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Full text of "Cases on constitutional law. With notes"


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UNIVERSITY 

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CASES ON CONSTITUTIONAL LAW. 



CASES 



ON 



CONSTITUTIONAL LAW. 



WITH NOTES. 



PART THREE. 



BY 

JAMES BRADLEY THAYER, LL.D. 

WELD PKOFESSOR OF LAW AT HARVARD UNIVERSITY. 



CAMBRIDGE: 
CHARLES W. SEVER. 

1894. 



Copyright, 1894, 
By James Bradley Thayer. 



University Press. 
John Wilson and Son, Cambridoe, U. S. A. 



TABLE OF SUBJECTS. 



CHAPTER VI. 

Pages 

The Right of Eminent Domain 945-1189 



CHAPTER VII. 
Taxation 1190-1431 



rifAnnnrt 



TABLE OF CASES. 



In this Table each case which has the names of two parties is entered twice ; that is to 
say, under both names, — except where these are identical. As regards cases in the notes, 
mere citations are omitted. Cases that are cited in the text of another case and somewhat 
fully stated or explained, are sometimes entered in the Table. 



A. 



Adams v. Chic, Burl., & No. R. R. 

Co. 1137 

Allen V. Inhab. of Jay 1212 

Apthorp, Portland Bank v. 1416 

Ash V. The People 1274 

Assessors, The, Van Allen v. 1358 



B. 



Bank of Commerce v. N. Y. City 
Banks, The, v. The Mayor 
Bank Tax Case 
Beasly, Burlington v. 
Beecher, Evergreen Cem. Ass. v. 
Bell's Gap R. R. Co. v. Pa. 
Bliss, Cary Library r. 
Bohm V. Metr. Kiev. Ry. Co. 
Bostick V. The People 
Boston, Dorgan v. 

Lowell c. 

Parks r. 
Boston, Cone, & Mont R. R 



1357 

1351 n. 

1857 

1241 n. 

1004 

1407 

1043 

11.30 n 

1275 n. 

1206 

1224 

9G8n 

Eaton 



1064 



Boston & Lowell R. R. Co. v. Salem 
& L. R. R. Co, 

Boston & Roxbury Mill Corp. v. New- 
man 

Boston Water Power Co. c. Bost. & 
Wore. R, R. Co 

Boston & Wore R. R. Co., Bost. W. 
P. Co. c. 

Bradshaw, Rogers ?;. 

Brewer, Lihab. of. Brewer Brick Co. 
V. 1218 

Brewer Brick Co. v. Inhah. of Brewer 1218 

Briekelt v. Haverhill Aqned. Co. 1183 

Bridgeport, Farist Steel Co. v. 1031 n. 

Brockton, Kingman v. 

Brooklyn, Guest v. 

Brooklyn, Mayor of. People v. 

Brown Man. Co.. State c. 

Bunbury, Weimer r. 

Burlington v. Beasley 



977 

1005 

969 



960 

984 



1029 n. 
1295 n. 

1286 
1406 n. 

1203 
1241 n. 



c. 

Page 
California v. Cent. Pac. R. R. Co. 1394 
Callender v. Marsh 1048 

Cambridge, Howe v. 1308 

Camden, &c. Ry. Co., West Jersey 

Ry. Co. V. 1157 n. 

Camp, Olmstead r. 1011 n 

Cary Library v. Bliss 1043 

Cast Plate Manufs, Gov. & Co of, 

?•. Meredith 1045 

Central Pac. R. R. Co., California v. 1394 
Chamberlain, City of Norfolk v. 1294 n. 
Charleston, Jenkins v. 1267 n. 

Murray v. 1267 n. 



Weston V. 


1346 


Chicago, Rigney v. 


1085 


V. Taylor 


1088 


Transp. Co. v. 


1081 


Chicago, Burl., & North. R. R. Co., 


Adams v. 


1137 


Close, Fifield v. 


1375 


Cole V. La Grange 


1240 n. 


Collector, The, v. Day 


1378 



Com'rs V. Moesta 1025 n 

People V. 1190, 1.363 

Com'rs of Erie Co., Dobbins v. 1352 

Commonwealth, The, Nat. B'k v. 1363 n. 
V. WestinghoTise Co. 1397 n 

Conn. Riv. Co., Holyoke W. P. Co. v. 

1015 n. 
Conn. Riv. R. R. Co. v. Co. Com'rs 

of Franklin 1179 

Coster, Tide Water Co. v. 1.302 

County Com'rs, Norwich r. 1194 

Coimty Com'rs of Franklin, Conn. 

Riv. R. R. Co. t'. 1179 

Crandall v. Nevada 1364 



D. 



Davenport, Fulton v. 1203 n. 

Davis, Raleigh & G. R. R. Co v. 992 

Dav, The Collector v. 1378 

Decatur, 111. Cent. R. R. Co. i: 1310 



Vlll 



TABLE OF CASES. 



Page 

Delaware, &c. Ry. Co., Kocli v. lOT'J 

Dctmit, ra\il v. 102fi n. 

Dix, West Uiv. Br. Co. v. 970 

Dobbins r. Coni'rs of Erie Co. 1352 

Dorgan v. Boston 1290 

Doyle, Str. Ky. Co. v. 1159 

Drake v. Earliart 1059 n. 

Drew, Pierce v. 1133 



E. 



Earhart, Drake v. 1059 n. 

Eaton )'. Bost ', Cone, & Mont. R. R. 1064 
Emery, Hooper v. 1209 

Engernian, U. S. v. 1183 n. 

Essex Co., Hazen v. 1012 

Evanston, Stubbings v. 967 

Evergreen Cem. Ass r. Beecher 1004 
Evergreen Ry. Co., Borough of Mill- 
vale i;. 1094 n. 



Faircliild v. St. Paul 9fi5 

Fall River, Watuppa Reserv. Co. v. 

1015 n. 
Farist Steel Co. v. Bridgeport 1031 n. 
Fenno, Veazie Bank v. 1334 

Fifield I'. Close 1375 

Fifth Nat. bk., N. Y. Elev. R. R. v. 1119 n. 
Flagg, People v. 119(3 

Fobes V. Rome, Watert , & Ogd. R. 

R. Co. 1115 n. 

Foreign Held Bonds, State Tax on 1258 
Forbes, Lynch v. 1041 

Forster v. Scott 1187 

Fulton V. Davenport 1203 n. 

Franklin, Franklin Needle Co. v. 1223 n. 
Franklin Needle Co. v. Franklin 1223 n. 



G. 



Gage County, Wagner v. 1177 

Gardner v. Newburgh, Trustees of 979 
Garrett v. Lake Roland Elev. Rv. 

Co. "1144 n 

Gleason v. McKay 1419 

Glover, Huse i\ 1333 n 

Grand Rapids Booming Co v. Jar- 
vis 1078 n. 
Green Bay Co., Pumpelly v. lOGO 
Guest V. Brooklyn 1295 n 



H. 



Hagar v. Reclamation Dist. 1-302 n. 

Halsey v. Rapid Trnns. Str. Ry. Co. 1151 
Hammett v. Phila. 1045 n., 1308 n 

Hancock, Snvnnnah i\ 1041 n. 

Harvev r. Tliomas 990 

Haverhill Aqucd. Co., Brickett r. 1183 



Hays V. Risher 
Hazen v. Essex Co. 
Head Money Cases 
Higginson v. Nahant 
Holyoke Water Power Co 

R"iv. Co. 
Home Ins. Co. v. N. Y. 
Hooper V. Emery 
Horton, Miller v. 
Horn Silver Min. Co. i'. N. 
Hot Springs R. R. Co. v. W 

Hotchkiss, Kirtland v. 
Howe V. Cambridge 
Hudson, Talbot v. 
Huse V. Glover 
Hyattsville, Wells v. 
Hylton V. U. S. 



I. 



Y. 



991 n. 

1012 
1340 n. 

1026 
Conn. 

1015 n. 

1399 

1209 
1079 n. 

1412 



illiamson 

1089 n. 
1208 
1308 
1016 
1333 n. 
1191 
1315 



Illinois Cent. R. R. Co. i-. Decatur 1310 
hi re Est. of Swift 1271 

Petition of U. S. 1185 n. 

Phil. & Trenton R. R. Co. 1090 

Indiana Nat. Gas Co., Kincaid r. 1167 n. 
Inhabitants of Brewer, Brewer Brick 

Co. )-. 1218 

Inhabitants of .Jay, Allen v. 1212 



J. 



Jarvis, Grand Rapid Boom. Co. v. 1078 n. 
Jay, Inhab. of, Allen v. 1212 

Jenkins r. Charleston 1267 

Johnson, Sinnickson v. 983 n., 986 

Jones, U. S. v. 952 



K. 



Keene, Perry v. 1247 

KtUy V. Pittsburgh 1197 
Kincaid i\ Indiana Nat. Gas Co 1107 n. 

Kingman v. Brockton 1029 n. 

Kingman et al., Pet'rs 1234 n. 

Kirtland r. Hotclikiss 1268 

Koch V. Del., &c. Ry. Co. 1079 

Kohl V. U. S. 956 

Kramer, Omaha v. 1090 n. 



La Grange, Cole v. 1240 

Lahr v Metrop. Elev. Ry. Co 1113 n. 
Lake Roland Elev. Ry. Co , Garrett 

V. 1144 n. 

License Tax Cases 1276 

r>oan Association v. Topeka 1285 

Lord V. Meadv. Water Co. 1015 n. 

Lowell r. Ro-ton 1224 

Lund)erville Co. v. State Board of 

Assessors 1415 n. 

Lvnch V. Forbes 1041 



TABLE OF CASES. 



IX 



M. 



M'CuUoch V. State of Maryland 1340 

McDevitt V. People's Nat. Gas Co. 1163 
McKay, Gleason v. 1419 

Maltby v. Reading, &c. R. R. Co. 1262 
Marchant v. Pa. R. R Co. 11(57 

Marsh, Callender v. 1048 

Maryland, M'CuUoch v. 1340 

Ward V. 1410 

Massachusetts, Western Un. Tel. 

Co. V. 1390 

Mayor, The Banks v. 1351 n. 

Mayor of Brooklyn, People v. 128(3 

Mayor of Newark, State o. 1304 

Mayor of Paterson, State v. 1307 n. 

Mayor of Pliila., Sharpless v. 1256 n. 

Meadville Water Co., Lord v. 1015 n. 

Meeker, Peart v. 105(5 

Merchant's Bank, Tappan v. 1267 

Meredith, Gov. & Co. of Cast Plate 

Manuf's v. 1045 

Metropolitan Elev. Ry Co., Bohm v. 

1130 n. 

Lahr v. 1113 n. 

Newman v. 1125 

Pond I'. 1118 

Miller v. Horton 1079 n. 

Millvale, Borough of, v. Evergreen 

Ry. Co. 1094 n. 

Minot ('. Winthrop 1422 

Moesta, Com'rs v. 1025 n. 

Moore v. Sanford 1025 n. 

Morford v. Unger 1201 n. 

Morgan, Peete v. 1333 n 

Murray v. Charleston 1267 n 



N. 



Nahant, Higginson v. 1026 

National Bank v. The Commonwealth 

1363 n 
Nelson County, North Dakota v. 1242 
New Hampshire Bridge, Propr's 

Piscat. Br. v. 1067 n 

New York, Home Ins. Co. v. 1399 

Horn Silver Min. Co v, 1412 

City Bk. of Commerce v. 1357 

New York Elev. Ry. Co. v. Fifth Nat. 

Bk, 1119 n 

New York Elev. Ry. Co., Story ■; 1095 
New York, Lack,, & West. Ry Co , 

Reining v. 1119 

Newark, Mayor of, State v. 1304 

Newburgli, Trustees of, Gardner i\ 979 
Newby v. Platte County 1170 

Newman, Bost. & Roxbury Mill 

Corp. V. 1005 

V. Metr. Elev. Ry. Co. 1125 

Nevada, Crandall v. 1364 

Niagara Falls & Whirlpool Ry. Co., 

Tn re 1020 n. 

Norfolk, City of, v Chamberlain 1294 n. 
North Dakota i' Nelson Co. 1242 

Norwich r. County Com'rs 1194 



O 

Page 

O'Brien v. Phila 1055 n. 
O'Connor v. Pittsburgh 1051 

Olcott, Supervisors v. 1257 n 

Olmstead -y. Camp 1011 n. 

Omaha v. Kramer 1090 n. 

Omaha So. Ry. Co. v. Todd 1179 n 

(3sawkee Townsh., State v. 1247 n 

Osborn v. U. S. Bank 1346 n 

Otoe, R. R. Co. V. 1256 n 



P. 



Pacific R. R., Thomson v. 1369 

Palairet's Appeal 1034 

Parks V. Boston 968 n. 

Paterson, Mayor of, State i'. 1307 n 

Paul V. Detroit 1026 n. 

Paulsen v. Portland 985 n 

Peart v. Meeker 1U56 

Peete y. Morgan 1-333 n 

Pembina Co. v. Pa. 1406 n 

Peniston, R. R. Co. v. 1383 

Pennsylvania, Bell's Gap R. R. Co. v. 1407 

Pembina Co. v. 1406 n. 

Pennsylvania R. R. Co., Marchant v. 1167 

People, Ash v. 1274 

Bostick V. 1275 n. 

V. Com'rs 1190, 1363 n 

V. Flagg 1196 

V Mayor of Brooklyn 1286 

V. Salem 945 

V. Smith ■ 962 

White V. 1310 n 

Wynehamer v. 1239 n 

People's Nat. Gas Co., McDevitt v. 1163 

Perry v. Keene . 1247 

Perth Am boy, State v. 1186 

Petition of U. S., In re 1185 n. 

Philadelphia, Hamniett ;; 1045 n 

Philadelphia, Mayor of, Sharpless v. 

1256 n. 
Philadelphia, O'Brien v 1055 n 

Philadelphia & Trenton R. R. Co., 

In re 1090 

Pierce v. Drew lloo 

Piscataqua Bridge, Prop'rs of, i'. New 

Hamp. Bridge 1067 n 

Pittsburgh, O'Connor v. 1054 

Platte County, Newby v. 1170 

Pond y. Metrop. Elev. Ry. Co. 1118 

Portland, Paulsen v. 985 n 

Portland Bank v. Apthorp 1416 

Price County, Wise. Cent. R. R. Co. 

V. 1397 

Pueblo, City of, v. Strait 1090 n 

Pumpelly v. Green Bay Co. 1060 



R. 



Railroad Co. v. Otoe 1256 n. 

r. Peniston 1383 

Raleigh & Gaston R. R. Co. v. Davis 992 



TABLE OF CASES. 



Page 
Rapid Trans. Str. Ry. Co., Halsey v. 1151 
Reading & Col. R. U. Co., Maltby v. 12G2 
Reclauiation Dist., Hagar v. 1302 n. 

Reeves v. Treas. of Wood Co. 1293 n. 
Reining v. N. Y., Lack., & West. Ry. 

Co. 1119 

Rigney r. Chicago 1085 

Risher, Hays i;. 991 n 

Rome, Wat., & Ogd. R. R. Co., Fobcs 

V. 1115 n. 

Rogers v Bradshaw 984 



S. 



Co. 



1279 
905 
945 



St. Louis V. West. Un. Tel 

St. Paul, Fairchild v. 

Salem, People i-. 

Salem & Lowell R. R. Co., B. & L. 

R. R. Co V. 977 

Sanford, Moore v. 1025 n. 

Savannah v. Hancock 1041 n. 

Scott, Forster v. 1187 

Sharpless v. Mayor of Phila. 1256 n. 

Shoemaker v. U. S. 1030 

Silver Bow Co., Talbott v. 1358 
Sinnickson v. Johnson 983 n., 986 

Smith, People v. 962 

V. Washington 1056 n. 

Springer v. U. S. 1321 

State i- Brown Man. Co. 1406 n 

V Mayor of Newark 1304 
V. Osawkee Townsh. 1247 n 

V Paterson 1307 n. 
V. Perth Amboy 1186 

State Board of Assessors, Lumberv. 

Co V. 1415 n. 
State Tax on Foreign Held Bonds 1258 

State Tonnage Tax Cases 1327 

Story IV N. Y Kiev. Ry. Co. 1095 

Strait, City of Pueblo v. 1090 n. 

Street Railway Co v. Doyle 1159 

Stubbings i\ Kvanston 967 

Supervisors, Olcott v. 1257 n. 

Swift, Estate of. In re 1271 



Talbot V. Hudson 1016 

Talbott V. Silver Bow Co. 1358 n. 

Tappan v. Merchant's Bank 1267 

Taylor, Chicago v. 1083 

Tennessee, Van Brocklin v. 901, 1398 n. 



Thomas, Harvey v. 
Thomson v. Pac. R. R. 
Tide Water Co. f. Coster 
Todd, Omaha So. Ry. Co v. 
Topeka, Loan Ass. v. 
Transportation Co r. Chicago 



Page 
990 
1369 
1302 
1179 n. 
1336 
1081 



Treasurer of Wood Co., Reeves r. 1293 n 



u. 



United States v. Engerman 1183 n. 

Hilton V 1315 

In re Petition of 1185 n 

V. Jones 962 

Kohl V. 956 

Shoemaker v 1030 

Springer v. 1321 

United States Bank, Osborn v. 1346 n. 

Unger, Morford v. 1201 n 



Van Allen v. The Assessors 1358 

Van Brocklin v. Tenn. 961, 1398 n 

Veazie Bank, Fenno v. 1334 



W. 

Wagner v. Gage County 1177 

Ward V. Maryland 1410 

Washington, Smith v. 1056 n 

Watuppa Reserv. Co v. Fall River 

1015 n. 
Weimer v. Bunburv 1203 

Wells V. Hyattsvilfe 1191 

West Jersey Rv. Co v. Camden, &c. 

Ry. Co. ' 1157 n. 

West River Bridge Co. v. Dix 976 

Western Un Tel. Co. v. Mass 1390 

St Louis V. 1279 

V. WiUiams 1145 

Westinghouse Co., Com. v 1397 n. 

Weston V. Charleston 1346 

White y. The People 1810 n. 

Williams, West. Un. Tel Co. v. 1145 

Williamson, Hot Sp. R R. Co. v 1090 n 
Winthrop, Minot v 1422 

Wisconsin Cent. R. R, Co. r. Price 

Co. 1397 

Wood Co., Treas'r of, Reeves v. 1293 n. 
Wynehamer v. People 1239 n. 



PART III. 

— • — 

CHAPTER VI. 

THE RIGHT OF EMINENT DOMAIN. 

If we examine the suliject critically, we shall find tha t the most important consid- 
e ration ill the case of emiueiit domain is the necessity of nccomplishino- some piil)l i c 
g ood which is otherwise impracticabl e ; and we shall also find that the law does not so 

mnch rcf^ard the means as the need. The power is much nearer akin to that of th e «« lU^^ 

p ublic police than to that of taxatio n ; it goes but a step farther, and that step is in t he O''^''^ ^^ 

same directio n. . . . The butcher in the vicinity of who.se premises a village has grown ^J >u.>^ - < 

up finds himself compelled to remove his business elsewhere, because his right to make ^M 

use of his lot as a place for the slaughter of cattle has become inconsistent with the ^^^ '^'^^ 

superior right of the community to the enjoyment of pure air and the accompanying ^;:iX^La1^ *^ 

blessings and comforts. Tiie owner of a lot within the fire limits of a city may be i^ J 

coiupelled to part with the property, because he is unable to erect a brick or stone XIxa. jp*"^'"^ 

structure upon it, and the local regulations will not permit one of wood. Eminent IxjnJi/t^ 

domain only recognizes and enforces the superior right of the community ... in a I 

similar way. — Cooley, J., for the court, in People v. Salem, 20 Mich. 452 (1870); ■'f^xAMA. ^ 

and so Coolev, Const. Urn. 6th ed. 660, note (1890). , ^ 

The phrase Eminent Domain appears to have originated with Grotius , ^KAAju/i^c 
and the nature of the power which it designates is accurately described 
by him. That power is a universal one, and is as old as political society, x-i yix^^ 
Writers on pul)lic law who succeeded Grotius found some fault with the Yi^ri.'^^ 
name, as seeming to import State ownership of all private property '^ ^ L J 
but they agreed as to the real scope of the power in question, and all '^K j^' ("^ 
recognized the name as an accepted one. -iXi,<^ aA~ 

The statements of Grotius, and some passages from the leading , 

writers among his successors down to the middle of the last century, /yl<-V^^ 
sometimes cited in our reports, are given below. To these are added <^<i/a^3-c^ 
observations from Blackstone. These passages will bring out the con- ^MA.,„,<dJA. 
ceptions upon this subject which the framers of our first constitutions 
entertained. It was said by Chief Justice INIarshall, in 1S27 {Ogden v. f^-'^'^'*-^*^ 
/Snimders, 12 Wheat. 213, 353), in discussing the meaning of the x-tM. . (^^-^ 
phrase, " obligation of contracts," that, " When we advert to the course ^^^^^.^^^ CMi 
of reading generally pursued by American statesmen in earlj' life, we ^ 

must suppose that the framers of our Constitution were' intimatel}' ac- f^^*-*^^ 
quainted with the writings of those wise and learned men whose trea- :yiu^^i^ 
tises on the laws of nature and nations have guided public opinion on (^ «=i,c^ 
the subject of obligation and contract." This is peculiarly true and u 

peculiarh' applicable, as regards the topic now in hand. , 
voT,. I. — GO 



,;;g^946 THE rJGIIT OF EMINENT DOMAIN. [ciIAI'. VI. 



i>^u/" 



^. /OVtr|?. T he effect oF our constitutional restraints in their usual for m, that 

A wliicli we find in the earlier instruments (e. g. supra, p. 412, art. 5),_is 

woAXXKJ^ gjmply ^Q ^(^1^1 ^Q the moral duty of compensation , described by Grotius, 

^xxA a legal sanction . They do not change the scope or nature of the power 

+- itself. That power has to do merely with depriving a person of his 

property for the benefit of the State, It will be observed that another 
'-^^► • matter was suggested by Bynkershock (infra, pp. 949, 950 n.), an exten- 

-f^,^ ^ sion of the doctrine of Eminent Domam : Quiclni generaliter statvamus 

om/ie damnum quod privati ferunt p\o necessitate vel ictilitate com- 

A ^ muni, commicne, et 2>i'oinde ex area pubj,ica refarciendum esse? To 

\u_ C^u - this question he gives no decisive answer ; but his own opinion seems to 

_ T incline in favor of this doctrine, that every citJzen should be reimbursed 
-J-- I ' J — 2 

/^avuM « for any loss suffered for the public benefit. Undoubtedly no such doc- 

Q| A trine was recognized b}- the writers on public law as an established one. 

As a broad and u niversal m axim, English usage knew nothing of it. 

> iX^ Our early constitutions did not introduce it. The^' dealt with th is gre at, 

_^^^^^,^o w ell-knowMT, universal power of all g overnmen ts, t o appl y to the use of 

j^ t he State, in a n exigenc y, any ])riv atc |:)roperty whatever ; and gave a 

legal sanction, not elsewhere existing, to those moral limitations upon 

it which all the writers on public law had acknowledged. 



h^' 



uJ^^ t^-i* Some of the later American constitutio ns, however, (e. g. Colorado, 



uA^^- 



s>/pra, p. 435, s. 15), beginning with ilUnois in 1870, have accepted 



-O-A^ 



4 



ff the moral obligation which Bynkershock suggested, and have given a 

CUm l egal sanction t o that also, requiring compensation where i:)ro|)erty is 

^^^,^^ ^ d amaged by public authority and not merely where it is taken away . 
And in some cases, even th e courts, without the aid of any such clause, 
moved by the inconsiderate action of legislatures, have sought to reach 

n ! a 

^-^•^-A- ^^-^ the s ame result by their interpretation of the words "property" and 
p.\\raky\ "taking." The legitimacy of this latter course of action ma}- be 

doubted. As to the former, that of changing the constitutions, the 
■^^-^^^-'^ propriet}- of this method cannot be questioned, if an}' community has 
(j;c\y>^ ~ come to think so considerable a tying-up of their legislature to be neces- 
^ sar}- or desirable. T hat compensation is often omitted when it shou ld 

be given, is true enou gh*; the re medy for this is another matte r. See 
'>t«iJ^ infra, pp. 954, 983 n.^ 

VTC 'T/^-V'tA," /7,.^„( Gkotitts . De Jure Belli et Pads, Vih. i. c. I (1625). III. In naming this 

/|Xj_^ treatise De Jure Belli, we mean to suggest first, what has just been said, Whethe r 

P"^ any war is ins t ; and, second, In war, what is just? For jus, here, means merely wha t 

,.,^^^^JL-^X^ is ju st: and that rather in a negative than a positive sense, — that ;».s is wliat is not 

unjust . That is unjust which is contrary to the nature of a society of rational crea- 

•^n/va-^-w-* tures. . . . IV. Tliere is another meaning ol jus, different from this, yet derived from 

it, which refers to a person ["as when we say my right," — Whewell's Translation] ; 

Zk .'(-^^ in which sense right [jus] is a moral quality belonging to a person, wherebj^ he may 

iaajL/vCaXp^^"*^''''^ have or do anything. ... A moral quality, when perfect, we call /ac«/?os ; 

/ when not perfect, aptiludo. ... V. Facultas is so called by the jurists, — by its 

lAX ti^ o''^'" name. We, hereafter, shall call it jus, in the strict and proper sense of that 

word. Under this are included (1) Potesta s, — w hether o ver one's self, wh ich is 

.^<.x/^i-< ZTTT " ~ 

l^ a/y~*Xr ^ See also Thayer's Orig. and Scope Am. Doct. Const. Law, pp. 29, 30. — Ed. 







