judge, but within the just limits of what is taxation. . . It must be public in its purpose, and reasonably just and equal in its distribution, and cannot sacrifice individual right by a palpably unjust exaction. In the case of Hammett v. Philadelphia, 65 Pa. 146, the court said: "In truth it matters not whether an assessment upon an individual or a class of individuals for a general, and not a mere local, purpose be regarded as an act of confiscation, a judicial sentence or rescript, or a taking of private property for public use without compensation. In any aspect it transcends the power of the Legislature, and is void. I regard it as a forced contribution. . . . It is the solemn duty of the judiciary under our Constitution to guard and protect this right of property, as well from indirect attacks under any specious pretext as from open and palpable invasion.' Although the power of the Territorial Leg islature to extend municipal boundaries for the purposes of taxation is not expressly limited in the Organic Act, in view of the fundamental principles upon which all just taxation proceeds, and of authority, we hold that the power is not arbitrary. "Taxation is the equivalent for the protection which the gov. ernment affords to the person and property of its citizens; and as all are alike protected, so all alike should bear the burden in proportion to the interest secured." Cooley, Const. Lim. 4th ed. 617. in the form of money by the methods of taxation. The government may appropriate the property of the individual, when necessary, in one of three ways: first, by taking in the mode prescribed after paying the owner for it; second, by estimating the benefits to the owner's property from the improvements to be made, and taking the amount estimated in money; third, by taking the property in the form of money by the methods of taxation for which the benefits of protection and other advantages are furnished by the government. The same principle underlies all these methods. When the property is taken under the right of eminent domain the public pays the owner in money; when money is exacted by means of a special assessment the owners are compensated in special benefits to their property by public improvements made in its expenditure; and when money is exacted by a general tax the payer is compensated in the benefits received from the government in any and all of the ways that a government may benefit society. Thus the individual is compensated for the property he parts with, whether it consists of lands or money or other property. Effect may be given to a law according to the letter in which it is couched, or it may be construed in the light of the conditions in which it is to be applied, and be made to affect everything within reach of its just implications. In such broader sense it may be applied. It is a rule of construction that constitutional provisions designed to protect the rights of life, liberty and property should be liberally construed in the light and in furtherance of their purpose. It would appear more reasonable to interpret the expression "private property" in the provision in question as meaning all kinds of private property, and the word "taken" as embracing the appropriation by any method, and the phrase "just compensation" as including any appropriate compensation, whether in money or benefits, providing the compensation is a just one,—a fair equivalent for the property parted with. It would be equally as just to the owner for the government to assess $100 against his land and to take it and to give him in return that amount in value in the benefits of government, as it would be for it to take an acre of his land worth $100 and to give him in return that amount in money. The difference to the Upon principle and authority we are of the opinion: first, that municipal taxation should be limited to the range of municipal benefits; second, that lands and their occupants without the range of municipal benefits should not be taxed to aid those within; third, that a law authorizing the assessment of taxes for municipal purposes upon lands or their occupants located beyond the range of municipal benefits is not a rightful subject of legislation; fourth, that taxation for city purposes should be within the bounds indicated by its buildings, or its streets and alleys, or other public improvements, and contiguous or adjacent districts so situated as to authorize a reasonable expectation that they will be benefited by the improvements of the city or protected by its police; that no outside district should be included when it is apparent and palpable that the benefits of the city to it will only be such as will be received by other districts not included, such as will be common to all neigh-owner would be only in the quality of the boring communities. The defendant also relies upon the Fifth Amendment to the Constitution of the United