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given ; and the proceedings of the judges were reversed for the want of such a notice. The case illustrates the difference between the general highway law and the system provided for Long Island in this respect. ... The difference between the cases is, that the Revised Statutes provide for giving the notice, the want of which is here objected to, and the Long Island Act does not. The judgment of the Supreme Court must be affirmed. All the judges concurring,

Judgment affirmed.

FAIRCHILD ET AL. 1. CITY OF ST. PAUL.
SUPREME COURT OF MINNESOTA, 1891.

[46 Minn. 540.] APPEAL by plaintiffs, H. S. Fairchild and Greenleaf Clark, from a judgment of the District Court for Ramsey County, where the action (brought to recover $33,634.50 for quarrying and removing stone from plaintiff's premises and for other trespasses thereon) was tried by KELLY, J.

C. H. Benedict and S. Duffield Mitchell, for appellants. Daniel W. Lawler and Herman W. Phillips, for respondent.

MITCHELL, J. This was an action to recover damages for certain alleged acts of trespass in removing stone from the premises of the plaintiffs. The defendant justified the acts on the ground that it had acquired a title to the land for the purposes of a public street. The case was tried upon the theory that its decision depended on the question whether or not the city of St. Paul had acquired a title in fee, and by stipulation it was agreed that the court should determine two questions, viz.: First, had the defendant the power and right to condemn the fee of land for street purposes? and, if so, second, had the defendant duly condemned, for such purposes, the fee of the land in question?

1. The main contention of the plaintiffs upon the argument was, to use their own language, “ that the public exigencies do not demand the taking and condemnation of the absolute fee-simple title to land for the purpose of highways and streets; that the public wants are supplied by the enjoyment of an easement; and that any act of the legislature which assumes and attempts to authorize a municipality to take and condemn the absolute fee-simple title to land for such purposes

is unconstitutional and void.” More briefly stated, the proposition is that the legislature cannot authorize the taking of any greater estate in land for public use than is necessary; that an estate in fee is not necessary for the purposes of a street; therefore the legislature cannot authorize the taking of such an estate for such purposes.

While we 1 Compare, as regards taxation, Spencer v. Merchant, 125 U. S. 345 ; s. c. ante, 617 - ED.

have given the question the careful examination due to the elaborate brief and very earnest argument of the learned counsel, yet it has never seemed to us that there was anything in his contention. In this case it must be conceded that the legislature, if it had the power to do so, has given the city of St. Paul authority to condemn an estate in fee for street purposes; the language of the charter being : 6. In all cases the land taken and condemned in the manner aforesaid (for streets) shall be vested absolutely in the city of St. Paul in fee-simple.” Mun. Code 1884, § 153 (Sp. Laws 1874, p. 59, § 17). There is nothing better, settled than that, the power of eminent domain being an incident of sovereignty, the time, manner, and occasion of its exercise are wbolly in the control and discretion of the legislature, except as restrained by the Constitution. It rests in the wisdom of the legislature to determine when and in what manner the public necessities require its exercise ; and with the reasonableness of the exercise of that discretion the courts will not interfere. Wilkin v. First Div., etc., R. Co, 16 Minn. 244 (271); Weir v. St. Paul, S. & T. F. R. Co., 18 Minn. 139 (155). As the legislature is the sole judge of the public necessity which requires or renders expedient the exercise of the power of eminent domain, so it is the exclusive judge of the amount of land, and of the estate in land, which the public end to be subserved requires shall be taken. The only limitation at least, the only one applicable to a case like the present which the Constitution imposes upon the exercise of the right of eminent domain by the legislature is that private property shall not be taken for public use without just compensation therefor first paid or secured. Of course, there is the further limitation, necessarily implied, that the use shall be a public one ; upon which question the determination of the legislature is not conclusive upon the courts. But, when the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. Consequently, if in the legislative judgment it is expedient to do so, it has the power expressly to authorize a municipal corporation compulsorily to acquire the absolute fee-simple to lands of private persons condemned for street or any other public purpose. The authorities are so numerous and uniform to this effect that an extended citation of them is unnecessary. See, however, Dill. Mun. Corp. § 589; Cooley, Const. Lim. 688; Lewis, Em. Dom. 277; Elliott, Roads & S. 172; Mills, Em. Dom. $$ 50, 51; Boom Co. v. Patterson, 98 U. S. 403, 406; Sweet v. Buffalo, etc., Ry. Co., 79 N. Y. 293, 299.