It 



3. 0-/i>up^*<^'^ 
THE RIGHT OF EMINENT DOMAIN. ~" 94? 

called libe rty ; or over others, as the father's or the master's power, (2) Dominlnm, 
w hether ful l, or not full, as usufruct, or the right of a pledg ee { jus pignoris) ; and (3) 
C reditum. the right which stands oijijot^ed to deb t. VI. Tlii s facidtas, aga in, is two- 
fold; namely, vahjans, which exist s for private u se, and eminens, w liic h is superior to 
tli e jus vulgaris, since it belongs to the community , fo r^he common benefit, as again st 
] )(;rsons and thing s. Thus the renia /lotestas has under it the father's and the master's 
power of control; so, as against wliat belongs to individuals, the dominium liej/is, for 
the common benefit, is greater than that of private owners; and [as regards Creditum] 
every one has a greater obligation to the State, for public ends, than to his private 
creditor.^ 

Ibid. lib. iii. c. 20. VII. 1. This also is a common question; what may be done 
for the sake of peace with tlie goods of individuals, by kings wlio have no other right 
over the property of subjects than tlie regal right. We have elsewhere said, that the 
p roperty of s ubjects is un der the eminent domain of th e Stat e ; so that the State, or 
he who acts for it, may use, and e ven alienate and destroy such property ; not onl y 
in case of extreme necessity , i n which even private persons have a right over the jjroj)- 
erty of ot hers ; but for ends of public utili ty, t o whi c h ends those who founded c ivil 
society mu st be supjiosed to have intended that private ends should give way . 2. But 
it is to be added, tliat when this is done, the State is bound to make good the j[oss_t o 
those who lose their property ; and to this public purpose, among others, he who has 
suffered the loss must, if need be, contribute. Nor is tiie State relieved from t his onus, 
i f. for the present, it be unable to discharge it ; but at any fu ture time, when the 
means are there, the oliligatiou which had been suspended revives. '^ 

From PiiFExno RF. De Jure Naturce et Genti\un, lib. i. c. 1, s. 19 (1672). Potestas 
(control), in respect o f what is one's own, is called dominiu m ; potestas, in respect of 

1 III. De jure belli cum inscribimus banc tractationem, primum hoc ipsum intelli- 
gimus, quod dictum jam est, sitne helium aliquod justum, et deiude quid in hello justuni 
sit? Nam jus hie niiiil aliud quam quod justum est significat, idque negante magis 
sensu quam aiente, ut jus sit quod injustum uon est. Est autem injustum, (]Uod 
natura; societatis ratione utentium repugnat. . . . IV. Ab hac juris significatioue 
diversa est altera, sed ab hac ijisa veniens, qu£e ad personam refertur- quo sensu jus 
est, Qualitas moralis persons competens ad aliquid juste habendum vel agendum. . . . 
Qualitas autem moralis perfecta, facnltas noljis dicitur ; minus perfecta, aptitudo. . . . 
V. Facultatem Jurisconsult! nomine sui appellant, nos posthac jus proprie ant stricte 
dictum appellabimus : sub quo coutinentur Potestas, tum in se, qua; libertas dicitur, 
tum in alios ; ut patria, dominica : Dominium, plenum sive minus pleno, ut usufructus, 
jus pignoris : et Creditum, cui ex adverso respondet detntum. VI. Sed hiec facultas 
rursum duplex est : vulgaris scilicet, qute usus particularis causa comparata est ; et 
eminens, quae superior est jure vulgari, utpote communitati comjietens in partes et res 
partium, boni communis causa. Sic regia potestas sub se habet ct patriam et domini- 
cam potestatem : sic in res singulorum majus est dominium Kegis ad bonum com- 
mune, quam dominorum singularium: sic reipublicaj quisque ad usus publicos magis 
obligatur, quam creditori. 

2 VII. 1. Disputari et hoc solet, quid in res singulorum possint pacis causa statuere, 
qui reges sunt, nee in res subditornm aliud jus habent quam regium. Alibi di.ximus 
res subditorum sub emiuenti dominio esse civit.atis, ita ut civitas, aut cpii civitatis vice 
fungitur, iis rebus uti, easque etiam perdere et alienare possit, non tantum ex snmma 
necessitate, qute privatis quocjue jus aliquod in aliena concedit, sed ob publicam 
utilitatem, cui privatas cedere illi ipsi voluisse censendi sunt, qui in civilem coetum 
coierunt. 2. Sed addendum est, id cum fit, civitatem tenere his, qui suum amittnnt, 
sarcire damnum de publico, in quod publicum nomen et ipse, qui damnum passus est 
si opus est, contribuet. Neque hoc onere levabitur civitas, si nunc forte ei prajstatione 
par non sit, sed quandocumque copia suppetit, exseret sese quasi sopita obligatio. 

The translation of this last passage from Grotius is mainly taken from Dr. Whewell's 
edition (Cambridge, University Press, 185-3). His rendering of the former one is 
inaccurate, and another is substituted. For a third passage from Grotius, .see infra, 
p. 982, note. — Ed. 



948 THE KIGIIT OF EMINENT DOMAIN. [ciLVr. V[. 

other perso ns is, properly speaking, imperium ; poteslas, in resp ect of^thejropert}- of 
o ther per sons, constitute s a servitud e.^ 

Hud. lit), viii. c. 5, s. 7. As regards eminent domain, some persons condemn, not so 
much the thing itself, as its name. For they say that t iic very nature of sni^rcm o 
rule ( imperium) estahlislicd for the pnhlic welfare, gives a snHkiont title to the princ e, 
when necessity presses , f or using tlie property of his snhjccts; since nil m ust be nnder- 
stood to be surrender ed, witliout wiiich tlie common good cannot be ol)taine tl ; "and, 
fnrtlier, that it is a swelling piirasc, which bad rulers may abuse to squander the 
resources of their subjects.'- But it is idle to contend over words ; and it is not unrea- 
sonable to designate by a specific name a portion of the supreme rule which manifests 
itself in a specific way about a specific matter. What the import is of this dominiuin 
may be gathered from these considerations. It is a matter of natural equity, whe n 
t iiere is to be a contribution towards the preservation of anytliiug i)o.s.scssed in common , 
by those who sliare in it, t hat iiidividnals shoukl c ontril)Ute only a projiortional share , 
a nd that no one should be o|)prcs.sive]y loaded beyond otlier.s . Tlie same thing holds 
in States. But since often tiie exigencies of a government are such tliat citlier urgent 
necessity does not allow the fixing of the proportions of what is to be collected from 
individuals, or else some specific ])ossession of one citizen, or of a few, is re(juired for 
the necessary uses of the State, the supreme government must be able to apply this 
thing to the public necessities : provided, nevertheless, that w hat exceeds the propor - 
t ional share of its owners shall be refunded by the other cit izens.^ 

From Heixeccics . Elem. Jur. Nat. et Gent. lil). ii. c. 8, s 168 (1730) Among th e 
inherent rights of supreme power there is, furthermore, the right of imposing tax es 
and tribute upon its citizens ; nay, even of applying to the use of tlie State their ;)r op- 
erty . w hen necessity requires it, — a right which is usually called the right of emine nt 
domai n. [Note.] We confess, however, that this use of the word is not quite apt, for 
the conception of dominium and that of imperium are different things •■ it is the latter 
and not the former which belongs to rulers {imperantibus). For tiiis reason what 
Grotius, de jure belli et pads, i. 1,6, first styled dominium eminens, Seneca, de iienef. 
vii. 4, more accurately called potestas. To kings, he said, belongs the control of all 
things (potestas omnium), to individuals the ownership (propnctas) of them. . . . 
But, so long as the controversy is about the name and origin of the thing, and no one 
doubts about the actual right of rulers, when necessity requires, to apply to the use of 

1 Potestas in res proprias, vocatur dominium. Potestas in personas alias, imperium 
proprie est ; potestas in reiu alienam, servitus. 

- It behoves a democracy, like our own, to remember that this objection has a dis- 
tinct application to them. A ruler who is ignorant or carele.«s is no less a bad ruler, 
because he means well. The evil in question is a specific result; it does not matter 
what the motives of the ruler are. — Ed. 

3 Dominii eminentis non tam rem, quam vocabulum aliqui damnant. Ipsam enim 
vim imperii propter salutem publicam instituti, sufficientem principi titulum pra^bere, 
urgente necessitate ntendi bonis suorum subditorum ; eo quod onmia simul concessa 
intelligantur, sine quibus olitiiieri bonum commune non potest. Ambitiosum quoque 
esse id vocabulum, quo mali principes abuti possint ad dissipandas subditorum facul- 
tates. Verum uti super vocabulis litigare snpervacuum est; ita particulam summi 
imperii, qune certo sese modo circa certam rem exserit, peculiar! nomine insignire, noK 
printer rationem est. Ejus autem dominii qure vis sit, ex hisce intelligetur. Natu- 
ralis est fequitatis, ut si ad communem quampiam rem conservandam ab iis qui de 
eadem participant, conferendum quid sit, singuli ratam duntaxat partem conferant, 
nee nnus supra cajteros graviter oneretur. Idem et in civitatibus obtinet, Sed cum 
sa;pe ea sint reipublicte tempora, nt vel urgens necessitas non admittat ratas 
partes a singulis colligi, vel certa quampiam res unius aut paucorum civium ad neces- 
sarios usus reipublicaj requiratur, poterit snmmum imperium earn rem pnblicis neces- 
sitatibus adhibere ; ita tamcn, ut c^uod ratam partem domiuorum excedit, a ceteris 
civibus sit ipsis refundendum. 



CHAP. VI.] THE RIGHT OF EMINENT DOMAIN. 949 

the State the property of citizens, we see. uo fit reason whatever for wholly coiidemu- 
iug the word, when once it has been accepted. ^ 

From BvMCEKS i ioE K. Quest. Jnr. Pub. lib. ii. c. 15 ( 1737 ). That power (potestas) 
wherein a jiriuce excels (eininet) his subjects, is what the writers ou public law call 
dominium emineiis or superemiiiens, — following Grotius, who led in this. L. i. De Jure 
B. <^' P. c. 3, s. 6, n. 2, and 1. ii. c. 14, s. 7 & 8. But I ay ree with Thomasius, ud 
Huberum de jure civitatis 1. i. s. 3, c. 6, u. 38, i n thinking it more accurately called 
impenum eiiiineiis, ratlier than dominium emine ns, for whatever of tliis rigiit princes 
u se, proc eeds f rom their s upreme powe r. . . . That ])otestus eniinais extends to the 
persons and property of the subjects, and if this were taken avvay all will readily 
allow that the State could not be preserved. By this power, if so it seem good to 
the prince, war is declared, peace made, treaties entered into, tribute and taxes im 
posed, obligations laid upon subjects and their property, even the whole of them, nay, 
even tlie possessions of single individuals seized upon. Of th is power none o f the . 

wi.se ever doub ted ; t he^whole dispute is over fixing the limits o f it.^ . . But before -'737, 
you can accurately fix these, all the details (species) of supreme power (imperii emi- 
nentis) must be reckoned up, and we must carefully deliberate and pass upon each. . . . 
I have determined to treat merely of that part by which the prince, out of his supreme 
power (imperio eminenfi), takes away from his subjects an acquired right, whether it 
consists in a thing itself {in re), whether movable or immovable, or in a claim (ni 
act tone). That the prince may do this, all agree ; but it is not equally agreed on wliat 
occasion he may do it. Pufendorf, 1. viii. De Jure Nat. et Gent. c. 5, s. 7, where lie 
treats of this right of the prince, tliought that there was no place for the right oi . f f i 
eminent domain unless the necessity of the State should call for it, not meaning, how- /^tt^Vw-C. 
ever, tliat the last extreme of necessity should be demanded. Grotius was contented/^,j^^^,^£,il4X^ 
with utility (uti/itate) only. L. ii. De Jure D. Sf P. c. 14, s. 7; for he said, that in , i n ' I 
order to take away an acquired right from subjects by virtue of eminent domain, T^-i^O-vL*-^ 
(ex vi supereminentis dominii), there must be. first, a public use jut ilitas). a nd then , if' 
po ssible, compensation must be made, out of tlie common funds, to him who lias lo st 
w liat was liis. And afterwards, s. 6, the right of subjects is subordinated to this right 
of eminent domain (ei dominio), so far as public uses demand It is, indeed, true w/? nj a^L 
enough that both formerly and now, on all hands, princes have exercised this right '-j"^ /f 
for both reasons, a s well necessity as utilit y : b ut convenience often shades off into .(^ P'^pLAA 
neces sity, so that von cannot easily tell this from that . and what one man wil l call J> ^^ 
u tility another w ill call necessit y. For my part I do not urge, nor do I know of any At^M^*^'*- 
one who does, that the prince may not exercise this right for both reasons. . . . But J-Ui^-ZCc fl 
when a fit rea s on r equires i t, whatever he takes away, let him take it with as little / i 

harm to his subjects as mav be, and upon paving the pince out of the common chest . - /Ui-^ ^ r 
Whoever purposes anything else is rather a robber than a prin ce. . . . He who p . *-^ 

requires, as 1 do, in order to the exercise of the supreme power (imperium eminens) 
public necessity or a public use (utilit(item), excludes all other causes, without excep- 
tion Since the suljject, then, is bound to part with his property for both reasons, as 
I said, must he also lose it for purposes o f public pleasure or aesthetic gratification, o r 
e ven iniblic decoration alone ^ I should not think so, nor did the Roman Senate think 
sojn the case of Marcus Liciuius Crassus, who objected to leading through his farni 

1 Inter immanentia niajestatis jura est etiam jus tri])uta et vectigalia imperandi 
civibus; quin et eoruni bona, exigente necessitate, reipublicaB usibus adplicandi, 
quod jus dominium eminens adpellare mos est. [Author's note. Fatemur tamen 
non satis commode hoc adhiberi vocabulum, quum diversi sint dominii et imperii 
conceptus ; et non illud, sed hoc comjietat imperantibua. Unde quod Grotius, de 
jure belli et par. i 1,6, primus vocavit dominium eminens, id Seneca, de henef, vii. 4, 
rectius denominavit /)o^es^/<em. Ad reges, incpiit, potestas omnium, ad singulos pro- 
prietas pertinet. . . Sed dum lis est de vocabulo reique origine, et de ipso jure impe- 
rantium bona civium urgente necessitate reipul)lica3 usibus adplicandi, nemo dubitat, 
cur vocabulum semel receptum plane proscribeudum putaremus, nullanj oniuino 
idoneam rationem vidimus] 



950 THE RIGHT OF EMINENT DOMAIN. [CHAP. VI. 

an aqueduct which the Prajtors were building, and which was said to have uo other 
occasion than public pleasure and decoration. . . . But for whatever reasou the sub- 
ject's property or claims {ra^ vel uctiones) are taken and destroyed, what Grotius adds, 
in the passage quoted, is fair and just, that the owner's coinpeusatiou should be paid 
out of the public money. . . . Tiiis, indeed, in these cases. But wliy may we not lay 
it down gcuerally, that every loss {damnum) whicli jn-ivate persons bear for tlie 
common necessity or utility, is a common loss and therefore one to be refunded from 
the common ciiest ' ... It is fit as regards losses wiiich arise from the calamity of 
war, that all subjects should bear them with calmness, and tliat no restitution should 
ever be made for them. But as to what Consultor says, that tlie value of lands is not 
to be paid wliicli are taken for purposes of fortification, ])erhaps it is true wiien war is 
raging, and wliile laws are silenced by arms, and wlien sudden and temporary 
defences are made ; but when they are constructed for permanent use, I cannot 
recognize tiiis as true. The rules which I have lirought forward in tliis chapter and 
the last are at war witli this view, and the usages of nations' as received here and else- 
where are at war with it.^ 

1 Ilia potestas, qua princeps supra subditos eminet dominium eminens vel super- 
eminens appellant scriptores juris publici, sequuti Grotium, (pii ita prreivit, 1. i. De Jure 
B. ^- P. c. 3, s. 6, n. 2, & 1. ii. c. 14, s. 7 & 8. Assentior tamen Thomasio, Ad Hube- 
rum de Jure Civitatis, 1. i. sect. 3. c. 6, n. 38, existimanti, rectius, dici imperium 
eminens, quam dominium eminens : nam quicquid ejus juris exercent principes, pro- 
ficiscitur a suprema eorum potestate. . . . Potestas ilia eminens porrigitur ad personas 
& bona subditorum, & facile largieutur omnes, ea sublata, civitatem salvam esse non 
posse. Ex ea potestate helium indicitur, pax paugitur, fcjedera ineuntur, tributa & 
vectigalia imperantur, subditi eorumque bona, etiam in solidum, obligantur, quin & 
occupantur res singulorum, si ita visum fuerit principi. De ea principis potestate 
nemo, qui sapit, dubitavit unquam, sed de finibus ejus regundis omnis disputatio est. 
. . Priusquam autem hos recte regas, recensendse omnes .species imperii emiuentis, 
de singulis deliberandum & caute pronunciandum est. , . . De ea specie duntaxat 
agere constitui, qua princeps, ex imperio eminenti, subditis aufert jus qucesitum, 
sive id consistat in re mobili, sive immobile, sive in actione. Id principi licere inter 
omnes constat, sed non seque constat, ex qua causa liceat. Pufendorfius, 1 viii. De 
Jure Nat. ^- Gent. c. 5, s. 7, ubi de eo jure principis agit, existimavit, dominio emi- 
nenti locum non esse, nisi reipublicai Necessitas requisiverit, ita tamen, ut postremum 
necessitatis gradum non desideret. Grotius sola utllitate coutentus est, 1. ii. De Jure 
B. ^ P. c. 14, s. 7 ; nam, ut jus quresitum subditis auferatur e.x vi supereminentis 
dominii, primum, inquit, requiritur, utilitas publica, deinde, ut, si fieri potest, compen- 
satio fiat ei, qui suum amisit, ex communi. Et mox, s. 6, subditorum jus ei dominio 
subest, quatenus puljlica utilitas desiderat. Sane verissimum est, e.\ utraque causa, 
tam necessitatis, quam utilitatis id jus & olim exercuisse principes, & nunc passim 
exercere. Sed & saspe utilitas in necessitatem incidit, ut non facile banc ab ilia dis- 
tinxeris ; quodque alius utilitatem, alius necessitatem appellabit. Ipse non intercedo, 
nee scio quemquam iutercedere, quomiiius princeps et utraque causa eo jure uti possit. 
. . . Sin autem urgeat ratio idonea, quicquid aufert, auferet quam miuimo subditorum 
detrimento, & soluto, ex area communi, pretio. Qui alitor in animura induxerit suum, 
praedo potius est, quam princeps. . . . Qui, ut imperium eminens exerceri possit, 
necessitatem vel utilitatem publicam desiderat, ut ipse desidcro, reli(juas causas, sine 
exceptione omnes, excludit. An igitur, ut sul)ditus re sua carere tenetur ex utraque, 
quam dixi, causa, ita quoque tenebitur, ex causa voluptatis vel amoenitatis publica;, 
vel etiam e.x causa solius ornatus publici ■* non putaverim, necjue etiam putavit Senatus 
Romanus in causa M Licinii Crassi, nolentis per fundum suum derivari aqufeductum, 
quem moliebantur Prajtores, ([uique non aliam, (juam voluptatis & ornatus causam 
habere dicebatur. . . . Ex qnacuuque autem causa res vel actiones subditorum ad 
bonum publicum oc(;upantur vel destruunlur ajfjuum & justum est, quod addit Grotius 
d. loc. pretium dominis e publico esse refarciendum. . . . Atque ha!c quidem in hisce 
causis. Sed quidni generaliter statuamus, omne damnum, quod ))rivati ferunt pro 
necessitate vel utilitate communi, commune, & proinde e.x area publica refarciendum 



CHAP. VI.] THE RIGHT OF EMINENT DOMAIN. 951 

From Vattel, Le Droit des Gens, liv. i. c. 20, s. 244 (1758). In politioal society 
everythiug must give way to tlie common good ; and if even the person of the citizens 
is subject to this rule, their property cannot be excei)ted. The State cannot li^-e, or 
continue to administer public affairs in the most advantageous manner, if it have not 
the power, on occasion, to dispose of every kind of property under its control. It 
should be presumed that when the nation takes possession of a country, property in 
specific things is given up to individuals only upon this re.><ervation. T he right whi cli 
b elongs to society or to tlie sovereign to dispose, in case of necessity and for the pu b- 
lic welfare, of every possession which the State contains, is called eminent domain . It 
is evident that in certain cases this right is necessary to him wlio governs, and there- 
fore tliat it makes part of the empire or sovereign power, and should be placed among 
the droits de niajeste. § 45. When the people, then, confer th e cm jiire upon any one, 
tliev award to him, at the same time, the eminent domain, unless they expressly re- 
serve i t. E very prince who is really sovereign is clothed witii tliis righ t, when the 
nation has not excepted it, i n whatever way his authority may be otherwise limite d. 
If the sovereign dispose of public property, in virtue of his eminent domain, the 
alienation is valid as having been made with sufficient authority. And so when he 
disposes, in an exigency, of the property of a community or an individual, the alien- 
ation will be valid, for the same reason. But justice demands tliat this community o r 
this individual be made whole out of tlie public money ; and if the State have not 
enough to do this, all the citizens are bound to contribute ; for tlie expenses of the 
S tate should be borne equally or in a just proportio n. In this respect it is like throw- 
i ng merchandise overboard to save the ship.^ 

esse ? . . . Damnum, quod oritur ex calamitate belli, opportet, et omnes subditi a-quo 
animo ferant, nee ejus ulla unquam fit restitutio. Sed quod ait Consultor, non refundi 
pretium agrorum, qui muniendi ergo capiuntur, fortasse, verum est fervente bello, 
quamdiu legibus silentium imponunt arma, aut cum munitioues fiunt tumultariae, & ad 
tempus, sed cum exstruuntur in perpetuum, id verum esse uondum potui animadver- 
tere. Repugnant leges, quas hoe & praecedenti capite attuli, repugnant mores, hie & 
alibi gentium recepti. 

1 Tout doit tendre an bien commun dans la societe politique, et si la personne meme 
des citoyeus est soumise a cette regie, leurs biens n'en peuvent etre exceptc's. L'Etat 
ne pourroit subsister, ou administrer toujours les affaires publiques de la maiiiere la 
plus avantageuse, s'il n'avoit pas le pouvoir de disposer dans I'occasion de toutes sortes 
de biens soumis a son empire. On doit meme prc'sumer, que quand la nation s'empare 
d'un pays, la proprie'te' de certaiiies choses n'est abandonnee aux particuliers qu'avec cette 
reserve. Le droit qui appartient a la societe, ou au souverain, de disposer, en cas de 
ne'cessite & pour le salut public, de tout bien renfermc dans I'Etat, s'appelle domaine 
e'minent. II est e'vident que ce droit est necessaire, en certains cas, a celui qui gou- 
verne, & par consequent qu'il fait partie de I'empire, ou du souverain pouvoir, & doit 
etre mis au nombre des droits de majeste. (§ 45.) Lors done que le peuple defere 
I'empire a quelqu'un, ii lui attribue en meme-tems le domaine e'minent, a moins qu'il 
ne le reserve expressement. Tout prince ve'ritablement souverain est revetu de ce 
droit, quand la nation ne I'a point e.xcepte, de quelque maniere que son autorite soit 
limite'e a d'autres cgards. Si le souverain dispose des biens publics, en vertu de sou 
domaine eminent, I'alie'nation est valide, comme ayant e'te' faite avec un pouvoir suffi- 
sant. Lorsqu'il dispose de meme, dans uu besoin, des biens d'une communaute, ou d'un 
particulier, I'alieuation sera valide, par la meme raison. Mais la justice demande que 
cette communaute' ou ce particulier soit de'dommage des deniers publics ; & si le tre'sor 
n'est pas en etat de le faire, tons les citoyeus sont obligc's d'y contribuer ; car les charges 
de I'Etat doivent etre supportees avec e'galite', ou dans uiie juste proportion. II en est 
de cela comme du jet des marchandises, qui se fait pour sauver le vaisseau. 

