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Subject Area: Law
Topic: The American Revolution and Constitution

§ 143.: What constitutes a taking.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 143.

What constitutes a taking.—

In order to lay the foundation of a claim for compensation for the taking of property in the exercise of the right of eminent domain, it is not necessary that there should be an actual or physical taking of the land. Whenever the use of the land is restricted in any way, or some incorporeal hereditament is taken away, which was appurtenant thereto, it constituted as much a taking as if the land itself had been appropriated.2 The flowing of lands,3 the diversion of streams,4 the appropriation of water fronts, on streams where the tide does not ebb and flow,5 and, likewise, in navigable streams, the condemnation of an exclusive wharfage,6 are only a few instances of the exercise of the right of eminent domain, in which the property taken is incorporeal. In respect to the appropriation of water fronts, according to the older authorities, if the stream was a navigable one, that is, one in which the tide ebbed and flowed, and the title to the bed of which was in the State, the appropriation to public uses of the water front was held not to involve any taking of property for which compensation had to be made;1 and this has also been held to be the rule in reference to those fresh water streams, which are practically navigable, and the title to whose beds is in the State.2 But these cases have not been followed by later adjudications, so far as they assert the right to take away from the riparian proprietor all access to the navigable stream by and over his land. This right of access to the stream is declared to be an incorporeal hereditament, appurtenant to the abutting land, which cannot be taken away without proper compensation.3

The diversion of navigable streams is also a taking of property, for which compensation must be made to the riparian owner. Although the riparian owner has no property in the water, or in the bed of the stream, he has a right to make a reasonable use of it, and since a diversion of the stream will interfere with the reasonable use, perhaps deprive him altogether of its use, compensation must be made to him for this loss, as being a taking of property.4

It frequently happens in the experience of municipal life that in order to prevent an accidental fire from becoming a general conflagration, one or more houses which stand in the path of the fire will be destroyed by means of explosives or otherwise, in order to check it. It is never done, except in cases where the destroyed houses would have inevitably been consumed by the fire. The owners of these houses, therefore, have not suffered any loss by their destruction; and on this ground, and on the plea of overruling necessity, such destruction of buildings has been held not to be an appropriation under the right of eminent domain, and no claim for compensation can be made by the owners. And where a municipal officer orders the destruction the municipal corporation is not liable for damages, in the absence of a statute to that effect.1

But the consequential or incidental injury to property, resulting from the lawful exercise of an independent right, is never held to be a taking of property in the constitutional sense, where the enjoyment of the right or privilege does not involve an actual interference or disturbance of property rights. “In the absence of all statutory provisions to that effect, no case, and certainly no principle, seems to justify the subjecting a person, natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damage to others in their property or business. This always happens more or less in all rival pursuits, and often where there is nothing of that kind. One mill or one store or school injures another. One’s dwelling is undermined, or its lights darkened, or its prospect obscured, and thus materially lessened in value by the erection of other buildings upon lands of other proprietors. One is beset with noise or dust or other inconvenience by the alteration of a street, or more especially by the introduction of a railway, but there is no redress in any of these cases. The thing is lawful in the railroad as much as in the other cases supposed. These public works came too near some and too remote from others. They benefit many and injure some. It is not possible to equalize the advantages and disadvantages. It is so with everything, and always will be. Those most skilled in these matters, even empirics of the most sanguine pretensions, soon find their philosophy at fault in all attempts at equalizing the ills of life. The advantages and disadvantages of a single railway could not be satisfactorily balanced by all of the courts in forty years; hence they would be left, as all other consequential damage and gain are left, to balance and counterbalance themselves as they best can.”1 Thus there is no taking of property, if the owner of a fishery finds it reduced in value in consequence of improvement in the navigation of the river,2 or a spring is destroyed, or other damage done to riparian land by the same or similar causes,3 or where the value of adjoining property is affected by a change in the grade of the street.4 In reference to this matter, Mr. Justice Miller has said1 that the decisions, which have denied the right of compensation “for the consequential injury to the property of an individual from the prosecution of improvement of roads, streets, rivers, and other highways,” “have gone to the extreme and limit of sound judicial construction in favor of this principle, and in some cases beyond it; and it remains true that where real estate is actually invaded by superinduced addition of water, earth, sand, or other material, or by having any artificial structure placed on it, so as effectually to destroy or impair its usefulness, it is a taking within the meaning of the constitution.”

