§ 742. Acquirement of prescriptive rights against persons under disability. 743. Property acquired through eminent domain. 744. Purposes for which property may be acquired. Eminent domain; definitions. 745. 751. Franchises as property may be taken or injuriously affected. 752. Other concrete illustrations of a taking. 753. Annexation of land to a municipality not regarded as a Description of improvement. Award of damages. 781. Conclusiveness of report or award and the doctrine of col lateral attack. 782. Filing of the award or report. 783. Review. 784. Appeals. 785. Appeal from award or report on damages awarded. 786. Time of appeal. § 717. The acquirement of property by a public corporation. The power of the public corporation to acquire, control, and dispose of property will be considered in this chapter and first and logically, therefore, will be the right of acquirement; in what capacity, for what purposes and the manner of securing it. The question of whether a public corporation has exceeded its powers in the acquirement of property is one which the authorities hold, and rightfully so, without exception, can only be raised by the state in a proceeding brought for that purpose; neither the grantor of property nor those claiming under him can question the power.1 § 718. The acquirement in its capacity as a public corporation. A public corporation whether a state itself as a sovereign or one of its subordinate divisions is an agency of government and as such it is legally controlled in the exercise of all its powers and the performance of all its duties by this fundamental principle 2 that as an agency of government it is an artificial person of restricted and limited powers and rights. The restrictions and limitations being based upon the sound doctrine and theory that 1 Vidal v. Girard's Ex'rs, 2 How(U. S.) 127; Smith v. Sheeley, 79 U. S. (12 Wall.) 358; Myers v. Croft, 80 U. S. (13 Wall.) 291; City of Eufaula v. McNab, 67 Ala. 588; Alexander v. Tolleston Club of Chicago, 110 Ill. 65; Barnes v. Suddard, 117 Ill. 237; Holten v. Lake County Com'rs, 55 Ind. 194; Baker v. Neff, 73 Ind. 68; Inhabitants of Worcester v. Eaton, 13 Mass. 371; Chambers v. City of St. Louis, 29 Mo. 3 543; Land v. Coffman, 50 Mo. 243; Hafner v. City of St. Louis, 161 Mo. 34, 61 S. W. 632; Matthews v. City of Alexandria, 68 Mo. 115; Stewart v. Otoe County, 2 Neb. 177; Gilbert v. City of Berlin, 70 N. H. 396, 48 Atl. 279; Raley v. Umatilla County, 15 Or. 172. 2 See §§ 108-115, ante. 3 People v. Ingersoll, 58 N. Y. 1, See, also, §§ 108-115, ante. the powers of a state should be directed to the act of governing and should, under no circumstances, consider or include any action that belongs to the domain of private activity and enterprise.* At the present time the purpose of the organization of agencies of government seems to be incorrectly understood; the tendency being towards the idea that a public corporation should not only perform its functions as an agency of government but should also supplant private enterprise, thrift and responsibility. The organic legal and proper purpose should control the right of a public corporation to acquire property and this is especially true when considering the power of the corporation in its capacity as such to secure, hold, and dispose of property. Clearly the power of a public corporation to thus acquire property is limited to the existence of the right or power based upon the purposes for which it is to be used, and although the state in its sovereign capacity is sometimes less controlled by this consideration, yet, the principle should never be forgotten when the question of the power of one of the subordinate agencies of government to acquire property is at issue. Such an agency should not be permitted to secure property for any purpose other than a public one and then only 4 Hayward v. Trustees of Red Cliff, 20 Colo. 33, 36 Pac. 795; First Municipality of New Orleans v. McDonough, 2 Rob. (La.) 244; Opinion of Judges, 58 Me. 590; Opinion of the Justices, 155 Mass. 598, 30 N. E. 1142, 15 L. R. A. 809. But see Delaney v. City of Salina, 34 Kan. 532, 9 Pac. 271. See c. V, subd. 1, ante. 5 Lynn v. Inhabitants of Nahant, 113 Mass. 433; Root v. Shields, Fed. Cas. No. 12,038; Glass v. Ashbury, 49 Cal. 571. • Davies v. City of New York, 83 N. Y. 207; Alter v. City of Cincinnati 56 Ohio St. 47, 46 N. E. 69, 35 L. R. A. 737. The constitutional provision, Const. art. 8, § 6, against a city raising money for or loaning its credit to or in aid of any county corporation or association, precludes a joint ownership of property with any county, corporation or association. See §§ 416 et seq. 7 Avery v. United States, 104 Fed. 711; City of Eufaula v. McNab, 67 Ala. 588; City of Somerville v. City of Waltham, 170 Mass. 160, 48 N. E. 1092; Stone v. City of Charlestown, 114 Mass. 214; Markley v. Village of Mineral City, 58 Ohio St. 430, 51 N. E. 28. A municipal corporation has no power to acquire land by purchase for the purpose of donating the same as an inducement to build and operate a manufacturing plant within its limits. Place v. City of Providence, 12 R. I. 1. A court of equity has the power to prevent a corporation from abusing its powers by the purchase of real property for the purpose of compelling a taxpayer to abandon or compromise litigation with it. Beurhaus v. Cole, 94 Wis. 617, 69 8 when the power has been expressly given or is necessarily implied as essential to the life of the corporation or the carrying on of the particular governmental object for which it was organized." The general authority whether expressly or impliedly existing toacquire and hold property should be limited to the