CHAPTER VIII. OF THE INTERESTS AND OWNERSHIPS WHICH MAY BE AFFECTED BY CONDEMNATION. 65. What persons are considered "owners." 66. Vendor and vendee - Change of title. 67. Change of title by death-Claims of heirs and administrators. 68. Landlord and tenant. 69. Landlord and tenant- Apportionment of rent. 70. Landlord and tenant-Rebuilding when parts of leased buildings are taken. 71. Dower interest- Separate property of wife - Homestead. 72. Infants. 73. Joint-interests-Tenants for life-Remainder-men-Residuary lega tees. 74. Rights of holders of encumbrances and liens - Judgment-liens. 75. Legal and equitable titles — Trustees and cestuis que trust — Receivers Guardians. 76. Unknown owners - Conflicting claims-Payment into court. 77. Duty of condemning party to ascertain ownership of property taken. § 65. What persons are considered "owners." - In the land or property taken there may be various interests, in different individuals. The entire value of the land is all that can be awarded to the several owners, and no contracts between the owners can oblige the public to pay more than the entire value of the land as a whole. In settling the damages between the owners, the situation and manner of the occupation should be considered. Among the various titles and interests recognized as entitled to compensation as owners, are lessees and landlords, mortgageors and mort 1 Burt v. Wigglesworth, 117 Mass. 302; Burt v. Merchants' Irs. Co., 115 Mass. 1; Edmands v. Boston, 108 Mass. 535; Ross v. Elizabethtown R. R., 20 N. J. L. 230 Burt v. Merchants' Ins. Co., 115 Mass. 1. Parks v. Boston, 15 Pick. 198; Biddle v. Hussman, 23 Mo. 597; Lawrence v. Boston, 119 Mass. 126; North Pennsylvania R. R. v. Davis, 26 Pa. 238; Frost v. Earnest, 4 Whart. 86. 5 gagees,1 mortgagees of leaseholds, trustees and cestuis que trust, residuary legatees under wills, executors of active trusts, widows, heirs," married women with separate estates, tenants for life," owners of private ways,10 and of rights in public common," and holders of bonds for deeds.12 Damages are to be assessed to every owner, although no claim may have been made.13 Change of title. The § 66. Vendor and vendee claim for damages and of title to land may be distinct. Damages for taking and injury to land belong to the owner at the time of the injury, and do not pass to a subsequent vendee.14 The owner alone can take advantage of a claim 1 Cool v. Crommet, 13 Me. 250; Hagar v. Brainard, 44 Vt. 294; Platt v. Bright, 29 N. J. Eq. 128. 3 Reed v. Hanover Branch R. R., 105 Mass. 303. Equitable interests are included. Martin v. London, Chatham & Dover Rail. Co., 35 L. J. (Ch.) 795; L. R. 1 Eq. 145. Shelton v. Derby, 27 Conn. 414. The People v. Robinson, 29 Barò. 77. Columbia Bridge Co. v. Geisse, 35 N. J. L. 558; New Orleans R. R. v. Frederic, 46 Miss. 1. Booneville v. Ormrod's Admr., 26 Mo. 193. The State v. Hulick, 33 N. J. L. 307; Tennessee R. R. v. Love, 3 Head, 63. • Harrisburg v. Crangle, 3 Watts & S. 460; Passmore v. Philadelphia R. R., Phila. (C. P.) 1872; Colcough v. Nashville R. R., 2 Head, 171; Burbridge v. New Albany R. R., 9 Ind. 546. 10 Philadelphia R. R. v. Williams, 54 Pa. 103. 11 Bell v. Ohio R. R., 1 Grant, 105. 12 St. Louis R. R. v. Wilder, 17 Kan. 239. Such holder being entitled to damages as owner in fee. The English rule does not recognize as an owner one who simply has a contract of purchase, but such owner may intervene after the compensation has been paid, and assert his rights to the fund. Tasker v. Small, 7 L. J. (Ch.) 19; Bird v. Great Eastern Rail. Co., 34 L. J. (C. P.) 366; Willey v. South-Eastern Rail Co., 18 L. J. (Ch.) 201. 13 The State v. Runyon, 24 N. J. L. 256; The State v. Garretson, 23 N. J. L. 388. 14 Sargent v. Machias, 65 Me. 591; Allyn v. Providence R. R., 4 R. I. 457; Ten Brooke v. Jahke, 77 Pa. 392; Turnpike Road v. Brosi, 22 Pa. 29; Dobbins v. Brown, 12 Pa. St. 75; Zimmerman v. Union Canal Co., 1 Watts & S. 346; Schuylkill Co. v. Decker, 2 Watts, 313; McLendon v. Atlanta R. R., 54 Ga. 293: Pomeroy v. Chicago R. R., 25 Wis. 641. Contra, Caldwell v. Bank, 20 Ind. 294. for damages, and if he does not claim, his subsequent vendee cannot. If proceedings are only inchoate, a quitclaim deed would carry the damages to the vendee. A conveyance not recorded authorizes an assessment in the name of the apparent owner, and if the real owner knows of the assessment, and does not disclose his ownership, he cannot have the proceedings quashed. When one becomes the owner of property pending the proceedings, he may intervene, and object to irregularities in the proceedings.* The owner of the legal title is the party to be treated with, notwithstanding he may have made an executory contract of sale. Pendency of proceedings against the vendor does not operate as notice to the vendee. Damages for improper construction go to the owner at the time the damage is suffered, who may be the vendee." § 67. Change of title by death Claims of heirs and administrators. - Proceedings to condemn land belonging to the estate of a decedent should be brought against the heirs, and notice should be served on them. The administrator is not the owner of the land. If the land is taken before the death of the former owner, the administrator is entitled to the damages, and must take the proper steps to obtain them." Notice given to the owner is good, notwithstanding death occurs before the assessment, and the heirs are non-residents.10 By the death of the ancestor the fee 1 Haskell v. New Bedford, 108 Mass. 208; Hentz v. Long Island R. R., Barb. 646; McFadden v. Johnson, 72 Pa. 335. 