The greatest difficulty has been experienced in applying these principles to the police regulations of the highways or public streets, in consequence of the variety of uses to which the demands of modern life require them to be put. It has already been explained that, in most of the cities and village communities of this country, the public have only an easement of a right of way over the land used as a road, while the title to the soil remained in the owners, subject to the public easement. But in some of the States (notably New York and Indiana), it is provided by statute that the fee of land appropriated for highway purposes shall always be vested in the State.1 It is clear that any appropriation of the highway to other purposes, which would be inconsistent with, or different from, its use as a street, would be a taking of the private property of the abutting owner, where the soil remained his propery subject to the public easement.2 But it is not so clear whether such an appropriation of the highway would require the payment of compensation to the abutting owners, in cases where the fee of the road is in the State. If any right of property has been invaded in making the appropriation, compensation must be made, otherwise not. It has been very generally held that the proprietors of adjoining property have, as an easement over the land used as a highway, the right to the free and unobstructed use of the street, and any interference with such use was a taking of property, for which compensation had to be made.3 In New York, where the fee of the streets is in the State, the earlier cases seemed to deny to the abutting land owner any right of property in the street, as a highway, which would be invaded by a different appropriation of the land.1 But in a late case,2 it has been held, not only that the abutting land owner has, as appurtenant to his land, an incorporeal right of property in the free and unrestricted use of the street or highway, but also a right to the free passage of light and air over the land used as a street, and any interference with either right would constitute a taking of property, for which compensation must be made. Judge Danforth said, in delivering the opinion of the court, that the land in question was “conceded to be a public street. But besides the right of passage, which the grantee as one of the public acquired, he gained certain other rights as purchaser of the lot, and became entitled to all the advantages which attached to it. The official survey—its filing in a public office—the conveyance by deed referring to that survey and containing a covenant for the construction of the street and its maintenance, make as to him and the lot purchased a dedication of it to the use for which it was constructed. The value of the lot was enhanced thereby and it is to be presumed that the grantee paid, and the grantor received an enlarged price by reason of this added value. There was thus secured to the plaintiff the right and privilege of having the street forever kept open as such. For that purpose, no special or express grant was necessary; the dedication, the sale in reference to it, the conveyance of the abutting lot with its appurtenances, and the consideration paid were of themselves sufficient.1 The right thus secured was an incorporeal hereditament; it became at once appurtenant to the lot, and formed ‘an integral part of the estate’ in it. It follows the estate and constitutes a perpetual incumbrance upon the land burdened with it. From the moment it attached, the lot became the dominant, and the open way or street the servient tenement.2 Nor does it matter that the acts constituting such dedication are those of a municipality. The State even, under similar circumstances, would be bound, and so it was held in the City of Oswego v. Oswego Canal Co.:3 ‘In laying out the village plot,’ says the court, ‘and in selling the building lots, the State acted as the owner and proprietor of the land; and the effect of the survey and sale, in reference to the streets laid down on the map, was the same as if the survey and sale had been made by a single individual.’4 Lesser corporations can claim no other immunity, and all are bound upon the principle that to retract the promise implied by such conduct, and upon which the purchaser acted, would disappoint his just expectation.

“But what is the extent of this easement? what rights or privileges are secured thereby? Generally it may be said, it is to have the street kept open, so that from it access may be had to the lot, and light and air furnished across the open way. The street occupies the surface, and to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air, to the detriment of the abutting owner. To hold otherwise would enable the city to derogate from its own grant, and violate the arrangement on the faith of which the lot was purchased. This, in effect, was an agreement, that if the grantee would buy the lot abutting on the street, he might have the use of light and air over the open space designated as a street. In this case, it is found by the trial court, in substance, that the structure proposed by the defendant,1 and intended for the street opposite to the plaintiff’s premises, would cause an actual diminution of light, depreciate the value of the plaintiff’s warehouse and thus work to his injury. In doing this thing, the defendant will take his property as much as if it took the tenement itself. Without air and light, it would be of little value. Its profitable management is secured by adjusting it in reference to the right obtained by his grantor over the adjoining property. The elements of light and air are both to be derived from the space over the land, on the surface of which the street is constructed, and which is made servient for that purpose. He therefore has an interest in that land, and when it is sought to close it, or any part of it, above the surface of the street, so that light is in any measure to his injury prevented, that interest is to be taken, and one whose lot, acquired as this was, is directly dependent upon it for a supply, becomes a party interested and entitled, not only to be heard, but to compensation.”2

It is reasonable for us, therefore, to conclude that whether the public owns the fee in the road-bed or only an easement to be used as a public way, in either case there is an interest in the road-bed left in the abutting owner, which might be affected by an appropriation of the street or road to other purposes, but the character of the private interest changes with the nature of the public interest. Where the fee is in the public, the abutting proprietor has an incorporeal right to the use of the highway as such, and, if the New York case1 will be fully indorsed by subsequent adjudication, to the free passage of light and air over the street. If the fee is in the abutting land owner, the bed of the road is his property, subject only to the public easement, that it shall be left open for use as a highway. The abutting land owner may do anything with the land that is not inconsistent with the full enjoyment of the right of way by the public. Thus, the private owner has a right to plant trees in the street, to contruct cellars extending to the middle of the street, and to depasture his cattle in the street in front of his own land, where the right has not been taken away by police regulations in the interest of the public. And a law, which granted to another the right of pasturage in such a street or road, would operate as an exercise of the right of eminent domain, and constitute a taking of property.2 The Supreme Court of the United States has held that “on the general question as to the rights of the public in a city street, we cannot see any material difference in principle with regard to the extent of those rights, whether the fee is in the public or in the adjacent land owner, or in some third person. In either case, the street is legally open and free for the public passage, and for such other public uses as are necessary in a city, and do not prevent its use as a thoroughfare, such as the laying of water-pipes, gas-pipes and the like.”1 It may be reasonable to hold, at the present day, that the use of the road-bed for the laying of water, gas, and sewer pipes, was contemplated in the original condemnation of the land for use as a highway, and was considered in the estimation of damages; but it is altogether inconsistent with reason and the nature of things to assert as a general proposition, that the rights of the public in the streets are the same, whether the fee is in the public or is private property.2

It is more difficult at times to answer satisfactorily the question of fact, whether a particular use of a street is inconsistent with its use as a highway, and the question has oftenest been applied to the construction of turnpikes, horse and steam railways along the highway.