It is often laid down as the law that the taking of property must always be limited to the necessity of the case, and, consequently, no more can be appropriated in any instance than is needed for the particular use for which the appropriation is made. But it will be found that this is almost invariably said, not in discussing the extent of the power of the legislature, but with reference to the construction of statutes granting authority to exercise the right of eminent domain, and where the authority to take a certain quantity of land or a particular

estate therein depended, not upon an express grant of power to do so, but upon the existence of an alleged necessity, from which the disputed power is to be implied. This distinction is clearly brought out by Justice Cornell in Milwaukee & St. Paul Ry. Co. v. City of Furibault, 23 Minn. 167. Upon the principle that statutes conferring compulsory powers to take private property are to be strictly construed, it follows that, when the estate or interest to be taken is not defined by the legislature, only such an estate or interest can be taken as is necessary to accomplish the purpose in view, and, when an easement is sufficient, no greater estate can be taken. It is on this principle that where the legislature has authorized the taking of land for the purposes of streets, without defining the estate that may be taken, or expressly authorizing the taking of the fee, it is held that only an easement can be taken. This is construed, under such statutes, to be the extent of the grant of authority; but no well-considered case can be found which holds that the legislature might not authorize the taking of the fee, if it deemed it expedient.

It is perhaps foreign to the present inquiry to consider the nature and extent of the title which the city of St. Paul acquires in land condemned for street purposes. But, notwithstanding the broad language used in the city charter, we think that it must be construed as only a qualified or terminable fee, - that is, the fee-simple for street purposes,

- which gives the city absolute control over the land for those purposes, but that its title is not a proprietary, but what might be termed a sovereign or prerogative, one, which it, as an agency of the State, holds in trust for the public for street purposes, and which it can neither sell nor devote to a private use.

Judgment affirmed.

IN Stubbings v. Evanston, 134 Ill. 37, 41 (1891), in sustaining a ruling that where a part of premises under lease were taken, “ the tenant remains bound to pay rent for the whole, according to the terms of the lease,” the court (CRAIG, J.) said :

The general rule no doubt is, that eviction of the lessee from the premises by a paramount title will discharge him from the payment of any rent which may fall due, by the terms and conditions of the lease, after eviction. But where a part of leased premises may be taken un- ? der the power of eminent domain, can such a taking be regarded as an eviction? Washburn (1 Real Prop. p. 342), in speaking on this subject, says : “ It has sometimes been attempted to apply the principle of eviction from a part of the premises, where lands under lease have been appropriated to public use under the exercise of eminent domain. ... But the better rule, and one believed to be adopted in most of the States, is, that such a taking operates, so far as the lessee is concerned, upon his interest as property, for which the public are to make him compensation, and does not affect his liability to pay rent for the entire estate, according to the terms of his lease, and this extends to ground rent. Such taking does not abate any part of the rent due.”

1 And so Dingley v. Boston, 100 Mass. 544. – ED.

Parks v. City of Boston, 15 Pick. 198, is an interesting case on the question. It was there held : “Where part of a lot of land under lease is taken by the mayor and aldermen of Boston, for the purpose of widening a street, the lease is not thereby extinguished, nor is the lessee discharged from bis liability to pay the reserved rent during the residue of the term, but the lessor and lessee are each entitled to recover compensation for the damage so sustained by them, respectively.” The same principle was announced in an earlier case, Ellis r. Welch, 6 Mass. 246, and in a later case, Patterson v. City of Boston, 20 Pick. 159.

In Foote v. City of Cincinnati, 11 Ohio, 408, where the leased premises had been appropriated for a street, the Supreme Court held that the lessee was not relieved from the payment of rent, but he was entitled to recover from the city for the damages sustained. See, also, the following cases, where the same principle is announced : Workman v. Mifflin, 30 Pa. St. 362; Frost v. Ernest, 4 Whart. 86; Garrity v. City of Chicago, 7 Bradw. 474.

