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grant of the right of compulsory partition, viz. : to facilitate the change of ownership in lands. The statute was declared to be uuconstitutional, except in its application to cases in which the reversioner or remainder-man is laboring under some disability, such as infancy, insanity, or the like. It was claimed that in no other case could a citizen be deprived of the right to manage his property without state interference. There cannot be any doubt of the unconstitutionality of the law when it is applied to existing life estates, remainders and reversions, although such laws have been sustained in Massachusetts and Connecticut? The application of the statute to such cases would operate to deprive persons of their vested rights, and consequently would be unconsti

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1 Glossom v.. McFerran, 79 Ky. 236.
2 Statute authorized sale of lands on petition of life tenant:-

“ It is said by the petitioners that this resolution deprives them of their interest in the property against their will and is therefore void, not only as opposed to natural justice, but as in conflict with the provisions of the constitution of the state. It was held by this court in the case of Richardson v. Monson, 23 Conn. 94, that the statute which authorizes the sale of lands held in joint tenancy, tenancy in common, or coparcenary, whenever partition cannot conveniently be made in any other way, is constitutional. That case was ably discussed by counsel, who offered some arguments against the constitutionality of the statute, which have been urged upon our consideration against the validity of this resolution. It is difficult to see any distinction in principle between the two cases. When a sale is made of real estate held in joint tenancy, the tenant opposed to the sale is as much deprived of his estate by the change which is made, as these petitioners are of their property, by the change authorized by this resolution. In either case the parties are not subjected to a loss of their property. It is simply changed from one kind to another." Linsley v. Hubbard, 44 Conn. 109 (26 Am. Rep. 431).

“The Legislature authorizes the sale, taking care that the proceeds shall go to the trustees for the use and benefit of those having the life estate, and of those having the remainder, as they are entitled under the will. This is depriving no one of his property, but is merely changing real estate into personal estate, for the benefit of all parties in interest. This part of the resolve, therefore, is within the scope of the powers exercised from the earliest times, and repeatedly adjudged to be rightfully exercised by the legislature.” Sohier v. Mass. Gen. Hospital, 3 Cush. 496; Rice v. Parkman, 16 Mass. 326.

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tutional. But in its application to future cases, the statute violates no provisions of the constitution, for like the statutory right of compulsory partition, it would attach as an ordinary incident to all subsequently created estates for life, and in remainder or reversion: no vested right would be invaded, for the vested rights of those, who would be affected by the compulsory sale, would be acquired subject to the exercise of this power.

Another case of involuntary alienation occurs under the operation of the so-called betterment laws. Under the common law maxim, quidquid plantatur solo, solo cedit, whatever is annexed to the soil, whether by the owner or by a stranger, without the consent of the owner, becomes a part of the soil, in legal contemplation, and consequently the property of the owner of the soil. If a stranger makes an erection upon the land, with the consent of the owner, the property in the house or other erection remains in the licensee, and he can remove it whenever the license is revoked. If he does not then remove it, he loses his right to it, and it becomes the property of the owner of the soil."

If the building is erected by a stranger without the consent of the owner of the soil, it at once becomes the property of the latter, although the stranger has made the improvements, believing in good faith that he had a good title to the land. So far as the principle


1 Tapley v. Smith, 18 Me. 12; Russell v. Richards, 10 Me. 429; Keyser v. School District, 35 N. H. 480; Coleman v. Lewis, 27 Pa. St. 291; Reid v. Kirk, 12 Rich. 54; Yates v. Mullen, 24 Ind. 278; Mott v. Palmer, I Const.571; Hinckley u. Baxter, 13 Allen, 139; Antoni v. Belknap, 102 Mass. 200; Kutter v. Smith, 2 Wall 491; O'Brien o. Kustener, 27 Mich. 292; Ham v. Kendall, 111 Mass. 298; Goodman v. Hannibal & St. Joseph R. R. Co., 45 Mo.33.

3 Osgood v. Howard, 6 Greenl. 452; Aldrich v. Parsons, 6 N. Y. 559; Dame v. Dame, 38 N. H. 429; Ogden v. Stock, 34 Ill. 522; Rogers o. Woodbury, 15 Pick. 156; Mott. v. Palmer, 1 Const. 571; West o. Stewart, 7 Pa. St. 122; Webster v. Potter, 105 Mass. 416; Powell v. M. & B. Mfg. Co., 3 Mason, 369; 2 Kent's Com. 334-338; Tiedeman on Real Prop., $ 702.

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was applied to bona fide holders of land under a mistaken claim of title, it gave to the owner of land property to which he could make no moral or equitable claim. His title to the improvements vested simply under the operation of the technical legal rule just stated. In order to remedy this gross injustice of the common law, statutes have been passed in many of the States known as betterment laws, which generally, in substance, provide that upon the recovery of land from one who bas been a bona fide disseisor under color of title, the plaintiff shall reimburse the defendant for the improvements, which he has made under the mistaken belief that he was the owner of the land, or transfer the title to the defendant, upon the payment of the value of the land without the improvements. Although differing somewhat in detail, they all substantially conform to this description. The constitutionality of the statutes has been repeatedly questioned, but they have invariably been sustained.