The only essential difference between an ordinary highway and a turnpike is that the former is kept in repair by the public by means of taxation, general or special, and the public generally may use it without charge; while the turnpike is owned and conducted by a private corporation, and a toll is required of all who use it. Since in both cases the public have an indefeasible right to use the road, the establishment of a turnpike over the common highway is not an appropriation of the street to a different purpose. The payment of toll is only an equivalent of the taxation and the highway labor, which in the case of an ordinary highway might be required of the abutting land owner for keeping the road in repair.1

The question, whether the construction of a railroad along a highway is such an appropriation of the land to different uses as will support the claim of compensation of the abutting land owners, is very hard to answer satisfactorily. The decisions on the subject are at variance, and the grounds upon which the decisions are placed are not always the same, and sometimes confusing. In some of the cases, great stress is laid upon the fact, that the fee is or is not in the public.2 But the authorities and facts will only justify this distinction: If the new use of the highway is inconsistent with its character as a highway, where the fee is in the abutting land owner, it is a taking of property for which compensation must be made, whatever incidental benefits or injuries the land owner may sustain from the new use; and even if he has sustained no injury whatever, for incidental injuries never constitute a taking of property in the law of eminent domain. But if the fee is in the public, any use of the highway will not operate as a taking of the property of the abutting land owner, which does not interfere with his ordinary use of the street.1 Probably this distinction might assist in explaining away many of the differences of opinion, which now make the cases on this subject confusing and perplexing. Where the fee is not in the public, it seems to be the opinion of an overwhelming majority of the cases, that the construction of an ordinary steam railway along a public street was a taking of the property of the owners of the fee for a different use, for which compensation had to be made. “It is true that the actual use of the street by the railroad may not be so absolute and constant as to exclude the public also from its use. With its single track, and particularly if the cars used upon it were propelled by horse-power, the interruption of the public easement in the street might be very trifling and of no practical consequence to the public at large. But this question cannot affect the question of right of property, or of the increase of the burden upon the soil. It would present simply a question of degree in respect to the enlargement of the easement, and would not affect the principle, that the use of a street for the purposes of a railroad imposed upon it a new burden.”2

In deciding that the construction of an ordinary railroad as a public street or highway was a new taking of the property of the owner of the fee, the Supreme Court of Connecticut presented a very strong argument in favor of the proposition, which is as follows: “When land is condemned for a special purpose on the score of public utility, the sequestration is limited to that particular use. Land taken for a highway is not convertible into a common. As the property is not taken, but the use only, the right of the public is limited to the use, the specific use, for which the proprietor has been divested of a complete dominion over his own estate. These are propositions which are no longer open to discussion. But it is contended that land once taken and still held for highway purposes may be used for a railway without exceeding the limits of the easement already acquired by the public. If this is true, if the new use of the land is within the scope of the original sequestration or dedication, it would follow that the railway privileges are not an encroachment on the estate remaining in the owner of the soil, and that the new mode of enjoying the public easement will not enable him rightfully to assert a claim to damages therefor. On the contrary, if the true intent and efficacy of the original condemnation was not to subject the land to such a burden as will be imposed upon it when it is confiscated to the uses and control of a corporation, it cannot be denied that in the latter case the estate of the owner of the soil is injuriously affected by the supervening servitude; that his rights are abridged, and that in a legal sense his land is again taken for public uses. Thus it appears that the court have simply to decide whether there is such an identity between a highway and a railway, that statutes conferring a right to establish the former include an authority to construct the latter.

“The term ‘public highway,’ as employed in such of our statutes as convey the right of eminent domain, has certainly a limited import. Although, as suggested at the bar, a navigable river or a canal is, in some sense, a public highway, yet an easement assumed under the name of a highway would not enable the public to convert a street into a canal. The highway, in the true meaning of the word, would be destroyed. But as no such destruction of the highway is necessarily involved in the location of a railway track upon it, we are pressed to establish the legal proposition that a highway, such as is referred to in these statutes, means, or at least comprehends, a railroad. Such a construction is possible only when it is made to appear that there is a substantial practical or technical identity between the uses of land for highway and for railway purposes. No one can fail to see that the terms ‘railway’ and ‘highway’ are not convertible, or that the two uses, practically considered, although analogous, are not identical. Land, as ordinarily appropriated by a railroad company, is inconvenient and even impassible to those who would use it as a common highway. Such a corporation does not hold itself bound to make or keep its embankments and bridges in a condition which will facilitate the transitus of such vehicles as ply over an ordinary road.

“A practical dissimilarity obviously exists between a railway and a common highway, and is recognized as the basis of a legal distinction between them. It is so recognized on a large scale when railway privileges are sought from legislative bodies, and granted by them. If the terms ‘highway’ and ‘railway’ are synonymous, or if one of them includes the other by legal implication, no act would be more superfluous than to require or to grant authority to construct railways over localities already occupied as highways. If a legal identity does not subsist between a highway and a railway, it is illogical to argue that, because a railway may be so constructed as not to interfere with the ordinary uses of a highway, and so as to be consistent with the highway right already existing, therefore such a new use is included within the old use. It might as well be urged that if a common or a canal, laid out over the route of a public road, could be so arranged as to leave an ample roadway for vehicles and passengers on foot, the land should be held to be originally condemned for a canal or a common, as properly incident to the highway use.

“There is an important practical reason why courts should be slow to recognize a legal identity between the two uses referred to. They are by no means the same thing to the proprietor whose land is taken; on the contrary, they suggest widely different standards of compensation. One can readily conceive of cases, where the value of real estate would be directly enhanced by the opening of a highway through it; while its confiscation for a railway at the same or a subsequent time would be a gross injury to the estate, and a total subversion of the mode of enjoyment expected by the owner, when he yielded his private rights to the public exigency. But essential distinctions also exist between highway and railway powers, as conferred by statute—distinctions which are founded in the very nature of the powers themselves. In the case of the highway, the statute provides that, after the observance of certain legal forms, the locality in question shall be forever subservient to the right of every individual in the community to pass over the thoroughfare so created at all times. This right involves the important implication that he shall so use the privilege as to leave the privilege of all others as unobstructed as his own, and that he is therefore to use the road in the manner in which such roads are ordinarily used, with such vehicles as will not obstruct or require the destruction of the ordinary modes of travel thereon. He is not authorized to lay down a railway track, and run his own locomotive and car upon it.

