to an individual or a class the right to the acquisition or enjoyment of property in such manner as should be permitted to the community at large, would be to deprive them of liberty in particulars of primary importance to their "pursuit of happiness; "1 and those who should claim a right to do so ought to be able to show a specific authority therefor, instead of calling upon others to show how and where the authority is negatived. Equality of rights, privileges, and capacities unquestionably should be the aim of the law; and if special privileges are granted, or special burdens or restrictions imposed in any case, it must be presumed that the legislature designed to depart as little as possible from this fundamental maxim of government.2 1 Burlamaqui (Politic Law, c. 3, § 15) defines natural liberty as the right which nature gives to all mankind of disposing of their persons and property after the manner they judge most consonant to their happiness, on condition of their acting within the limits of the law of nature, and so as not to interfere with an equal exercise of the same rights by other men. See 1 Bl. Com. 125. Lieber says: "Liberty of social man consists in the protection of unrestrained action in as high a degree as the same claim of protection of each individual admits of, or in the most efficient protection of his rights, claims, interests, as a man or citizen, or of his humanity manifested as a social being." Civil Liberty and Self-Government. "Legal liberty," says Mackintosh, in his essay on the Study of the Law of Nature and of Nations, consists in every man's security against wrong.' Light Co. v. Norwich City Gas Co., 25 Conn. 19; State v. Cincinnati, &c. Gas Co., 18 Ohio, N. s. 262. Compare with these State v. Milwaukee Gas Light Co., 29 Wis. 454. On this ground it has been denied that the State can exercise the power of taxation on behalf of corporations who undertake to make or to improve the thoroughfares of trade and travel for their own benefit. The State, it is said, can no more tax the community to set one class of men up in business than another; can no more subsidize one occupation than another; can no more make donations to the men who build and own railroads in consideration of expected incidental benefits, than it can make them to the men who build stores or manufactories in consideration of similar expected benefits. People v. Township Board of Salem, 20 Mich. 452. See further, as to monopolies, Chicago v. Rumpff, 45 Ill. 90; Gale v. Kalamazoo, 23 Mich. 344. In State v. Mayor, &c. of Newark, 35 N. J. 157, s. c. 10 Am. Rep. 223, the doctrine of the text was applied to a case in which by statute the property of a society had been exempted from "taxes and assessments; and it was held that only the ordinary public taxes were meant, and the property might be subjected to local assessments for municipal purposes. had prescribed. To such a power, if possessed by the government, there could be no limit but the legislative discretion; and if defensible on principle, then a law which should authorize the officer to enter a man's dwelling and seize and confiscate his furniture if it fell below, or his food if it exceeded, an established legal standard, would be equally so. But in a free country such laws when mentioned are condemned instinctively.1 But cases may sometimes present themselves in which improvements actually made by one man upon the land of another, even though against the will of the owner, ought on grounds of strict equity to constitute a charge upon the land improved. If they have been made in good faith, and under a reasonable expectation on the part of the person making them, that he was to reap the benefit of them, and if the owner has stood by and suffered them to be made, but afterwards has recovered the land and appropriated the improvements, it would seem that there must exist against him at least a strong equitable claim for reimbursement of the expenditures made, and perhaps no sufficient reason why provision should not be made by law for their recovery. Accordingly in the several States statutes will be found which undertake to provide for these equitable claims. These statutes are commonly known as betterment laws; and as an illustration of the whole class, we give the substance of that adopted in Vermont. It provided that after recovery in ejectment, where he or those through whom he claimed had purchased or taken a lease of the land, supposing at the time that the title purchased was good, or the lease valid to convey and secure the title and interest therein expressed, the defendant should be entitled to recover of the plaintiff the full value of the improvements made by him or by those through whom he claimed, to be assessed by jury, and to be enforced against the land, and not otherwise. The value was ascertained by estimating the increased value of the land in consequence of the improvements, but the plaintiff at his election might have the value of the land without the improvements assessed, and the defendant should purchase the same at that price within four years, or lose the benefit of his claim for improvements. But the benefit of the law was not given [* 387] to one who had entered on land * by virtue of a contract 1 The Kentucky statute referred Gaines v. Buford, 1 Dana, 499. See to was declared unconstitutional in also Violett v. Violett, 2 Dana, 326. with the owner, unless it should appear that the owner had failed to fulfil such contract on his part.1 This statute, and similar ones which preceded it, have been adjudged constitutional by the Supreme Court of Vermont, and have frequently been enforced. In an early case the court explained the principle of these statutes as follows: "The action for betterments, as they are now termed in the statute, is given. on the supposition that the legal title is found to be in the plaintiff in ejectment, and is intended to secure to the defendant the fruit of his labor, and to the plaintiff all that he is justly entitled to, which is his