In copying the foregoing passage from an Amsterdam edition of Vattel, of 1775, 
I observe an interesting confirmation of Chief Justice Marshall's remark on page 945, 
supra. It is entered as a gift to tiie library of Harvard College from Benjamin 
Franklin — Ed. 



952 THE KIGIIT OF EMINENT DOMAIN. [CHAP. VI. 

From 1 Black-stone's Commentaries (Chitti/'s ed., 1829) 139 [1st ed. (1765) 135]. So 
great inoreover is the regard of tlie law for ])rivate pro))erty, that it will uot authorize 
the least violation of it ; no, not even for the general good of the whole coniniuuity. If 
a new road, for instance, were to he made through tlie grounds of a ])rivate person, it 
might i)erliaps be extensively beneficial to the jniblic ; but the law ])erniits no man, or 
set of men, to do this without consent of the owner of the land. In vain may it be urged, 
that the good of the individual ought to yield to that of the community ; for it would 
be dangerous to allow any private man, or even any public tribunal, to l)e the judge of 
this common good, and to decide whether it be expedient or no. Besides, the public 
good is in nothing more essentially interested, than in the protection of every individual's 
private rights, as modelled by the municipal law. In this and similar cases the legisla- 
ture alone can, and indeed frecjuently does, interpose, and compel the individual to acqui- 
esce. But how does it interpose and compel ' Not by absolutely stripping the subject 
of his property in an arbitrary manner; but by giving him a full imlemnificaliou 
and equivalent for the injury thereby sustained. The public is now considered as an 
individual, treating with an individual for an exchange. All tliat tiie legislatur e 
does, is to oblige the owner to alienate his possessions for a reasonable in-ice ; and even 
t his is an exertion of power , ^yhich the legislature indulges with caution, and whic h 
nothing but the legislature can perform . [Note by Joseph Chitty.] (18) Tlie.se obser- 
vations must be taken with considerable qualification, for, as observed by Buller, J., 
there are many cases in wliich individuals sustain an injury, for which the law gives 
no action : for instance, pulling down houses or raising bulwarks for the preservation 
and defence of the kingdom against the king's enemies. The civil law writers indeed 
say that the individuals who suffer have a right to resort to the public for a satisfac- 
tion, but no one ever thought that the common law gave an action against the individ- 
ual who pulled down the house, &c. And where the acts of commissioners aj)pointed 
by a paving Act occasion a damage to an individual, witiiout any excess of jurisdiction 
on their part, the commissioners, or paviors acting under them, are uot liable to an 
action. 4 Terra Rep. 794, 6, 7 ; 3 Wils. 461 ; 6 Taunton, 29. In general, however, a 
power of this nature must be created by statute, and which usually provides compensa- 
tion to the individual. Thus by the Highway Act (13 Geo. III. c. 78 ; and 3 Geo. IV. 
c. 126, sec. 84, 85), two justices may either widen or divert any highway through or 
over anv person's soil, even without his consent, so that the new way shall not be more 
than thirty feet wide, and that they pull down no building, nor take away the ground 
of any garden, park, or yard. But the surveyor shall offer the owner of the soil, over 
which the new way is carried, a reasonable compensation, which if he refu.ses to 
accept, the justices shall certify their proceedings to some general quarter sessions ; 
and the surveyor shall give fourteen days' notice to the owner of the soil of an inten- 
tion to apply to the sessions; and the justices of the sessions shall impanel a jury, who 
shall assess the damages which the owner of the soil has sustained, provided that they 
do not amount to more than forty years' purchase. And the owner of the soil shall 
still be entitled to all the mines within the soil, which can be got without breaking the 
surface of the highway. Many other Acts for local improvements, recently passed, 
contain similar compensation clauses.' 

"The power to take private property for public use," said Field, J , for the court, 
in U. S. V. Jones, 109 U. S. 513,518 (1883), " generall}'^ termed the right of eminent 

1 It is, perhaps, Black-stone's figurative phrase, that " the public is now considered as 
nn individual treating with an individual for an exchange," that has led some judges 
and writers to define the right of eminent domain as a right of compulsory purchase. 
But such a conception must be taken with reserve. This power, apart from any clau.se 
of restraint in our written constitutions, must be regarded as a universal power pos- 
sessed by all governments, — the right to take and to apply to the pul)lic use that which 
the public welfare requires. T he oljligation to give just compensation, unquestionabl e 
and universallv admitted, i s a moral obligation, not enforceable by cou rts, it would 
s eem, as against clear and indubitable action of the legislature, unless the Constitu 
tion add to this moral obligation a legal sanction. — Ei>. 



CHAP. VI.] THE RIGHT OF EMINENT DOMAIN. 953 

domain, belongs to ev ery in Jependcnt goveriimen t. It is an incident of sovereignty, and, 
as said in^Boom \~Patterson, 98 U. S. 106, requires no constitutional recognition. The 
provision found in the Fifth Amendment to the Federal Constit ution, and in the con- 
stitutions of the several Sta tes, f or ^ust compensation for the property taken, is m erely 
a limitation upon the use of the power. It is no part of the power itself, but a condi- 
tion u])on which the power may be exercised. It is undoubtedly true that the power of 
appropriating private property to public uses vested in the general government — its 
right of eminent domain, which Vattel defines to be the right of disposing, in case of 
necessity and for the public safety, of all the wealth of the country — cannot be trans- 
ferred to a State any more tlian its other sovereign attributes; and that, when the use 
to wliich the property taken is applied is ])ublic, the propriety or expediency of the 
appropriation cannot be called in question by any other authority. But ther e is n o 
r eason why the compensation to be made may not be ascertained by an y appropriate 
tribunal, capable of estimating the value of the prop erty. There is nothing in the 
nature of tlie matter to be determined which calls for the e s tablis hment of any special 
t ribunal bv the appropriating po wer. 

" The proceeding for th e ascertainment of the value of the property, and cousetiueut 
compensation to be made, is merely an inquisition to establish a particular fact as a 
preliminary to the actual taking ; and it may be prosecuted before commissioners or 
special boards or the courts, with or without the intervention of a jury, as the legisla- 
tive power may designate. All tliat is required is that it shall be conducted in some 
f air and just manner, with opi)ortuiiity to the owners of t lie p roperty to present evi- 
dence as to its value, and to be heard thereon. W hether the tribuna l shall be created 
di rectly bv an Act of Congress, or one already established by the States shall be 
ado pted for the occasion, is a mere matter of legislative discretion." 

The Bifjht of Eminent Domain, 19 Monthly Law Reporter (Boston), 241, 247. The 
right of eminent domain is tiiat attrilnite of sovereignty by which the State may take, 
a ppropri ate, or divest private i^ropcrty whenever the public exigencies demand- it ; or, 
acco rding to the usua l defini tion, it is the right of taking private projjerty for public 
purposes. A nd to thi s righ t the obligation always attaches of making just compensa - 
t ion for the proper ty taken. . . . 

By our definition , it is the right of taking, appropriating, or divesting propert y ; 
a nd so is distinguished, on the one hand, from a right of property, and on the oth er. 
froi ?i a mere right of regulating the use of prope rty. It can only be exer cised wjien 
some spe cific sultject-matter of property is requi red , f or which there can be no suffi - 
cient substitute ; and herein it is distinguished from the right of taxation. . . . A gai n, 
th e right is distinguished from that of taxation, in that the property taken under it is 
ta ken without any reference to collecting the owner's share of the common public 
e xpenses , and also in thi s, th at it operates upon individual parties, while the right of 
t axation deals with the whole commun ity, or with a special class of persons in the com- 
munity, on some rule.of apportionmen t , and finally, w hen the right of eminent dom ain 
is exercised, compensation must be made to the private party witii whom the S tate is 
deali ng, wlierein this right is disting uished from the right of taxation and from all 
other rights of sovereign ty. . . . What is taken under this right, is regarded as s o 
m uch above or aside from the owner's share of the common expenses ; and since it is 
manifestly unjust that he should be compelled to contrilmte more than the otiier me m- 
bers of tiie communi ty, he must be reimbursed from that common fund to which al l 
contribute, himself as well as the re st. . . . 

But while tliis obligation is thus well established and clear, let it be particularly 
noticed upon what ground it stands, viz., \\\)on the natural rights of the individual . On 
the otlier hand, the right of the State to take springs from a different source, vi:. , 
a necessity of government . TJiese two, therefore, have not the same origin ; they do 
not com e, for instance, f iym any implied contract between the State and the individ - 
ual , that the former shall have t he property, if it will make compensati on • the righ t 
i s no mere right of pre-empti on, and it has no condition of compensation aunexetl to it , 
either precedent or subseiiuen t. ^But there is a right to take, and attached to it as an 



954 THE RIGHT OF EMINENT DOMAIN. [CHAP. VI. 

incident, an obligation to make compensation ; this latter, moially speaking, follows 
t he other, in d eed, like a sliadow , but it is yet distinct from it, and flows from anothe r 
sourc e. \ 

See, then, the consequences. If the State appropriate private property to satisfy a 
public e.xigcucy, and fail to make or provide fur conijwn.sation, has it tlierefore exer- 
cised its power wrongfully ? It would seem not ; fur if a jniblic exigency exist, re- 
quiring the property, and it be appropriated accordingly, that, as we have seen, is 
legitimate ; so far all is right, and the citizen cannot comjilain ; and if the sovereign 
do not make recompense, then lie fails indeed in liis duty to the individual ; but for all 
that, he does no more than his duty to the community in taking the property, and 
therefore the individual cannot demand his property back, althougli the State sliould 
never ])ay him. ^ He has an eternal claim indeed against tlie State, which can never be 
blotted out except only by satisfaction ; but this claim is for compensation, and not for 
his former property. \ 

Therefore, i n the absence of constitutional provisions affecting the (luestion , it 
wou ld follow that a loss of ijroiierty from an exer cise of tlie rig ht of eminent domain, 
whi ch is fair i n all respects other than in making or pr oviding for compensat ion, nms t 
be regarded by the courts as daiiuntm absque ui/uriu A Every court must liold the 
assumption of private property to satisfy a public exigency to be just and proper, 
and an exercise of clear legislative power. And herein such a case would differ 
from one where tlie legislature should seek to transfer property from one individual 
to another, with no pretence of public necessity ; such an act would not be tlie ex- 
ercise of due legislative power, but would involve an arbitrary assumption of power, 
and might be reached, as such, by the courts. ... If there be_a p ublic exigency, o r 
i fj; h e re be room to say that any public advantage is to be gained by the appr<j)) r i a- 
tion of private property, or its transfer f rom one individual to another, then it would 
seeni that the discretion of the legislature could not be controlled (in tile absence of 
const it u tional provision) by any power short of tiie supreme power of t he sovereig n . 
For the judiciary may not substitute their discretion for that of the legislature, nor 
exercise it at all in a matter intrusted to the sole discretion of another departmen t. 

Ibid. 241, 323. If the ground taken at the outset of our investigation be the 
true one, viz. : that the right of eminent domain is an inherent right of sovereignty, 
and therefore the same in all States, and one to be interjireted upon principles applicable 
the whole world over, — then, of course, in all our American States, this right, so far 
as it remains unaffected by constitutional provisions, stands upon the general principles 
which govern the sovereignty in all other countries, and which it has been sought to 
set forth and maintain in the course of this essay. 

All the American constitutions, however, may be said to have provisions that affect 
this riglit in some degree ; since all provide that the sovereign power of legislation, 
which includes this right, shall be vested in tlie legislature ; and so in a body con- 
stantly changing, and bound by a perpetual obligation to transmit the sovereignty to 
its successors intact. Thus all the American constitutions, in declaring t ha t the ri ght 
o f eminent domain shall be ve-sted in the legislature, provide, by necessary implication, 
t hat the legisl atu re shall not impair or part with it. 

A number of the State constitutions have no other provision than this, that can 
properly be held to apply to our subject. 

A maj ority of them, however, and the Federal Constitution besides, contain a clause 
(substantially the same in all) t hat " private property shall not be taken for pub lic 
p urposes without just compensation. " . . . 

Some States have other provisions explaining or limiting the right of eminent do- 
main, as it exists in the hands of their legislatures, which we will now very briefly 
indicate. Most of these, it will be noticed, serve only to enunciate, and put under the 
protection of the judiciary, some one or more of those principles already laid down 
and enforced in our pages. 

^ But compare Ra.ndo]\)h, Eminent Domain, s 227. — Ed. 



CHAP, VI.] THE RIGHT OF EMINENT DOMAIN. 955 

The Constitutiou of "Vermont provides that the owner of property taken, "ought 
to receive an equivalent in mone y." That of Ohio has a similar provision, requiring 
either money or a deposit of money. 

That of New York requires that when property is taken, the damages must be 
assessed by a jury, or by not less than three commissioners appointed by a court of 
record. It also authorizes the taking of lands for private roads, — the necessity 
of th e roa d to be a scertained and the damages to be assessed, by a jury, and that 
amount, together with the expenses of the proceeding, to be paid by the perso n to 
be benefited. 

The Constitution of New Jersey has the usual provision, to which it is added that 
" land may be taken as heretofore for public highways, until the legislature shall 
direct compensation to be made." 

The Constitution of rennsyivania forbids the legislature to authoriz e any corporate 
b ody or individual to take private property for public use without requiring com pen- 
s ation to be made, or adequate security to be given, before the ta king. . . . 

The constitutions of Mi ssissip pi and K entucky re q uire compensation to be mad e 
b efore the property is take n. That of Ohio has a similar provision, excepting only 
cases of necessity, demanding immediate seizure. 

The Constitu tion of Oliio also provides that benefits shall not be deducted in ascer- 
tai ning compensat ion. 

Those of Georgia and Texas forbid the legislature to pass laws emancipating slaves, 
without the consent of each of the owners previously. 

The constitutions of Alabama and Kentucky forbid tlie legislature to emancipate 
slaves without their owners' consent, or paying to the owners, previously to such eman- 
cipation, a full equivalent in money for the slaves so emancipated 

We have now referred to all the provisions relating to our sul)ject, that occur in 
the United States constitutions. The clauses in them relating to trial by jury seem to 
be gen erally, if not universally, held ina ppTicaT)le to proceedings under the right of 
eminent domain. And the same is true of that provision engrafted into a number of 
the State constitutions from Magna Charta, that " no freeman shall be deprived of his 
property, but by the judgment of his peers or by tlie law of the land." ^ 

1 The foregoing statement was made in 1856. Now, only three constitutions. New 
H ampshire, North Carolina, and Virginia are without a clause expressly requir ing 
compensatio n. Sixteen, beginning with Illinois, in 1870. r e quire compensation even 
w hen property has been " damaged ; " and three others require it where municip al 
a nd other corporations exercise tlie right in questi o n . 

For the existing provisions in all our constitutions, see Randolph, Em. Dom., 
401-416. — Ed. 



956 KOHL ET AL . V. UNITED STATES. [CHAP. VI. -- kj> 






<i ^ ^ KOHL ET AL. t;. UNITED STATES. ^^ Mp '^ 
djuv^^^yy^ojti^e^ to Supreme Court of the United States. 1875. j^X 



4 /^ Supreme Court of the United States. 1875. ^ 

yUU^^ <xa2A'l^ [91 U. S. 367.] 

^L,t^ oJUf^^^ Error to the Circuit Court of the United States for the Southern 

f J \jC District of Ohio. 
[ /j>^J^i- r^i^jjg ^g^g jj^ proceeding instituted by tlic United States to appropriate 

JUO^ *-^ a parcel of land in the cit}' of Cincinnati as a site for a post-offlce and 

-i," other public uses. 
L-tcA^vv.^i^ . rpjjg plaintiffs in error owned a perpetual leasehold estate in a portion 

' 0^^'lvc^ of the property sought to be appropriated. They moved to dismiss the 

/ f- a proceeding on the ground of want of jurisdiction ; which motion was 

i/ijaiMiO^ overruled. They then demanded a separate trial of the value of their 

cliM(J- estate in the property ; which demand the court also overruled. To 

.ti ^wnX <5. these rulings of the court the plaintiffs in error here excepted. .Judg- 

7^ g^, tLi. nient was rendered in favor of the United States. . . . [Here follows a 

/ T-^ citation of the statutes relating to the matter, which is placed in a 

rf^ , note.i] 

1 MAtAcaJ^''^ ^ There are three Acts of Congress which have reference to the acquisition of a site 
■^/"^^^ ' for a post-office in Cincinnati. The first, approved March 2, 1872, 17 Stat. 39, is as 

L /yvWVi^ follows : — 

« Be it enacted by the Senate and House of Representatives of the United States of 

XM^M^'^'^ America in Congress assembled, That the Secretary of the Treasury be, and he is hereby, 

, // ' a authorized and directed to purchase a central and suitable site in the city of Cincinnati, 

\:yi>^^^^^y Ohio, for the erection of a building for the accommodation of the United States courts, 

/ QaA^^ custom-house, United States depository, post-office, internal-revenue and pension 

offices, at a cost not exceeding three hundred thousand dollars; provided that no 

jt -(r<^ money which may hereafter be ap])ropriated for this purpose shall be used or expended 

-<L ^ Aicii^'ia the purchase of said site until a valid title thereto shall be vested in the United 

.\i(L States, and until the State of Ohio shall cede its jurisdiction over the same, and shall 

■^ ' t2tx*A. duly release and relinquish to the United States tlie riglit to tax or in any way assess 

J J said site and the property of the United States that may be thereon during the time 

, cO'U-^-^*^^^^ that the United States shall be or remain the owner thereof." 

' , . In the Appropriation Act of June 10, 1872, 17 Stat. 352, a furtiier provision was 

.ypaxoM j^j^^jg ^ follows : — 

/ ^e " To commence the erection of a building at Cincinnati, Ohio, for the accommodation 

M) of the United States courts, custom-house. Ignited States depository, post-office, 

'^t^ 9/ vLtU- internal-revenue and pension offices, and for the purchase, at private sale or by con- 

(5 f demnation, of ground for a site therefor, — the entire cost of completion of which 

;(X ,JU "t^ building is hereby limited to two million two hundred and fifty thousand dollars 

. (inclusive of the cost of the site of the same), — seven hundred thousand dollars •, and 

fi/^ . the Act of March 12, 1872, authorizing the purchase of a site therefor, is hereby so 

V// amended as to limit the cost of the site to a sum not exceeding five hundred thousand 

^^ Ut^ dollars." 

/ trmr^' ^"'^ ^" *^^ subsequent Appropriation Act of March 3, 1873, 17 Stat. .523, a further 

'^/f provision was inserted as follows: — 

/ ^ / " For purchase of site for the building for customhouse and post office at Ciucin- 

' ^^ H^^'^'^ nati, Ohio, seven hundred and fifty thousand dollars." 







CHAP. VI.] KOHL ET AL. V. UNITED STATES. 

Mr. E. W. Kittredge., for plaintiffs in error. 

Mr. AssUtant Attorney- General Edwin B. Smith, contra. 

Mk. Justice Strong delivered the opinion of the court. A.\y-c>^ -^ 

It has not been seriously contended during tlie argument that the ^ -^ ^^ 

United States government is without power to appropriate lands or ^^ ^ 

other propert}' within the States for its own uses, and to enable it to VUc<^ • i*^ 

perform its proper functions. Such an authority is essential to its JUAaa jc^^ 

independent existence and perpetuity. These cannot be preserved if 7 ' J^ 
the obstinacy of a private person, or if any other authorit}-, can prevent 

the acquisition of the means or instruments by which alone govern- ^''^^^^ "^^^ 

mental functions can be perfoi-med. Tlie powers vested by the Consti- ^ ^^^^ .V^ 

tution in the general government demand for their exercise the acquisi- ^ 

tion of lands in all the States. These are needed for forts, armories, f'^x^>^ ^ 

and arsenals, for navy-yards and light-houses, for custom-houses, post- -tJ- rStcJt 

offices, and court-houses, and for other public uses. If the right to /, 

acquire property for such uses may be made a barren right by the v<<i<.'< 

unwillingness of property-holders to sell, or by the action of a State ^^twA^iAA-^ 

prohibiting a sale to the Federal government, the constitutional grants ^^tx»-/v£<. ]^ 

of power may be rendered nugatory, and the government is dependent ^ ^ 
for its practical existence upon the will of a State, or even upon that of "^ / 

a private citizen. This cannot be. No one doubts the existence in the ^\ yC^ -«- 

State governments of the right of eminent domain, — a right distinct from ^y.^^^Ja^xXZ^^\. 

and paramount to the right of ultimate ownership. It grows out of the ^ 
necessities of their being, not out of the tenure by which lands are held. 

It ma}' be exercised, though the lands are not held by grant from the ■^tx^-*-'^ ''"^■*-^ 

government, either mediately or immediately, and independent of the a.xta_v«>-v 

consideration whether the}' would escheat to the government in case of cy^-wc^ .-i/^ 

a failure of heirs. The right is the offspring of political necessity ; and c\(nrti 

it is inseparable from sovereignty, unless denied to it by its funda- ^ 
mental law. Vattel, c. 20, 34 ; Bynk., lib. 2, c. 15 ; Kent's Com. 

338-340 ; Coole\' on Const. Lira. 584 et seq. But it is no more neces- ./ q //.J i 

sary for the exercise of the powers of a State government than it is for 1 

the exercise of the conceded powers of the Federal government. That ^tMAJyU. ^ 

government is as sovereign within its sphere as the States are within i;j^jfx^ytz</i^ 

theirs. True, its sphere is limited. Certain subjects only are com- [J / 

mitted to it; but its power over those subjects is as full and com|)lete "^^^'^'' 

as is the power of the States over the subjects to which their sovereignty jU.<Jt4n4J~(^' 

extends. The power is not changed by its transfer to another holder. / ^. -/^ 

B ut, if the r ight of eminent domain exists in the Federal governm ent y^'^-^^-^''*y'^ 

•it is a rig ht which may be exercised within the States, so far as is /LocitJ^f 

necessa ry t o the enjoyment of the pow ers conferred up on it b y the Con- Ljj/)^ 

gti tution . In Ableman v. Booth, 21 How. 523, Chief Justice Taney ^.f / 

described in plain language the complex nature of our government, and ■/2'<*^^^^^^'^^ 
the existence of two distinct and separate sovereignties within the same 
territorial space, each of them restricted in its powers, and each, within 
its sphere of action prescribed by the Constitution of the United States, 
independent of the other. Neither is under the necessity of applying to 



958 KOIIL ET AL. V. UNITED STATES. [CIIAP. VI. 

the other for permission to exercise its lawful powers. Within its own 
sphere, it may emplo}- all the agencies for exerting them which are 
appropriate or necessary, and which are not forbidden by the law of its 
being. Wlien the power to establish post-offices and to create courts 
within the States was conferred upon the Federal government, included 
in it was authority to obtain sites for such offices and for court-houses, 
and to obtain them b}' such means as were known and appropriate. 
The right of eminent domain was one of those means well known when 
the Constitution was adopted, and employed to obtain lands for public 
uses. Its existence, therefore, in the grantee of that power, ought 
not to be questioned. The Constitution itself contains an implied 
recognition of it be^'ond what ma}' justly be implied from the express 
grants. The fifth amendment contains a provision that private property 
shall not be taken for public use without just compensation. What is 
that but an implied assertion, that, on making just compensation, it may 
be taken? . . . [Here follows a passage from Cooley, Const. Limitations.] 

W^e refer also to Tiiwmbley v. Humphrey^ 2.3 Mich. 471 ; 10 Pet. 
723; Dickey v. Turnpike Co., 7 Dana, 113; McCtillough y. Mary- 
land, 4 Wheat. 429. 

It is true, this power of the Federal government has not heretofore 
been exercised adversely- ; but tlie non-user of a power does not dis- 
prove its existence. /in some instances, the States, bv virtue of t heir 
own right of eminent d omai n, have con demne d lands f or the use o f the 
general gov ernm ent, and s uch condemnations have been sustained by 
their court s, without,_however, de nying tlie right of the United Sl ates 
to act inde pe ndentl y of the States. Such was the ruling in Gibner v. 
I2me Point, 18 Cal. 229, where lands were condemned by a proceeding 
in a State court and under a State law for a United States fortification. 
A similar decision was made in Burt v. 7%e Merchants^ Ins. Co., 106 
Mass. 35G, where land was taken under a State law as a site for a post- 
office and sub-treasury building. Neither of these cases denies the 
right of the Federal government to have lands in the States condemned 
for its uses under its own power and by its own action. The question 
was, whether the State could take lands for any other public use than 
that of the State. In Twombley v. Ilumplirey, 23 Mich. 471, a 
different doctrine was asserted, founded, we think, upon better reason. 
The proper view of the right of eminent domain seems to be, that it is 
a riglit belonging to a sovereignty to take private property for its own 
public uses, and not for those of another. Beyond that, there exists no 
necessity ; which alone is the foundation of the right. If the United 
States have the power, it must be complete in itself. It can neither be 
enlarged nor diminished by a State. Nor ca n anv State p rescri be t he 
manner in which it must be e xercised. Tlie consent of a S tate can 
never ])e a condition precedent to its enjoyment . Such consent is 
needed only, if at all, for the transfer o f jurisdiction and of the righ t of 
exclusive legislation after the land shal l have been acquired . 