“No one ever thought of regarding highway acts as conferring railway privileges, involving a right in every individual, not only to break up ordinary travel, but also to exact tolls from the public for the privilege of using the peculiar conveyances adapted to a railroad. If a right of this description is not conferred when a highway is authorized by law, it is idle to pretend that any proprietor is divested of such a right. It would seem that, under such circumstances, the true construction of highway laws could hardly be debatable, and that the absence of legal identity between the two uses of which we speak was patent and entire.

“Again, no argument or illustration can strengthen the self-evident proposition that, when a railway is authorized over a public highway, a right is created against the proprietor of the fee, in favor of a person, or artificial person, to whom he bore no legal relation whatever. It is understood that when such an easement is sought or bestowed, a new and independent right will accrue to the railroad corporation as against the owner of the soil, and that, without any reference to the existence of the highway, his land will forever stand charged with the accruing servitude. Accordingly, if such a highway were to be discontinued, according to the legal forms prescribed for that purpose, the railroad corporation would still insist upon the express and independent grant of an easement to itself, enabling it to maintain its own road on the site of the abandoned highway. We are of opinion, therefore, as was distinctly intimated by this court, in a former case1 that, to subject the owner of the soil of a highway to a further appropriation of his land to railway uses is the imposition of a new servitude upon his estate, and is an act demanding the compensation which the law awards when land is taken for public purposes.’ ” The dissimilarity of highways and railways cannot be more strikingly presented than by a consideration of the numerous safeguards that are thought necessary to be thrown around the public, when a railroad crosses a highway. The bells must be rung, the whistle must be blown, the speed must be slackened, and very often bars are laid across the highway, so that vehicles and foot passengers cannot attempt to cross the track while the train is passing. How much greater would be the inconvenience to the public if a railroad track was laid along the highway, instead of across it.

But where the fee of the highway is in the public, the cases pretty generally hold that the establishment of a railroad along a highway is not such a taking of property of the adjoining land owner as will require the payment of compensation.2 It cannot be doubted that in no case does the consequential depreciation in value of adjoining property, as a result of the construction of a steam railway along the street, constitute a taking of property which requires a payment of compensation, any more than the ordinary and reasonable exercise of any right gives rise to liability for incidental injuries to others. The appropriation of a highway to other purposes must interfere with some positive right of property, in order that it may be considered a taking of property. Where the public does not own the fee, any other and different use of the highway would be a taking, whatever effect it may have upon the adjoining property, as has been already fully explained, for there would be a fresh appropriation of the property of the owners of the fee. But when the fee is in the State, the adjoining land owner has only an easement in the street, which entitles him to a reasonable enjoyment of it as a street, and an appropriation of it to other purposes, for example, for the construction of a steam railway, will constitute a taking of the property of the abutting proprietor, only when his reasonable enjoyment of the street as such is denied to him. The noise, smoke, etc., do not involve any taking of property, however much it may depreciate the value and the desirability of the adjoining property. This would seem to be the better doctrine, and such is the opinion of the Indiana courts.1

But the courts are almost unanimously of the opinion that the appropriation of the street to the use of an ordinary horse railway, designed to convey passengers and property from one part of a city to another, is not a new taking of property, for which compensation must be made, whether the fee is in the State or in the abutting land owner. The use of the highway by a horse car company is held to be consistent with its use as a highway, and to constitute no interference with the reasonable enjoyment of the adjoining property-owner.2 But the abutting land owner is only entitled to a reasonable use of the street as such, and the infliction on him of a mere inconvenience in the use of the street, by the construction of a street railway, will not constitute a taking. Thus, it was held in New York, that the construction of a street railway, so near to the sidewalk as not to leave space enough for the standing of vehicles between the track and the sidewalk, was a taking of property in the constitutional sense.1 And the same opinion was expressed in Wisconsin concerning a street railway, whose tracks prevented the owner of a store from having his drays stand transversely to the sidewalk, while unloading goods.2 While the running of a street railway does not ordinarily interfere with the reasonable enjoyment of the street by the adjoining land owners, still it might, under peculiar circumstances, interfere very seriously with the ordinary use of the street, as where the street is very narrow, and at the same time a great business thoroughfare; and whenever that happens, the construction of the railway would constitute a taking of property, for which compensation can be demanded. Mr. Cooley seems to think that under such circumstances, the property owner would, in the light of the authorities, be without a remedy.3 But while the proprietor of the adjoining property may be incommoded to some extent by the construction and maintenance of a street railway, without entitling him to compensation, his complete exclusion from the ordinary use of the street, or an extraordinary and unreasonable interference with such use, would support a claim for compensation, as being a taking of property in the exercise of the right of eminent domain. Such, at least, appears to us to be a reasonable deduction from the authorities, which hold that any interruption of the reasonable use of the streets by the abutting land owner will constitute a taking of property.

It has sometimes happened that land, which had been appropriated for the opening of a street, is afterwards used for the erection of a market, or public scale, etc. This cannot be done in any case without payment of compensation, because the use of the land as a market is inconsistent and interferes with its use as a street.4

[2]Pampelly v. Green Bay, etc., Co., 13 Wall. 166; Hooker v. New Haven, etc., R. R. Co., 14 Conn. 146; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504; Glover v. Powell, 10 N. J. Eq. 211; Ashley v. Port Huron, 35 Mich. 206; Arimond v. Green Bay, etc., Co., 31 Wis. 316.

[3]Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Eaton v. Boston, etc., R. R. Co., 51 N. H. 504; Brown v. Cayuga, etc., R. R. Co., 12 N. Y. 486; Norris v. Vt. Cent. R. R. Co., 28 Vt. 99.

[4]Harding v. Stanford Water Co., 41 Conn. 87; Proprietors, etc., v. Nashua & Lowell R. R. Co., 10 Cush. 388; March v. Portsmouth, etc., R. R. Co., 19 N. H. 372; Rome v. Addison, 34 N. H. 206; Johnson v. Atlantic, etc., R. R. Co., 35 N. H. 569; Haynes v. Burlington, 38 Vt. 350; Boughton v. Carter, 18 Johns. 405; Baltimore, etc., R. R. Co. v. Magender, 34 Md. 79 (6 Am. Rep. 310); Stein v. Burden, 24 Ala. 120; Pettigrew v. Evansville, 25 Wis. 223.