2 Carli v. Stillwater R. R., 16 Minn. 260. 3 Brown v. Essex, 12 Metc. 208. Roberts v. Williams, 15 Ark. 43. 5 Smith v. Ferris, 13 N. Y. Sup. Ct. 553. 6 Curran v. Shattuck, 24 Cal. 427. Southside R. R. v. Daniel, 20 Gratt. 344. 8 Booneville v. Ormrod's Admr., 26 Mo. 193. 9 Neal v. Knox R. R., 61 Me. 298; Welles v. Cowles, 4 Conn. 182, Hotchkiss v. Auburn R. R., 36 Barb. 600; Howcott's Executor v. Warren, 7 Ired. 20; In re Wootton's Trusts, 7 L. T. (N. s.) 630. 10 Taylor v. Hampden, 18 Pick. 309. 3 descends to the heirs, and there should be a revivor against them. The administrator cannot bind the heirs by giving consent to proceedings. Where the death occurs between the actual taking and the filing of the petition for damages, the damages are recoverable by the administrator, and not the heirs. The ascertainment of damages may be after the death of the owner, and the damages still go to the administrator. The condemnation is in the nature of a purchase, where the consideration is still due after the death of the former owner, and for this the administrator sues. When the land is taken after the death of the owner, and before the administrator has obtained license to sell for the payment of debts, the right of the heir to the proceeds is clear." He is seized of the estate taken at the time of the taking, subject only to be defeated by a sale not yet made, or authorized, or licensed; and, being the owner, is entitled to the damages. If the estate is shown to be clearly insolvent, the award is to be made to the administrator. will protect the creditors, and the heirs will be protected by the bond of the administrator, who will pay the debts, and the balance, if any, to the heirs. A residuary legatee in an insolvent estate is entitled to notice, but not to a direct award, because the court cannot measure the interest in such a proceeding." An executor with power to sell is not entitled to take part in the proceedings. The law considers the real estate and the damages to belong to the testator, but if the executor is an executor of an active trust, with power to sell and apply the rents, issues, and profits of the real estate to a certain purpose, he is the proper person to control the proceedings after the death of This 1 Peoria R. R. v. Rice, 75 Ill. 329; Satterfield, Admrx., v. Crow, 8 B. Mon. 553. Rush v. McDermott, 50 Cal. 471. Moore v. Boston, 8 Cush. 274. Boynton v. Peterborough R. R., 4 Cush. 467. Goodwin v. Milton, 25 N. H. 458; St. Albans v. Seymour, 41 Vt. 579. Shelton v. Derby, 27 Conn. 414. Cashman v. Wood, 13 N. Y. Sup. Ct. 520. the testator.1 Heirs are not considered as "unknown owners," under statutes requiring advertisement by "unknown owners' claiming proceeds of assessments of damages. § 68. Landlord and tenant.—The interest of the lessee is such as to entitle him to consideration as an owner, and a mortgage of the leasehold would entitle the mortgagee to notice as an owner." If the statute regulating the condemnation does not provide a remedy for the lessee, he may have his remedy at common law. The value of the land is to be divided between the landlord and lessee. If the rent is equal to the full annual value of the land, the landlord would take all. If the rent is less, the lessee is entitled to the difference, or, in other words, the market value of his leasehold. The duration of the term is important, and the right of renewal is to be considered, as well as any favorable stipulation in the lease concerning taxes, etc. These go 1 The People v. Robinson, 29 Barb. 77; The State v. Orange, 32 N. J. L. 49. 2 Matter of Art St., 20 Wend. 685. Muller v. Earle, 3 Jones & S. 461; Dyer v. Wightman, 66 Pa. 425; Brown v. Powell, 25 Pa. 229; Turnpike Road v. Brosi, 22 Pa. 29; Frost v. Earnest, 4 Whart. 86; Baltimore R. R. v. Thompson, 10 Md. 76; Burbridge v. New Albany R. R., 9 Ind. 546. Under the English act, the lessee is dealt with separately from the landlord. Brandon v. Brandon, 34 L. J. (Ch.) 333. But the tenant's interest could not be purchased when there is a clause in his lease against alienation or sub-letting. Legg v. Belfast Rail. Co., 1 L. R. C. L. 124, n. Hagar v. Brainard, 44 Vt. 294. 678. Foote v. Cincinnati, 11 Ohio, 408. Edmands v. Boston, 108 Mass. 535; William and Anthony Sts., 19 Wend. 7 William and Anthony Sts., 19 Wend. 678; Gillespie v. Thomas, 15 Wend, 464; North Pennsylvania R. R. v. Davis, 26 Pa. 238. A covenant between a brewer, owner in fee of a public-house, and his tenant, that the tenant would buy all his beer from the brewer, is to be considered in assessing the value of the premises. Bourne v. Mayor of Liverpool, 33 L. J. (Q. B.) 15. The good-will and right of expecting continuous renewal on account of longcontinued occupation may be considered (Farlow, ex parte, 2 Barn. & Adol. 341; Still, ex parte, 4 Barn. & Adol. 592), but not for fixtures. Gosling, ex parte, 4 Barn. & Adol. 596; Re Luntley, 14 W. R. 93. A lessee from year to year under a parol lease is an owner, and has a right to have his damages assessed. Gilligan v. Providence, 11 R. I. 258; Pettis v. Providence, 11 R. I. 372. |