States, declaring that private property shall not "be taken for public use without just compensation." This has been held to be a restriction upon the power of Congress, and not upon the States. But, the Territory being an agency of Congress, the restriction applies to its Legislature. We will now consider the provision as applicable to the facts of this case. Some courts have held that it has reference only to the appropriation of private property under the right of emineut domain; others have given to it greater significance and a broader effect, and have applied it also to the appropriation to public use of private property property taken and in the quality of the con- The assessments or general taxation; whether the person from whom the exaction is made is compensated in money or in the benefit of government,-in the protection it affords, in the public improvements it makes, and in the conveniences, the privileges and the advantages it furnishes. the principle requires compensation in all cases, whether real estate, money or any other kind of property is involved; whether it is taken by the methods adopted under the right of eminent domain, or under the right of taxation, or by any other means. The principle lies deeper than mere forms or methods. It In the case of People v. Brooklyn, 4 N. Y. would be unreasonable to say that the authors 420, the court said: "The right of taxation and of the provision in question intended to forbid the right of eminent domain rest substantially the taking under one right without just comon the same foundation. Compensation is pensation, and intended to allow such appro made when private property is taken either priation under another right; that they intenway. Money is property; taxation takes it tionally closed one gap, but intentionally left for public use; and the taxpayer receives, or another down by which the same wrong in is supposed to receive, his just compensation effect could be accomplished. We are of the in the protection which government affords to opinion that the constitutional provision conhis life, liberty and property, and in the in-sidered should be applied to the appropriation crease of the value of his possessions by the of private property to public use in the form use to which the government applies the money of money under the right of taxation as well raised by the tax. When private property is as the appropriation of real estate or other taken by right of eminent domain, special property to such use under the right of emicompensation is made, for the reason hereafter nent domain. This conclusion finds support stated." And Judge Cooley says. "Taxation in the following cases: Bradshaw v. Omaha, and eminent domain, indeed, rest substantially 1 Neb. 16; Cheaney v. Hooser, 9 B. Mon. 330; on the same foundation, as each implies the Wells v. Weston, 22 Mo. 385; Covington v. taking of private property for public use on Southgate, 15 B. Mon. 491; Sharp v. Dunavan, compensation made; but the compensation is 17 B. Mon. 223; Arbegust v. Louisville, 2 Bush, different in the two cases. When taxation 271: Swift v. Newport, 7 Bush, 37; Morford takes money for the public use, the taxpayer v. Unger, 8 Iowa. 82; Langworthy v. Dubuque, receives, or is supposed to receive, his just 13 Iowa, 86; Fulton v. Davenport, 17 Iowa, compensation in the protection which govern- 404; Buell v. Ball, 20 Jowa, 282; Deeds v. ment affords to his life, liberty and property, Sanborn, 26 Iowa, 419; Deiman v. Fort Madiaud in the increase in the value of his posses- son, 30 Iowa, 542. sions by the use to which the government applies the money raised by the tax, and either of these benefits will support the burden.' Cooley, Const. Lim. 4th ed. 620. These two authorities are to the effect that, when the taking is by taxation, compensation is always implied; that the taxpayer is supposed to receive just compensation in the use to which the money is appropriated; and that such benefits will support the burden. This is equivalent to saying that if the tax is not supported by such benefits or consideration it must fall. If the taxpayer and his property are so situated with respect to the government that it is palpable and clear that the use to which taxes collected are applied will not benefit him, then there is not compensation to support the tax. But they also say that the constitutional provision in question has reference to the taking of private property for public use under the right of eminent domain. They concede, however, that taxation and eminent domain rest on the same foundation, the principle of compensation,-aud that such compensation in case of taxation is in benefits. The constitutional provision in question was designed doubtless to give effect to that principle; but if the provision simply forbids the taking of private property for public use without just compensation under the right of eminent domain, then its authors made the constitutional rule narrower than the principle upon which they intended to base it, because 5 L. R. A. We do not regard Kelly v. Pittsburgh, 85 Pa. 170, as analogous to this case. It came under review in the Supreme Court of the United States. 