[5]Varick v. Smith, 9 Paige, 547.

[6]Murray v. Sharp, 1 Bosw. 539.

[1]Gould v. Hudson River R. R. Co., 6 N. Y. 522; Pennsylvania R. R. Co. v. N. Y., etc., R. R. Co., 23 N. J. Eq. 157; Stevens v. Paterson, etc., R. R. Co., 34 N. J. 532.

[2]Tomlin v. Dubuque, etc., R. R. Co., 32 Iowa, 106 (7 Am. Rep. 176).

[3]Railway v. Renwick, 102 U. S. 180; Yates v. Milwaukee, 10 Wall. 497; Chicago, etc., R. R. Co. v. Stein, 75 Ill. 41. As to rights of property in highways, see post.

[4]People v. Canal Appraisers, 13 Wend. 355; Gardner v. Newburg, 2 Johns. Ch. 162; Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42; Morgan v. King, 35 N. Y. 454; Hatch v. Vermont Cent. R. R. Co., 25 Vt. 49; Thunder Bay, etc., Co. v. Speechly, 31 Mich. 332; Emporia v. Soden, 25 Kan. 588 (37 Am, Rep. 265.)

[1]Taylor v. Plymouth, 8 Met. 462; Ruggles v. Nantucket, 11 Cush. 433; Stone v. Mayor, etc., of N. Y., 25 Wend. 157; Russell v. Mayor, etc., of N. Y., 2 Denio, 461; American Print Works v. Lawrence, 21 N. J. 248; American Print Works v. Lawrence, 23 N. J. 590; White v. Charleston, 1 Hill (S. C.) 571; Keller v. Corpus Christi, 50 Texas, 614 (32 Am. Rep. 513); Conwell v. Emrie, 2 Ind. 35; Field v. Des Moines, 39 Iowa, 575; McDonald v. Redwing, 30 Minn. 38; Sirocco v. Geary, 3 Cal. 69.

[1]Hatch v. Vt. Central R. R. Co., 25 Vt. 49; Richardson v. Vermont Cent. R. R. Co., 25 Vt. 465; Railroad Company v. Richmond, 96 U. S. 521; Davidson v. Boston & Maine R. R. Co., 3 Cush. 91; Kennett’s Petition, 24 N. H. 135; Hooker v. New Haven, etc., R. R. Co., 14 Conn. 146; Gould v. Hudson River R. R. Co., 6 N. Y. 522; People v. Kerr, 27 N. Y. 188; Zimmerman v. Union Canal Co., 1 Watts & S. 846; Monongahela Navigation Co. v. Coons, 6 Watts & S. 101; Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 71; Harvey v. Lackawanna, etc., R. R. Co., 47 Pa. St. 428; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21; Fuller v. Edings, 11 Rich. L. 239; Edings v. Seabrook, 12 Rich. L. 504; Alexander v. Milwaukee, 16 Wis. 247; Murray v. Menefee, 20 Ark. 561.

[2]Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 71. See Parker v. Milldam Co., 20 Me. 353 (37 Am. Dec. 56); Commonwealth v. Chapin, 5 Pick. 199 (16 Am. Dec. 386); Commonwealth v. Look, 108 Mass. 452; Carson v. Blazer, 2 Binn. 475 (4 Am. Dec. 463).

[3]Commonwealth v. Richter, 1 Pa. St. 467; Green v. Swift, 47 Cal. 536; Brown v. Cayuga, etc., R. R. Co., 12 N. Y. 486; Davidson v. Boston & Maine R. R. Co., 3 Cush. 91; Sprague v. Worcester, 13 Gray, 193; Transportation Co. v. Chicago, 99 U. S. 635.

[4]Gozzler v. Georgetown, 6 Wheat. 593; Smith v. Washington, 20 How. (U. S.) 135; Callendar v. Marsh, 1 Pick. 418; Bender v. Nashua, 17 N. H. 477; Skinner v. Hartford Bridge Co., 29 Conn. 523; Green v. Reading, 9 Watts, 382; O’Connor v. Pittsburg, 18 Pa. St. 187; In re Ridge Street, 29 Pa. St. 391; Matter of Furman Street, 17 Wend. 649; Wilson v. Mayor, etc., of New York, 1 Denio, 595; Graves v. Otis, 2 Hill, 466; Radcliffe’s Ex’rs v. Mayor, etc., Brooklyn, 4 N. Y. 195; Pontiac v. Carter, 32 Mich. 164; Lafayette v. Bush, 19 Ind. 326; Macy v. Indianapolis, 17 Ind. 267; Vincennes v. Richards, 23 Ind. 381; Roberts v. Chicago, 26 Ill. 249; Murphy v. Chicago, 29 Ill. 279; Creal v. Keokuk, 4 Greene (Iowa), 47. But see, contra, Atlanta v. Green, 67 Ga. 386; Johnson v. City of Parkersburg, 16 W. Va. 402 (37 Am. Rep. 779); McComb v. Akron, 15 Ohio, 474 (18 Ohio, 229); Crawford v. Delaware, 7 Ohio St. 459. In the last two cases it is held that when the grade of streets is first established, the consequential injury to adjoining property does not constitute a taking of property; but when the grade has once been established, and the adjoining property improved with reference to the existing grade, a change in grade, causing damage, would give rise to a claim for compensation. In O’Brien v. St. Paul, 25 Minn. 331, it is held that if the change in the grade of a street deprives the abutting land of its lateral support, it is a taking of property in the exercise of the right of eminent domain.

