dwarris Statutes 387-392.

The statutes of Colorado provide either for payment before the taking possession, or in case of disagreement between the owner and the condemning party, for a deposit in court "pending the ascertainment of damages." No payment was made in this case, and no attempt was made to deposit in court an amount which would indemnify plaintiff in error.

Mr. C. S. Thomas for defendant in error.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

Upon the conceded facts, unless the plaintiff in error was entitled to be compensated for the school-house in question, the instruction limiting the recovery to three thousand dollars was correct, and the judgment must be affirmed.

The constitution of the State of Colorado provides "that no person shall be deprived of life, liberty or property, without due process of law;" and "that private property shall not be taken or damaged, for public or private use, without just compensation." Art. II. §§ 25, 15, Gen. Stat. Col. 1883, 34, 35; 1 Charters and Constitutions, 221, 222.

Did the just compensation thus secured to the owner of property taken in the exercise of the power of eminent domain, include in this instance payment to the plaintiff in error for the improvements made by the school district in order to carry

Opinion of the Court.

out the specific use and purpose for which the land was required? Could plaintiff in error properly insist that the loss of the school-house was an injury which he sustained by reason of the taking?

The argument is that the moment the school-house was completed it belonged to the owner of the land by operation of law, and therefore that he was entitled to be recompensed for it upon condemnation. The maxim quicquid plantatur solo, solo cedit, is not of universal application. Structures for the purposes of trade or manufacture, and not intended to become irrevocably part of the realty, are not within the rule, Van Ness v. Pacard, 2 Pet. 137; nor is it applicable where they are erected under agreement or by consent, the presumption not arising that the builder intended to transfer his own improvements to the owner. And courts of equity, in accord with the principles of the civil law, when their aid is sought by the real owner, compel him to make allowance for permanent improvements made bona fide by a party lawfully in possession under a defective title. Story Eq. Jur. § 1237.

The civil law recognized the principle of reimbursing to the bona fide possessor the expense of his improvements if he was removed from his possession by the legal owner, by allowing him the increase in the value of the land created thereby. And the betterment laws of the several states proceed upon that equitable view. The right of recovery, where the occupant in good faith believes himself to be the owner, is declared to stand upon a principle of natural justice and equity, and such laws are held not to be unconstitutional as impairing vested rights, since they adjust the equities of the parties as nearly as possible according to natural justice; and in its application as a shield of protection, the term "vested rights" is not used in any narrow sense, but as implying a vested interest of which the individual cannot be deprived arbitrarily without injustice. The general welfare and public policy must be regarded, and the equal and impartial protection of the interests of all. Cooley Cons. Lim. *356, *386.

But if the entry upon land is a naked trespass, buildings permanently attached to the soil become the property of the

VOL. CXXXIII-36