104 U. S. 78 [26 L. ed. 659]. The question considered by the latter court was whether the annexation and consequent taxation involved in the case deprived the party of his property without due process of law within the meaning of the Fourteenth Amendment. That Amendment is a restriction on the state governments, and was therefore considered; but the provision prohibiting the taking of private property for public use without just compensation is not found in the Fourteenth Amendment, but it is contained in the Fifth Amendment, which is a restriction on the federal government, and therefore it was not considered by the court. Inasmuch as it appears from the record in the case that the defendant resides and that his lands are situated outside of Moroni City, as indicated by public or private improvements, and beyond such contiguous or adjacent district as will be benefited by its municipal expenditure, the court holds that the Territorial Legislature bad no power to subject his property to the burden of taxation for the corporate purposes of the city. The judgment of the court below is reversed, and the cause is remanded. Anderson, J., concurred. NEW YORK COURT OF APPEALS. James AHERN, Admr., Respt., V. Rosalie M. STEELE et al., Appts. (....N. Y...........) age caused by any act, fault, neglect or omission of any tenant or occupant of the premises, and that the party of the first part should be permitted to enter upon the premises for the purpose of making repairs, if he should see fit to repair them, but that he should not be 1. Persons who become full owners of obliged to repair them. Phelon was at the an estate on the death of a life tenant, sub-time of the accident in the occupation of the ject to a valid outstanding lease, cannot be rendered responsible for a nuisance committed before the estate descended to them, and of which they had no notice, and which it was the lessee's duty to remove. 2. A landlord not otherwise liable for a nuisance upon the demised premises, is not charged with the duty of active vigilance to ascertain their condition; but it is incumbent upon any person seeking to enforce his responsibility for such nuisance to show that he had notice .thereof. premises under the lease, and he was made a party defendant, but did not defend the action. Some time prior to July 29, 1881, Mrs. Steele commenced an action against her brother and sister for a partition of the real estate, including the pier held by them in common, and in that action on the day last named, upon her petition, an order was made appointing Charles S. Brown receiver of the rents, issues and profits of the premises sought to be partitioned. On the 5th day of November, 1881, upon the petition of Mrs. Steele and her sister, Mrs. Hutton, an order was made by the supreme court in the partition action that the receiver reserve out of the receipts by him as such receiver, and set apart quarterly, a sum that would amount sance for which they would not otherwise be re-him to the payment of the taxes, insurance, to a yearly sum of $17,500, to be applied by necessary repairs and other expenses, and that he should pay the remainder of such receipts quarterly to Mrs. Steele, Mrs. Hutton and to 3. The receipt of rent does not impose re- owners of premises upon which there is a nui sponsible. (October 8, 1889.) APPEAL from a judgment on a verdict for the committee of their lunatic brother. plaintiff in an action for damages. versed. Statement by Earl, J.: Re This action was brought to recover damages caused by the death of plaintiff's son, an infant about six years old, who on the 8th day of October, 1882, without any fault of his, fell through a defective pier in the City of New York, and was drowned. The material facts are as follows: John Gardner died in 1817, being the owner of the pier and a large amount of other property, and leaving a last will and testament, in which he devised the pier and the other property to trustees for the benefit of his children during their lives, and after their death to their issue. Under the will this pier and other property was set apart for his daughter, Mrs. De Dion, and during her life was under the control and management of a trustee, as provided in the will. She died on the 22d day of May, 1881, leaving as her only issue two daughters, Rosalie M. Steele and Henrietta Hutton, and one son, Thomas McCarty. The son died April 14, 1882, and the two daughters and the executors of the son were made defendants in this action. At the time of the accident the son, Thomas McCarty, was insane, and the two daughters then resided, and have ever since the death of their mother