Conveyances of real § 581 (450). Requisites of Conveyances. estate should, in general, be executed in the corporate name and under the corporate seal.1 If the constituent act or charter prescribes the conditions upon which the conveyance of its real estate shall be made, as, for example, if it requires the previous consent of a majority of the legal voters, a conveyance without such consent is void. A conveyance of real estate, regular on its face, and under the corporate seal, executed by a municipal corporation having the - N. Y. 88 (lease of oyster beds); Davies v. Mayor, &c. of New York, 83 N. Y. 207, an action against a city for rent, wherein Folger, Ch. J. said: "We have no doubt that a municipal corporation or a quasi corporation, such as is a county in this State, has the power to enter into a lease and become a tenant of real estate, when the use thereof is needed to carry out any of its acknowledged powers, and to attain the public purposes for which it was erected (Inhabitants, &c. v. Wood, 13 Mass. 193)." Lease valid, though it does not use precise corporate name. McDonald v. Schneider, 27 Mo. 405. No particular language essential. Poole v. Bentley, 12 East, 168. Estoppel of lessee to deny title of corporation lessor. St. Louis v. Merton, 6 Mo. 476. Where a city leased its water-works to an individual who agreed to keep them in good condition, to keep the reservoir supplied with water, and, in case of fire, to put the pumps at work, it was held, in a proceeding in chancery to rescind the contract for gross violation of the agreement, that, as no provision was made by charter how the works should be operated, the city had power to make the lease, but it could not convey its control of the works for a long time so as to lose its right to have the contract annulled if necessary for its safety. Mahon v. Columbus, 58 Miss. 310. See ante, sec. 97. In well-known cases the Supreme Court of the United States has held that the franchise to construct and operate a railway and to take tolls cannot be leased or the control parted with, except by virtue of express legislative authority therefor. Thomas v. West Jersey R. R. Co., 101 U. S. 70; Pennsylvania R. R. Co. v. St. Louis, A. & T. H. R. R. Co., 118 U. S. 290 (1885); Ib. 630. As to necessity of seal, see Index, tit. Seal; Pennington v. Tanier, 12 Q. B. 1011; Grant, Corp. 148; ante, chaps. viii. and xiv. Kent, Com. 291. As to name and misnomer, see ante, chap. viii.; also, De Zeng v. Beekman, 2 Hill (N. Y.), 489 (1842); Miners' Ditch Co. v. Zellerbach, 37 Cal. 543 (1869); Tiffin v. Shawhan, 43 Ohio St. 178, where a deed, made under authority of an ordinance directing the city clerk to make a proper conveyance, sealed with his private scroll and his offi. cial seal, was held effectual to convey. "In general, corporations must take and convey their lands and other property in the same manner as individuals, the laws relating to the transfer of property being equally applicable to both." Angell & Ames Corp. sec. 193. 2 Still v. Lansingburgh, 16 Barb. 107; Middleton Sav. Bank v. Dubuque, 15 Iowa, 394. Charter mode of conveyance must be pursued. 3 Washb. Real Prop. (4th ed.) p. 262, pl. 25. Ante, sec. 578. In Vermont, the selectmen of the several towns in which there are glebe lands are empowered by statute to lease them. This was held to be the extent of their authority, and an absolute conveyance was utterly void, neither conveying title to the grantee nor affecting the rights of the town. Bush v. Whitney, 1 Chip. (Vt.) 369 (1821). In California it is held that where the legislature authorizes the corporate board of a city to convey its lands, a majority of the members of such board may make the conveyance. San Diego v. S. D. & L. A. R. R. Co., 44 Cal. 106 (1872). As to liability on covenants of warranty in conveyances of real estate, to which the municipality had no title or right to convey. Findler v. San Francisco, 13 Cal. 534. power to dispose of its property, will be presumed to have been executed in pursuance of that power; and hence it is unnecessary for the grantee, or party claiming under it, to produce the special resolution or ordinance authorizing its execution.1 - § 582 (451). Same subject. A town cannot, without express authority, pass the legal title to lands by a vote, and when conveyed by an agent under the authority of a vote, the deed should, regularly, be in the name of the principal.2 A corporation in North Carolina was the owner of the land on which the town was laid out; and between Front Street and the water of the sound there was a small strip of land. After the town was laid out, the corporation passed this ordinance: "Ordered, That for the future, whatever small strips of land