(c) To point out, settle, define, describe, with or without visible boundaries.1 (d) To determine by marks on the ground.2 (e) To note or enter upon a record.3 MARKET.-See note 4. MARKETABLE TITLE.-A marketable title in equity is one in which there is no doubt involved either as to matter of law or fact.5 MARKET OVERT.-An open or public market; a place appointed by law or custom for the sale of goods and chattels at stated times in public.6 In England, a sale of anything vendible in market overt is good as between the parties, and binding on all who have a property in the thing. The doctrine has never been recognized in the United States.8 1. Allen v. Smith, 12 N. J. L. 165. "Mark and Lay Out the Bounds and Rules," etc.-The legislature, in requiring the court of common pleas "mark and lay out the bounds and rules of the prison in their several counties," did not intend to use the word "mark" in a literal sense; they meant by it to point out, to settle, to define, to describe; and the bounds therefore may be sufficiently marked and laid out by course and distance, without fixing any visible marks or boundaries on the ground. Allen v. Smith, 7 Halst. (N. J.) 160. 2. As to mark a boundary line. Keller. Young, 78 Pa. St. 170. Where there is a conflict between the marks made on the ground and the draft of the survey, the line is to be determined by the marks. Keller v. Young, 78 Pa. St. 166. 3. As to mark for use. Indicate upon the record of a suit or judgment for whose benefit the same is maintained or exists. Anderson's Law Dict. 4. In Milliman v. Neher, 20 Barb. (N. Y.) 37, the words "market the crops" were held to be equivalent to "sell the crops." 5. Dalzell . Crawford, 1 Parsons' Sel. Cases in Eq. 45. It should be such as dealers in real estate, savings banks and trust companies would be willing to take and invest in. Vought v. Williams, 46 Hun (N. Y.) 638. See also SPECIFIC PERFORMANCE. 6. Bouv. Law Dict. 7. 2 Bla. Com. 449. Our ordinary markets bear no resemblance to market overt. The reason why a sale of stolen property, made in market overt, conveyed a title to the purchaser is understood to be that, as the market was held at stated intervals, in particular places, and known to the whole community, those who had lost property by theft or otherwise could be present and make known their loss; failing to do so, and as by the publicity of the transaction, every assurance was given to purchasers that the sale was honest and fair, it was but just the purchasers should be protected in the title thus acquired. Fawcett, Isham & Co. v. Osbourn, Adams & Co., 32 Ill. 426. 8. In Ventress v. Smith, 10 Pet. (U. S.) 175, it was said this doctrine of market overt, which controls and interferes with the application of the common law, has never been recognized in any of the United States, or received any judicial sanction. See also Easton v. Worthington, 5 S. & R. (Pa.) 130; Wheelwright . Depeyster, 1 Johns. (N.Y.) 480; Bryant v. Whitchen, 52 N. H. 158; Dame v. Baldwin, 8 Mass. 519; Roland 7. Gundy, 5 Ohio 202; Coombs 7. Gordon, 59 Me. III. Marketable Security.-By the stamp act 1870 (33 and 34 Vict., ch. 97, § 2), and the Customs and Inland Revenue act, 1888 (51 & 52 Vict.. ch. 8, § 13), a "marketable security" is defined as meaning "a security of such a description as to be capable of being sold in any stock market in the United Kingdom." Texas Land & Cattle Co. Lim. v. Commrs. of Inland Revenue, 16 Ct. of Sess. Cas. 69. I. Definition.—A market, in the general sense of the word, may be defined as a public place for the sale of commodities.1 1. Ketchum v. City of Buffalo, 14 N. Y. 356. It is a franchise or liberty derived from the crown and arising from the king's grant or prescription, which supposes an ancient grant to have a market. A market is a privilege within a town to have a market. Ketchum v. Buffalo, 21 Barb. (N. Y.) 294, 296; Caldwell v. Alton, 33 Ill. 419, 85 Am. Dec. 282. In Smith v. Newbern, 70 N. Car. 14, 16 Am. Rep. 766, the court declared a market to be a public place, appointed by local authorities, where all sorts of things necessary for the subsistence or for the convenience of life are sold. And in Caldwell v. Alton, 33 Ill. 416, 419, 85 Am. Dec. 282, it was described as a designated place in a town or city to which all persons can repair who wish to buy or sell articles there exposed for sale. In New Orleans v. Morris, 3 Woods (U. S.) 103, 107, markets were defined as places where comestibles, perishable in their nature, are sold for the daily consumption of the people, which, from the very nature of the things therein. sold, require sanitary regulations and thus fall within the police powers of cities. And it was accordingly held that a place known as a market bazaar, where articles other than perishable food products were exposed for sale, was not a market in such a sense as to be properly devoted to public use, and therefore exempt from execution under a judgment against the city. Blackstone defines a market to be a franchise derived from the crown by grant or prescription, which presumes a grant. 