It may, t herefore, fairly be conHuded that the proceeding in the ca se 



CHAP. VI.] KOHL ET AL. V. UNITED STATES. 959 

w e have in hand was a proceeding by the United States oovernmcnt i n 
it;Sj)w n right, and by virtue of its own eminent domain. The Act of 
Congress of March 2, 1872, 17 Stat. 39, gave authority to the Secretary 
of the Treasury to purcliase a central and suitable site in the city of 
Cincinnati, Ohio, for the erection of a building for the accommodation 
of the United States courts, custom-house, United States depository, 
post-ofHce, internal-revenue and pension offices, at a cost not exceeding 
$300,000 ; and a proviso to the Act declared that no money should be 
expended in the purchase until the State of Ohio should cede its juris- 
diction over the site, and relinquish to the United States the right to 
tax the property. The authority here given was to purchase. If that 
were all, it might be doubted whether the right of eminent domain was 
intended to be invoked. It is true, the words "to purchase" might be 
construed as including the power to acquire by condemnation ; for, 
technically, purchase includes all modes of acquisition other than that 
of descent. But generally, in statutes as fn common use, the word is 
employed .in a sense not technical, only as meaning acquisition by con- 
tract between the parties, without governmental interference. That 
Congress intended more than this is evident, however, in view of the 
subsequent and amendatory Act passed June 10, 1872, which made 
an appropriation " for the purchase at private sale or by condemnation 
of the ground for a site " for the building. These provisions, connected 
as they are, manifest a clear intention to confer upon the Secretary of 
the Treasury power to acquire the grounds needed by the exercise of 
the national right of eminent domain, or b}' private purchase, at his 
discretion. Why speak of condemnation at all, if Congress had not in 
view an exercise of the right of eminent domain, and did not intend to 
confer upon the secretary the right to invoke it? 

B ut it is contended upon behalf of the plaintiffs in error that the 
Circuit Court had no juris diction of the j)roceeduig. There is nothing 
i n the Acts o f 1872, it is true, that dir ects the process by whic h the con- 
t emplated condemnation s hould be effected, or which expressly auth or- 
i zes a proceeding in the Circn it-Cnnrt. tr> Qomivo ft — Doubtless Congress 
might have provided a mode of taking the land, and determining the 
compensation to be made, which would have been exclusive of all other 
modes. They might have prescribed in what tribunal or by what 
agents the taking and the ascertainment of the just compensation should 
be accomplished. The mode might have been by a commission, or it 
might have been referred expressly to the Circuit Court ; but this, we 
think, was not necessary. Th e investment of the Secretary of tlie 
T reasury with power to obtain the land by c ondemnation, without pre - 
scribing the mod e of exercising the pow er, gave him also the power to 
obtain it by any means that were competent to adjudge a condemnati on. 
The Judiciary Act of 1789 conferred upon the circuit courts of the 
United States jurisdiction of all suits at common law or in equity, when 
the United States, or any officer thereof, suing under the authority of 
any Act of Congress, are plaintiffs. If , then, a proceeding to take land 



960 KOHL ET AL. V. UNITED STATES. [CIIAP. YI. 

f or pnhlic uses by conclcmnation may be a suit at common law , juris- 
di ction of it is v es ted in the Circuit Co urt. Tliat it is a " suit " admits o f 
no question . In ]VestO)i\. Charleston^ 2 Pet. 464, Chief Justice Mar- 
sliall, speaking for this court, said, " The term [suit] is certainly a Aery 
comprehensive one, and is understood to apply to any proceeding in a 
court of justice by which an individual pursues that remedy which the 
law affords. The modes of proceeding may be various; but, if a right 
IS litigated in a court of justice, the proceeding by which the decision 
of the court is sought is a suit." A writ of prohibitio n has, therefore, 
been held to be a suit ; so has a wr it of right, of which the Circuit 
Court has jurisdiction (Green v. Liter ^ 8 Cranch, 229) ; so has habeas 
c orpu s. Holmes v. Jamison^ 14 Pet. 564. A Vlie n, in the eleventh 
section of the Judici ary Act of 1789, jurisdiction of suits of a ci vil 
nature at common law or in equity was given to the circuit courts, it wa s 
in tended to em brace not merely sui ts which the common l aw recogni zed 
as amono; its old and settled proceedin gs, but suits in wliich legal r ights 
werejto be ascertained and determ ined as distinguished from rights in 
e quit3% as well as suits in admiralty . Tlie right of eminent domain 
always was a right at common law. It was not a right in equit}', nor 
was it even the creature of a statute. The time of its exercise may 
have been prescribed by statute ; but the right itself was superior to 
an}- statute. That it was not enforced througli the agenc}' of a jury is 
immaterial ; for many civil as well as criminal proceedings at common 
law were without a jury. I t is difficult, then, to see w^hy a ])roccedi ng 
t o take land in virtue of the government's eminent domain, and de - 
t ermining the compensation to be made for it, is not, within the mean in g 
o f the statute, a suit at common law, when initiated in a court. It j.s 
a n attemp t to enforc e a legal ri ght. It is q ui te immaterial that Co n- 
g ress has not enacted that the compensation shall be ascertained i n 
a judicial proceeding. That ascertainment is in its nature at lea st 
(7 ?<ag/ judicia l. Certain ly no other mode than a ju^dicial tr[al has been 
p rovided . 

It is argued that the assessment of property for the purpose of taking 
it is in its nature like the assessment of its value for the purpose of tax- 
ation. It is said they are both valuations of the property to be made 
as the legislature may prescribe, to enable the government, in the one 
case, to take the whole of it, and in the otlier to take a part of it for 
public uses ; and it is argued that no one but Congress could prescribe 
in either case that the valuation should be made in a judicial tribunal or 
in a judicial proceeding, although it is admitted that the legislature 
might autliorize the valuation to be thus made in either case. If tlie 
supposed analogy be admitted, it proves nothing. Assessments for 
taxation are specially provided for, and a mode is prescribed. No 
other is, therefore, admissible. B ut there is no special provision for 
as certaining the just compensation to be made for land take n. That i s 
l eft to the ordinary processes of the law ; and \\q\-\cq. as the governme nt 
is a suitor for the property under a claim of legal right to take it, ther e 



I 



CHAP. VI.] KOHL ET AL.. V. UNITED STATES. 961 

a ppears to be no reason for holding that the proper Circuit Court has 
not jurisdiction of th e sui t, u nder the general grant of Jurisdiction made 
b y the Act of 1 789. 

The judgment of the Circuit Court is affirmecU 
[Field, J., dissented on certain incidental points.] 

In Van Brocklin v. Tennessee^ 117 U. S. 151 (188G), Gray, J., for „ ♦-. 
the court, in deciding that lands, in a State, belonging to thcUni ted 
Stat es, which had been bid in by the United States at auctio n, in }ip I IsH^ 
dejault of pa yment of direct taxes by the former owner, coul d not b e 
t axed by the State, commented upon a decision of McLe an, J., in U. S. ^o-*-^ t^- 
V. H. H. -Bridge Co., 6 McLean, 517, and said: "The question in '/t^jU-c )p^ 
issue in that case was not of the State's right of taxation, but of its . 
right of eminent domain for the construction of roads and bridges. The (TiW^-^^ ^ 
decision of the learned justice in favor of the validity' of the exercise of jy <xtoJt 
that right by a State over lands of the United States, without the con- 
sent of the United States, manifested either by an express Act of Con- ^^-^ V"^ * 
gress or by the assent of a department or officer vested by law with the /X.^^^ - ^^ 
power of disposing of lands of the United States, appears to have been . Tiai^ 
based upon the theory that the United States can hold land as a private "^ ^ 
proprietor, for other than public objects, and upon a presumption of the «^) >^^ la^ 
acquiescence of Congress in the State's exercise of the power as ^^^Xc^J^^ 
tending to increase the value of the lands ; and it finds some support ^^^^ «JIa3&/ 
in dicta of Mr. Justice Woodbur}', in a case in which, however, the , 
exercise of the power by the State was adjudged to be unlawful. -^-^^^^^ ^ 
United ^States v. Chiccujo, 7 How. 185, 194, 195. But it can hardly be ~tLA. 'U^M^ 
reconciled with the views expressed b}' Congress, in Acts concerning (>J-{-La [xtai 
particular railroads, too numerous to be cited, as well as in general ^ j .r 
legislation. Acts of August 4, 1852, ch. 80, March 3, 1855, ch. 200, 10 j^^T^- ^^ 
Stat. 28, 683; July 26, 1866, ch. 262, § 8, 14 Stat. 253; Rev. Stat. ,^^tU | 
§ 2477. When that question shall be brought into judgment here, it will / j 
require and will receive the careful consideration of the court.", ^ ^(o/T. t^ 

1 Compare Cherokee Nation v. So. Kans. Rij. 135 U. S. 641, 656, Twombleyx. Hum- J I 
p}ireii,'>ri Mich. 471 (1871), In re Sec. Treasury, Ad Fed Eep. 396 (U. S. C. C. S. y^^^i^c, oM 
D. N. Y. 1891), U. S. V. Engeman et al. 45 Fed. Rep. 546 (U. S. Dist. Ct. E. D. N. Y. . L i 
1891 ) — Ed. /'iT^tz^ , 

2 See Prop'rs Mt. Hope Cent. v. Boston et al., 158 Mass. 509 (1893). — Ed. 

y<(r^ox^ ii /3zc^^ H^U /cSr /t.M^^ ^ ./^^^ 



g 9G2 t , • ^ PEOPLE V. SMITH. [CHAP. VI. 



^ a <n.v-<_ <2^'>^M'vtA/a'<^-<-n^^^^<* /^^^iru/tyt 



_/- ^v- THE PEOPLE, EX rel. HERRICK et al., v. SMITH. 

, ^uX ^cu^/Urt^^ New York Court of Appeals. 18G0. 

. ^ ilmxcut<^r^ [21 .V. Y. 595.] 

^/^ (HL tLiL Appeal from a jadgraent of the Supreme Court. The relators sued 

^ ./ owi a certiorari^ for the purpose of reviewing an order of the county 

/"^"^ / judge of Suffolk County, whereby he reversed an order of the commis- 

tiu^ (J sioners of highwjws of the town of Riverhead, — refusing to lay out a 

Jjh /U/^\, . highway in that town, pursuant to a petition of twelve freeholders, — and 

, ^ proceeded to lay out such higliway. The relators are ^wners and occ u- 

i^UUK^'^ p ants of a part of the lands through which the highway, so laid out, 

uUti^ '^ runs ; whic h lands will have to be appropriated for it s track. The 

/ y y- sin gle ground of error relied on was , t hat no notice was served on the re- 

l ators of the proceedings, on the ai^peal, or of the hearing be fore the 

. icAjiCoi/^ c ounty judge. T he Supreme Court, being of op inion that such notice 

(K ^ /^^. wa& not required by law , affirmed the o rder of the judge, and from this 

^\ judgment of affirmance the present appeal was taken by the relators. 

; A^€ouw( The case was submitted on printed arguments. 

i^ « ^ J/iV^er & Tathill, for the appellants. 

/ u. William Wickham, for the respondent. 

I t^^ M*£ Denio, J. The subject of highways and bridges on Long Island is 

/UAc^y^-^^'^ ' regulated by a statute passed in 1830, entitled " An Act regulating 

{/i^d^ Highways and Bridges in the Counties of Suffolk, Queen's and King's." 

/IcOriM^ (^'i- 56.) The S3-stem, in its general features, is similar to that estab- 

tr> "^ lished b}- the Revised Statutes for other parts of the State ; but there 

f"Zi<i. ^^'^ some discrepancies, and upon them, I tliink, the question in the 

'^^ present case may turn. By the Long Island Act, the commissio ners 

■^ii/UAA^^'^. h ave power to lay out new roads without the consent of the owners of 

jj t he land through which they may run, upon the petition of twelve 

^/ /^ f t-eeholders of the town, verified by oath or affirmati on. (§§ 2, 47.) 

{x jC^ "^^ N othing is said respecting their giving notice to any one of the hear- 

j-^ ta ing of the application before them. Every person conc eiv ing himsel f 

(} , ij a ggrieved bv a determination of the commissioners, either in layi ng 

1 ^ o ut, or refusing to lay out, a highwa v, may appeal to three judge s 

1A.U m»ji- of the Court of Common Flea s. (§ GG.) This jurisdiction is now 

, y -J. vested in the county judge under the present Constitution. (Laws, 

^jyj^^Y"*^^' \Sll , p. 642, § 27.) Where the determination appealed from is again st 

i Zc -vvaaA a n application for laying out a road, the judge is to give notice of the 

^ -f^ ti me and place of hearing the api)eal, to the commissioners bj- whom 

y_. I s uch determination was made ; and where the commissioners' deter - 

^'^''^^ m ination was in favor of the applicatio n, notice is not only to be give n 

■{/ia, /pnyvP ■ to the commissioners, 1>ut to one or more of the applicants for the ro ad. 

'Li ^^ ^^"^ '^^^^ proofs and allegations of the parties are to be heard, and 

'■^^'^^-^ V where the appeal is from an order refusing to lay out a road, the judge 

VuiXuu. u /LeAAAraJj- J/jjAAri-i ■ -/^n- TLk. xc<u. <hf ~tLjL Jsx^^-^ut ^^ yiA^nT '^ 



CHAP. VI.] PEOPLE V. SMITH. 963 

is to la}' it out in the same manner in wliioli commissioners are directed 
to proceed in like cases. (§§ 71, 74.) 

It will t hus be seen that tjje only notice which the statute requires to 
be oriven, in a case like the present, i s of the time and place of hearin<^ 
t he appeal, and that such notice is only required to be given to the 
co mmissioners who made the order appealed fro m. If the commission- 
ers had been required to give an}' notice of tlie hearing before them, 
then, when the judge came to lay out the road, in consequence of his 
reversal of the order of the commissioners, he ought to give the same 
notice, because he is required to proceed, in the performance of that 
duty, in the same manner in which the commissioners were directed to 
proceed when the case was before them ; but in the absence of any pro- 
vision for notice of the hearing before the commissioners, no such duty is 
required of the judge. It follows that, if the relators, as owners and occ u- 
p ants of the l and which was to be taken for the road track, we re entitled 
t o notice of the hearing before the judge, it is in consequence of som e 
g eneral principle of law, and not because it is required by an y provi- 
sion of the statute. This is the view of the matter taken by t he appel- 
l ant's counsel, for he e xpressly admits in his printed argument that 
th ere is nothing in the Act requi ring notice to be given to the lan d- 
owne rs. 

The question then is", whether the St ate, in the exercise of the power 
to appropriate the property of individuals to a public use, where the 
duty of judging of the expediency^ of making the appropriation, in a ^/p^ 
class of cases, is committed to public officers , is obliged to afford to the 
owner s of the proper ty an opportunity to b e heard b efore those officers 
wFen t hev sit for t h e purpose of making the determ ination. I do not 
s peak now of the |)rocess for arriving at the amount of compensation to 
b e paid to the owners, but of the determination whether, under the cir - 
cumstances of a i^articular case, t he property required for the purpo se 
shall be taken or not ; and I am of opinion that the State is not un der 
a ny obligation to make iK'ovision for a judicial cont est u pon that ques- 
tion. The only part of the Constitution which refers to the subject is 
that which forbids private property to be taken for public use without 
compensation, and that which prescribes the manner in which the com- 
pensation shall be ascertained. It is not pretended that the statute 
under consideration violates either of these provisions. There is there- 
fore no constitutional injunction on the point under consideration. 
T he necessity for appropri ating private pr oi:>erty for the use of the p ub- 
lic or of the government is not a judicial questi on^ The power resides 
i n the legislature ! It may be exercised b}' means of a statute whicli 
s hall at once designate tlie property to be appropriated and the purp o s e 
of the appropriatio n ; or it may be delegated to |)ublic office rs, or, as i t 
has been repeatedly held, to private corporations established to carry 
on enterprises in which the public are interested. There is no restraint 
upon the power, except that requiring compensation to be made. And 
where the power is committed to public officers, it is a subject of legis- 



964 PEOPLE V. SMITH. [CHAP. YI. 

l ativo discretion to determine wliat prndcntial regulations shall be 
e stablishcd to secure a discreet and Judicious exercise of the authorit y . 
T he constitutional provision securing a trial by jui'V i" certain case s, 
a nd that which declares that uo citizen shall be deprived of his i^roper t^- 
w ithout due process of la w, have no application to the cas e. The Ju rv 
t rial can only be claimed as a constitutional right where the subjec t is 
ju dicial m its characte r. The e xercise of the right of eniiue-nt dom ain" 
stands on the same ground with t he power of taxation . Both are 
emanations of the law-making power. Tliey ar e the attributes of polit - 
ic al sovereignty, for the exercise of which the legislature is under no 
necessity to address itself to the courts . In imposing a tax or in ap- 
ri''tM^^ propriating the property of a citizen, or a class of citizens, for a public 
'^^^£2tU/6 purpose, with a proper provision for compensation, the legislative act 
--f. if is itself due process of law ; t hough it would not be if it should under - 
■y" t ake to ai^propriate tue pro|)erty of one citizen for the use of another , 

A/2^<rC^-*^or to confiscate the property of one person, or a class of persons, or a 
\j^,4jr- particular description of property upon some view of public polic}', 

where it could not be said to be taken for a public use. The People v. 
-4 c^ The Mayor of Brooklyn, 4 Comst. 419 ; Taylor v. Porter, 4 Hill, 140 ; 

, ' ^ Wynehamer v. The People, 3 Kern. 378. 

f^'^'^^ It follows from these views that it is not necessary for the legislatu re 

.^JCLap^k in the exercise of the right of eminent domain, either directly, or ind l- 

^j rectly through public officers or agents, to inve st the proceeding wnt h 

iM^ i^ the forms or substance of judicial proces s. It may allow the owner to 

j,^^ ^ intervene and participate in the discussion before the officer or board to 

/V Cy. whom the power of determining whether the appropriation shall be 

^ // -^ made in a particular case, or it maj" provide that the officers shall act 

jtMJJljf^^ ' upon their own views of propriety and duty without the aid of a foren- 

'. '^ sic contest. T lie appropr iati on of the prope rt y is an act of publ ic 

^■'^^^^^^^■^^ administration, and the form and manner of its performance is such as 

C^ )ry^ the legislature sluill in its discretion prescribe. In the case before us 

ji^j24X.4^-the Act declares that the judge shall give notice to the commissioners 

(f of highways whose order is appealed from, and it is silent as to notice 

^ - , to any other person. The appellants and the commissioners are the 

ru.dCi'U^ only parties who are required to be convened on the hearing before the 

/ judge, or to have notice of that hearing, and it is their proofs and alle- 

^^"^^^^^ gations only which the judge is obliged to hear. It was doubtless con- 

W ■<J-f^" sidered that the commissioners, who had officially decided against the 

U y ^ Act which the appellants were seeking to promote, would sufficiently 

M./tyUxi.- j.gpi,ggent tlig views upon that side of the question. But if we should 

IjLi. think it was discreet that the land-owners should have been furnished 

^aJuAJi with notice and allowed to participate, still the Act furnishes the rule, 

and the court has no power to change it. 

L ^- Xhe counsel for the appellant relies upon the case of The Peojjle v. 

dj^ aM- The Judyes of Herkimer, 20 Wend. 186, where it was held that a 

written notice of a hearing upon appeal before the judges in a case like 

the present, which was governed by the Revised Statutes, ought to be 



CIIAr. VI.] FAIKCHILD ET AL. V. CITY OF ST. PAUL. 965 

given ; and the proceedings of the judges were reversed for the want of 
such a notice. The case illustrates the difference between the general 
hi""hway law and the SN'stem provided for Long Island in this respect. 
. . . The difference between the cases is, that the Revised Statutes 
provide for giving the notice, the want of which is here objected to, and 
the Long Island Act does not. The judgment of the Supreme Court 
must be affirmed. 

All the judges concurring, Judgment affirmed} 



■A 



FAIRCHILD ET AL. V. CITY OF ST. PAUL, -^vc^^^tf^nl^ o7U^«. 
Supreme Court of Minnesota, 1891. J^^N^^ti^ ^^^^^ju^^-^-jL^^^j^ 

[46 Minn. 540.] *-\ \^^\i^ - ^ M?* 

Appeal by plaintiffs, H. S. Fairchild and Greenleaf Clark, from a ^K^fr^ 
judgment of the District Court for Ilamse}' Count}', where the action t^ o/lw^ 
(brought to recover $33,634.50 for quarrying and removing stone from j ^ XA-'^ 
plaintiff's premises and for other trespasses thereon) was tried by 
Kelly, J. <^j^^v^^ 

C. H. Benedict and S. Duffidd Mitchell, for appellants. Daniel ^V. iw ^ ^ 
Lawler and Herman W. I^hillijys, for respondent. (cu^X -M' 

Mitchell, J. This was an action to recover damages for certain » LxL/tii 
alleged acts of trespass in removing stone from the premises of the (/ , ' 

plaintiffs. The defendant justified the acts on the ground that it had "T. '^ (p'*"'^ 
acquired a title to the land for the purposes of a public street. The ^/^^xcl » 
case was tried upon the theory that its decision depended on the ques- ^ a t 

tion whether or not the city of St. Paul had acquired a title in fee, and c/ "^ 
by stipulation it was agreed that the court should determine two ques- ^m-Vvv ^ r 
tions, viz. : First, had the defendant the power and right to condemn ^^^(oq^ tA 
the fee of land for street purposes? and, if so, second, had the defendant ^ n . ^ 
duly condemned, for such purposes, the fee of the land in question? (J 

1. The main contention of the plaintiffs upon the argument was, to iMAk C.-<ax 
use their own language, " that the public exigencies do not demand the y^^^J: clu^ 
taking and condemnation of the absolute fee-simple title to land for the . • #^ 
purpose of highways and streets ; that the public wants are supplied by (j 
the enjoyment of an easement ; and that an}- act of the legislature C^yi-^^X 
which assumes and attempts to authorize a municipality to take and cvv*^ ^nj 
condemn the absolute fee-simple title to land for such purposes is ^ /^(i/ 
unconstitutional and void." More briefly stated, the proposition is ^ 
t hat the legislature cannot authorize the taking of any greater estate i n ^\X«- -^^^""^ 
land for public use than is necessary ; that an estate in fee is not A^ IimJ^ 
necessary for the purpo ses o f a street ; t herefore the legislature cann ot w ^ 

auth orize the taking of such an estate for such purpose s. While we ^^ 

^ Compare, as regards taxation, Spencer v. Merchant, 125 U. S. 345 ; s. c ante, 047 -^ 



0<. 



jMd. ■ CK^^-iJLuuJ^y^ iM X^^x^cJUaa <L^^^ --^ OoW^wvx^ 



J " . c5 



rtj^ tv-W^ -f ^^^•^^-^^ '^'^^^ t^f^j^ ^^^ n^-^M^ /W^\M-<njuk. 



uiu 



( ^C"^ t.*^-'*^!^* 



■^ 






*-£ tuA. -i-^SAjSt^ O-^'iM.'^ C^J^/itAjUXrW- tZut. -C/Ti/tZS. "LviX/L^^^*-^^ 



■^x 



ti/uU'tt, 



966 



FAIRCIirLD ET AL. V. CITY OF ST. PAUL. [CHAP. VI. 



cu. 









have given the question the careful examination due to the elaborate 
brief and very earnest argument of tlie learned counsel, yet it has never 
seemed to us that there was anything in his contention. In this case 
it mu st be c onceded that the legislature, if it bad the power to do so, 
has given the city of St. Paul authority to condemn an estate in fee fo r 
street purpose s ; the language of the charter being: " In all cases the 



land taken and condemned in the manner aforesaid (for streets) shall 
be vested absolutely in the city of St. Paul in fee-simple." Mun. Code 
tidJjUP^ 1884, § 153 (Sp. Laws 1874, p. 59, § 17). T here is nothing bett er 
settled than that, t he power of eminent domain being an incident o f 
s overeitrntv, the time, manner, and occasion of its exercise are wholly 
in the control and discretion of the legislatuie, except as restrained by 
the Constitution. It re s ts in the w i sdom of tlie legislature to determine 
when and in what manner the public necessities require its exercise 



k 






and with t he reason ableness o f the exerci se of that discretio n the cour ts 
will not i nterfer e. Wilkin v. First Dio., etc., II. Co, 16 Minn. 244 
(271); Weir v. St. Paul, S. <& T. F. R. Co., 18 Minn. 139 (155). 
As the legislature is the sole judge of the public necessity which 
requires or renders expedient the exercise of the power of eminent 
domain, so it is the exclusive judge of the amount of land, and of t he 
e state in land, which the public end to be sul^served requires shall b e 
taken . The only limitatio n — at least, the only one applicable to a case 
like the present — which the Constitution im|)oses upon the exercise o f 
the right of eminent domain by the legislature is that privat e property 
shall not be taken for public use without just compensation therefor 






fi rst paid or secured. Of course, t here is the further limitation, neces - 
saril y implied, that the use shall be a public o ne ; up on which questio n 
t he determination of the legislature is not conclusive upon the cour ts, 
j^ CxMXtjrrQ\xU wh en the use is public, the necessity or expediency of appro priating 
an y particular property is not a subject of iudicial cognizance. Conse- 
quently, if in the legislative judgment it is ex|)cdient to do so , i t has the 
p ower ex pressly to authorize a municipal cor|)oration compulsorily to 
a cquire the absolute fee-simple to lands of private ])ersons condemne d 
for s treet or any other public purpose . The authorities are so numer- 
ous and uniform to this effect that an extended citation of them is 
unnecessary. See, however, Dill. Mun. Corp. § 589 ; Cooley, Const. 
Lim. 688 ; Lewis, Em. Dom. 277 ; Elliott, Roads & S. 172 ; Mills, Em. 
Dom. §§ 50, 51 ; Booin Co. v. Patterson, 98 U. S. 403, 406 ; Stoeet v. 
Buffalo, etc., R>/. Co., 79 N. Y. 293, 299. 