[1]Pumpelly v. Green Bay, etc., Co., 13 Wall. 166, 180.

[1]See ante, § 142.

[2]All the cases cited post, in connection with the discussion of the right of the State to authorize the construction of horse and steam railways on the highways, support this general proposition. They only differ as to whether the running of these railways is inconsistent with the use of the land as a highway.

[3]Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany & Salem R. R. Co. v. O’Daily, 13 Ind. 453; Indianapolis R. R. Co. v. Smith, 52 Ind. 428; Crawford v. Delaware, 7 Ohio St. 459; Street Railway v. Cummingsville, 14 Ohio St. 523; State v. Cincinnati Gas, etc., Co., 18 Ohio St. 262; Grand Rapids, etc., R. R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); Pekin v. Winkel, 77 Ill. 56; Lackland v. North Missouri R. R. Co., 31 Mo. 180; Green v. Portland, 32 Me. 431; Brown v. Duplessis, 14 La. Ann. 842. Vacation of public highway, not a taking. East St. Louis v. O’Flynn, 119 Ill. 200; McGee’s Appeal (Pa.), 8 A. 237. But see, contra, Milburn v. Cedar Rapids, etc., R. R. Co., 12 Iowa, 246; Franz v. Railroad Co., 55 Iowa, 107.

[1]People v. Kerr, 37 Barb. 357; s. c. 27 N. Y. 188; Ferring v. Irwin, 55 N. Y. 486; Kellinger v. Forty-Second St., etc., R. R. Co., 50 N. Y. 206; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 (6 Am. Rep. 70); Coster v. Mayor, etc., 43 N. Y. 399.

[2]Story v. New York Elevated R. R. Co., 90 N. Y. 122, 145, 146. See to same effect Pittsburg Junction R. R. Co. v. McCutcheon (Pa.), 7 A. 146 note; Wagner v. Elevated R. R. Co., 104 N. Y. 665; Lahr v. Elevated R. R. Co., 104 N. Y. 268; Bulton v. Short Route Ry. Transfer Co. (Ky.), 4 S. W. 332.

[1]Citing Wyman v. Mayor of N. Y., 11 Wend. 487; Trustees of Watertown v. Cowen, 4 Paige, 510.

[2]Citing Child v. Chappell, 9 N. Y. 246; Hills v. Miller, 3 Paige, 256; Trustees of Watertown v. Cowen, 4 Paige, 514.

[3]6 N. Y. 257.

[4]It is a fact, at least in the more modern of our cities, that the public streets were originally indirect dedications by the owner to the public, by laying out a plat, and selling lots, bounded by certain streets, set forth in the plat. The sale of the lots imposed upon the land, over which the street was laid out, at least as against the owner of the land, an easement that the land shall be forever kept open as a street for the use of the lot owners. And the subsequent acceptance by the public of the street so dedicated can certainly make no change, in this regard, in the rights of the lot owners.

[1]A railroad elevated fifteen feet above the surface.

[2]In a strong dissenting opinion, Judge Earl said: “If the plaintiff has an unqualified private easement in Front Street for light and air and for access to his lot, then such easement cannot be taken or destroyed without compensation to him. (Arnold v. Hudson River R. R. Co., 55 N. Y. 661.) But whatever right an abutter, as such, has in the street is subject to the paramount authority of the State to regulate and control the street, for all the purposes of a street, and to make it more suitable for the wants and convenience of the public. The grade of a street may, under authority of law, be changed and thus great damage may be done to an abutter. The street may be cut down in front of his lot so that he is deprived of all feasible access to it, and so that the walls of his house may fall into the street, and yet he will be entitled to no compensation (Radcliff’s Ex’rs v. The Mayor, etc., 7 N. Y. 195; O’Connor v. Pittsburg, 18 Pa. St. 187; Callendar v. Marsh, 1 Pick. 418); and so the street may be raised in front of his house so that travelers can look into his windows and he can have access to his house only through the roof or upper stories, and all light and air will be shut away, and yet he would be without any remedy. The legislature may prescribe how streets shall be used, as such, by limiting the use of some streets to pedestrians or omnibuses, or carriages or drays, or by allowing them to be occupied under proper regulations for the sale of hay, wood or other produce. It may authorize shade trees to be planted in them, which will to some extent shut out the light and air from the adjoining houses. Streets cannot be confined to the same use to which they were devoted when first opened. They were opened for streets in a city and may be used in any way the increasing needs of a growing city may require. They may be paved; sidewalks may be built; sewer, water and gas pipes may be laid; lamp-posts may be erected, and omnibuses with their noisy rattle over stone pavements, and other new and strange vehicles may be authorized to use them. All these things may be done, and they are still streets, and used as such. Streets are for the passage and transportation of passengers and property. Suppose the legislature should conclude that to relieve Broadway in the city of New York from its burden of travel and traffic it was necessary to have an underground street below the same; can its authority to authorize its construction be doubted? And for the same purpose could it not authorize a way to be made fifteen feet above Broadway for the use of pedestrians? Where the streets become so crowded with vehicles that it is inconvenient and dangerous for pedestrians to cross from one side to another, can it be doubted that the legislature could authorize them to be bridged, so that pedestrians could pass over them, and that it could do this without compensation to the abutting owners, whose light and air and access might to some extent be interfered with? These improvements would not be a destruction of or a departure from the use to which the land was dedicated when the street was opened; but they would render the street more useful for the very purpose for which it was made, to wit: travel and transportation. If by these improvements the abutting owners were injured, they would have no constitutional right to compensation, for the reason that no property would be merely consequential. And if the public authorities could make these improvements, then the legislature could undoubtedly authorize them to be made by quasi-public corporations, organized for the purpose, as it can authorize plank-road and turnpike companies to take possession of highways and take toll for those who use them.” (pp. 186-188.)