resided, in Europe. On the 1st day of May, 1880, the trustees rented the pier for the term of five years to Frank Phelon, for an annual rental of $750 for the first three years, and $850 for the last two years, payable monthly in advance. In the lease it was stipulated that the party of the first part should not be responsible for any latent or other defect in the premises, nor for any damage to property by reason of any fault or defect in the premises, nor for any loss or dam Upon the trial it was shown that the pier was defective and out of repair at the time of the execution of the lease, on the 1st day of May, 1880, and that it remained defective and out of repair to the time of the accident. Upon the trial the counsel for the defendants asked the court to rule that they were not liable for the accident, because the pier came to them on the death of their mother, subject to a valid, outstanding lease, because it was the duty of the tenant to repair the pier, and it was not their duty to repair it without notice of its defective condition, and because the receiver had been appointed with directions to make the repairs necessary to the pier; and the court refused so to rule, and ruled as matter of law that the defendants were responsible for the accident if the pier was out of repair at the time of the execution of the lease, and remained so to the time of the accident. The jury rendered a verdict for $4,500, and, the judgment upon that verdict having been affirmed, the defendants appealed to this court. Messrs. John B. Whiting and Charles By the demise of this pier, the trustee and legal owner, as well as the cestui que trust, became liable. They were guilty, thereby, of creating a nuisance for which they could have been held responsible to the community at large, as well as to individuals who might have received special damages while using it. Swords v. Edgar, 59 N. Y. 34; House v. Metcalf, 27 Conn. 631; Clancy v. Byrne, 56 N. Y. 134: Clifford v. Dam, 81 N. Y. 52; Davenport v. Ruckman, 37 N. Y. 568; Fish v. Dodge, 4 Denio, 311. If this pier was a dangerous thoroughfare, | death of their mother, subject to a valid outopen to public use, its owners, legal and equi- standing lease, responsible for a nuisance cretable, were responsible for it to the community ated thereon during the existence of the preceat large, and to individual sufferers. Of this dent estate, without any notice thereof? I responsibility they could not subsequently re- have carefully examined the English and lieve themselves by any demise or alienation American authorities, and confidently assert whatsoever. that there is not an authority to be found in the books imposing such responsibility. Rex v. Pedly, 1 Ad. & El. 827; Gandy v. Jubber, 33 L. J. N. S. Q. B. 151; Saxby v. Manchester, S. & L. R. Co. 38 L. J. N. S. C. P. 154; Owings v. Jones, 9 Md. 108; Pillsbury v. Moore, 44 Me. 154; Roswell v. Prior, 12 Mod. 639; Thompson v. Gibson, 7 Mees. & W. 456; Page v. Esty, 54 Me. 319; Waggoner v. Jermaine, 3 Denio, 306. It is not the general rule that an owner of land is, as such, responsible for any nuisance thereon. It is the occupier, and he alone, to whom such responsibility generally and prima facie attaches. Pretty v. Bickmore, L. R. 8 C. P. 401; Kirby v. Boylston Market Asso. 14 Gray, 249; Lowell v. Spaulding, 4 Cusb. 277: Oakham v. Holbrook, 11 Cush. 299. The owner is responsible if he creates a nui These reversioners, when they accepted the estate as their own, assumed obligations which were dependent on it. The law of the respon-sance and maintains it; if he creates a nuisance sibility is the same as when an alienee takes realty subject to running covenants. Rex v. Pedly, supra; Rogers v. Stewart, 5 Vt. 215: Congreve v. Morgan, 18 N. Y. 84; Ander son v. Dickie, 1 Robt. 244; Creed v. Hartmann, 29 N. Y. 591; People v. Erwin, 4 Denio, 129. To receive a benefit from the use of premises which are a public nuisance is a maintaining and upholding the same. Rer v. Pedly and People v. Erwin, supra. Earl, J., delivered the opinion of the court: The will of John Gardner came under consideration in Greason v. Keteltas, 17 N. Y. 491, and it was there held that the trustee under that will took an estate in fee determinable when the purpose of the trust should cease, and that such a trustee had power at law to lease for a term which might extend beyond the period of his trust estate. The lease executed by the trustee to Phelon for a term of five years from May 1, 1880, was therefore valid for the whole term, and had nearly four years to run at the time of Mrs. De Dion's death, and more than two years at the time of the accident. Hence any reasoning based upon the postulate that the defendants could have terminated the lease before the end of the term will lead to inevitable error. There was no proof, even if that were in any way important, that the pier was out of repair in 