It is often laid down as the law that the taking of property must 
always ha limited to the necessity of the case, and, consequently, no 
more can be appropriated in any instance than is needed for the par- 
ticular use for which the appropriation is made. But it will be found 
that this is almost invariably said, not in discussing the extent of the 
power of tlie legislature, but with reference to the construction of 
statutes granting autliority to exercise the right of eminent domain, and 
where the authority to take a certain quantity of land or a particular 



CHAP. VL] STUBBINGS V. EVANSTON. 967 

estate therein deiDended, not upon an express grant of power to do so, 
but upon the existence of an alleged necessit\-, from which the disputed 
power is to be implied. This distinction is clearW brought out by 
Justice Cornell in 3IUwaukee & St. Paul lly. Co. v. CUtj of Faribault, 
23 Minn. 1G7. Upon the principle that statutes conferring compulsory 
powers to take private property are to be strictly construed, it follows 
that, when the estate or interest to be taken is not defined by the legis- 
lature, only such an estate or interest can be taken as is necessary to 
accomplish the purpose in view, and, when an easement is sufficient, no 
greater estate can be taken. It is on this principle that where the 
legislature has authorized the taking of land for the purposes of streets, 
without defining the estate that may be taken, or expressly' authorizing 
the taking of the fee, it is held that only an easement can be taken. 
Tliis is construed, under such statutes, to be the extent of the grant of 
autliorit}' ; but no well-considered case can be fou n d which holds that 
thejegisl ature might not authorize the taking of the fee, if it deemed it 
e xpedien t. 

It is perhaps foreign to the present inquiry to consider the nature 
and extent of the title which the city of St. Paul acquires in land con- 
demned for street purposes. But, notwithstanding the broad language 
used in the city charter, we think that it must be construed as onl y a 
quali fied or terminable fee , — th at is, the fee-simple for street purpo ses, 
— w hich gives the city absolute control over the land for those purp oses, 
but that its title is not a proprietary , but what might be termed a 
so vereign or prerogative, one, w hic h it, as an agency of the State, h olds 
in t rust for the public for street purposes , a nd w^hich it can neither sell 
n or devote to a private use . . . . Judgment affirmed} ^^ 



In Stubblngs v. Ecanston, 134 111. 37, 41 (1891), in sustaining a _ . i 

ruling that where a part of premises under lease were taken, " the ten- ►'^-^''^■^^ \ 
ant remains bound to pa}' rent for the whole, according to the terms of "fc^ot HL ;'** 
the lease," the court (Craio, J.) said: (xiAxA h 

Th e general r ule no dou b t is, that eviction of th e lessee from the . ^ J^ 
p remises b y a i)aramount title will discharge him from th e pay ment of ''^^-^ ^*' 
a ny rent which may fall due, by the terms and conditions of the le ase, ^u^^ ^ 
after evic tion. But where a part of leased premises may be taken un- A,^^,^;^ t-^ 
der th e power of eminent domain , can such a taking be regarded as an ' \^jc^ < 
eviction? Washburn (1 Real Prop. p. 342), in speaking on this sub- ^ , 

ject, says : " It has sometimes been attempted to apply the principle ff^ -^ 
of eviction from a part of the premises, where lands under lease have ^'U'^/f^**^ 
been appropriated to public use under the exercise of eminent domain, ^ ,1,^,^^ ' 
. . . But the bett er rule, a nd one believed to be adopted in most o f the ^.^-^^.^^^ 
Sta tes, is, that such a taking operates, so far as the lessee is concerned, // . 
upon his interest as proi^erty, for w hich the public are to mak e him (a^^^*^-*^ 
co mpensation, and does not affect his liability to pay rent for the entire Ct'a-^i^ 
e state, according to the terms of his leas e, — and this extends to ground x^tn^^^fe-'X < 
rent. Such ta king does not abate any ])art of the rent du e." / iXjlaajuL ]rri?\ 
1 And so A"»ycy V, ZJos/on, 100 INIass. 544. — Ed. ^ L, u c<wt '^ ^^^*^ 



968 STUBBINGS V. EVANSTON. [CIIAP. VI. 

Parks V. City of Boston ^ 15 Pick. 198, is an interesting case on the 
question. It was there held : '' "Wher e part of a lot of land under leas e 
is taken by the ma^'or and aldermen of Boston, for th e ij urpose of widen- 
ing a street, the lease is n ot there by exting uishe d, nor is the lessee dis- 
char ged fr om his liabilit}' to pay the reser ved rent du ring the resi due of 
the term, b ut the lessor and lessee are each entitled to recover compe n- 
s ation for the d am age so sust a ined by them, respectively. " The same 
principle was announced in an earlier case, FAlis v. Welch, 6 Mass. 
24^0, and in a later case, Patterson v. City of Boston^ 20 Pick. 159. 

In Foote v. City of Cincinnati, 11 Ohio, 408, w here the leased pre - 
mi ses had been approp riated for a street, the Suprem e Court held that 
t he lessee was not relieved from the payment of rent, but he was en - 
titled to rec over from the city for the damages sustaine d. See, also, 
the following cases, where the same principle is announced : Work- 
man V. Mifflin^ 30 Pa. St. 362 ; Frost v. Ernest, 4 Whart. 86 ; Gar- 
rity V. City of Chicago, 7 Bradw. 474. 

Under the authorities it seems that a tenant, where a port ion of the 
l eased premises is taken, under the power of eminent domain, for t he 
use of the publi c, c annot, as against his landlo rd, claim an evictio n, 
and be released from the payment of rent ; and as his liability for th e 
payment of rent continues after a part of his term has been taken b y 
the public and appropriated to public use, he would be entitled to 
recover such damages as he sustained by the taking of his leased pro p- 
erty by the public. In other words, the l essee takes and holds his 
t erm in the same manner as any other owner of real property holds his 
t itle, subject to the right of the public to take a part or the whole o f it 
for public use, a j, such time as the public necessity may require, upo n 
t he payment of just compensati on. 

In a proceeding to condemn lands for a public purpose, it is not some 
particular interest which the public seek to take, l)ut the land itself. 
If A has one estate in the land and B another, in the pro ceeding to 
c ondemn each is entitled to compensation for the land taken, as hi s 
i nterest may appear in the i)roperty ; and, as said before, if one has a 
l easehold interest, he may recover damages for sucli interest and still 
be held liable for the payment of rent, as that liability exi sted be- 
f ore the leasehold interest was taken for public use. A different rule 
has been adopted in some States, particularly in Missouri. Piddle v. 
Hnssman, 23 Mo. 597 ; Parclay v. Pickles, 38 Id. 143. In those 
cases it was held, that as to the part of the leased premises appropri- 
ated to public use the rent was extinguished, and no liability existed 
against the lessee for such rents. But we think that the weight of 
authority is the other way, and we are not disposed to adopt a rule of 
that character.^ 

1 " But upon what principle can it be maintained, that a lessee under such circum- 
stances would be exempted from the pa_vment of the stipulated rent ? TluL-lcs^ee 
t akes his term, iust as every other owner of real estate takes title, subject to the righ t 
an d power of the public to take it, o r a part of it, for public use, whenever the publi c 



CHAP. VI.] BOSTON WATER POWER CO. V, B. AND W. KAILKOAD. 969 - / ^% 

' ' 1- - forL 

THE BOSTON WATER POWER COMPANY v. THE BOSTON oi?- '^ 
AND WORCESTER RAILROAD CORPORATION et al. 

SuPKEME Judicial Court of Massachusetts. 1840. ^ 

[23 Ptck. 360.] ^^ 3"^ , 

Bill in equit}-, filed in March, 1833, containing the following alle- .A^ <. 
gallons. !_. r^^ 

By St. 1814, c. 39, clivers persons were incorporated l)y the name '^^^ . 
of tlie Boston and Roxbury Mill Corporation, and by that statute and /S'W ^ 
those of 1816, c. 40, 1819, c. 65, and 1822, c. 34, the corporation was t,XKji\^ 
authorized to purchase and hold real and personal estate ; to build a . — 

dam from Charles Street, at the westerl}' end of Beacon Street, in 
Boston, westerly to Sewall's Point, in Brookline, so as to exclude the Ji^:^^^*-^^^ ^ 
tide-water on the northerly side of the dam and form on the southerly — aJctw . 
side a reservoir or receiving basin of the space between the dam and 
Boston Neck ; to build another dam from Gravelly Point, in Roxbury, 
to the dam first mentioned, so as to enclose the tide-water within Tide- 
Mill Creek, on the westerly side of this cross dam ; ^ to cut any number 
of convenient racewaj^s from the full basin to the receiving basin ; to 
maintain and keep up all their works forever ; and to lease or sell the 
right of using the water, upon any terms and in any manner they might 
think proper ; and it was provided, that no other person should have a 
right to dispose of the water, without the consent of the corporation. 
The corporation was authorized to make over the main dam first men- 
tioned a good and substantial road, and to receive toll for passing 
over it. Certain duties and obligations in favor of the public, set 
forth at large in the bill, were imposed upon the corporation, and cer- 
tain penalties and forfeitures created to secure the performance of its 
undertakings. These Acts were accepted by the corporation, whereby 

n ecessity and conveuieuce may requir e it. Such a right is no incumbranc e ; such a 
t aking is no breach of the covenant of the lessor for quiet enjoymen t. 

"The lessee then holds and enjoys exactlj^ what was granted him, as a consideration 
for the reserved rent; which is, the whole use and beneficial enjoyment of the estate 
leased, subject to the sovereign right of eminent domain on the part of the public. _I| 
hejias suffered any loss or d iminution in the actual enjoyment of this use, i t is no t by 
t he act or sufferance of the landlo rd ; but it is by the act of the public, against whom 
th e law has provided him an ample remed y. I f ho is compelled to pav tlie full com - 
pens ation, for the estate actually diminished in value, this is an element i n computing 
t he compensation which he is to receive from the public. In this view it becomes un- 
important, in settling the principle we are now discussing, whether the taking for 
puljlic use diminishes the leased premises, little or much, in quantity or in value ; all 
this will be taken into consideration in assessing the damages which the lessee may 
sustain." — Shaw, C. J,, for the court, in Parks v. Boston, 15 Pick. 198, 205 (1834). 
Compare Scomlle v, McMakon, 62 Conn. 378. —Ed. " " ' 

1 For a plan of this part of Boston, which elucidates these statements, see 7 Pick, at 
p 388. — Ed. 



970 BOSTON WATER POWER CO. V. B. AND W. RAILROAD. [CHAP. VI. 

a contract conformable to the terms of the Acts was created between the 
corporation and the Commonwealth. 

This contract was performed on the part of the corpoi'ation, by the 
erection of the works required, being works of great magnitude and 
expense, and of great public convenience and utility ; and therebj" the 
corporation became entitled to the exclusive right and privilege of 
forever using the soil included within the limits of the full basin, for 
the purpose of keeping it covered with water to the height and extent 
of surface to which the tide naturally flowed it, and the exclusive right 
and privilege of forever keeping the soil included within the limits of 
the receiving basin uncovei'ed by the tide-waters, and using it for a 
reservoir to receive and carry off the waters flowing from the full basin 
through the racewa3's cut, .or which should thereafter be cut, through 
the cross dam, and the exclusive right and privilege of cutting raceways 
through any part of the cross dam, and of using or disposing, hy lease 
or otherwise, of the water-power thereb\' created. 

The plaintiffs were incorporated by the name of the Boston Water 
Power Company, on June 12th, 1824 (St. 1824, c. 26), with power to 
purchase and hold any quantit}' of the water-power created by the 
establishment of the dams above mentioned, and by an indenture, 
dated May 9th, 1832, the Boston and Roxbury Mill Corporation trans- 
ferred to them, for the sum of 175,000 dollars, all the grantors' right 
to the land above the main dam, and all the water-power, and all their 
privileges, contracts, duties, and obligations respecting the water- 
power ; and the plaintiffs thereby-, so far as regards the water-power, 
became entitled to the exclusive right and privilege of forever using 
the soil included within the two basins, for the purposes before men- 
tioned, and to all the water-power which can be and is created bj- the 
constructing and maintaining of the dams, without an}- hindrance, 
obstruction, interruption, or diminution of the capacity of the basins 
respectively. 

The plaintiffs allege, that the Boston and Worcester Railroad Cor- 
poration deny and disregard these vested rights, and threaten to build 
a railroad through the full basin, and over the cross dam, and through 
the receiving basin ; and have actually commenced building the same, 
b}' driving piles in both of the basins ; and have taken for theii* road a 
strip of land twent3--six feet wide through the full basin, and five rods 
wide through the receiving basin. 

The construction of the railroad through and across the two basins 
and cross dam will, it is alleged, greatly diminish the water-power, and 
abridge the franchise vested in the plaintiffs, of using the soil and 
space between the main dam and Boston Neck for their basins, to their 
irreparable injury-, and, so far as their rights are concerned, will be a 
nuisance. 

The bill concludes with a pra3"er for a perpetual injunction and other 
relief. . . . [The rest of the statement of facts is a recital of the defen- 
dants' answer, the substance of which sufficiently appears from the 
opinion.] 



CHAP. VI.] BOSTON WATER POWER CO. V. B. AND W. RAILROAD. 971 

C G. Loving (with whom were J. Mason aud Gardiner), for the 
plaintiffs. 

Aylwin, and F. Dexter, for the defendants. 

Shaw, C. J., delivered the opinion of the court. . . . For the pur- 
poses of this hearing it is admitted, by the defendants, that the piers, 
embankments, and bridges erected by them in the construction of the 
Boston and Worcester Railroad in and over the full and receiving 
basins claimed by the plaintiffs, do, to a certain extent, diminish the 
volume of water which those basins would otherwise contain, aud do 
therefore to some extent impair aud diminish the water-power to be 
derived therefrom. But they insist that this is damninn absque 
injuria, that they are legally justified in so laying out the railroad over 
the basins, that the damage thereby suffered by the plaintiffs is not in 
consequence of a tort done by the defendants, to be deemed in law or 
equity a nuisance, or abated as such, but an act done by rightful 
authority, for which the remedy is by a compensation in damages, to 
be obtained in the manner provided by law. This, at present, consti- 
tutes the question between the parties. This is a question involving 
public and private interests of very great magnitude, and requiring the 
most mature consideration. In deciding it, the court have the satis- 
faction of feeling that thc}^ have derived great benefit from a full, 
able, and ingenious argument, which seems quite to have exhausted 
the subject. 

The first question which we propose to consider is, whether the 
legislature had the legal and constitutional authorit}' to grant to the 
corporation created for the purpose of establishing a railroad from 
Boston to Worcester, the power to lay their road over and aci'oss the 
basins of the plaintiffs, on paying them the damage sustained thereb}', 
and to keep up and maintain the same. 

It is contended on the part of the plaintiffs, and this constitutes one 
of the main grounds of their complaint, that the legislature had no 
such authority, because the}' hold a franchise in and over all the lands, 
flats and waters included in tiieir full and receiving basins, obtained by 
a grant from the Commonwealth for a valuable consideration, and that 
the authority contended for by the defendants would constitute an 
interference with and an encroachment upon their franchise, amounting 
in substance and effect, to revocation or destruction of the franchise, 
and a withdrawal of the beneficial uses of the grant. In order to judge 
of this, it is necessary to consider the nature and origin of the plain- 
tiffs' rights as claimed and set forth by them, aud the manner in which 
they are affected by the acts of the defendants, supposing them war- 
ranted by the Act of the Legislature. 

We do not now stop to inquire into the objections taken b}- the 
defendants, that the plaintiffs have not comphed with the conditions of 
the grants made to them, by the Act incorporating the Boston and 
Roxbur}- Mill Corporation, and the several subsequent Acts; that is a 
subject of separate and distinct consideration. Supposing them to 



972 BOSTON WATER POWER CO V. B. AND W. RAILROAD. [CIIAP. VI. 

have complied wilh those eoudiUons, what are the rights claimed by 
them? The plaiutills were authorized to enclose and pen up a portion 
of the navigable waters adjoining Boston, so as to prevent the ebb and 
flow of the tide therein, and to discontinue any further use thereof by 
the public for purposes of navigation, to make use of part of the public 
domain, being all that part of the land covered by water lying below 
low-water mark, or more than one hundred rods from high-water mark, 
and to acquire by purchase or by api)raisement,, without the consent 
of the owners, that part of the soil belonging to individuals, and to 
have the perpetual use thereof for mill purposes, and to make a high- 
way on their dams and take toll thereon. Other rights, no doubt, 
were incident, but this is a sununaiy of their important rights and 
privileges. 

The effect of the authority granted to the railroad corporation to 
lay their road over these basins, was to some extent to diminish their 
surface, and reduce their value. But the court are of opinion, that 
this could in no proper legal sense be considered as annulling or 
destroying their franchise. They, could both stand together. The sub- 
stance of the plaintiffs' franchise was to be a corporation, to establish 
a highway and take toll, to establish mills, and to make use of land for 
mill ponds, derived partly from the public and partly from individ- 
uals, either b}' purchase or b}- taking it, for public use, at an appraise- 
ment, by authority of the legislature. So far as this gave them a 
right to the use of land, it constituted an interest and qualified prop- 
erty in the land, not larger or more ample, or of anj- different nature, 
from a grant of land in fee, and did not necessarih' withdraw it from a 
liabilit}' to which all the lands of the Commonwealth are subject, to be 
taken for public use, at an equivalent, when in the opinion of the 
legislature, the public esigenc}', or as it is expressed in case of high- 
ways, when public convenience and necessity may require it. The 
plaintiffs still retain their franchise, they still retain all their rights 
derived from the legislative grants, and the only effect of the subse- 
quent Acts is to appropriate, to another and distinct public use, a 
portion of the land over which their franchise was to be used. We 
cannot perceive how it differs from the case of a turnpike or canal. 
Suppose a broad canal extends across a large part of the State. The 
proprietors have a franchise similar to that of the plaintiffs, to use the 
soil in which the bed of the canal is formed, and it is, in the same 
manner, derived by a gi'ant from the legislature. It is a franchise. 
But if afterwards it becomes necessary to lay a turnpike, or a public 
highway across it, would this be a disturbance or revocation of the 
franchise and inconsistent with the power of the legislature in exercis- 
ing the right of eminent domain, for the public benefit? It might 
occasion some damage ; but that would be a damage to property-, and 
pursuant to the bill of rights, must be compensated for by a fair equiva- 
lent. It may be snid, that the way might be carried high over the 
canal, and so not obstruct it. But suppose a railroad, a new erection, 



rn*-<^ fi^ 




CHAP. VI.] BOSTON WATER POWER CO. V. B. AND W. RAILROAD. 973 

not contemplated when the canal was granted, and from the nature of 
which, it must be kept on a level, so as to subject the canal proprietors 
to considerable expense and trouble ; whatever other objections might 
be made to it, it seems to us, that it could not be considered as a revo- 
cation, still less an annihilation of the franchise of tlie proprietors. / 

If it is suggested, that under this claim of power, the legislature a. fS-i^^<^ 
might authorize a new turnpike, canal, or railroad on the same line ^x/i€ (h^ 
with a former one to its whole extent, we think the proper answer is, 
that such a measure would be substantially and in fact, under what- 
ever color or pretence, taking the franchise from one company and 
giving it to another, in derogation of the first grant, not warranted bj- 
the right of eminent domain, and incompatible with the nature of 
legislative power. In tliat case the object would be to provide for the ^ 

public the same public easement, which is alreadj' provided for, and ^-AW t/^/^^-^ 
secured to the public, b}' the prior grant, and for which there could be «5--^^-^ , 
no public exigenc}'. Such a case therefore cannot be presumed.^ *' ct^^ ^S-''— • 

If the whole of a franchise should become necessary for the public *?n^^a-^ ^ 
use, I am not prepared to say, that the right of eminent domain, in an ^-r-^^r^^^ <^-^ 
extreme case, would not extend to and authorize the legislature to take (2-ot^ <>-^ 
it, on payment of a full equivalent. I am not aware that it stands op l^<^^ ^ 
upon a higher or more sacred ground, than the right to personal orc;^^,^^ SrtUjL 
real property'. Suppose, for instance, that a bridge had been early 
granted over navigable waters, sa}' in this harbor, at the place where 
East Boston ferry now is, and the extension of our foreign commerce, 
and the exigencies of the United States in maintaining a navy for the 
defence of the countr}-, should render it manifestly necessar}' to remove 
such bridge ; I cannot sa}' that it would not be in the power of the 
legislature to do it, paying an equivalent. 

Or suppose, as it has sometimes been suggested, that these dams of 
the plaintiffs, In' checking the tide-waters flowing through the channels 
below Charles River bridge, and through the harbor of Boston, should 
have so far altered the regimen of the stream, as gradually to fill up 
the main channel of the harbor and render it unfit for large ships ; 
suppose it were demonstrated, to the entire satisfaction of all, that this 
was the cause, that the harbor would become unfit for a naval station, 
or for commerce, b}' means of which most extensive damage would 
ensue to the city, to the Commonwealth, and to the Eastern States 
(for I mean to put a strong case for illustration), would it not be 
competent for the legislature to require the dams to be removed, the 
basins again laid open to the flux and reflux of the tide? I am not 
prepared to sa}' that it would not, on payment of an equivalent. But 
it is not necessary to the decision of this cause, to consider such a 
case, because, as before said, the act of the defendants does not, in 
any legal sense, annul or destro}' the franchise of the plaintiffs. 

Nor, in the opinion of the court, is this exercise of power b}' the 

^ Compare Greenwood v. Freight Co. 105 U. S. 13, and 1 Hare, Am. Const. JLaw, 
345. — Ed. 



974 BOSTON WATEH POWEU CO. V. B. AND W. RAILKOAD. [CHAP. YI. 

legislature, a law impairing the obligation of contracts, within the 
meaning of tlie Constitution of tlie United States. A grant of land is 
held to be a contract within the meaning of this provision ; and such 
grant cannot be revoked b}- a State legislature. This was held in 
regard to the revocation of grants of land I)}' the State of Georgia. 
J^letdier v. Peck, G Cranch, 87. And yet there can be no doubt, that 
land granted by the government, as well as any other land, ma}- be 
taken by the legislature in the exercise of the right of eminent domain, 
on payment of an equivalent. Sucli an appropriation therefore is not 
a violation of the contract b}' whicli propert}-, or rights in the nature of 
property, and which may be compensated for in damages, are granted 
b\' tlie government to individuals. 

The right b}- which individuals owning mills are enabled to flow 
the lauds of proprietors of meadows is essentially of the same char- 
acter with that of the plaintiffs, and the main difference is, that the 
former are obtained b}' the operation of a general law, and the latter by 
a special act. But in the former case, the mill-owners obtain an case- 
ment or franchise, not a property in the soil, and that, without and 
against the consent of the owners, upon high considerations of public 
expediency and necessity. But it seems to us, that it cannot be suc- 
cessfuUv maintained, that a railroad, canal, or turnpike, could not be 
laid over such a pond, because it would diminish the capacity of the 
pond, and proportionably lessen the mill-power. Forward v. Hanip- 
shire and Hampden Canal Co.^ 22 Pick. 462. 

