Kelly v. Riley.

ure to perform, and though she had no knowledge of the fact at the time, could not maintain this action. This was properly refused. The defendant is not permitted to escape responsibility on the ground of his present legal inability to perform a promise of marriage to an innocent party. The damages to the plaintiff are certainly zot diminished by the consideration that the promise was made under such circumstances. The strict rule that a consideration to support a promise is insufficient, if its performance is utterly and naturally impossible, is met by the suggestion that, even if the future performance here is to be treated as utterly impossible, yet the detriment or disadvantage which must necessarily result to the plaintiff in relying for any time on the promise affords sufficient consideration to support the defendant's contract. 2 Pars. on Cont. (5th ed.) 67; Wild v. Harris, 7 C. B. 999.

The defendant also insists that the evidence of seduction was not admissible in aggravation of damages. But in a recent case the contrary has been held by this court, on the ground that compensation to the plaintiff for the injury she has received by the breach of the contract cannot be fully reached without taking into account the situation in which she is left by the defendant's act. Sherman v. Rawson, 102 Mass. 395. The instructions actually given by the learned judge, as to the nature of the evidence by which the promise was to be proved, and the elements to be considered by the jury in estimating the damages, were full and accurate.

The defendant's exceptions are accordingly overruled, and the plaintiff may now therefore renew her motion in the superior court, where the case remains, that judgment be rendered as of the day and term when the verdict was returned.

Ordered accordingly..

NOTE-On the first point see Cover v. Davenport, 2 Am. R. 706, wherein the same principle was held. — REP.

Burt v. Merchants' Insurance Co.

BURT, petitioner, v. MERCHANTS' INSURANCE CO.

(106 Mass. 356.)

Constitutional law. Eminent domain — grant by State to the United States.

A State legislature may delegate the right of eminent domain to an agent of the United States for the purpose of obtaining land in such State as a site for a post-office.

By an act of the legislature of Massachusetts, an agent of the United States was authorized to purchase land in the State for the site of a post-office. The act provided that, when the agent and the owners of the land could not agree upon the price, there should be an appraisement made by a jury. Held, that in order to obtain the land and the appraisement, it was not necessary that the owner should first consent to a sale.

PETITION under an act of the legislature of 1870, chapter 327, by William L. Burt, agent of the United States, to obtain an appraisement of land which the statute authorized the United States, through its agent, to purchase for the site of a post-office. The land was owned by the Merchants' Insurance Company, respondents, who could not agree with the agent for the price to be paid. By Bection 2 of the act, it was provided that, "if the agent or agents employed by the United States, and the person or persons owning or interested in either of said estates, cannot agree upon the price to be paid for their interest therein, the agent or agents of the United States may apply by petition to the superior court for the county of Suffolk, such petition to be made separately as to each of said estates, describing the estate and praying to have the valuation thereof made by a jury," etc. The respondents claimed that the statute was unconstitutional and void, and that they never agreed to sell the land or the United States to buy it. The petition was denied. The petitioner alleged exceptions.

G. A. Somerby and T. S. Dunn, for petitioner.

J. D. Ball, for respondents.

CHAPMAN, C. J. This process is brought to obtain an appraisement of a track of land described in the petition, alleging that the petitioner, who is the agent of the United States, and the respond

Burt v. Merchants' Insurance Co.

ents, who are owners of the land, cannot agree upon the price to be paid for it. It is contended that the process cannot be maintained unless there has been an agreement of the petitioner that he will buy, and of the respondents that they will sell, leaving merely the question what is to be paid unsettled; and that, without such agreement, neither the constitution nor the language of the statute authorizes the United States to take the land upon the appraiseanent of a jury.

It is obvious that, if the statute does not require an agreement .of any kind on the part of the land-owner, it is intended as an exercise of the right of eminent domain. The respondents deny the power of the legislature to delegate the exercise of this right to an agent of the United States, for the purpose of obtaining a site for a post-office.

It cannot be held that the legislature must exercise this right by its own agents, appointed exclusively for that purpose. There is no constitutional provision on the subject. Article 10 merely provides that, whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. The usual method of making the appropriation is to authorize some corporation to take the property in the manner prescribed by a statute. In this manner, the right of eminent domain is exercised by railroad, turnpike, canal and aqueduct corporations; and the property passes, not to the State, but to them. In the same way, land is taken by counties for court-houses, and by towns for school-houses. And from a very early period the legislature have been in the habit of consenting that the United States may take land for various public purposes.

