A TREATISE

ON THE

LAW OF MUNICIPAL CORPORATIONS.

CHAPTER XV.

CORPORATE PROPERTY.

§ 556 (427). Corporate Capacity in the Roman Law. - We have next to consider the powers of municipal corporations in respect of taking, holding, and alienating property. The history of the capacity of such corporations to acquire and hold property is so clearly given by Mr. Justice Campbell, in his learned judgment in the great McDonough Will Case,2 in the Supreme Court of the United States, that it fittingly serves as an introduction to the more special discussion and treatment of the subject. "The Roman jurisprudence," he observes, "seems originally to have denied to cities a capacity to inherit, or even to take by donation or legacy. They were treated as composed of uncertain persons, who could not perform the acts of volition and personalty involved in the acceptance of a succession. The disability was removed by the Emperor Adrian in regard to donations and legacies, and soon legacies ad ornatum civitatis and ad honorem civitatis became frequent. Legacies for the relief of the poor, aged, and helpless, and for the education of children, were ranked of the latter class. This capacity was en

1 The extent of legislative authority over the property of municipal and public corporations has been considered in a previous chapter (chap. iv.). The liabilities of such corporations in respect of property owned by them is treated of in a subse quent chapter. Chap. xxiii. sec. 985 et seq. -1

VOL. II.

2 McDonough Will Case, 15 How. 367, 403 (1853). The nature of Mr. McDonough's will, in favor of the cities of New Orleans and Baltimore, will be found stated further on in this chapter. 569.

Sec.

ON THE LAW OF

MUNICIPAL CORPORATIONS.

BY

JOHN F. DILLON, LL.D.,

MEMBER L'INSTITUT DE DROIT INTERNATIONAL; LATE PROFESSOR OF REAL ESTATE AND EQUITY JURISPRUDENCE IN COLUMBIA COLLEGE LAW SCHOOL;

FORMERLY CIRCUIT JUDGE OF THE UNITED STATES

FOR THE EIGHTH JUDICIAL CIRCUIT, AND

CHIEF JUSTICE OF THE SUPREME

CONTENTS OF VOLUME II.

CHAPTER XV.

CORPORATE PROPERTY.

History of corporate capacity to take, hold, and dispose of property. Result
stated. Grants to corporations. Statutes of mortmain. Charter the source
of power. Power to take by devise and gift; to hold in trust. Girard's will;
McDonough's will; McMicken's will; Mullanphy's will. Power to act as
charitable trustees. Effect of corporation exceeding its power to hold prop-
erty. Alienation of property. Sales on execution. Mode of alienation.
Mortgages. Leases. Conveyances and their requisites. §§ 556-582

CHAPTER XVI.

EMINENT DOMAIN.

General nature of the power. Constitutional restrictions. Legislature may au-
thorize fee to be taken for streets and public places, but no more in amount
than necessary. Dower in streets and public places. Public use. Parks.
Ornamental purposes. Public squares. Legislative determination of public
character of use, how far conclusive. Authority delegated to municipalities.
Construction of power. Must be strictly pursued. Illustrations. Right of
municipal authorities to abandon proceedings. When right ceases. Remedy of
land-owner. Appeal. Certiorari. Injunction. Special remedies. Compensa-
tion, when to be made. Damages and benefits. Assessments upon abutters.
Tribunal to determine amount. When by jury. Amount of damages. Special
benefits and injuries. Rules to measure damages stated §§ 583-625

CHAPTER XVII.

DEDICATION.

1. Importance of the doctrine of dedication.

2. Statutory and common-law dedications.

3. Common-law dedication; rationale and requisites.