It is difficult, perhaps impossible, to lay down any general rule, that 
would precisel}' define the power of the government, in the exercise of 
the acknowledged right of eminent domain. It must be large and 
liberal so as to meet the public exigencies ; and it must be so limited 
and restrained, as to secure effectuall}' the rights of the citizen. It 
must depend in some measure upon the nature of the exigencies as 
the}' arise, and the circumstances of particular cases. In the present 
case, the court are all of opinion, that the rights of the plaintiffs, in the 
land of the full and receiving basins, are not of such a character as to 
exclude the authority of the legislature, from taking a small portion of 
it, for laying out a railroad, it being for another and distinct public use, 
not interfering with the franchise of the plaintiffs, in any other way 
than by occupying such portion of this land. 

But it is contended that the Act in question is not valid, inasmuch as 
it does not provide a compensation for the damage done to the plain- 
tiffs' franchise. AVe are, however, of opinion, that this objection is 
founded upon the assumption already considered, viz., that the taking 
of a portion of the land over which the franchise extends is a taking of 
their franchise. The Act does not take away the plaintiffs' franchise, 
but provides for taking part of the land, in which the plaintiffs have a 
qualified right of property. This is provided for in the first section of 
the Act of Incorporation, which directs that all damage occasioned to 
any person or corporation, by the taking of such land or materials, that 



CHAP. VI.] BOSTON WATER POWER CO. V. B. -AND W. RAILROAD. 975 

is, land five rods wide, for the purposes aforesaid, shall be paid for, by 
the said corporation, in the manner thereinafter provided. 

It I)as been held, that these provisions for taking land, and providing 
for an indemnit}', are remedial and to be construed liberal!}- and bene- 
ficially, and will therefore extend to leaseholds, easements, and other 
interests in land, as well as to land held by complainants in fee. 
i:ilis V. Welch, 6 Mass. R. 246 ; Parks v. Boston, 15 Pick. 203. 

Another ground much relied upon to show that the Act is unconstitu- 
tional and m valid, is, that the Act does not of itself appropriate the 
specific land taken, to public use, but delegates to the corporation the 
power of thus taking private property for public use, and therefore, 
the appropriation, or the right of eminent domain, is not exercised b}' 
the competent and proper authoritj-, and that such power cannot be 
delegated. 

This power is certainl}- one of a high and extraordinar}' character, 
and ought to be exercised with great caution and deliberation. This 
objection deserves and has received great consideration. On the 
whole, the court are of opinion, that the Act is not open to this objec- 
tion. Taking the whole Acts of Incorporation together, we are of 
opinion that it sufficiently declares the public necessity and conven- 
ience of a railroad, fixes the termini, viz. in or near the city of Boston 
and thence to any part of Worcester in the county of Worcester, in 
such manner and form as the corporation shall think most expedient. 
Nothing therefore is delegated to the corporation, but the power of 
directing the intermediate course between the termini. The question 
of necessit}- for public use is passed upon and decided by the legis- 
lature. Whether the road goes over the lands of one or another private 
individual, does not affect that question. So far as the objection is, 
that the power is delegated to the corporation instead of being exer- 
cised by county commissioners, or anj- other public body, it is rather a 
question of propriet}' and fitness, than one of power. In the present 
case we think that the interests of the corporation and those of the 
public were so nearly coincident, it being plainly for the advantage of 
both that the shortest, safest, and cheapest route should be chosen, that 
the power might be safelj- intrusted to a corporation thus constituted. 
This mode of exercising the right of eminent domain is warranted by 
numerous precedents, both in our own Commonwealth and in most of 
the other States of the Union. 

We are then brought to another and very important inquiry', which 
is this ; supposing the legislature has a full and constitutional autiiority 
to pass an Act, empowering the defendants to la}* out their railroad 
over the land used by the plaintiffs, whether the}' have in fact granted 
any such power. • This must depend upon the construction of the Act 
of Incorporation. . . . 

The court are of opinion, upon the whole case, that the legislature 
had the constitutional power, to a limited extent, to exercise the right 
of eminent domain over the lands used by the com[)lainants as their 



976 WEST KIVER BRIDGE CO. V. DIX ET AL. [CIIAP. VI. 

full and receiving basins, providing in the Act suitable measures for 
making compensation to the complainants, if they sustained damage 
thereby ; thaC the Act did make such provision ; that the power of the 
legislature was well executed, in declaring the general purpose and 
exigenc}' of appropriating private property' for public use, by establish- 
ing a railroad witiiin certain termini expressed, and by granting to a 
corporation, established and constituted as the defendant corporation 
was, the power of determining the particular course and direction of 
the railroad between those termini; that the defendants were not 
restrained, b}' express words, or any necessar}-, just, or reasonable 
implication, from laying out their railroad as the}- have done, over the 
basins used bj' the complainants under their franchise, and therefore, 
that the averment of the complainants, that the railroad is laid over 
their basins without any just and lawful authority, and is consequently 
a nuisance, is not supported. 



^ In The West River Bridge Co. v. Dix et al.., 6 How. 507, 532 

u:>iX (1848), on error, to the Supreme Court of Vermont, it was held that 

'M- JlJiA<.- the real estate, easement , and franchise of a bridge corporation, char- 

> , t ered by the State, might be taken by the right of eminent dom ain. 

The court (Daniel, J.) said : " Into all contract s, whether made between 

'^■'^^''^ States and individuals or between individuals onl}', there enter con - 

.(ruA^ ditions which arise not out of the literal terms of the^ntract its cH' ; 

/ L. t hey arc superinduced bY^ie pre-existing^ and higher authority of t he 

I y l aws of nature, of nations, or of the community to which the par ties 

V^^ belong ; they are always presum ed, a nd must be presumed, to b e 

i tiM.^ known and recognized by a ll, arc binding ui)on all, and need neve r, 

^ t herefore, be carried into express stipulation, for this could add noth ing 

xAM"^ to their force. E very contract is made in subordination to them, and 

''cilx \ must yield to their control , as conditions inherent and paramou nt, 

7 ^ wherever a necessity for their execution shall occur. Such a condi tion 

iM'^^' is the right of eminent domain . This right does not operate to impair 

-^ ^ the contract effected bj' it, but recognizes its obligation in the fullest 

^ extent, claiming only the fulfilment of an essential and inseparable con- 

A^adx. dition. Thus, in claiming the resumption or qualification of an investi- 

/yysAjdn ture, it insists merely on the true nature and character of the right 

-^^_ invested. The impairing of contracts inhibited by the Constitution can 

, , scarcel}', by the greatest violence of construction, be made applicable 

■*-^^-^^^ to the enforcing of the terms or necessarj' import of a contract ; the 

^^ JL language and meaning of the inhibition were designed to embrace pro- 

, ceedings attempting the interpolation of some new term or condition 

foreign to the original agreement, and therefore inconsistent with and 

iA^ -w- violative thereof. It, then, being clear that the power in question not 

being within the purview of the restriction imposed by the tenth section 

of the first article of the Constitution, it remains with the States to the 

LA_i< t^^ full extent in which it inheres in every sovereign government, to be 

j^^fiJJ^iA. exercised by them in that degree that shall by them be deemed com- 



HjrMt^ 






CHAP. VI.] BOSTON & LOWELL R. K. V. SALEM & LOWELL R. R. 977 

mensurate witli public necessity. So long as they shall steer clear of 
the single predicament denounced by the Constitution, shall avoid in- 
terference with the obligation of contracts, the wisdom, the modes, the 
policy, the hardship of any exertion of this power are subjects not 
within the proper cognizance of this court. T his is, in truth, purely a 
q uestion of power ; and conceding the power to reside in the State gov - 
ernme nt, this concession would seem to close the door upon all furthe r 
c ontroversy in connection with it . The instances of tlie exertion of 
this power, in some mode or other, from the ver}' foundation of civil 
government, have been so numerous and familiar, that it seems some- 
what strange, at this day, to raise a doubt or question concerning it. 
In fact, the whole policy of tlie country, relative to roads, mills, bridges, 
and canals, rests upon this single power, under wliich lands have been 
always condemned ; and without the exertion of this power, not one of 
the improvements just mentioned could be constructed. In our coun- 
try it is believed that the power was never, or, at an}- rate, rai-el^', 
questioned, until the opinion seems to have obtained that the right of 
propert}' in a chartered corporation was more sacred and intangible 
than the same right could possibl}' be in the person of the citizen ; an 
opinion which must be without any grounds to rest upon, until it can 
be demonstrated either that tlie ideal creature is more than a person, or 
the corporeal being is less. For, as a questi on of the power to a ppro- 
p riate to public uses t he property of private persons, resti ng upon t]ie 
or dinary foundations of private ri.^ht, there would seem to be roo m 
neither for doubt nor difficult}' . A distinction has been attempted, i n 
argument, between the power of a government to appropriate for pu b- 
l ic uses property which is corporeal , or may be said to be in being, and 
t he like power in the government to resume or extinguish a franch ise. 
The distinction thus attempted we regard as a refinement which has no 
foundation in reason, and one that, in truth, avoids the true legal or 
constitutional question in these causes ; nameh', that of the r ight in 
p rivate persons, in the use or enjoyment of their private property, to 
co ntrol and actually to prohibit the power and duty of the government t o 
a dvance and protect th e general good . We are aware of nothing pec u- 
1 i ar t o a franchise which can class it higher, or render it more sacre d , 



<x>-^ 



than other propert y. A franchise is property, and noth i ng more ." L jj 

In Boston & Lowell R. R. Corp. v. Salem <£ Lowell R. R. Co., et «/., /^JX^w><i- ^ ^ 
2 Gray, 1, 35 (1854), a fter holding that a legislative provision in Y>\sdn --Lu\. a^v^^^ 
tiffs' charter t hat no othe r railr o ad s houl d be authorized b etween certain -^ 
p oints for thirty years was a valid contract, the court (Shaw, C. J.) '^ , 

said: "But it is earnestly insisted that the grants to the defendant t« lA^ 'VW 
corporations do warrant and justif}- them in setting up the line of trans- j^ 

portation bj' railroad, by the union of the several sections of their 
respective railroads ; and that it may be regarded as lawfully done, f 'V'^-^^ 
under the right of the government to appropriate private property for ££cc^<3^»>^- 
public use. It is fully conce ded t hat the right of eminent domain, the /L(^'U -^ 
VOL. I. — 62 ' / 



978 BOSTON & LOWELL K. R. V. SALEM & LOWELL R. K. [CHAI'. VI. 

i i<;ht of the sovereign^ exorcised in due form of la w, to take private 
property for public use, when necessity requires it, o f which the goy - 
erument must jud^c , i s a ri^ht incident to every government, and i s 
often essential to its safety. And property is iionien geueralisshmcm , 
an d extends to every species of valuable ri^^ht and interest , and includes 
real and personal property, easements, franchises, and incorpor eal 
hereditaments . K)ven the term ' taking,' which has sometimes been relied 
upon as implying something tangible or corporeal, is not used in the 
Massachusetts Declaration of Rights ; but the provision is this : ' When- 
ever the pui)lic exigencies require that the property of any individual 
should be appropriated to public uses, he shall receive a reasonable 
compensation therefor.' Declaration of Rights, art. 10. Here again 
the term 'appropriate' is of the largest import, and embraces every 
mode by which property may be applied to the use of the public. 
Wha t ever exis ts, which public nece ssity demands, may be thus app ro- 
Ijriated. I t was held in the Supreme Court of the United States that a 
franchise to build and maintain a toll bridge might be so appropri ated ; 
and that the right of an incorijoratcd company to maintain such a 
bridge, under a charter f rom a State, mig ht , under the right of emine nt 
do main, be taken for a highway. West Ricer Brkhje v. Dix, 6 How. 
507. The same point was afterwards decided in the same court in the 
case of a railroad. Richmond, Fredericksburg, & Potomac Railroad 
V. Louisa Railroad, 13 How. 83. Such apuropriation is not regarde d 
as impairing the right of propert y, o r the obligation of any contract ; on 
t he contrary, it freely admits such right, and in all just governm ents 
p rovision is made for an adequate compensation, w hich recognizes the 
owner's right . 

" Nor does it appear to us to make any difference whether the land, 
or any other right or interest thus appropriated, be derived directly 
from the government, or acquired otherwise ; for the reason already 
stated, that it does not revoke the grant or annul or impair the contract, 
but recognizes and admits the validity of both. I f. for instance, gov- 
ernment, through its authorized agent, had contracted to convey land 
to an individual, and afterwards, and before the title passed, it should 
be necessary to appropriate such land to public uses, such taking would 
not impair the obligation of the contract ; the individual would have 
t he same right to compensation for the loss of h is equitable title to t he 
l and, as he would have had for t he land itself if the title to it had 
passed. If, tlierefor e, in the great advancement of public imjjrove- 
ments, in the great changes which take place, in the number of inhab- 
itants, in the number of passengers and quantity of property to l)e 
transported, or in great and manifest improvements in the mode of 
travel and locomotion, it becomes necessary to appropriate, in whole or 
i n part, a francliise previously granted, the existence of which is recog - 
nized a nd admi tted, we cannot doubt that it would be competent for the 
l egislature , i n clear and express terms, to authorize the appropriation of 
s uch franchise, making adequate compensation for the sam e . 



CHAP. VL] GARDNER V. TRUSTEES OF NEWBURGH. 979 

" But we cannot perceive in the Acts of Incorporation of the thr ee 
defendant co rporations, or in any of the Acts in addit ion theretqi_any 
A ct of the governmen t, taking- or appropriating any of the rights, fran - 
c hises, or privileges of the plaintitf corp oration under the riglit^ of 
eminent domain. The cliaracteristics of such an Act of appropriation 
are known and well understood. It must apijear that the govern ment 
i ntend to exercise this liioli sov ereio-n rjo-lit. l)y clear and express terms. 
r by necessary implication, leavinof no doubt or uncertainty respectin g 
such intent . It must also appear by the Act that they recognize the 
right of private property , and mean to respect it ; and under our Con - 
st[tution. th e Act conferring the power must be accompanied by jus t 
a nd constitutional provisions for full compensati on to be ma de to th e 
owner . If the government authorizes the taking of property, for any 
use other than a public one, or fails to m ake provision for a co mpensa- 
t ion, the Act is simply void ; no right of taking as against the owner is 
c onferred ; and he has the same r ight s and remedies against a part y 
a cting under such autliority , a s if it h ad not existed. In general, there- 
fore, w hen any Act seems to confer an authority on another to tak e 
pr operty, and the grant is not clear and explicit, and no compensat ion 
is provided by it, for the owner or party whose rights are inju riously 
a ffected , t he law will conclude that it was not the intent o f .the legis- 
la ture t o exerc ise the right of eminent domain, but simply to confer a 
ri ght to do the act, or exercise the power given, on first obtaining t he 
consent of those thus affected." 






GARDNER v. TRUSTEES OF NEWBURGH. UU 'l^vw.^tw-^ "^ 

Court of Chancery of New York. 181G. -vjLx'ArJUli>-<vt_ "^ 

[2 Johns. Ch. 1G2.] tv rCi^i^'^i^ "^ 

The bill, which was for an injunction, stated that t he plaintiff is A^^^"^ Y*^ 
o wner of a farm, in the village of Newb urgh, through which a stream a^~>^(K vvaA/ 
of water has, from time immemorial, r un, having its source from ^,f^jf^^^,ji^-yj^j^ 
spring in the adjoining farm of the defenda nt, Ilasbrouck, and after . 

entering the plaintiff's land, c ontinues its whole course through hi s'^^" ^v<nr^ 
fa rm until it emjjties into the Hudson River . That this stream greatly -Lpr jz^4r>^^"\ 
fertilizes his field s, and, running near his house, s erves for wateri ng p,.jxt£(r^\. tc 
hi s cattle, and for various domestic and economical purpo ses. That it , 

sup plies water to a briek-ynrd on the farm of the plaintiff, wher e most (Aw«„MA o-\ 
of the bricks used in Newburgh are made ; it als o supplie s a large djs- pAyuwA.^ 
till ery erected by h im at g reat expense, and a chur ning-mill, and wate r ~ Ix L. 
f or a mill-seat, wher e the plain t iff i s about to erect a m ill for gr inding (^ 

plaster of i:)aris . That the trustees of the village of Newburgh. the XaJn*^^^ ^ 
d efendan ts, by false representations, obtained an Act of the Legislatiu-o, i ^^^^^^^ 

«X^\iV.^(A^. Xt»yv\fvv.cyti. aaXv-^cAv \ksK C^A/V(?U-«-<^^ rvv^-.^A/0^ V^a^^^^i^ XrX^k. ^ 
'y^^jC^iMj^^-'^ <X/x. to <Q_Afvsjc Va4_*j_/i olJfcJvw. X<ry- "tJUa. /u/^lltti- on /uL zaA- ^^^ 



.,^ ^ 930 GARDNER V. TRUSTEES OF NEWBURGH. [CTIAP. VI. 

J ^^^T^a ssed the 27th of March, 1809 , to enable the said trustees to suppl y 

'XA^djLA^-^- t he inhabitants of the village with pure and wholesome water. That 

the t rustees applied to the plaintiff for leave to divert the stream , offer- 

-* . i ng him a triflinij; and very inadequate compensation , w hich he refuse d. 

That the said trustees havins; obtained leave from the defendant, Ilas- 

-iv.cc<yvu^ b rouck, tlie owner of the spring , to use and divert the wate r, or a part 

' ' . thereof, th at is, a stream one inch and a quarter in diame ter, taken 

"" fro m a great elevation, have commenced a conduit and threaten to 

<■ fpriatA d ivert the stream, or a great part thereof, f rom the plaintiff's farm. 

^^y^yiHUjiA- Tiiat the plaintiff is apprehensive that i f this is done, there will not, in 

. a dry season, be water sufficient even for his cattle, etc. The plaintiff, 

th /AxA/tU therefore, p rayed an injunction to prevent the defendants fiom dive rt- 

■^ Xax(l< i ng the water , etc. The bill was sworn to, and the plaintiff produced 

C', Jj several affidavits, which stated that the stream was not more than 

V sufficient for the distillery, brick -yard, etc., of the plaintiff, and if 

^^^^^ • diverted through a pipe, or tube, of the proposed diameter, would 

jsAji,'^ greatly injure, if not render the works useless. One of the affidavits 

li stated that the whole stream would pass through a tube of one inch 

A^ /ly^ diameter, with a head of five feet. 

*^t>M <vv ^;<,.;. and J. V. JV. Yates, for the plaintiff. 

^j^A^^ac The Chancellor. The statute under which the trustees of the /^-►-, 

village of Newburgh are proceeding (sess. 32, ch. 119) makes ade- 

/x-^'^^^^ quate provision for the party injured by the laying of the conduits 

.A/Ct/i'<^^ through his land, and also affords security to the owner of the spring, 

^y/, or springs, from whence the water is to be taken. But th ere is no ] )ro- 

^ ^ ' v ision for making compensation to the plaintiff, thro u gh whose land the 

/U, io\Z^ ♦ water issuing from the spri ng has been acc ustomed to flow. The bill 

, charges, that the trustees are preparing to divert from the plaintiff's 

^j U*wc land the whole, or the most part of the stream, for the purpose of 

luJbL dxcL supplying the village. T he plaintiff's right to the use of the water i s 

, . as valid in law, and as useful to him as the rights of others wh o are 

4^tA/V\/xAJ2. in demnified or protected by the statute ; and he ought not to b e 

j^jjj^^ d eprived of it, and we cannot suppose it w-as intended he should b e 

'^ deprived of it, without his consent, or without making him a just com - 

^'■^Mx/i-^i^:^^\ pensation . Tlic Act is, unintentionally, defective, in not providing fo r 



u..e^ 



a-A. 



h is case, and it ought not to l>e enforced , and it was not intended to 



b e enforced , until such provision should be mad e, 
/''^w^ It is a clear principle in law, that the owner of land is entitled to the 

/- -f^ use of a stream of water which has been accustomed, from time imme- 

• '""' morial, to flow through it, and the law gives him ample remedy for the 
' ^yi^^^^U't i^ violation of this right. To divert or obstruct a water-course is a 
p rivate nuisanc e ; a nd the books are full of cases and decisions a ssert- 
ing the right and affording the r emedy. (F. N. B. 184. Moore v. 
Brov^ne, Dyer, 319 b : LuttereVs Case, 4 Co. 86 ; Glynne v. Nichols^ 
Comb. 43, 2 Show. 507 ; Prickman v. Trip, Comb. 231.) 

The Court of Chancery has also a concurrent jurisdiction, by injunc- 
tion, equally clear and well established in these cases of private 




X><!_ A"-^C*<. C ^y\^^~.<^-ci^r~\2y^ fi-AJ-OLiA>Cfc. -bt^vixA tjLoi. 



CHAP. VI.] GARDNER V. TRUSTEES OF NEWBURGH. 981 

nuisance. Without noticing nuisances arising from otlier causes, we o-/ LnyC<A- 
have many cases of tlie application of equity powers on tliis very ^ \.J i^ 
subject of diverting streams. In Fbich v. liesbridger (2 Vern. 390), "^^^ ' 
the Lord Keeper held, that after a long enjoyment of a water-course dij^^ ^^XJ^ 
running to a house and garden, through the ground of another, a right / , 

was to be presumed, unless disproved by the other side, and the 
plaintiff was quieted in his enjoyment, by injunction. So, again, in ^-^^-4^^^-^^ 
Bush V. Western (Free, in Ch. 530), a plaintiff who had been in ^,^^-cx.a. c\a^ 
possession, for a long time, of a water-course, was quieted by injunc- 

tion, against the interruption of the defendant, who had diverted it, . • 
though the plaintiff' had not established his right at law, and the court r^ /^ua/x^,. 
said such bills were usual. These cases show the ancient and estab- /i j 
lished jurisdiction of this court ; and th e foundation of that jurisdictio n ^ivtWfH ^ 
i s the necessity of a preventive remedy when great and immedi ate Jlc^iA «. ,3^ 
mischief, or material inju ry would arise to the comfort and use ful J 
e njoyment of property . The interference rests on the principle of a 
cle ar and certain right to the enjoyment of the subject in question, and M.^<K^^ -Hi 
an injurious interruption of that right which, upon just and equitable xeiM V 
grounds, ought to be prevented . {Anon. 1 Vern. 120 ; East India Com- (fj 

pany v. Sandijs^ 1 Vern. 127; Hills v. Universiti/ of Oxford^ 1 Vern.-K'U-< ly^^ 
275 ; Anon. 1 Vesey, 476 ; Anon. 2 Vesey, 414 ; Whitchurch v.Hide^ 2 i^^ojj^i ^J^C 
Atk. 391 ; 2 Vese}-, 453 ; Attorney- General v. Nichol, 16 Vesey, 338). .j 1h\ 

In the application of the general doctrines of the court to this case,' -^ 

it appears to me to be proper and necessary that the |)reventive reme dy cu^ii n/^M". 
be applied. There is no need, from what at present appears, of send- o 
ing the plaintiff to law to have his title first established. His right to ^^ Cou-< '^ 
the use of the stream is one which has been immemorialh' enjoyed, and -^cijihAMf 
of which he is now in the actual possession. The tru stees set up no ji ^ it a' 
other right to the stream (assuming, for the present, the charges in the ^ ^ 

bill) than what is derived from the authority of the statute ; and J£ /tM) . iiAj\/(i 
t hey are suffered to proceed and divert the stream, or the most essent ial . Lj^j^ aXUx 
p art of it, the plaintiff would receive immediate and great i njury, by ' . 
the s uspension of all those works on his land which are set in operat ion ^i/u^ tl^ 
by the wate r. Jn addition to this, he will lose the co mfort and use of / ( 

th e stream for farming and domestic purpose s ; and , besides, it mus t ^ ' 

be painful to an y one t o be deprived, at once, of the en jo yment of a 'jj>k uU^( 
s tream which he has been accustomed always to see flow ing by the do or p</^v,^VU 
o f his dwelling. A right to a stream of water is as sacred as a righ t to _^ . 
the soil over which it flows . It is a i)art of the freeho l d of which no '^^'■'^^ '^"^ 
man can be disseised •' but bj- lawful judgment of his peers, or by due /^U-t" ^.tu/^ 
process of law." This is an ancient and fundamental maxim of ^ -^^ 

common right to be found in magna charta., and which the legisla- , ( , 
ture has incorporated into an Act declarator}' of the rights of the 4^^ /'Z-^^' 
citizens of this State. (Laws, sess. 10, ch. 1.) J^ ^iuX 

I have intimated that the statute does not deprive the plaintiff of the ' ] 

use of the stream, until recom[)ense be made. He would be entitled to -C/Vt^/**'^ 
his action at law for the interruption of his right, and all his remedies "jX^vn . 

rfcvJUv* "tUv njijAx^-i A,^,^.uLi^ ^L vU ;icao^vv trt>w ^^ ^^^ 
Jt<^ JJz^ Aj-u^ i^'i Yr^ /^w>^ "^^ ^^ ^^'^^^^ ■ J ,,;J^ 



^. 