1817, when Gardner died. It became out of repair and defective at some time during the existence of the trust estate, and in that condition it was demised by the trustee. By demising the pier while it was in such a condition as to be a nuisance, the trustee was guilty of a misfeasance, and during the existence of his estate, notwithstanding the lease, he would have been responsible for any damage caused by the nuisance. Even if he had been the trustee of Mrs. De Dion's children, and they had been the beneficiaries under the trust, they would not have been responsible for any nuisance created or permitted by him; and so it was held in People v. Townsend, 3 Hill, 479. But he was not trustee for them; they derived no title or benefit from him, and had no connection whatever with him. They took their title under the will of John Gardner, and were in no way responsible for what the trustee did or omitted to do upon the trust estate. We have, then, this question for our determination: Are the children of Mrs. De Dion, who became full owners of this pier at the and then demises the land with the nuisance thereon, although he is out of occupation; if the nuisance was erected on the land by a prior owner, or by a stranger, and he knowingly maintains it; if he has demised premises and covenanted to keep them in repair, and omits to repair, and thus they become a nuisance; if he demises premises to be used as a nuisance, or for a business, or in a way so that they will necessarily become a nuisance. In all such cases I believe there is now no dispute that the owner would be liable. But an owner who has demised premises for a term during which they become ruinous, and thus a nuisance, is not responsible for the nuisance unless he has covenanted to repair. It has even been held in some cases that an owner may demise premises so defective and out of repair as to be a nuisance, and if he binds his tenant to make the repairs, he is not responsible for the nuisance during the term. Pretty v. Bickmore, supra; Gwinnell v. Eamer, L. R. 10 C. P. 658; Leonard v. Storer, 115 Mass. 86. But these cases are not in entire harmony with the decisions in our own State, and probably would not now be generally received as authority in this country or in England. A grantee or devisee of premises upon which there is a nuisance at the time the title passes is not responsible for the nuisance until he bas had notice thereof, and in some cases until he has been requested to abate the same. The authorities to this effect are so numerous and uniform that the rule which they establish ought no longer to be open to question. One of the earliest, if not the earliest, case in which this rule was announced, is Penruddock's Case, 5 Coke, 1006, where it was resolved that an action lies against one who erects a nuisance without any request made to abate it, but not against the feoffee, unless he does not remove the nuisance after request; and in Pierson v. Glean, 14 N. J. L. 37, Chief Justice Hornblower said: "The law as settled in Penruddock's Case has never, I believe, been seriously questioned since." In Plumer v. Harper, 3 N. H. 88, Richardson, Ch. J., said: "When he who erects the nuisance conveys the land he does not transfer the liability to his grantee. For it is agreed in all the books that the grantee is not liable until upon request he refuses to remove the nuisance." In Woodman v. Tufts, 9 N. H. 88, it was held that where a dam was erected and land flowed by the grantor of an individual, the grantee will not be liable for damages in continuing the dam and flowing the land as before, except on notice of damage and request to remove the nuisance or withdraw the water. In Eastman v. Amoskeag Mfg. Co. 44 N. H. 144, it was held that no notice or request to abate the nuisance is necessary before bringing suit against the original wrongdoer in such cases for the damages done; but that the grantee of the nuisance is not liable to the party injured until, upon request made, he refuses to remove the nuisance. Sargent, J., writing the opinion, said: "The doctrine of the cases in this State and elsewhere is that he who erects a nuisance does not, by conveying the land to another, transfer the liability for the erection to the grantee; and the grantee is not liable until upon request he refuses to remove the nuisance, for the reason that he cannot know until such request but the dam was rightfully erected: and there can be no injury in holding to this doctrine, as the original wrongdoer continues liable, notwithstanding his alienation." To the same effect is Carleton v. Redington, 21 N. H. 291. In Johnson v. Lewis, 13 Conn. 303, where it appeared in an action for the obstruction of a watercourse by raising a dam, that the dam creating the obstruction was erected by the defendant's grantor, it was held that the plaintiff could not recover without proving a special request to the defendant