[1]Story v. N. Y. Elevated R. R. Co., supra.

[2]Tonawanda R. R. Co. v. Munger, 5 Denio, 255; Woodruff v. Neal, 28 Conn. 165. In Ohio, by an ancient custom, the right of pasturage in the public highways was held to be in the public. Kerwhacker v. Cleveland, etc., R. R. Co., 3 Ohio St. 172. In Adams v. Rivers, 11 Barb. 390, it was held that trespass would lie in favor of the abutting proprietor and against one who stood in the public highway and abused the proprietor, on the ground that he was there without license, and using the land for other purposes than as a highway.

[1]Barney v. Keokuk, 94 U. S. 324, 440.

[2]Judge Cooley says: “The practical difference in the cases is, that when the fee is taken, the possession of the original owner is excluded; and in the case of city streets where there is occasion to devote them to many other purposes besides those of passage, but nevertheless not inconsistent, such as for the laying of water and gaspipes, and the construction of sewers, this exclusion of any private right of occupation is important, and will sometimes save controversies and litigation. But to say that when a man has declared a dedication for a particular use, under a statute which makes a dedication the gift of a fee, he thereby makes it liable to be appropriated to other purposes, when the same could not be done if a perpetual easement had been dedicated, seems to be basing important distinctions upon a difference which after all is more technical than real, and which in my view does not affect the distinction made.” Cooley Const. Lim. 687n. See Bloomfield, etc., Co. v. Calkins, 62 N. Y. 386.

[1]“When a common highway is made a turnpike or a plank-road, upon which tolls are collected, there is much reason for holding that the owner of the soil is not entitled to any further compensation. The turnpike or the plank-road is still an avenue for public travel, subject to be used in the same manner as the ordinary highway was before, and, if properly constructed, is generally expected to increase rather than diminish the value of property along its line; and though the adjoining proprietors are required to pay toll, they are supposed to be, and generally are fully compensated for this burden by the increased excellence of the road, and by their exemption from highway labor upon it.” Cooley Const. Lim. 677, 678. See Commonwealth v. Wilkinson, 16 Pick. 175 (24 Am. Dec. 624); Murray v. County Commissioners, 12 Met. 455; Benedict v. Goit, 3 Barb. 459; Wright v. Cartey, 27 N. J. 76; State v. Laverack, 34 N. J. 201; Douglas v. Turnpike Co., 22 Md. 219; Chagrin Falls, etc., Plank-road Co. v. Cane, 2 Ohio St. 419; Bagg v. Detroit, 5 Mich. 336. But see Williams v. Natural Bridge Plank-road Co., 21 Mo. 580.

[2]See Moses v. Pittsburg, etc., R. R. Co., 21 Ill. 516, 522; People v. Kerr, 37 Barb. 357; s. c. 27 N. Y. 188; Millburn v. Ceder Rapids, etc., R. R. Co., 12 Iowa, 246; Franz v. Railroad Co., 55 Iowa, 107, and the other cases cited in this connection.

[1]See Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany, etc., R. R. Co. v. O’Daily, 13 Ind. 353; Crawford v. Delaware, 7 Ohio St. 459; Street Railway v. Cumminsville, 14 Ohio St. 541.

[2]Wager v. Troy Union R. R. Co., 25 N. Y. 526, 532. See inhabitants of Springfield v. Conn. River R. R. Co., 4 Cush. 71; Imlay v. Union Branch R. R. Co., 26 Conn. 249; Presbyterian Society, etc., v. Auburn, etc., R. R. Co., 3 Hill, 567; Williams v. N. Y. Central R. R. Co., 16 N. Y. 97; Carpenter v. Oswego, etc., R. R. Co., 24 N. Y. 655; Mahon v. N. Y. Central R. R. Co., 24 N. Y. 658; Starr v. Camden & Atlantic R. R. Co., 24 N. J. 592; Central R. R. Co. v. Hetfield, 29 N. J. 206; So. Ca. R. R. Co. v. Steiner, 44 Ga. 546; Donnaher’s Case, 16 Miss. 649; Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Schurmeier v. St. Paul, etc., R. R. Co., 10 Minn. 82; Gray v. First Division, etc., 13 Minn. 315; Ford v. Chicago, etc., R. R. Co., 14 Wis. 609, 616; Pomeroy v. Chicago, etc., R. R. Co., 16 Wis. 640; Cox v. Louisville, etc., R. R. Co., 48 Ind. 178; Cosby v. Railroad Co., 10 Bush (Ky.), 288; Railroad Co. v. Combs, 10 Bush, 382 (19 Am. Rep. 67); 2 Dillon Municipal Corp., § 725. See contra, Mifflin v. Railroad Co., 16 Pa. St. 182; Cases of Phila. & Trenton R. R. Co., 6 Whart. 25 (36 Am. Dec. 202); Struthers v. Railroad Co., 87 Pa. St. 282; Lexington, etc., R. R. Co. v. Applegate, 8 Dana, 289 (33 Am. Dec. 497). See, also, West Jersey R. R. Co. v. Cape May, etc., Co., 34 N. J. Eq. 164; Com. v. Erie, etc., R. R. Co., 27 Pa. St. 339; Snyder v. Pennsylvania R. R. Co., 55 Pa. St. 340; Peddicord v. Baltimore, etc., R. R. Co., 34 Md. 463; Wolfe v. Covington, etc., R. R. Co., 15 B. Mon. 404; Houston, etc., R. R. Co. v. Odum, 53 Tex. 343.

[1]See opinion of Hinmann, J., in Nicholson v. N. Y., etc., R. R. Co., 22 Conn. 74, 85.