J 982 GARDNER V. TRUSTEES OF NEWBUEGH. [CilAP. VI. 

I 

«V '^^MX at law, and in this court, remain equally ni force. But I am not to be 

i./ understood as denying a competent power in the legislature to take 

^ ^^ private properly for necessary or useful public purposes ; and, perhai)S, 

/JLoM^"^' even for the purposes specified in the Act on wliicli tliiscase arises. 

But to render the exercise o f the po wer valid, a fair compensati on must, 

^ ' i n all cases, be previously made to the indivi^luals affected, under som e 

^ ' equitalAe assessment to be provided by law . This is a necessary 

<*«/^, "^ qualification accompanying the exercise of legislative power, in taking 

;(^ ^ private property I'or public uses ; t he limitation is admitted by the 

^ . soundest authorities, and is ado|)ted by all temuerate and civilized 

^"HP"^ " g overnments, from a deep and universal sense of its just ice. 

^(;^V^ Grotius (De Jur. B. & P. b. 8, ch. 14, s. 7),i Puffendorf (De Jur. 

, Nat. et Gent. b. 8, ch. 5, s. 7), and Bynkershocc k (Qusest. Jur. Pub. b. 2, 

^^ ch. 15), when speaking of the eminent domain of the sovereign, admit 

'c /TiMU^ that private property may be taken for public uses, when public 

) r necessity or utility require it ; but they all jay it down as a clear prin- 

H^tAA -i^ c iple of natural equity, that the individual whose property is th us 

^0 ji^Vj' sacrificed, must be indemnified . The last of those jurists insists, that 

¥-■ " private propert}' cannot be taken, on any terms, without consent of the 

owner, for purposes of public ornament or pleasure ; and, he men- 

^ tions an instance in which the Roman Senate refused to allow the 

preetors to carry an aqueduct tlirough the farm of an individual, 

^'^'^-'^ against his consent, when intended merely for ornament. The sense 

•i^^^"^^-^ and practice of the English government are equally explicit on this 

/x^,u/>«<tH,MPoi"t. P rivate proi^erty cannot be vio lated in an y case, or by any se t 

^^ of men, or for any public purpose, without the interposition of the 

oJjX legislatur e. And how does the legislature interi)Ose and compel? . . . 

C [Here follows a passage from 1 Bl. Com. 139. See supra, p. 952.] 

lu'CiH^ I may go further, and show that this inviolability of private property, 

even as it respects the acts and the wants of the State, unless a just 

indemnity be afforded, has excited so much interest, and been deemed 

Xi/Ji y*^' of such importance, that it has frequently been made the subject of an 

;, ' '"' exiDress and fundamental article of right in the constitution of govern- 

^ . 1 This citation should be Book ii. c. 14, s, 7. The treatise has but three books. 

/V(3tXUw Chapter fourteen relates to the promises and contracts of kings. After speaking of 

the sense in whicli they may be said to incur obligations to their subjects, the author 

a4 VCVS goes on. in section 7, thus : " VII. Sed hoc quoque sciendum est, posse subditis jus etiam 

quffisitum auferri per regem duplici modo, aut in poenam, aut ex vi supereminentis 

XtoCvl'^ dominii. Sed ut id fiat ex vi supereminentis dominii, ])rimum requiritur utilitas publica ; 

/ deinde, ut si fieri potest compensatio fiat ei qui suum amisit, ex communi. Hoc ergo si- 

/^ V'*' cut in rebus aliis locum habet, ita et in jure quod ex promis.so aut contractu qua^ritur." 

In ^Yhewel^s translation the passage is given thus : " This also is to be noted, that 

a right, even when it has been acquired by subjects, may be taken away by the king 

in two modes ; eitiier as a Penalty, or by the force of Eminent Dominion. But to do 

WsA . this by the force of Eminent Dominion, there is required, in the fir.st place, public 

utility ; and next, that, if ])ossible, compensation be made to him who has lost what 

^C< (y ^vas his, at the common expense. And as this holds with regard to other matters, so 

/i A^X-^ ^'^^^ ^'^ ^"''^ regard to rights wiiich are acquired by promise or contract." 

^ ' r/i^^ j,^^ ^^j^^^ passages from Grotius, as well as the other citations in the text, see 

'J±LM. supra, pp. 946-950. — Ed. 



T(mm 



iy^JiAy^ 



ru^'Ui^ 



CHAP. VI.] GARDNER V. TRUSTEES OF NEWBUKGH. 983 

meiit. Such an article is to be seen in the bill of rights annexed to 
the constitutions of the States of Pennsylvania, Delaware, and Ohio ; 
and it has been incorporated in some of the written constitutions 
adopted in Europe (Constitutional charter of Lewis XVIII. and the 
Xvj ephemeral, but very elaborately' drawn, Constitution de la Repuhlique 
\^ FratK^aise of 1795). But what is of higher authority', and is absolutely 
i; \C decisive of tlie sense of tlie people of this country-, it is made a part of 
^ ^ " the C onstitution of the United State s, " that private property shall not 
^ b e taken for public use, wi thou t just compensation ." I feel myself , 
jj* therefore, not onlv authorized, but bound to conclud e, t hat a p rovision 

fo r compensation is an indis|jensable attendant on the due and con sti- 
t u tional exercise of the power of depriving an individual of his prop - 
erty; and I am persuaded that the legislature never intended, by th e 
A ct in question, to violate or interfere w it h this great and sacred pri n- 
ciple of ijrivate righ t. Thi s is evident from the care which this A ct 
bes tows on the rights of the owners of the spring, and of the lands 
th rough which the conduits are to pa ss. T hese are the only cases in 
whic h the legislature contemplated or intended t hat the Act could or 
s hould interfere with private right, and in these cases due provision is 
made for its protection, or for compensation. There is no reason wh}^ 
the rights of the plaintiff should not have the same protection as the 
rights of his neighbors, and the necessitj- of a provision for his case could 
not have occurred, or it, doubtless, would have been inserted. Until, 
t hen, some provision be made for affording him com|)ensation, it wou ld 
be_ u njust, and contrary to the first principles of government, an d 
e qually contrary to the intention of this stat ute, to take from the 
pl aintiff his undoubted and prescriptive right to the use and enjoym ent 
o f the stream of water. . . . 

I shall, accordingly, upon the facts charged in the bill, and supported 
by affidavits, as a measure immediately necessary to prevent impending 
injury, allow the injunc tion, and wait for the answer, to see whether t he 
merits of the case will be varie d. Injunction granted} 

1 Compare ChaDcellor Kent, in 1832 (1 Kent's Com. *447) : "The principle in the 
English government, that the Parliament is omnipotent, doe.s not prevail in the United 
States ; though, if there be no constitutional olijection to a statute, it is with us as 
absolute and uncontrollable as laws flowing from the sovereign power under any other 
form of government." See ante, p. 165, note. 

This case and XXx'oX oi Sinnlckson v. Johnson (infra, p. 986), are sometimes referred to 
as if they judicially held that in a State where the Constitution is silent, the courts can 
disregard a legislative Act which plainly and indisputably takes private property for 
public purposes, without providing for compensation. Neither case so holds. Iii 
Gardner v. Neirbun/h, the statute was not set aside ; but its true construction wa s 
declared, and the dcfemlants were enjoined from violating it. T his construction wa s 
reached on the ground, first, t h at other parts of the statute indicated the intention_to 
be what is now laiil dow n ; and, .secon d, that the contrary view would impute to the 
l egislature what would be " unjust and contrary to the first principles of government." 
This method, in constitutional questions, that o f construction, is one on which courts 
ma y travel far ; a nd they do and sh ould. Compare Note to Pnxton's Case, ante, 
p. 48, Doe, J., in Orr v. Quimbi/, 54 N. H. 647, and Com. v. Lehigh, SjX. Co., 29 Atl. 
Rep. 664, 665 (Pa. July, 1894) —Ed. 



984 KOGEKS V. BKADSHAW. [ciIAP. VI. 



LU Ac^^^ ^"^ / ^^^^^S ^- BRADSHAW. §jl^ f^ -\- V^ ^ 

Xwv^ c^l^vcvctuwU^eA.. New York Couut of Ekuors. 1823. 

i A^y.Ati^< ^^^t [20 Johns. 735.^] 

^ (i ^_ S. Young and M. Bleecker, for the plaintifts in error. 

O^iX ^i-eXx ^ i;r^^ Vechten, for the defendant in error. 

t£ M-^U'^' The Chancellor [Kknt]. This ease came before the Supreme Court 
^--yu upon certiorari^ founded on a justice's judgment. 

/U-XiUcvt jj. j^ppga^.g^j ]jy jjjg return of tlie justice, tliat Bradshaw sued Roge rs 

cou.co-(^k. and Magee, in trespass, for entcrino;, in June, 1821, upon liis land, and 
cutting down timber . T hey justified under the several Acts re lative to 

'f^-'^'^^ t he cana ls. It was shown in proof, that the route of the nortliern canal, 

ajxXJ^Uj^^^ at the place in question, was directed bj the chief engineer; that the 
2^ ^2u., turnpike road adjoining the place where the trespass was alleged t o 
, / h ave been committed, was unavoidablj' encroached on by the tract or 

fA c ourse of the canal, and that another road was indispensable at that 
'^ p lace, and must have been made before the canal wa s commenced ; that 
/fu.''A4 the land on which the entrj' was made, wa s a necessary-, if not the on ly 

( .iL/^'<- course for the road, and was the least expensive, and best for the ac- 
yjff^jj^ commodation of the publ ic ; the chief engineer approved of the road as 

s taked out, and it was staked out by his direction, and was in len gth 
about forty-two rods, and in width four rods ; and the two defenda nts, 
under the authorit}' of the canal commissioners, and in pursuance of a 
^.i^ UtA^. contract with one of them, w ere putting the ground in the form of a 
L^ • ti>~L t urnpike, when the action of tresj^ass was brought . The timber, and 
y w ood cut down were su|)|)osed to have been worth from twenty to fort^' 
tM^ • (loiijj^^ Upon t hese facts, the justice held the justification valid, and 
\jiy^<tyi/i g ave judgment for the defendan ts. 

L /vw«_^ The Supreme Court reversed the judgment of the justice ; and in the 
X ptvA opinion delivered bj' the Chief Justice in behalf of the court, it was 

fj/iAAA^ stated, that the land of Bradshaw was not entered upon for the prosec u- 
tion of canal improvements, but was taken as a substitute for part of th e 
U^t/Un^'^ t urnpike road, which had been broken up and taken for the canal, a nd 
f;^^,^ th erefore the case did not come within the powers given to the canal 

au^^aJj^a. commissioners by the Act of 1817. It was further stated, that the 
c ase did not come within the powers granted b}" the Act of 1820, be- 
^^^-v^-*^ n> cause a turnpike was not a public road or highway, within the meaning 
Z_a^_^..,^^iji_ o f the Act, and because the Act contained no provision for compens a- 
. t ion to the owner of the land so take n. . . . 

According to my view, then, of the case, the Supreme Court were 
^^■^^^^^ mistaken when they held, that the Act of 1817 did not apply to the 

fo a/Mn^^ case, on the ground that the land of the defendant in error had not 
i/Mrwv^.^ been entered upon for the prosecution of the canal improvements. I 



1^ XA/A.'^i-. 



jtAAy' 



i 



tUt. Xm^UxAuM*. 1 The statement of facts is omitted. — Ed. 

/vx/awl<^ j%- ^A^MJ^^n^ ^.vwO^-^c, o^W^-^yi^r-M^ ^ ^^ 



CHAP. VI.] ROGERS V. BRADSHAW. 985 ^,,_^ cx^cX 

apprehend, they were equally in an error when they held, that under , ^ ^. 

the subsequent Act of 1820, the proceedings were indefensible. ... ^^ 

It appears to me to be a sufficient answer to this objection, that the \ ■^«>-^=^-^^-*^ 

Act of 1817 had provided the remedy for compensation for every injury ^ 

committed by the commissioners in the execution of their powers ; and '■ 
^ when new powers are added (though, I apprehend, the Act of 1820 did oCV^^f 

y not, on this point, confer any power not before existing), the same J^^ -a 

remedy would apply. . . . an^i^^^^ 

If the remedy given in 1817 did not extend to lands appropriated TP^ 



V t under the powers mentioned in the latter Act, yet I should doubt ex- fu^'t-A^, 
' \/ ^ c eedingly, whether jjie general principle^Jhat_private property [s jiot to ^^^^ _ ^^ a, 
\^ be taken for public uses without just c ompensation^ is t o be carried so ^^ ^^^^ ^ 
^ far as to make a ijub lic officer who^ejvters ujjon p,m:atg ,propei-t^by ^^^^^ ^ 
(y '.vi'vt.iiP nf Ipo-islntivp nnt.linrit.v. sneciallv ffiven for a nublic Durpose, a ^U^^ 



r .,, 

^ ^virtue oj ^legislative authority-, speci ally given for a public pu rpose, a .Ud<0< 
>^ V^' t respasser , if j ie enters before the property ha s beeiLJiaidJoi'- I f^o not ^^^^ ^\a 

J^ know, nor do I find, that the precedents will justify any court of justice . y / 

^ ^ in carrying the general principle to such an extent. The Su preme x<uh^ ^ 
^ J' C ourt, in one part of their opinion, admit, that the canal comm issioners x.,^:Wa- 
^ V Hl have a right to enter upon, and occupy lands, necessary to effec tuate 
^ / the objects of their appointme nt, without having first paid the l oss 
'^ and damage the proprietor of lands may sustai n. This equitable a nd 

constitutional title to co mpe ns atio n, undoubtedly, imposes i t as an ^ 




1 i^ a bsolute duty upon the legislature to make provision for comj)ensation , 
\/ whenever they authorize an interference with private right, i Perha ps, 

Jn_c_ei-taiiicases, the exercise of the power might be judicially restrained, V/^ ^ ^.^^^ 
ujitil an opportunity_w as gi ven to thej3arty_injiired_to^eek and obtain" , *^^ 

tEe compensation. V But it would deserve a very grave consideratio n /Uyif^ 
before_we .^ iirIerrook to lav down the broad proposition, that n otwith- ciy^ ijlTU^ 
st ajiding 'a 'statute clearly and expressly directed the assumption o f_h^yi.^M. . 
p rivate_property for a necessary^public oblect, it would still be a _miITit;y, ' / ^ 

a nd Jhe_officer who undertook^ to execute it a trespasser, if a provision (/i/l^'<^ 
for compensation did not constitute part and parcel of the Act itself . iJ^xZLJ^^ 
However, it is not necessary to give any opinion on this point, for, as I . ^ Ziy 
have already observed, the provision for compensation, in the Act o f-*-^'^-^^^ J , 
1 817, extended to cases arising under the Act of 182 0. -^kM^I 

I am, accordingly, of opinion, that whether the justification of th e y kjjJj' 
c ommissioners be referred to the Act of 1817, or of 1820, it is equally V^i , 
v alid and e ffectual, a nd that the judgment of the Supreme Court is , /j.u^/*-*"*-^ 
consequently, erroneous, and ought to be reversed. /x^fii 'H^'^^ 

This being the unanimous opinion of the court, it was, thereupon, ^ 

ordered, adjudged, and decreed, that the judgment of the Supreme ^^^ ^C/iDM^ 
Court be reversed, «fec., and that the record be remitted, &c. -/I-tttfi^ /k 

Judqment of reversal} ■ . ' 

1 And so Jerome v. Roxs, 7 Johns. Ch. 315, 344. But see Eandolph, Emin ent //j^L 

Domain, s. 22 9. _ /llM^O^^ 

In a case relating to taxation it was said by Brewer, J., for the court, in Paulsen 
V. Portland, 149 U. S. 30, 38 (1892), that, " Wliile not questioning that noticp to the 



986 SLNNICKSON V. JOHNSON ET AL. [CIIAP. VL 



ttUn^^f<^ "^^ SINNICKSON .. JOHNSON ei al. 

/L.' -P New Jeksey Supreme Coukt of Judicatuue. 1839. 

,'ljli^l.ylaA^^^'^^^ [2 Harrison, 129.] 

u.^li iuU. R- P- Thompson^ for plaintiff, W. N. Jeffevs, for defendants. 

Dayton, J. The declaration complains of the defendants for an 

i u jiny (lone to their meadows by reason of the erection and continu aji ce 

of a dam over Salem Creek. The defendants plead as a justificati o n , 

lyjj tha t said dam was erected and continued by virtue of an Act of the 

^ L egislature of the State, entitled, '•'• An Act to authorize John Dcn n, of 

L LAM, t he county of Salem, to shor ten the Navigation of Salem Creek, by cut- 

i^jtAy , t ing a Canal, " passed November G, 1818. All which is set out with 

- proper averments. To this plea, the plaintiff has demur red, and the 

defendants have filed a joinder. [The statement of the contents of 

the Act is placed in a note.^] 






, -fj^ "Qi tax-paj-er in some form mu.st be given before an assessment for the construction of a 

, sewer can be sustained, as in any other demand upon the individual for a portion of 

(_^//4t.tfA jiis property, we do not think it essential to the validity of a section in the charter of 

. '' t a city granting power to construct sewers that there should in terms be expressed 

'"^^ either the necessity for or the time or manner of notice. The city is a miniature 

S)JLa/^^^ S tate, the council i s i ts legislature, the cha rter is its Con s titution ; an d it is enough if . 

., i n that , the power is granted in general terms, for when gra nte d, it must ne ces sarily 

^ ^ be exercised subjec t to all limita tions impo sed by constitutional provisions, an d the 

/-/ p ower to prescr i be tiie mode of its exercise is, except as restr icte d, subject to the 

/• / l egislative d iscr etion of the counc il." 

X^ t<i Compare Davidson v. A' 0., 96 U. S. 97, 105; S. C. supra, pp 610, 614 —Ed. 

; / J 1 The Act in question (Pamph. L. of 1818, p. 5) enacts substantially as follows: — 

jX c\. %*■ ggp J That John Deun l>e authorized to cut the canal as therein prescribed. 

*yLjt jCAxiJ/{ Sec. 2. That tlie canal shall be cut wholly on the land of said Denu, at least twenty- 

/ /" *^^" ^^^^ broad at the top and of sufficient width at tlie bottom, and depth of water for all 

> a^^jAxA. vessels navigating said creek ; and shall, when cut and opened, be at all times after- 

^U^CdA/^ ward a public highAvay, and be kept open at least of the depth and width aforesaid, at 

/ ' the sole expense of said Denn, his heirs and assigns. 
^Ci43 WtA, Sec. 3. That when sai d Denn shall have completed the canal, as is directed, and 

( obtained a certificate thereof from the Chosen Freeholders of the townships of Man- 

4q.AA^^ nington and Lower Penns Neck, or a majority of them, and filed the same in the 

(-' Clerk's OflSce of the county of Salem, " it shall and may be lawf ul for the said Joh n 

'^^ ' Denn , his heirs and assigns, to build a bridge over tlie sa id S alem Creek, /;^?- t/ie acco m- 

i AajOVL modation ofhinixelf, his h eirs anrl assigns, oppositg the mansion house of the said John 
D enn," provided that tlie land to be occupieil in its construction be his own, an d that 

i£A''^ M he do not by its abutments contract the creek so as to injure the navi gation ; and do 

/ put a draw in the same, at least twenty-two feet wide, and that he, his heirs and 

'^'^'^^^ assigns, maintain said bridge and draw, at their own cost and charges. 
fV(r- 1^ Sec. 4. That any person who shall obstruct the digging of the canal, &c., or injure 

/ • the bridge, &c., shall forfeit one hundred dollars, to said Denn, bis heirs and assigns 

,t\, AAMoCAi. ggg 5^ That when the canal shall have been completely finished, and made navigable 

- . for vpi'-'f^ls nq nf'r"'^n"1, '^"^^ sbjVirhe used and found sufficient for the space of tli£ee 

'^'V/^ years afterbeing^rsL^uaed, " it sliaUandjim^ bejt^^ for the said D enn, his heirs or 

M iaM. assigns, to s top the c reek at the placejvvjie re the s aid bridge may hav e been er ected ; " 

'4. o/ fronfwhich time his liability to maintain the bridge and draw shall cease. j) _ 



\^ "^^U^K /pM-(^V-UJC_- 



crujL 






CHAP. YI.] SINNICKSON V. JOHNSON ET AL. 987 ^ 



Kji, /VKXo 



The point presented bj- the deraurrer, is this : Docs the above Ac t '^^ 

e xonerate John Dcnu, his heirs and assigns, from the payment of da m- ^x,<.X ^'k--^ 
ages done to individuals, by stoi^paoc of the creek ? Great care has oajlajh ,^ 
been used by the leoishiture, in providing another navigable highwa y y^ Q- 

for the public, in lieu of that which was authorized to be stopped up . ^^ 
So, too, the legislature have provided against all damages (which coul d (ru Ctm. C* 
be anticipated) to private right s. John Denn was to use no one's lan d //^^ ^ ll 
but his own, and everything was to be done at his individual expense . ytLTLcKi, 
But although I think it plain that the legislature never intended to in - -^-^-^^f ( 
j ure private rights, vet the unforeseen result is otherwise . The meadow s yirti^-iyi 
i n question are admitted , by the state of the pleadings, t o have been ^/;^^,^J^ ^ 
damnified by tlie stoppage of this creek ; and yet the statute whic h . 

authoriz es the Act has not provided compensation for the inju ry. The ^^-^-^^ (J'^ 
constitutionality of the law is not now questioned ; but it is insisted (K. hu^J?^^ 
that the common law right of the plaintiff to recover damages is in fu ll S-xuaaMl^^ 
forc e. And in this position , I think, t he plain titl'is right. . ^, 

It is a well settled rule, th at statutes in derogation of common law ^'l^"^ ^ 
ri ghts are to be strictly construed ; and we are not to infer that t he A^^c^^^^C' 
le gislature intended to alti-r the common law principles, otliervvise than /(jol^ulLiM. 
is clearly expresse d. 11 Mod. 149. 

Chancellor Vroom in an opinion delivered in the term of August, jl^ L\aX 
1835, in reference to another branch of the same subject matter, which ^.^^^^^^ ^IM, 
is now before us, laid down the position distinctl}', that the Act in ques- ^ ^ 

tion does not exempt him who does an injur}^ from damages ; which ^^ u 
opinion, thus far, the counsel contend, is not law. yhLoU^ A^ 

But the question whether a party who has acted in pursuance of a //(■' i ' 
statute, is protected from damages, where the statute itself is silent, has ^ (P^^^^ 
been before some, at least, of our most respectable State courts. In the qu^j^ju^ o-^ 
ease of Gardner v. The Trustees of Nev)burgh et al., 2 J. C. C. 162, a ^ , . 
company had been chartered to supph' the town of Newbnrgh with pure ^ , 

water, but were restrained hy injunction from diverting a water-course, ^-^'rvv.''^-^^^^ 
as authorized by the statute, until compensation was made to the own- ^^^"tioL (b 
ers of the land througli which it ran, although the Act made no provi- /, , \ 
sion for such compensation to them ; and Kent, Ch., observed, that the "^ '^ y 
owner of the lands " would be entitled to his action at law, for the-X*Jc tvi -^ 
interruption of his right, and all his remedies at law, and in that court, / 
remained equally in force." 1 

The case of Crittenden v. Wilson^ 5 Cowen, 166, is in point. In lU'^ ^^ 
this case, the court held that the right of the legislature to grant the /.vkaI*^ 
privilege of making a dam over the Otselic River, which was a public i , 

highway, was too clear to be disputed, but the grantee took it subject ^ ^z^A^y^^ 
to the restriction, sic utere tuo, ut alienum non Icedas. Tiiat if no ///w,u^'«-^ 
provision for the payment of damages done to individuals, by reason -/ / / ^/^ 
of the dam, had been made by statute, the defendant would still be"^ •* 

liable to pay them. jt^yiA^i^ 

It is true that in Rogers v. Bradshaw, 20 J. R. 735, it is intimated -^<Z^ A^^ 



/ 



that an exception to this rule maj' exist in the case of public commis- u 



/V. 



r^ I 1 . f j> ' ^ (7 



\'{/i^r(i 988 siNNiCKSON v. johnson et al. [chap. vi. 