Some of these acts contain merely a consent to a purchase, as statute 1855, chapter 127, relating to the custom-house in Barnstable, and statute 1858, chapter 157, relating to land for the United States court-house in Boston. Where the parties have already agreed, there is no need of any further provision. But many of them are almost precisely like the act in this case. They first consent to a purchase, and then provide that, if the parties cannot agree in a sale or a purchase, the land may be appraised by a jury upon petition, aud on payment or tender of the amount of the appraisement, with costs, the land shall vest in the United States.

Of this character was statutes of 1798, chapter 13, consenting so the purchase of land for the Springfield armory; also statutes of 1800,

Burt v. Merchants' Insurance Co.

chapter 26, consenting to the purchase of land in Charlestown for the purpose of a navy or dock-yard. Under this last act the agent of the United States took the land by procuring the appraisement of a jury. Sce Harris v. Elliott, 10 Pet. 25. So that the right of eminent domain was actually exercised under the act, and the supreme court of the United States assume the legality of the act, and say that the title vested in the United States by virtue of the act. In 1790, chapter 4, a similar act was passed in respect to certain light-houses; in 1798, in respect to Castle Island; in 1816, chapter 15, in respect to land in Watertown for an ordnance depot; in 1835, chapter 98, in respect to a light-house in Marblehead. These, and several other acts not cited, show that the legislature have habitually authorized the United States to acquire lands by an exercise of the right of eminent domain. It could not be ascertained, without investigation, in which of the cases referred to they have been obliged to resort to the appraisement of a jury. But it is now too late to question the validity of such acts, even if there could have been any reasonable doubt about it originally. No intelligent person can suppose that the State is not interested in the establishment of light-houses, navy-yards and arsenals within its limits, quite as much as the United States. And as to a post-office in the city of Boston, the people of that city are peculiarly interested in it. The whole commonwealth is also largely interested in it; and it is established by the United States for a purpose exclusively public. It is difficult to conceive of a more proper case for the exercise of the rights of eminent domain.

Adjudications have been made upon this subject in some of the States. In Reddall v. Bryan, 14 Md. 444, it was held that, under this right, the legislature of that State might authorize the taking of water to supply the city of Washington. In Gilmer v. Lime Point, 18 Cal. 229, an act of the legislature of California authorized the agents of the United States to take certain lands for fortifications, and if the owners were unknown or were incapable of conveying, or refused to convey, the agent of the United States might apply for an appraisement by a jury, and upon tender or payment of the amount of the verdict and costs, the sheriff of the county might convey the land. The validity of this statute was contested, the case was discussed very elaborately, and the court held that it was a valid exercise of the right of eminent domain.

We cannot doubt the validity of the act in question in this case. But it is further contended that the terms of the act itself do not

Burt v. Merchants' Insurance Co.

authorize this application for an appraisement by a jury, unless the respondents shall first have given their consent to a sale.

It is obvious that such a construction of the second section would defeat its own end; for, if the consent of the owner must first be obtained, he will never give it until the buyer agrees to pay the price that he is willing to take. He may either fix it himself or agree that some one else shall fix it. But the provision as to the right to apply for a jury is nugatory. We cannot suppose that the legislature intended to deal thus with the United States. It is to be assumed that they used the word "purchase" in its legal signification. It includes every lawful method of coming to an estate by the act of a party, as opposed to the act of law. Thus it includes titles obtained by sale of property on execution by a sheriff, or by levy, in which cases there is no consent of the debtor, nor any conveyance from him. And it includes titles obtained by exercise of the right of eminent domain. If a statute authorizes the appraisement by a jury, and vests the title upon payment or tender of the amount of the verdict, with costs, the property is held under a statute conveyance, and the title is, in legal phrase, by purchase.

As the parties in this case could not agree upon the price to be paid, the contingency has arisen which authorizes the court to proceed upon the petition, and procure an appraisement by a jury. It could not be necessary to obtain a consent to the sale, which, of necessity, includes some agreement either fixing the price definitely or providing some method by which it shall be fixed. Nor is the statute to be construed as subjecting the United States to the option of the owners of the property in respect to an important public interest. The petitioner is entitled to proceed and obtain an appraisement under the statute, and, upon a compliance with the conditions which it prescribes, the title will vest in the United States by force of the statute.

Exceptions sustained.