[2]Milburn v. Cedar Rapids, etc., R. R. Co., 12 Iowa, 246; Clinton v. Cedar Rapids, etc., R. R. Co., 24 Iowa, 455; Franz v. Railroad Co., 55 Iowa, 107; Grand Rapids, etc., R. R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); Grand Rapids, etc., R. R. Co. v. Heisel, 47 Mich. 393; Harrison v. New Orleans, etc., R. R. Co., 34 La. Ann. 462 (44 Am. Rep. 438); Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany, etc., R. R. Co. v. O’Daily, 13 Ind. 353; Chicago, etc., R. R. Co. v. Joilet, 79 Ill. 25; Moses v. Pittsburg, etc., R. R. Co., 21 Ill. 516, 522. In this last case, Caton, C. J., said: “By the city charter, the common council is vested with the exclusive control and regulation of the streets of the city, the fee simple title to which we have already decided is vested in the municipal corporation. The city charter also empowers the common council to direct and control the location of railroad tracks within the city. In granting this permission to locate the track in Beach Street, the common council acted under an express power granted by the legislature. So that the defendant has all the right which both the legislature and the common council could give it, to occupy the street with its track. But the complainant assumes higher ground, and claims that any use of the street, even under the authority of the legislature and the common council, which tends to deteriorate the value of his property on the street, is a violation of that fundamental law which forbids private property to be taken for public use without just compensation. This is manifestly an erroneous view of the constitutional guaranty thus invoked. It must necessarily happen that streets will be used for various legitimate purposes, which will, to a greater or less extent, discommode persons residing or doing business upon them, and just to that extent damage their property; and yet such damage is incident to all city property, and for it a party can claim no remedy. The common council may appoint certain localities, where hacks and drays shall stand waiting for employment, or where wagons loaded with hay or wood, or other commodities, shall stand waiting for purchasers. This may drive customers away from shops or stores in the vicinity, and yet there is no remedy for the damage. A street is made for the passage of persons and property; and the law cannot define what exclusive means of transportation and passage shall be used. Universal experience shows that this can best be left to the determination of the municipal authorities, who are supposed to be the best acquainted with the wants and necessities of the citizens generally. To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age. Steam has but lately taken the place, to any extent, of animal power for land transportation, and for that reason alone shall it be expelled the streets? For the same reason camels must be kept out, although they might be profitably employed. Some fancy horse or timid lady might be frightened by such uncouth objects. Or is the objection not in the motive-power used, but because the cars are larger than were formerly used, and run upon iron, and confined to a given track in the street? Then street railroads must not be admitted; they have large carriages which run on iron rails, and are confined to a given track. Their momentum is great, and may do damage to ordinary vehicles or foot passengers. Indeed we may suppose or assume that streets occupied by them are not so pleasant for other carriages or so desirable for residence or business stands, as if not thus occupied. But for this reason the property owners along the street cannot expect to stop such improvements. The convenience of those who live at a greater distance from the center of a city requires the use of such improvements, and for their benefit the owners of property upon the street must submit to the burden, when the common council determine that the public good requires it. Cars upon street railroads are now generally, if not universally, propelled by horses; but who can say how long it will be before it will be found safe and profitable to propel them with steam, or some other power besides horses? Should we say that this road should be enjoined, we could advance no reason for it which would not apply with equal force to street railroads; so that consistency would require that we should stop all. Nor would the evil which would result from the rule we must lay down stop here. We must prohibit every use of a street which discommodes those who reside or do business upon it, because their property will else be damaged. This question has been presented in other States, and in some instances, where the public have only an easement of the street, and the owner of the adjoining property still holds the fee in the street, it has been sustained; but the weight of authority, and certainly, in our apprehension, all sound reasoning is the other way.”

[1]Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany, etc., R. R. Co. v. O’Daily, 12 Ind. 551; s. c. 13 Ind. 353. See, also, Street Railway v. Cumminsville, 14 Ohio St. 523; Grand Rapids, etc., R. R. Co., 38 Mich. 62 (31 Am. Rep. 306); s. c. 47 Mich. 393.

[2]For cases, in which the fee was in the adjoining proprietor, see Attorney-General v. Metropolitan R. R. Co., 125 Mass. 515 (28 Am. Rep. 264); Commonwealth v. Temple, 14 Gray, 75; Elliott v. Fairhaven, etc., R. R. Co., 32 Conn. 579; Hinchman v. Railroad Co., 17 N. J. Eq. 75; s. c. 20 N. J. Eq. 360; City Railroad Co. v. City Railroad Co., 20 N. J. Eq. 61; Street Railway v. Cumminsville, 14 Ohio St. 523; Hobart v. Milwaukee City R. R. Co., 27 Wis. 194 (9 Am. Rep. 461). In Craig v. Railroad Co., 39 Barb. 449; s. c. 39 N. Y. 404; Wager v. Railroad Co., 25 N. Y. 526, it was held that there was no difference between the horse and steam railways. In both cases, there must be a payment of compensation for a new taking of property from the owners of the fee. For cases, in which the fee was in the public, see People v. Kerr, 27 N. Y. 188; Kellinger v. Street Railroad Co., 50 N. Y. 206; Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen, 262; Street Railway v. Cumminsville, 14 Ohio St. 523; Chicago v. Evans, 24 Ill. 52; Hess v. Baltimore, etc., Railway Co., 52 Md. 242 (36 Am. Rep. 371.)

[1]Kellinger v. Street R. R. Co., 50 N. Y. 206; People v. Kerr, 27 N. Y. 188.

[2]Hobart v. Milwaukee City R. R. Co., 27 Wis. 194 (9 Am. Rep. 461).

[3]Cooley Const. Lim. 683.

[4]State v. Laverack, 34 N. J. 201; State v. Mayor, etc., of Mobile, 5 Port. 279 (30 Am. Dec. 564); Angell on Highways, § 243, et seq.; Barney v. Keokuk, 94 U. S. 324.