409 



deeds are given, "all lien, rights and claims, l>y way of easement or 

 otherwise, into, over or upon the lands, * * shall be terminated 



and extinguished." (See. 4.) In pursuance of this act, the Com- 

 missioners sold one lot to the defendant, who refuses to take the title, 

 alleging that the act of 1870 is unconstitutional, and that neither the 

 city nor the Commissioners can give a valid title to the lee, free from 

 all encumbrance. 



The question to he determined is whether a conveyance to the 

 defendant of the premises in question, executed in pursuance of the 

 said act of 1870, will vest in him a good title in fee thereto. 



It is objected that an absolute title in fee simple was not acquired 

 under the act of 1861, and that the act of 1805 violates Sec. 16 of 

 Article 3 of the Constitution. 



We do not deem it necessary to decide upon the validity of the 

 last-named act, for we are clearly of opinion that the language of the 

 act of 1861 imports a title in fee simple. This act makes provision 

 for ascertaining the value of the lands taken in the mode provided 

 by the Constitution for the payment of such value to the former 

 owner, and then declares that thereupon said lands shall vest forever 

 in the city of Brooklyn. Full effect can not be given to the words 

 "shall vest forever" without divesting the entire estate of the former 

 owner and vesting it in the city of Brooklyn. And such, we think, 

 was the intention of the Legislature. Where an individual buys 

 land and pays for it, he becomes entitled to a conveyance in fee 

 simple, and we can perceive no good reason why the same effect 

 should not be given to a purchase made on behalf of the State. 

 While, therefore the private interest of the citizen is never to be 

 sacrificed to a greater extent than is necessary to secure the par- 

 ticular public object, yet the State is considered in all such transactions 

 as an individual treating with an individual for an exchange. 



All that the Legislature does is to oblige the owner to alienate his 

 property for a reasonable price. The constitutional restriction upon 

 the power of the Legislature on this subject, at most only prohibits a 

 taking of it for private use, and requires a just compensation to be 

 made. But it contains no restriction whatever, express or implied, 

 upon the power of the Legislature to decide whether a necessity for 

 taking the property exists, and if land is to be taken, what estate in 

 it shall pass. As was said by Chapman, C. J., in Dingly v. City of 

 Boston, 100 Mass., 560: "In the taking of other property, no one 

 would doubt that an absolute title might be acquired. If, for ex- 

 ample, in time of war, Government were to take timber for a ship of 

 war, or horses for the army, and pay for them, no one would sup- 

 pose that the owner could reclaim his property after the war was 

 over, or that the Government, having ceased to use it, could not sell 

 it and give a good title to it." And yet the provision of the Consti- 

 tution on this subject applies to all property alike, and makes no dis- 

 tinction between land and chattels. Whether an absolute or qualified 

 title has been acquired, therefore, must be determined by a construc- 

 tion of the legislative act. We have already expressed the opinion 

 that the Legislature intended the City to acquire, and that it did 

 acquire a fee simple, absolute in the lands taken for the Park. It 