2 Black. Com. 37. In Cincinnati v. Buckingham, 10 Ohio 257, 261, the court declared the component parts of a municipal market to be, (1) a place for the sale of provisions and articles of daily consumption; (2) convenient fixtures; (3) a system of police regulations fixing market hours, making provisions for lighting, watching, cleaning, detecting false weights and unwholesome food, and other arrangements calculated to facilitate the intercourse and insure the honesty of buyer and seller; and (4) proper officers to preserve order and enforce obedience to rules. State v. Fernandez, 39 La. An. 538. A place remains a public market although the market building has been erected by private individuals under a contract with a municipal corporation by which the persons erecting the building are entitled to receive the rents of the stalls and other charges for a term of years, the building thereafter becoming the property of the city. Le Claire v. City of Davenport, 13 Iowa 210, overruling Davenport 7. Kelly, 7 Iowa 102. A market place does not necessarily or usually mean an uncovered space of ground dedicated to market purposes, but usually a market house. Smith v. City of Newbern, 70 N. Car. 14. See also Mayor etc. of Savannah v. Wilson, 49 Ga. 476. "All fairs are markets, but all markets are not fairs." Bracton 1, 2, C, 24; Co. Litt. 22; Crabb's Law of Real Property, § 679. Public Markets.-In State v. Fernandez, 39 La. An. 538, the court held, that when the legislature (Louisiana) removed or exempted public markets from the operation of the statute known as the "Sunday Law" (act 18 of 1886, Louisiana) they meant those public markets, wherever situated in the State, within the limits of which stores would not be kept, the like of which are required to be closed beyond those limits. "Market Garden."-A portion of a market garden. to the extent of one was covered in with glass by means of several greenhouses, under which fruit and flowers were cultivated for the market. Held, that the portion of the ground covered by glass was II. Right to Establish Markets. In some cases, the right to establish markets has been treated as a branch of the sovereign power.1 But in Pennsylvania the court declared that by the common law of that State every municipal corporation which is vested with power to make by-laws and establish ordinances in promotion of the public welfare, may fix the times and places of holding public markets for the sale of food, and make such other regulations concerning them as may conduce to the public interest. 2 III. Market Lands and Houses.-The power to establish a market implies authority to purchase the land necessary therefor and to erect the necessary buildings.3 And when the charter authorizes a city to "appoint market places and regulate the sale," an implied power exists to build a market house, a market house being reasonably necessary and conducive to the enjoyment of the market place.+ Where the owner of lands sought to be acquired for market purposes has petitioned for the appointment of commissioners to assess compensation, he will be estopped from attacking the validity of the order appointing the commissioners on the ground of the alleged unconstitutionality of the statute and noncompliance with the statutory conditions. And where the city, by an ordinance authorized by its charter, has provided for the issuance of bonds to furnish funds for building a market house, and by the none the less a "market garden" within the meaning of section 211 of the Public Health act, 1875 (38 & 39 Vict., ch. 55), and as such was only liable to be rated at one fourth of its net annual value. Purser . Worthing Local Board, 35 W. Rep. 519. 1. See First Municipality v. Cutting, 4 La. An. 336; Pierre Cougot v. New Orleans, 16 La. An. 21; Bowling Green 7. Carson, 10 Bush (Ky.) 64. 