The constitutionality of these laws has been generally sustained in their application to improvements already made under a mistaken claim of title, as well as to those made after the enactment of the statutes. Judge Story held' that such a law could not constitutionally be made to apply to improvements made before its passage. Mr. Cooley states that this decision was rendered under the New Hampshire constitution, which forbade retrospective laws. But, even independently of this special constitutional provision, and applied to betterment laws generally, the position of Judge Story is sound. Under the legal maxim: quidquid plantatur solo, solo cedit, the improvements already made, when the statute was passed, had become the absolute property of the real owner of the land, and a statute which took away the right to these improvements would interfere with vested rights, and for that reason would be unconstitutional. But inasmuch as the right to the improvements subsequently made would depend upon the continued existence of this common-law rule, its repeal or change would prevent the right from vesting, and so far as these statutes gave to the bona fide disseisor of the land the right to the improvements made by him after the enactment of the statute, it would not violate any constitutional provision. If the statute did not go farther in the adjustment of the antagonistic rights of the two claimants, the statute would create in them a species of joint estate. But the statute proceeds to give to the real owner of the land his election to pay the bona fide disseissor the value of the improvements, or to transfer to him the title to the land, upon receiving payment of the value of the land without the improvements. This latter provision of the statute without doubt works an interference with vested rights, for a man's right of property has been either charged with a burden, in the shape of liability for improvements which he has not directed to be made, or given to another on account of no fault of his own. But circumstances and facts, which cannot be changed in order to place the parties in statu quo, have created between them a quasi-joint estate of such a nature that the property cannot be mutually profitable without a partition. Compulsory partition of a peculiar kind is ordered, viz: the owner of the land is obliged to pay for the improvements, or to sell the land to the other claimant. When applied to the improvements, which are made after the enactment of the statute, the statute is as constitutional as the laws which

1 See Brown 0. Storm, 4 Vt. 37; Whitney o. Richardson, 31 Vt. 300; Brackett v. Norcross, 1 Me. 89; Withington v. Corey, 2 N. H. 115; Bacon v. Callender, 6 Mass. 303; Fowler v. Halhert, 4 Bibb, 54; Hunt's Lessee v. McMahon, 5 Ohio 132; Longworth v. Worthington, 6 Ohio, 9; Ross v. Irving, 14 Ill. 171; Childs v. Shower, 18 Iowa, 261; Pacquette v. Pickness, 19 Wis. 219; Armstrong v. Jackson, 1 Blackf. 374; Coney v. Owen, 6 Watts, 435; Steele v. Spruance, 22 Pa. St. 256; Lynch v. Brudie, 63 Pa. S:. 206; Griswold v. Bragg, 48 Conn. 577; Dothage v. Stuart, 35 Mo. 570 ; Fenwick v. Gill, 38 Mo. 510; Orinond v. Martin, 37 Ala. 598; Pope v. Macon, 23 Ark. 644; Howard v. Zeyer, 18 La. An. 407; Love v. Shartzer, 31 Cal. 487.

? In Society, etc., v. Wheeler, 2 Gall. 105. 3 Cooley Const. Lim. 479, note.

provide for the compulsory partition of ordinary joint esiates. “ Betterment laws, then, recognize the existence of an equitable right, and give a remedy for its enforcement where none has existed before. It is true that they make a man pay for improvements which he has not directed to be made; but this legislation presents no feature of officious interference by government with private property. The improvements have been made by one person in good faith, and are now to be appropriated by another. The parties cannot be placed in statu quo, and the statute accomplishes justice as nearly as the circumstances of the case will admit, when it compels the owner of the land, who, if he declines to sell, must necessarily appropriate the betterments made by another, to pay the value to the person at whose expense they have been made. The case is peculiar; but a statute cannot be void as an unconstitutional interference with private property, which adjusts the equities of the parties as nearly as possible according to natural justice.” It was held in Ohio that a statute was unconstitutional, which gave to the occupying claimant the right to buy the land or receive payment for the improvements he had made. The right of election should be given to the

. owner of the land. The court say: “ The occupying claimant act, in securing to the occupant a compensation for his improvements as a condition precedent to the restitution of the lands to the owner goes to the utmost stretch of the legislative power touching this subject. And the statute,

providing for the transfer of the fee in the land to the occupying claimant, without the consent of the owner, is a palpable invasion of the right of private property, and clearly in conflict with the constitution.” ?

It would seem reasonable, also, to maintain that in order that the claim for improvements under the better



i Cooley Const. Lim. 480. 2 McCoy v. Grandy, 3 Ohio St. 463.

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