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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 possession 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; Hibbs 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

Opinion of the Court.

owner of the latter. The trespasser can acquire no rights by his tortious acts.

The Circuit Court was not dealing with an action of ejectment or trespass, but simply with a proceeding in the exercise of the right of eminent domain. That right is the offspring of politi-, cal necessity, and is inseparable from sovereignty unless denied to it by its fundamental law. It cannot be exercised except upon condition that just compensation shall be made to the owner, and it is the duty of the State, in the conduct of the inquest by which the compensation is ascertained, to see that it is just, not merely to the individual whose property is taken, but to the public which is to pay for it. Garrison v. New York, 21 Wall. 196, 204; Kohl v. United States, 91 U. S. 367, 371. The occupancy here was in no respect for a private purpose or pecuniary gain, but strictly and wholly for the public use. There could be no presumption that this public agent intended to confer public property upon a private individual, nor were the circumstances such as to impart the character of wilful trespass to the entry by the district, or impose liability to the forfeiture of improvements made in discharge of its public duty.

It is among the agreed facts in the case that the premises appropriated were necessary for the schools and were taken for that public use; that though the district had knowledge of the issuing of a patent covering the property, yet it purchased the adverse title of the party then in possession, believing it to be better than the patent title, and upon the advice of reputable counsel, who had, on investigation, reported against the validity of the patent and in favor of the validity of the title purchased, and paid thirty-five hundred dollars, which was five hundred dollars more than the actual value, without the building, was admitted to be when the trial took place; and that, notwithstanding notice that it was proceeding at its peril, it erected the building in reliance upon such belief that it had the better title. The only legitimate inference from these facts is that the district acted throughout in good faith, as the opposite of fraud and bad faith, and, although it may have been wholly mistaken, the intention guided the

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