2. Wartman v. Philadelphia, 33 Pa. St 202. Farming Out Revenues.- Construction of a contract by which the city of New Orleans transferred to an individual the right to collect the revenues of the city accruing from the meat market, and ad missibility of evidence in an action for damages for a violation of the contract. Kaiser. New Orleans, 17 La. Ann. 178. 3. Ketchum v. Buffalo, 14 N. Y. 356, affirming 21 Barb. (N. Y.) 294; People v. Lowber, 28 Barb. (N. Y.) 65; Caldwell v. Alton, 33 Ill. 416; 85 Am. Dec. 282. But compare State v. Patterson, 34 N. J. L. 163. The power to purchase land for a public market is not affected by a limitation contained in the charter as to the yearly value of the real estate which the corporation may hold. People v. Lowber, 28 Barb. (N. Y.) 65; 7 Abb. Pr. (N. Y.) 158. Power of the city councils, after the passage of the consolidation act of February 2, 1854, to make contracts for the purchase of sites for market houses. Twitchell v. Philadelphia, 33 Pa. St. 212. Dedication for Market Purposes.-If a municipal corporation has acquired real estate in fee, the fact that it was purchased for the purpose of erecting a market house, and the further fact that the property was so used will not make it trust property for use only for market purposes, nor will the use of the property for market purposes for a period of forty years be sufficient to establish a dedication of the land to the public for market uses. Gall v. City of Cincinnati, 18 Ohio St. 563. 4. Smith 7. Newbern, 70 N. Car. 14; 16 Am. Rep. 766. In Wade v. Newbern, 77 N. Car. 460, it was held that when a city has power to build a market house, it has also authority to hire a building for market purposes. 5. In re Cooper's Application, 93 N. Y. 507; 2 Am. & Eng. Corp. Cas. 419. terms of the bonds the revenue of the market is appropriated to payment of the interest on the bonds and to the creation of a sinking fund for their redemption, the city cannot divert to other purposes the revenues derived from the market house.1 It has been held that a market house is not a locus publicus,2 and although destined to public use it would appear that it is not necessarily public property.3 Accordingly a market house may be owned jointly by a city and by a private individual, and at the suit of one of the parties thereto a partition sale may be decreed.4 In Iowa it has been held that a city may authorize an individual to erect a market building upon private property and lease stalls therein, and may treat such building as a public market, prohibiting sales at other places. A similar method of providing for the erection of public market houses seems to have existed in other places without having been called in question.6 IV. Markets in Streets-Nuisances.The erection of market buildings along the centre of a street is illegal and constitutes a nuisance, although the city causes space for the passage of vehicles to be left along the sides of the streets. And a municipal corporation may be restrained at the instance of a property owner from allowing the streets in the vicinity of his residence to be used as a market place to his annoyance and detriment.8 1. Fazende v. Houston, 34 Fed. Rep. 95. See also Houston . Voorhies, 70 Tex. 356; 22 Am. & Eng. Corp. Cas. 271. 2. New Orleans 7. Guillotte Heirs, 14 La. An. 888. 3. Davis 7. Municipality No. 2, 14 La. An. 885. 4. New Orleans v. Guillotte Heirs, 4 La. An. 888. A contract between a city and a market house association, giving the latter for twenty-one years exclusive market privileges in the city and exemption from city taxes in consideration of the erection of a market house, in which the city was to have certain rights-construed and sustained. Palestine v. Barnes, 50 Tex. 538. 5. Le Claire . Davenport, 13 Iowa 210 (overruling the earlier case of Davenport v. Kelly, 7 Iowa 102). 6. See Harney v. St. Louis, 90 Mo. 214; Allegheny County v. McKeesport Diamond Market, 123 Pa. St. 164. But in Michigan, a contrary view has been adopted, and it has been held that a contract by which the plaintiff contracted to build a market house, and to put it under the control of the village authorities for a period of ten years in consideration that they would pay over the rents to him, appoint a person to superintend it, and permit no other market house to be erected or used, or certain articles specified to be sold elsewhere in the city during the said period, was against public policy and void. Gale v. Village of Kalamazoo, 23 Mich. 344, 9 Am. Rep. So aff g 1 Mich. N. P. 5. This case was decided upon the grounds that, by the contract, the village bound itself for the period of ten years to maintain a market house, and thereby abrogated its inherent right to abandon the market house if it should be found desirable for the interests of the village, and also upon the ground that, as the plaintiff was to have an unlimited right to control the occupation of the market house through the power given him to determine the rents to be paid by lessees, he was thus vested with a practical monopoly of the public markets. 