are to be found between the outward lines of Front Street and the water shall be the property of the person owning the front lot on the opposite side of the street." In ejectment by 1 Jamison v. Fopiana, 43 Mo. 565 (1869); Swartz v. Page, 13 Mo. 603 (1850); Choquette v. Barada, 33 Mo. 249 (1862); Flint v. Clinton Comp'y, 12 N. H. 43. See Hart v. Stone, 30 Conn. 94. When authorized by statute the conveyance need not recite the authority by which it is made. Henry v. Atkinson, 50 Mo. 266 (1872). Conveyances of real property by the officers of a municipal corporation must be made by virtue of a special authority for that purpose. Merrill v. Burbank, 23 Me. 538 (1844). How given. Clark v. Pratt, 47 Me. 55; Hascard v. Somany, Freem. 504; Grant, Corp. 146. Requisites and proof of corporate conveyances. Osborne v. Tunis, 25 N. J. L. 633, 658; Lovett v. Steam Saw Mill Assoc., 6 Paige, 54; Hamilton v. Newcastle & D. R. R. Co., 9 Ind. 359; Middleton Sav. Bank v. Du buque (deed by mayor pro tempore), 19 Iowa, 467; Gourley v. Hankins, 2 Iowa, 75. When the legislature authorized a board exercising the corporate authority of a city to convey its lands to a corporation, and vested such board with discretion in the matter, a member of such board, who is a stockholder or director in the grantee corporation, cannot act officially in the city board in relation to the matter, or in nak ing the conveyance; and if he does, and his vote or signature to the deed was re quisite to complete the conveyance, the deed will be set aside as a cloud on the title. San Diego v. S. D. & L. A. R. R. Co., 44 Cal. 106 (1872). See ante, secs. 283, note, 444. 2 Cofran v. Cockran, 5 N. H. 458 (1831); Coburn v. Ellenwood, 4 N. H. 99, 102, and cases cited. As to title under a vote, where possession is taken, see Copp v. Neal, 7 N. H. 275, 278, and authorities cited. In Ward v. Bartholomew, 6 Pick. (Mass.) 409, it was held that a convey. ance of land by an individual as an agent of the commonwealth, under a resolve authorizing him to convey, might be sufficient even if the deed was executed in the name of the agent. And in Cofran v. Cochran, supra, it was determined that, from long usage, and in view of the great public mischief which would be produced by a contrary holding, land might be conveyed by a deed in the name of a duly authorized agent of the town. This decision is expressly put upon the maxim "Communis error facit jus." Special legislative authority to certain " trustees" (declared to be a body corporate) to sell a lot is well executed by a deed in which the grantors describe themselves properly as the "trustees," and then sign and seal the conveyance in their individual names. De Zeng v. Beekman, 2 Hill (N. Y.), 489 (1842). the corporation, it was held that this ordinance did not operate as a deed to pass the title : first, for the want of the seal of the grantors; second, for the want of a consideration; and third, for the want of delivery. Not only so, but it was held to be so obviously defective as a conveyance as not to give the "color of title" to the defendant, necessary (under the statute and decisions of North Carolina) to support an adverse possession.1 1 Beaufort v. Duncan, 1 Jones (N. C.) Law, 239 (1853). But a release by a municipal corporation of a right in real property, by ordinance and not by deed, may be enforced in equity, when within the scope of the corporate power, and the releasee has paid the consideration, or entered into possession and made valuable improvements on the faith of it. Grant v. Davenport, 18 Iowa, 179, obiter, per Wright, C. J. property and property rights of municipal corporations. Ante, chaps. iv., vii., and viii. Remedy against abuses by municipalities of trust property or property clothed with public duties, and against collusive alienations of property by municipal councils. Post, sec. 910 et seq. Liability of municipal corporation as an owner of property. Osborne v. Detroit, 32 Fed. Rep. 36. Post, chap. xxiii. sec. Extent of legislative authority over the 985 et seq. CHAPTER XVI. EMINENT DOMAIN. § 583 (452). Mode of Treatment. Among the important powers usually conferred upon municipal corporations and deserving separate treatment, is the authority to exercise, by grant from the legislature, the right of eminent domain; that is, compulsorily to take private property, on making to the owner compensation in the prescribed mode, for designated municipal or public purposes. In this chapter the general nature of the power, the constitutional restrictions upon it, the principles which govern the construction and application of the legislative authority necessary to its existence and exercise by public agencies, the mode and measure of compensation