land in as good a situation as it would have been had no labor been bestowed thereon. The statute is highly equitable in all its provisions, and would do exact justice if the value either of the improvements or of the land was always correctly estimated. The principles upon which it is founded are taken from the civil law, where ample provision was made for reimbursing the bona fide possessor the expense of his improvements, if he was removed from his possession by the legal owner. It gives to the possessor not the expense which he has laid out on the land, but the amount which he has increased the value of the land by his betterments thereon; or, in other words, the difference between the value of the land as it is when the owner recovers it, and the value if no improvement had been made. If the owner takes the land together with the improvements, at the advanced value which it has from the labor of the possessor, what can be more just than that he should pay the difference? But if he is unwilling to pay this difference, by giving a deed as the statute provides, he receives the value as it would have been if nothing had been done thereon. The only objection which can be made is, that it is sometimes compelling the owner to sell when he may have been content with the property in its natural state. But this, when weighed against the loss to the bona fide possessor, and against the injustice of depriving him of the fruits of his labor, and giving it to another, who, by his negligence in not sooner enforcing his claim, has in some measure contributed to the mistake under which he has labored, is not entitled to very great consideration." 2 1 Revised Statutes of Vermont of 1839, p. 216. class of legislation was also elaborately examined and defended by 2 Brown v. Storm, 4 Vt. 37. This Trumbull, J., in Ross v. Irving, 14 Ill. [* 388] *The last circumstance stated in this opinion-the negligence of the owner in asserting his claim is evidently deemed important in some States, whose statutes only allow a recovery for improvements by one who has been in possession a certain number of years. But a later Vermont case dismisses it from consideration as a necessary ground on which to base the right of recovery. "The right of the occupant to recover the value of his improvements," say the court, "does not depend upon the question whether the real owner has been vigilant or negligent in the assertion of his rights. It stands upon a principle of natural justice and equity; viz., that the occupant in good faith, believing himself to be the owner, has added to the permanent value of the land by his labor and his money; is in equity entitled to such added value; and that it would be unjust that the owner of the land should be enriched by acquiring the value of such improvements, without compensation to him who made them. This principle of natural justice has been very widely, we may say universally recognized." 1 171, and in some of the other cases referred to in the succeeding note. See also Bright v. Boyd, 1 Story, 478; 8. c. 2 Story, 607. 1 Whitney v. Richardson, 31 Vt. 306. For other cases in which similar laws have been held constitutional, see Armstrong v. Jackson, 1 Blackf. 374; Fowler v. Halbert, 4 Bibb, 54; Withington v. Corey, 2 N. H. 115; Bacon v. Callender, 6 Mass. 303; Pacquette v. Pickness, 19 Wis. 219; Childs v. Shower, 18 Iowa, 261; Scott v. Mather, 14 Tex. 235; Saunders v. Wilson, 19 Tex. 194; Brackett v. Norcross, 1 Greenl. 92; Hunt's Lessee v. McMahan, 5 Ohio, 132; Longworth v. Worthington, 6 Ohio, 10. See further, Jones v. Carter, 12 Mass. 314; Coney v. Owen, 6 Watts, 435; Steele v. Spruance, 22 Penn. St. 256; Lynch v. Brudie, 63 Penn. St. 206; Dothage v. Stuart, 35 Mo. 251; Fenwick v. Gill, 38 Mo. 510; Howard v. Zeyer, 18 La. Ann. 407; Pope v. Macon, 23 Ark. 644; Marlow v. Adams, 24 Ark. 109; Ormond v. Martin, 37 Ala. 598; Love v. Shartzer, 31 Cal. 487. For a contrary ruling, see Nelson v. Allen, 1 Yerg. 376, in which, however, Judge Catron in a note says the question was really not involved. Mr. Justice Story held, in Society, &c. v. Wheeler, 2 Gall. 105, that such a law could not constitutionally be made to apply to improvements made before its passage; but this decision was made under the New Hampshire Constitution, which forbade retrospective laws. The principles of equity upon which such legislation is sustained would seem not to depend upon the time when the improvements were made. v. Powell, 13 See Davis's Lessee Betterment laws, then, recognize the existence of an [*389] equitable right, and give a remedy for its enforcement where none had 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 the 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.1 Unequal and Partial Legislation. In the course of our discussion of this subject it has been seen that some statutes are void though general in their scope, while others are valid though establishing rules for single cases only. An enactment may therefore be the law of the land without being a general law. And this being so, it may be important to land, to demand payment from the successful claimant of the full value of his lasting and valuable improvements, or to pay to the successful claimant the value of the land without the improvements, and retain it. 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." 1 In Harris v. Inhabitants of Marblehead, 10 Gray, 44. it was held that the betterment law did not apply to a town which had appropriated private property for the purposes of a schoolhouse, and erected the house thereon. The law, it was said, did not apply "where a party is taking land by force of the statute, and is bound to see that all the steps are regular. If it did, the party taking the land might in fact compel a sale of the land, or compel the party to buy the schoolhouse, or any other building erected upon it." But as a matter of constitutional authority, we see no reason to doubt that the legislature might extend such a law even to the cases of this description. |