Under the authorities it seems that a tenant, where a portion of the leased premises is taken, under the power of eminent domain, for the use of the public, cannot, as against his landlord, claim an eviction, and be released from the payment of rent; and as his liability for the payment of rent continues after a part of his term has been taken by the public and appropriated to public use, he would be entitled to recover such damages as he sustained by the taking of his leased property by the public. In other words, the lessee takes and holds his term in the same manner as any other owner of real property holds his title, subject to the right of the public to take a part or the whole of it for public use, at such time as the public necessity may require, upon the payment of just compensation.

In a proceeding to condemn lands for a public purpose, it is not some particular interest which the public seek to take, but the land itself. If A has one estate in the land and B another, in the proceeding to condemn each is entitled to compensation for the land taken, as his interest may appear in the property; and, as said before, if one has a leasehold interest, he may recover damages for such interest and still be held liable for the payment of rent, as that liability existed be fore the leasehold interest was taken for public use. A different rule has been adopted in some States, particularly in Missouri. Biddle v. Hussman, 23 Mo. 597; Barclay v. Pickles, 38 Id. 143. In those cases it was held, that as to the part of the leased premises appropriated to public use the rent was extinguished, and no liability existed against the lessee for such rents. But we think that the weight of authority is the other way, and we are not disposed to adopt a rule of that character. 1

1 “But upon what principle can it be maintained, that a lessee under such circum. stances would be exempted from the payment of the stipulated rent? The lessee takes his term, just as every other owner of real estate takes title, subject to the right and power of the public to take it, or a part of it, for public use, whenever the public

THE BOSTON WATER POWER COMPANY v. THE BOSTON

AND WORCESTER RAILROAD CORPORATION ET AL.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1840.

[23 Pick. 360.) Bill in equity, filed in March, 1833, containing the following allegations.

By St. 1814, c. 39, divers persons were incorporated by the name of the Boston and Roxbury Mill Corporation, and by that statute and those of 1816, c. 40, 1819, c. 65, and 1822, c. 34, the corporation was authorized to purchase and hold real and personal estate; to build a dam from Charles Street, at the westerly end of Beacon Street, in Boston, westerly to Sewall's Point, in Brookline, so as to exclude the tide-water on the northerly side of the dam and form on the southerly side a reservoir or receiving basin of the space between the dam and Boston Neck ; to build another dam from Gravelly Point, in Roxbury, to the dam first mentioned, so as to enclose the tide-water within TideMill Creek, on the westerly side of this cross dam ; to cut any number of convenient raceways from the full basin to the receiving basin; to maintain and keep up all their works forever; and to lease or sell the right of using the water, upon any terins and in any manner they might think proper; and it was provided, that no other person should have a right to dispose of the water, without the consent of the corporation. The corporation was authorized to make over the main dam first men-, tioned a good and substantial road, and to receive toll for passing over it. Certain duties and obligations in favor of the public, set forth at large in the bill, were imposed upon the corporation, and certain penalties and forfeitures created to secure the performance of its undertakings. These Acts were accepted by the corporation, whereby

necessity and convenience may require it. Such a right is no incumbrance; such a taking is no breach of the covenant of the lessor for quiet enjoyment.

“ The lessee then holds and enjoys exactly what was granted him, as a consideration for the reserved rent; which is, the whole use and beneficial enjoyment of the estate leased, subject to the sovereign right of eminent domain on the part of the public. If he has suffered any loss or diminution in the actual enjoyment of this use, it is not by the act or sufferance of the landlord ; but it is by the act of the public, against whom the law has provided him an ample remedy. If he is compelled to pay the full com. pensation, for the estate actually diminished in value, this is an element in computing the compensation which he is to receive from the public. In this view it becomes un. important, in settling the principle we are now discussing, whether the taking for public use diminishes the leased premises, little or much, in quantity or in value; all this will be taken into consideration in assessing the damages which the lessee may sustain." Shaw, C. J., for the court, in Parks v. Boston, 15 Pick 198, 205 (1834). Compare Scoville v. McMahon, 62 Conn. 378. – Ed.

1 For a plan of this part of Boston, which elucidates these statements, see 7 Pick at p. 388. -Ed.

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