7. State v. Mobile, 5 Porter (Ala.) 279; Wartman v. Philadelphia, 33 Pa. St. 202, 210; Harrisburg's Appeal (Pa. 1887), 19 Am. & Eng. Corp. Cas. 603. 8. McDonald v. Newark, 42 N. J. Eq. 136; Atwater v. Newark, 7 N.J. L. 176. See also Higgins v. Princeton, 8 N. J. Eq. 309; State v. Laverick, 34 N. J. L. 201. Certiorari has been allowed to remove an ordinance and resolution regulating the use of a public street as But it would appear that if it is not proposed to erect market buildings in a street, the city may permit the market to be held there provided no injury is caused to abutting lot owners. The right to so use the street is sustained upon the ground that the inconvenience to the public occasioned by the temporary obstruction of the streets is more than counterbalanced by the increased facilities afforded for the sale and purchase of the necessaries of life.1 If a city propose to erect market buildings on a public street, a bill for injunction in the name of the city upon the relation of the attorney general and taxpayers, will lie to restrain the nuisance.2 And in New Jersey it has been held that the legislature could not authorize a market to be held in a public street without providing compensation to the proprietors of the lands fronting on the street.3 Where a place had been used as a market to which persons resorted to expose articles for sale, it was held to be a sufficient answer to an indictment for a nuisance that the same had been enjoyed as a market place for more than twenty years without interruption.4 V. Municipal Regulations.-A city may, under the power to regulate markets, adopt such regulations as are necessary for the preservation of peace and good order and the health of the city, but these regulations must be of a police and sanitary character; and not an attempt to restrain trade under the color of regulating it.5 An ordinance requiring all persons selling hay or other produce and delivering the same within the city limits to pay a fee of five cents, is unreasonable and illegal.6 The validity of an a market, on the ground that the city council could neither authorize nor regulate a public nuisance. Anon, 9 Ñ. J. Law Jour. 241. But the court will not maintain a suit to enjoin the holding of a market on a public street except it is shown that the property owner has suffered special damage thereby. The mere fact that a dwelling house would be less eligible if a market place were erected is not sufficient to support a bill for an injunction. Higgins v. Princeton, 8 N. J. Eq. 309. 1. Denehey v. Harrisburg, 2 Pearson (Pa.) 330; Harrisburg's Appeal (Pa.), 19 Am. & Eng. Corp. Cas. 603, 609. 2. Harrisburg's Appeal (Pa.), 19 Am. & Eng. Corp. Cas. 603. 3. State v. Laverick, 34 N. J. L. 201. 4. Rex v. Smith, 4 Esp. III. 5. Caldwell v. Alton, 33 Ill. 416; 85 Am. Dec. 282; Peoria v. Calhoun, 29 III. 317; Bloomington v. Wahl, 46 Ill. 489. See also Winsboro v. Smart, 11 Rich. (S. Car.) 551. Extent of the powers of the metro politan board of health over markets. Mayor etc. of New York v. Schultz, 31 How. (N. Y.) Pr. 385. Regulation of private markets after they had been leased for the year. New Orleans v. Stafford, 27 La. An. 417. Penalty for carrying on a private market in contravention of the city ordinances. Jacobs v. Levy, 27 La. An. 619. Under the charter of Richmond the city council may require one who resides outside the city limits, but rents a stall in fthe market house, to take out a licence for using his carts and horses to bring meats from his house to his stall, and pay a tax on the licence. Frommer v. Richmond, 31 Gratt. (Va.) 646. Power of the city corporation to pass an ordinance prohibiting the sale of beef in the western moiety of the market house, between Seventh and Eighth streets. Mayor v. Davis, 6 Watts & S. (Pa.) 269. 6. Kip v. Patterson, 26 N. J. L. 298. |