purposes of theorganization of the particular corporation and never construed as including those enterprises involving speculation or profit.1o N. W. 986. A municipality, under Rev. St. §§ 931 and 1499, can acquire lands by devise for the purpose of establishing and maintaining a home for the aged and poor. See §§ 147 et seq.; 174 et seq.; 305 et seq. and 420 et seq. s People v. McClintock, 45 Cal. 11; Von Schmidt v. Widber, 105 Cal. 151, 38 Pac. 682; City of New Haven v. New Haven & D. R. Co., 62 Conn. 252, 25 Atl. 316, 18 L. R. A. 256; Proprietors of Jeffries Neck Pasture v. Inhabitants of Ipswich, 153 Mass. 42, 26 N. E. 239; Gregory v. Jersey City, 36 N. J. Law, 166; In re City of Buffalo, 68 N. Y. 167; People v. Ingersoll, 58 N. Y. 1; In re Franklin's Estate, 150 Pa. 437, 24 Atl. 626; City of Winchester v. Redmond, 93 Va. 711, 25 S. E. 1001. "A municipal corporation has no powers except those conferred upon it expressly or by implication of its charter, or the general laws of the State, and such other powers as are essential to the attainment and maintenance of its declared objects and purposes." Lauenstein v. City of Fond du Lac, 28 Wis. 336; Trester v. City of Sheboygan, 87 Wis. 496, 58 N. W. 747. See §§ 108-115, ante. But see Budd v. Budd, 59 Fed. 735, where a charter prohibition against the appropriation of money in excess of the revenue for a fiscal year as actually collected in the absence of a definite provision for such a liability would not prevent the city council from accepting a devise of lands for public park subject to the payment of an annuity for life. Phipps v. Morrow, 49 Ga. 37. Land may be acquired by the state in payment of the debt of a defaulting public officer. Bluffton Corporation v. Studabaker, 106 Ind. 129, 6 N. E. 1; Thompson v. Waters, 25 Mich. 214; Green v. City of Cape May, 41 N. J. Law, 45; Ketchum v. City of Buffalo, 14 N. Y. 356. A corporation having the authority to establish a market necessarily possesses the implied power to purchase real estate for the purpose of constructing it.. See, also, as holding the same, People v. Lowber, 28 Barb. (N. Y.) 65. Witt v. City of New York, 29 N. Y. Super. Ct. (6 Rob.) 441; Leonard v. Long Island City, 65 Hun (N.. Y.) 621; State v. Common Council' of Madison, 7 Wis. 688; Duncan v. City of Lynchburg (Va.) 34 S. E.. 964, 48 L. R. A. 331. The ownership and operation of a rock quarry is not indispensable to the objects for which a municipal corporation is created. 10 Hunnicutt v. City of Atlanta, 104 Ga. 1, 30 S. E. 500. Under a charter power granting authority to purchase real property for the use: of a city, it has no right to buy realty or any interest therein. merely as an investment. Opinion of Judges, 58 Me. 590; Opinion of These principles can be applied to the various existing subordinate public corporations. They are organized for the performance of special governmental duties. Counties," school districts,12 road districts, library or educational boards, 1 park commissions,14 municipal corporations proper 15 and others, 16 are each created Justices, 155 Mass. 598, 30 N. E. 1142, 15 L. R. A. 809. 11 Hayward v. Davidson, 41 Ind. 212. Counties have the corporate power to take and hold the real property necessary and useful for county purposes and functions. Hayward v. Davidson, 41 Ind. 215. The court in this case classify corporations with reference to their power to take and hold real estate as follows: 1. "Those whose charters or laws of creation forbid that they should acquire and hold real estate. Such corporations cannot take and hold real estate, and a deed or devise to such a corporation can pass no title. 2. "Those whose charters or laws of creation are silent as to whether they may or may not acquire and hold real estate. In such a case, if the objects for which the corporation is formed cannot be accomplished without acquiring and holding real estate, the power so to do will be implied. 3. "Those whose charters, or laws of creation, authorize them, in some cases, and for some purpose, to take and hold the title to real ⚫estate. 4. "Those whose charters, or laws of creation, confer upon them a general power to acquire and hold real estate. Corporations thus empowered * may take and hold real estate, as fully, and perfectly as natural persons may take and hold." They hold further that counties are quasi cor 13 porations and fall within the third class above given and that they are in some cases and for some purposes authorized to take and hold title to real property. The acquirement of real property as a location for county buildings and a poor farm is a lawful purpose. 12 State v. County Court of New Madrid, 51 Mo. 82; Winkler v. Summers, 51 Hun, 636, 5 N. Y. Supp. 723. 13 People v. Howard, 94 Cal. 73, 29 Pac. 485; Barnum v. City of Baltimore, 62 Md. 275; Hathaway v. Sackett, 32 Mich. 97; Le Couterlix v. City of Buffalo, 33 N. Y. 333; Betts v. Betts, 4 Abb. N. C. (N. Y.) 317. 14 Bank of Sonoma County v. Fairbanks, 52 Cal. 196; Kreigh v. City of Chicago, 86 Ill. 407. Property held by a city in its capacity as a public corporation and in trust for the public cannot be divested of this character. Attorney General v. Burrill, 31 Mich. 25. A township may purchase and control lands for a public park; this cannot be said to be any more foreign to the objects and purposes of a township organization than to those of villages and cities though the occasion for the exercise of the power may be less frequent and the desire less urgent. In re North Terrace Park, 147 Mo. 259, 48 S. W. 860; People v. Prospect Park Com'rs, 58 Barb. (N. Y.) 638; Choate v. City of Buffalo, 167 N. Y. 597, 60 N. E. 1108. 15 Town of Derby v. Alling, 40 |