to remove the obstruction. Sherman, J., writing the opinion, said: "The law is well settled that a purchaser of the property on which a nuisance is erected is not liable for its continuance, unless he has been requested to remove it. This rule is very reasonable. The purchaser of property might be subject to great injustice if he were made responsible for consequences of which he was ignorant, and for damages which he never intended to occasion. They are often such as cannot be easily known, except to the party injured." And so also it was held in Noyes v. Stillman, 24 Conn. 15. In Pillsbury v. Moore, 44 Me. 154, it was held that a purchaser of property on which a nuisance is erected is not liable for its continuance unless he has been requested to remove it. In Pierson v. Glean, supra, it was held that an action for continuing a nuisance cannot be maintained against him who did not erect it, without a previous request to him to remove or abate it. In Beavers v. Trimmer, 25 N. J. L. 97, it was held that when the action is not brought against the original erector of a nuisance, but against a subsequent owner or tenant, a special request to remove it must be alleged. In McDonough v. Gilman, 3 Allen, 264, it was held that a tenant for years is not liable for keeping a nuisance as it used to be before the commencement of his tenancy, if he had not been requested to remove it, or done any new act which of itself was a nuisance; and the same rule has repeatedly been laid down in this State. In Hubbard v. Russell, 24 Barb. 404, an action against the continuator of a private nuisance originally erected by another to recover damages for the injury sustained thereby, it was held that the plaintiff must prove a notice to the defendant of its existence and a request to remove it. In Miller v. Church, 2 Thomp. & C. 259, in an action to recover damages for the overflow of a mill-pond, it was shown that the defendant, the owner of the pond, was not in possession, having leased the same to a third party, and it was held that the owner of the premises overflowed could not recover for such overflow without showing that the defendant had notice or knowledge of the existence of the same before the action was brought. And the same rules, without any variation, are laid down by all the text writers. In Chitty on Pleadings, 71, it is said that every occupier is liable for the continuance of a nuisance on his own land, though erected by another, if he refuses to remove the same after notice; and in 2 Chitty on Pleadings, 333, note C, the author adds that if the action is not brought against the original erector of the nuisance, but against his feoffee, lessee, etc., it is necessary to allege a special request to the defendant to remove it. In Cooley on Torts, 611, the learned author says: "A party who comes into possession of land as grantee or lessee with a nuisance already upon it, is not in general liable for the continuance of the nuisance until his attention has been called to it and he has been requested to abate it." In 1 Hilliard on Torts, 3d ed. 574, it is said "that a person who continues a nuisance erected by another is liable therefor at the suit of any party damaged thereby if he had knowledge of its hurtful tendency, or more especially if notified or requested to remove it." In Moak's Underhill on Torts, 253-255, the learned editor, with many citations of authorities to sustain him, says: "Where premises are out of repair at the time they are leased in particulars which the landlord is bound as against third persons not to allow, the landlord is liable for any injuries sustained by a third person from such want of repair. But not even in such case if the tenant's use is what produces the injury. . . . A landlord who negligently or improperly constructs his premisesas a dam-or, where they become defective, after notice suffers them to remain so, is liable to his tenant or a stranger, who, being himself free from fault, is injured thereby. lessee or grantee continues a nuisance of a nature not especially unlawful, he is liable to an action for it only after notice to reform or abate it." Where a In Addison on Torts, Wood's Am. ed. § 240, it is said: "And so an action will lie against the landlord for a permanent nuisance, although the nuisance was created before the reversion came to him, i. e., if he knew of it and might have determined the tenancy before the injury happened, as in the case of a tenancy from year to year." "If an action is brought against the originator of a nuisance, it is not necessary to demand the abatement or discontinuance of the nuisance before commencing the action, but if the action is brought against the mere continuance of a preceding nuisance, a request to remove the nuisance must be made before the action is commenced " Sec. 280. "The occupier of lands is in general responsible for the continuance of a nuisance upon |