to the property-owner, will be considered with special reference to the purposes for which it is commonly delegated to municipal corporations.1 § 584 (453). Nature and Scope of the Power. Social duties and obligations are paramount to individual rights and interests. Private rights not under the shield of the organic law must yield when they come in conflict with public necessity or the general 1 In the tenth chapter of the work of Judge Redfield on the Law of Railways, and particularly in the last edition, the right of eminent domain, in connection with railways, is exhaustively treated, and may be usefully consulted by whoever desires to have a view of the state of the English and the American law upon almost any branch of this interesting inquiry. The learned author does not confine his consideration of the subject to its bearings on railways; but the nature of the right, the limitations upon its exercise, the mode of procedure, the time when compensation is to be made, and the rules to measure its amount, are clearly stated and fully illustrated. In his excellent work on Constitutional Limitations, chap. xv., Judge Cooley has presented the subject, particu larly in its constitutional aspects, in a manner extremely satisfactory. Mr. Sedgwick's view, although less practical, will be found to be of great interest and value. Sedgwick on Stat. and Const. Law, 498, 534. Mr. Mills, of the St. Louis bar, and Mr. Lewis, of the Chicago bar, have published treatises on the Law of Eminent Domain, in which they have collected with diligence and stated with care, under a methodical arrangement, the results of the cases, English and American, many thousands in number, upon this subject. They are both useful and convenient works, and they go, of course, into greater detail on many points than is practicable in the present chapter. Their treatment is general; ours is limited to the subject chiefly in its relations to municipalities. good. The maxim, Salus populi suprema lex, has an important meaning in its application to private rights, and in limiting the absoluteness of any possible ownership of private property. The legislature, as the authoritative representative of the public, and the constituted judge of what is demanded by the general weal, has the right to say, under such restrictions as exist in the Federal Constitution and in the Constitution of the particular State, to every private proprietor, "The public needs of your property thus much;” and the individual must submit. This is a right inherent in every government. It is a tremendous power, and one which is without theoretical limits, and indeed, without any legal limitations except such as may exist in the organic restraints upon legislative action; it has, in addition, practical limitations in the sense of justice, which ever prevails in enlightened communities, and which legislators cannot for any considerable period effectually or safely disregard ; and experience has shown that there is a point beyond which no government can press its demands upon its subjects or citizens, and continue to exist. One branch of this governmental prerogative is known by the name taxation, which, in its application to municipalities, will be noticed in another chapter; and the other is now familiarly known as the power of eminent domain, by which is meant the right of every government to appropriate, otherwise than by taxation and its police authority (which are distinct powers from the right of eminent domain), private property for public use.1 § 585 (454). Constitutional Provisions. In the Constitution of the United States, and in the Constitutions of the several States, there is a limitation upon the power of eminent domain, usually expressed in substantially these words: "Private property shall not be taken for public use without just compensation." In some of the Constitutions there are, in addition, special provisions, of more recent origin, as to the mode of ascertaining the amount of the compensation and the time and manner of payment. Full treatment of this subject in its constitutional and other aspects would not be appropriate to the present work, and our consideration of it will accordingly be limited to a statement of the general principles 1 As to the phrase "eminent domain," see Mr. Justice Campbell's article on the "Taking of Private Property for Purposes of Utility," Vol. I. No. 2, Bench and Bar, page 112. Mr. Carman F. Randolph of New Jersey has a learned article on "The Eminent Domain" in the July, 1887, number of the English Law Quarterly Review, 314, and in the New Jersey Law Journal, May, 1889, p. 133, on "Eminent Domain over Streets," in respect of the rights of owners of lands adjacent thereto. |