-^Wj- sionei'S acting under direction of the statute, as the direct agents of 
iZj -^ ^ the State in the execution of a great pubUc improvement, and not as 
^ voUinteers for their own benefit. 

jtAJ-^y^ . In the case of Stephens v. Proprietors of the Jliddlesex Canal, 12 

Mass. R. 46G, it is said tliat should tlie legishiture authorize an im- 

^^ ^ proveracnt (as cutting a canal) the execution of whicli would require 

•K-ixa^^/C or produce the destruction, or diminution of private property, without 

r at the same time giving relief, the owner would undoubtedly- have his 

W</WAa. action at common law for damages. 

^^^^^ These authorities would appear to cover and rule the present case. 

. But it w as contended by counsel, that they were decided upon thei r 

'^^ "^ r espective States' bills of rights, whic h declare that ])rivate pro])cr ty 

j-L s hall not be taken for public use, without just compensation, and t hat 

as our Constitution contains no such limit or restriction, the cases h ave 

r " ^ ' n o application, or in other words that the Legislature of New Je rsey 

y^ being unrestricted by constitutional provisions, is omnipot ent, and ma y 

ta ke private property for public use, without compensation, whenev er 

it shall will to do so. 



•UU/^A. 



The right to take private property for public use does not depend on 
constitutional provisions, but is one of the attributes of sovereign 
/t>^tuM/(A power; and the Constitution of the United States recognizes it as such, 
^(tjJL when it says, the right shall not be exercised without just compensa- 

tion. This power to take private property reaches back of all const i- 
l cJJ U^ ' t uted provisions ; and it seems to have been considered a settled princip le 
' r of universal law, that the right to compensation is an incident to the 
exercise of that p ower : t hat the one is so inseparably connected wit h 
iLvVVA t he other, that they may be said to exist not as separate and distinct 
y , p rinciples, but as parts of one and the same principle. Puffendorf, 
^^^^^ " h. 8, ch. 5, p. 222; 2 Montesquieu, ch. 15, p. 200; Vattel, 112, 113; 
cd jJ^' 1 Black. C. 139 ; 2 Kent, C. 339, 340 ; 2 J. C. C. 1C8 ; 1 Peter's Com. 
R, 99, 111 ; 3 Story's Com. on Constitution, GGl ; Bonajmrte v. Cam- 
■^ den and Amboy Mailroad Compamj, Bald. R. 220. The language 

la, "i of Judge Baldwin, in the case last cited, is " the obligation" to (make 
'. , compensation), "attaches to the exercise of the power" (to take the 

■4*<^^*'^'^property), " though it is not provided for by the State Constitution, or 

I ^ that of the United States had not enjoined it." 

^ And Story calls the provision on this subject, in the Constitution of 

V^ the United States, merely " an affirmance of a great doctrine estab- 

j lished by the common law." This principle of public law has been 

1 - ' made, by express enactment, a part of the Constitution of the United 

' /'^' States (vide 5th Amendment), but it has been decided that as a consti- 

i ' t utional provision, it does not applv to the several States. Barron v. 

'-^' Mayor of Baltimore, 7 Peters, 247; lAmngston's Lessee v. Moore ^ 

05 lA 7 Peters, 551, 552. Still if the opinions of the above distinguished juris ts 

^^c*^ ]j e correct, it is operative as a principle of universal la w ; and the legis- 

, j^> l ature of this State can no more take priv at e property for public usc, ,^^;,- 
jv^Vt'AM'.^ ^-jthout just compensation, than if this restraining principle were incor - y 






\^' 



CHAP. VI.] SINNICKSON V. JOHNSON ET AL. 989 

porated into, an d made part of its State Constitu tion. I have felt it a 
dut}^ to notice this point, thus far, because of its interest and importance 
in the abstract, and of the great reliance placed upon it in the argument 
of the counsel, though I scarcely considered it necessary for the settle- 
ment of this case, to pronounce upon it a different opinion. 

A ccordins: to my understandin"; of the Act in question, the legi sla- 
ture neither intended to take , nor has it taken , private property for 
p ublic use, in the sense in which these terms are ijroperly to be unde r- 
stood. For the accommodation of John Denn, they authorized him (if 
he thought proper so to do) to stop up a navigable creek upon condi- 
tion that he cut a canal at his own expense and upon his own property, 
as a highway for the public, in lieu of the creek. By the terms of th e 
Act, therefore, I think, the legislature has manifested a cleai- intent to 
provide against any interference with private property . It mere ly 
a greed to give up its right of passage upon the cree k (or in other words, 
its public property there) fo r another right of p assage equally or mor e 
val uable, to be provided by John Denn . The damages which have ac - 
crued to the meadow owners have not arisen from cutting the canal, 
which, in one sense, was for the benefit of~the public, but by the stop - 
p age of the creek, which was for the individual benefil, or priva te 
emo lument of John Den n" 

TTTe case therefore is not within the principle laid down in 4 Durn. & 
E. 796, and Sutton v. Clark, 6 Taunt. 29, 41, where it was held that 
pu])lic officers acting under the authority of an Act of Parliament, in 
repairing public streets, were not answerable for damages, unless they 
were guilty of an excess of jurisdiction ; that the maxim applied, salus 
popiili, siqrrema est lex, and that if no satisfaction were given by the 
Act of Parliament, the party was without remedy. It is not therefore 
necessary to inquire whether or not these cases conflict in principle with 
those already cited. Gibbs, C. J., in Sutton v. Clark, carefully dis- 
tinguishes the case of a public officer who is bound to execute a duty 
imposed on him by statute, from that of a mere volunteer, who acts 
not for public purposes, but private emolument. I think it can hardly 
be pr etended, that John Denn stopped Salem Creek for public pur - 
p oses under any obligatory directions of the statute. So far from this , 
i t is evident on the face of the act, that it was done voluntarily an d for 
h is own ac com modatio n. The most that can be said for him is, that b y 

j)-''^ cutting the can al, he paid a consideration to the public, for the pr ivi- 
V l ege of doing so. 

^ J Th e powers given by the Act to John Denn are such only as he 
.Vn)-^ wou ld have had, if the creek in questi on had be en his own . He can 

ss^ build his bridge over it, or dam it up, at his pleasure , and his bridge or 

^ d am cannot be compla ined of by the public, as a nuisance ; but if in 

exe rcising his rights, he damnifi es the property of his neighbors, he is 
liable, like every other citi zen, to respond in damages to the amount o f 
the injury. 

Judgment must be entered for the plaintiff on demurrer, with costs. 



.t^ 



990 HARVEY V. THOMAS. [CHAP. VI. 

Nevins, J. . . . Upon examining this Act I cannot view it in auy 
other light than a private Act and intended for tlie benefit of John 
Denn. . . . D oes this Act then confer npon John Denn and his assign s 
t lie riglit to take, injure, or destroy private property, withont compen - 
sation to the owner s? Jf it does, it is unconstitutional and void, a nd 
i n violation of natural justice, and therefore would not be a defence to 
the ijlaintitTs claim. If it does not confer such right, it constitutes no 
j ustillcation, and tlie i)lea cannot therefore be sustaine d. The legisla -j 
t ure are to be considered as conferring nothing but what tliev had a ^ h,^^ 
c onstitutional riuitt to gran t. They could not grant to him the riglit { J 
to overflow the laud of the plaintiff or in any other way to injure_o r "^ " '*" / 
destroy it without compensation , and if no such compensation is pro - M/t- 'i/u. 
vided for, the plaintitf has a right to seek his remedy through cour ts q^ q^ 
of justice by suit ! It is no answer to say that the part\- injured must (J, 
or may resort to the justice of tlie legislature. If such be his only / 
remedy, it is of too vague, indefinite, and uncertain a character to be -^^ tu 
recognized by courts. The Constitution and laws of this State can ,-^_£_^yi4^ i 
never leave the citizen such remedy only, for a clear infringement of ' / 
his private rights. Xor is it an available argument to say that if the /t^-* f 
defendants, as the assignees of John Denn, are to respond to the plai n- /CU^^'p^ 
tiff in this action for the injury to his property by reason of an ac t -/ . - 
authorized by law, the c on sequences to them may be ruinous, and th e 
work contemplated by the act, absolutely prevented . Suppose it to be 
so, may it not be answered that in accepting the grant, they acted ^^y^ 
v oluntarily, and should have foreseen and provided against the conse - - c<.rtt4/' 
quences. and would it not b e equally if not more unjust and oppressive (Aji^v^' 
upon the plaintiff to ruin and destroy his proi)erty, without the slightes t 
compensation or recompen se? 

I am of opinion that the plea is no justification to the act complained 
of, and that the demurrer therefore be sustained. 

HoRNBLOWER, Ch. J., concuiTcd in sustaining the demurrer. He had 
not time to prepare a written opinion. 

Ford, J., read an opinion sustaining the demurrer. 

White, J., was not present at the argument, and gave no opinion. 

r 4- - /Q Judgment for plaintiff, on the demurrer, v:ith costs. 

. OuZKLjn^- In Harvey v. Thomas, 10 "Watts, 63, 66 (1840), in holding valid a 
-^XoL C#v\.- Pennsylvania statute of May 5, 1832, for th e construct ion of lateral 

r ailroads to co nnect pri vate property with certain public improvements , 

'■^'^^^^ t he court (Gibson, C. J.) said : '■'■ The most material point in the caus e 

A»-^ is that which involves the constitutionality of the statute on which the 

iA-M-ryJji defendant's right is founded ; b ut it is one about which little need be 

. said. If there is an appearance of solidity in any part of the argum ent. 

i t is that the legislature have not power to authorize an application o f 
'^^''^^ another's property to a private purpose even on compensation made , 

4iWA:^ because there is no express constitutional affirmance of such a power. 
A. jij^'c- ^^^ ^'^^ ^^^^ point out an express constitutional disaffirmance of it? 



l\JJi 



CHAP. VI.] HARVEY V. THOMAS. 991 ^^J^^^^*^ 

T he clause by wliich it is declared that no man's pvoporty shall be ytv^ v^ 
t aken, o r applied t o public us e, wi thout the consen t of his rc prcsenta- (j 

t ives, and without just compensation made, i s a disabling, not an 'V^ '^'^^ 
e jiabling one ; and t he right would have existed in full force without it . -A^A. t^ 1 
^Vhether the power was only partially restrained for a reason similar to 
that which induced an ancient lawgiver to annex no penalty to parricide, 
or whether it was t hought there would be no temptation to the act o f 
takin g the property of an individual for another's use, it seems clear 
i hat there is nothing in the Constitution to prevent it ; an d the practice 
of the legislat ure has been in accordance with the p r inciple, of whic h 
the ap|)licalion of another's ground to the purpose of a private way is 
a pregnant pro of. It is true that the title of the owner is not diveste d 
by it ; bu t in the language of the Constitution, the ground is neverthele ss 
' a pplied ' to private use. I t is also true, that it has usually, |jerhap s q^ "UvL 
a lways, been so applied on compensation made ; but this has been done . v ' 

from a sense of justice, and not of constitutional obligation. But as i n -Iaa^/vs-L^ >f 
the case of the statute for compromising the dispute with the Con - 
n ecticut claimants, und e r which the i)ropcrty of one man was take n 
f rom him and given to anothe_r , for the sake of peace, the end to be 
a ttained by thi s lateral railroad law is the public prosperit}-. Pennsyl- 
vania has an incalculable interest in her coal mines ; nor will it be 
alleged that the incorporation of railroad companies, for the dev^elop- 
raent of her resources, in this or an}- other particular, would not be a 
measure of public utility ; and it surely will not be imagined, that a 
p r ivilege con stitutionally given to an artificial person, would be les s 
constitutionall}' given to a natural one . . . . Judgment affirmecV ^ 

1 In affirming this point, in Ilifjs v. Risher, 32 Pa 169, 177, the court (Woodavard, 
J.) said . " The truth is. wlien a lateral raih-oatl is laid upon intervening lands, priv ate 
p roi^ertv is not taken for private use, and there was no occasion for Judge Gibson 's 
r emark in Ilurrei/ v. Thomas , 10 Watts, 63, that the Constitution does not forbid such 
taking . The private property is taken for public use — for cle a r and definite oljiects 
o f a public nature which are of sufficient importance to attract the sanction of th e 
sovereig n. That an individ ual expects to gain thereby, and has private motives fo r 
ri_sk i n g the whole of the necessary investment, and acquir es peculiar rights in the 
work, detra cts not a w hit f rom the public aspects of it . The s ame thing can be said of 
every railway corporation and of almost every public enterprise. " 

The statute as to lateral railroads provided that, any owner of land, mills, quarries, 
coal mines, lime-kilns or other real estate, not over three miles from any railroad, 
canal, or slack water navigation made by tlie State or any corporation, who wishes to 
make a railroad thereto over any intervening land, may enter and survey, and on peti- 
tioning the court of common pleas of the count}"-, have six commissioners appointed, 
and on the report of any four of these that such railroad is necessary and useful " for 
public or p rivate purposes," and after certain other judicial proceedings, may have a 
liiial order authorizing the road. The petitioners are to own the road. An ybody m.ay 
u.-;e it, bu t only in the proprietors' wagons, at spec ifi ed rates. The Commonwealth 
may at any time take t he ro a ds on repaving the owners their outlay. Diint. Laics 
Pa. (ed. 1847) 487. ' f 

Compare 6 Am. Law Eev. 1 97, Taylor v. Porter et a!., 4 Hill, 140, 148, Nelson, C. JLi<M 0^ I^ 
J., dissenting; and m any cases holding the laving out of so-called " private road s " ^ y!!f k/ 



constitutiona l; e. g. Sherman v. Binck, 3 2 Cal. 24 1 (1867), affirmed in Montereij Co 
Cnshnu/, 83 Ci 
(Cal. Feb. 1893 



Cushnuf, 83 Cal. 507, .5 11 (1893), and Los Angeles Co. v. Reijes, 32 Fac. Eep. 233 ,^/fi ,VW*^ 
Compare also Matter of Split Rock Cable Co., 128 N. Y. 403. —Ed. ^Z"^ 






M 



992 RALEIGH AND GASTON RAILROAD CO. V. DAVIS. [ciIAP. VL 

I' 




y^,r ^r RALEIGH & GASTON RAILROAD COMPANY v. DAVIS. 
N^^ Supreme Court of North Carolina. 1837. 

«« ^ '6^\ [. D„. ,. «„. 45,0 

The plaintiffs were incorporated by an Act of the General Assembl}- 

passed in December, 1835 (2 Kev. Stat. 299), " for the purpose of 

effecting a communication by a railroad from some point, in or near 

the cit}' of Raleigh, to the termination of the Greensville and Roanoke 

Railroad, at or near Gaston, on the Roanoke River." After providing 

^ V^'^^ for the organization of the company, with the usual faculties of plcad- 

>v Ix tM^ ing and being impleaded, and purchasing and holding estates real and 

-t. /(/U. personal, as far as ma}' be necessarj- for the purposes of the Act, it pro- 

. • '^ ceeds in the seventh section, " to invest the president and directors 

^^y^' with all the rights and powers necessary for the construction, repair, 

4/h TaaXA and maintaining a railroad, to be located as aforesaid, and to make and 

'jjQ.^ lmM construct all such works as may be necessary and expedient to the 

^^^ proper completion of the road." By the 12th section, the company' 

^ ^ have immediately " full power to enter upon all lands through which 

^^ ' they may wish to construct the road, to la}' out the same," not invading 

U^fv^A^ dwelling-houses, etc., and with other restrictions, particularly' men- 

ui_£i^'tb tioned. And by the 17th and 21st sections, entrj- raaj' be made upon 

the lands thus laid off for the purpose of constructing the road, and 

U^tM"^^ upon adjacent lands for the purpose of getting the necessary materials, 

iuA^/<^i<- with a provision in the 22d section for redress by action and double 

y /A damages, for any wanton or wilful injury to the land, crops, or other 

'^ II property, by an entry for either of these purposes. 

iVu 0^ y^ To provide for the condemnation of the land thus laid off for tlie 
^jh ^- road, or entered upon after having been thus laid off, and also to 
A^f(JiAAj provide for a compensation to the owner of the land, is the subject of 
// iK i^~ "'"^ sections of the Act — beginning with the 12th and ending with the 
r ' 20th section. The material provisions of those parts of the Act are, 
'^^■'^^^^y ' that if the companv and the owner of the land cannot agree as to th e 
'^^itMj terms of purchase, the former is authorized , after notice to the 
a^xiCa/i. owner, to apply to the Court of Fleas and Quarter Sessions, and tli c 
V ^,ai^ c ourt is thereupon required to '' ap poin t five disinterested and impa rti a 1 
. ff f reeholders, to assess the damages to the owner from the condem na- 

^ nu<M. tion of t he land for th e purpose aforesaid, any three of whom, a fter 
/vi Uu. bei ng sworn and viewing t he premises and hearing such evidence as 

j(jutAAA<- c - either par ty may offer, may ascerta in those damages a nd certi fy the 
/ - same " in a form given in tlic Act :j and in making the assessment , " they 

LUl. /Ax. s hall consider the proprietor of i\h land as tlie owner of the whole fee - 
^^t si mple interest therein , an d ta ke i nto consideration the quality an d 

£t/oa. 4^ q uantity of the land condemned, the additional fencing that will b e 
I- r equired thereby, and all the inconveniences that will result to the p ro- 
t^ prietor from the condemnation thereof." Tlie report of the freeholders, ^ 



(f^^ 






CHAP. VI.] EALEIGH AND GASTON RAILROAD CO. V. DAVIS. 993 -fj jjc(. 

when thus made, is to be returned by them forthwith to tlie court, and '*-'<'"*^l 
'^ unless some good cause be sho wn ag ainst the report, it sh all be co n- ~t<-rtA. '^*-'^ 
firme d b y tlie court, and entered of reco rd ; w hereupon, upon paymen t o^ cmvu^^ 
or tender of th e damages," the land reviewed and assessed as aforesaid J-i/yoj>xJjuj. 
s hall be vested in the Kaleigh and Gaston Railroad Company, an d they /_ ^ ^ / 
s hall be adjudged to hold the same in fee sim|)lc, in the same manne r -^ 
as if the pro|)rictor had sold and conveyed it to them . " If the company t'^J'^^^'^'X k) 
shall take possession of auj' land, and fail for fort}' days to institute HyyiA- • h^^'^ 
proceedings for its condemnation as aforesaid, or shall not prosecute /k^^j^}Mjt- /f 
them with diligence, tlie proprietor of the land may apply to the court t 
to appoint the freeholders with the same duties and powers in all / 
respects as before, and the court shall in like manner affirm or disaffirm nx^^f^^" 
the report;" and "when any such report, ascertaining the damages, L(cMx4^ 
shall be confirmed, the court shall render judgment in favor of the pro- '' 'u 

prietor for the damages so assessed and double costs, and when the i^^^^^'-^'^ 
damages and costs shall be satisfied, the title of the land for which such sn^c^'^^^-^^'^' 
damages are assessed shall be vested in the company in the same u ^a,iA/UA 
manner as if the proprietor had sold and conve3'ed it to them." , './ ^^ 

B}' other parts of the Act, the company is required, under pain of ^ ~+t >ri. 
forfeiture, to begin the work within two, and finish it within ten years ; ^^k-*'^'^^ 
and is vested with the exclusive right of transportation on the road, ,<Lfu-t'-&^*''^'*^ 
and required to transport all persons and property for certain tolls. dUlxpi^^^^^^'^ ' 

It is a misdemeanor, punishable b}' fine and imprisonment, to destroy (/ nr 

or injure the road, or place any obstruction on it. Z* A*^ 

By section 25, all machines and vehicles and " all the works of the ^j^^^Ia^*'^ • 
said compan}' constructed, or property acquired under the authority of ^ L,/\x\iv^ 
the Act, and all profits which shall accrue from the same, shall be (P^^ ( . ^ 
vested in the respective stockholders of the compan}- forever, in propor- /u/^ ^^ '' 
tion to their respective shares ; and the same shall be deemed personal ^f /^4^ 
estate, and shall be exempt from an}' public charge or tax for fifteen ^ UMaP 
years." "iT^ J 

By the last section, "• the corporate powers granted by the Act are to ^{q u/^-'-^^ 
enure for ninety years and no longer, unless renewed by competent j£ ri 

authority." , i 

The road, as laid out, passes over th e land of Mr. Davis, situate i n ^'LA.<^^ ^"^ 
^Yarren County, a nd, at Novembe r Term, 1 830, the company mo ved ^^ aa^^^^ 
th e court of that county to appo i nt five freeholders to make the assess- . <ti(A.aJj 
ment, according to the Act . Mr. Davis appeared and made known to ^ ''^^c) 
the court, that he and the company had been unable to agree touc hing ^m^ (Xy:i/iM 
t he price to be paid to him for the land sought to be condem ned, or . ^^ 

to uching the compensation for the inconveniences he must be subjected '^*' ^ 

t o by the proposed location of the road . An d he refused his assent to M^*^-'^^*"'^ 
th e mode of proceeding for s e ttling the controversy touching the sai d , VJUj^ 
pr ice and compensation then and there prosecuted by the company, bu t ^^^^ 

o l)jected to the sam e — first, as a violation of the right of private prop- -^-^^ 
e rty secured by the 12th section of the Bill of Rights ; an d, secondl y, '{f<xj3U4^^>^'^ 
a s depriving him of the rig lit to a trial by jury, which is made inviolab le 

. ' . . . X , ^ r.P*J*. \_ '.^:ti ftJr^[^ '^-^ . 



• 994 KALEIGH AND GASTON PwVILROAD CO. V. DAVIS. [cHAl'. VI. 

by the 14th section of the same instrument. T lic court, ncvertlieless, 
appo inted t he freeholders , and piadc th e or der sp ecify iu.^' their dut ies 
i n the words o f th e statut e. At the next term, three of them returned 
their report in the form prescribed in the 14th section, together with 
the certiticate of the justice of the peace who aduiinistered tlie oath to 
thera. 

The company thereupon moved to confirm the report and have it (2.( vt 
entered of record ; but the other party opposed the motion, and prayed l' - u, 
the court to dismiss the proceedings. Upon consideration thereof, the ^ (m 
C ounty Court refused tlie motion of the company, and gr anted that of (^ "^i 
Mr. Davis ; from which an appeal was prayed, whicli was also refuse d, /y^^^^^ 
upon the ground that no appeal is given in the cha rter. -Il- / 

The ca se was then brouoht into the Superior Court by a certiorari ^ ^'^^"^ ^ 
and was there heard on the last Spring Circuit, l)efore his Honor Judge ^^ t^ 
Bailey, when the order of the County Court, dismissing the proce ed- ^j^-^^uJ 
in gs, was held to be errone ous, and rev ersed with cost s, and a_writ_of »yy ^, 
proce dendo ordered, commanding the County Court to proceed further » , ^(^ 
in the case according to the said Act of the General Assembly and the _. 
law of the land. From that judgment Mr. Davis appealed to this 'vvvv-^'- 
court. t\> l^ 

The case was argued at the last term, by Badger, for the plaintiffs, -jyu^<rr 
and the Attorney- General and W. H. Haywood, for the defendants. ^,J^ 
• V^!"^''^® court continued the case under advisement until the present term,. ^,_ ^ 
k^f ^ when their opinion was delivered by R yPFiN , Chief Justice ; who, \^ 
^j, A/^ ^ having stated the case as above, proceeded as follows : — As no objec- "^ 
\0' ^ tion was made in either of the courts below, that the road was laid out hA^^r^ 

1 so as to cover more land or in a different form than the charter ^njjO 

autliorizes ; or that the freeholders acted irregularly ; or that the Vl " , 
damages assessed are not a fair and adequate compensation for the a) •^'^^^ 
fee-simple of the land taken and all incidental damages, it must be ^,^W 
assumed, that there is no ground for exception in either of those <^^,vt 
respects. The case is therefore to be decided on the specific constitu- 
tional objections made on the part of the defendant. 

Upon those questions the court had the benefit of a full argument at 
the last term. The impressions received were then so decided, as to 
have warranted the delivering of our judgment immediately, if it had 
been necessary, but as the prosecution of the work conducted by this 
company could not be impeded by the delay, and some of the points 
made are novel and of much magnitude, in reference to a class of 
subjects on which there has 1)een recently and probably will be copious 
legislation, it seemed discreet, before announcing a decision, to give to 
the argument, and to the whole subject, the deliberation for which the 
vacation offered the opportunity. 

The right of the pul)lic to private property, to the extent that the us e 
o f it is needful and advantageous to the pul^lic, must, we think , be 
universally acknowledged . . . . This, too, is not only the right of the 
nation, constituted by the aggregate lody of the people, but it is a 



CHAP. YI.] KALEIGH AND GASTON RAILROAD CO. V. DAVIS. 995 -^^ "^ ^^' 

right and power of government. It was said at tlie bar, tliat it was a ^^ , ^\, 
sovereign right, and tlierefore remains with the people of this State, / • , 
since it is not granted in the Constitntion. The position, if true, would 
destro}- the value of the power here and dissolve the government. But (/llixi^ 
it seems to the court wholly untenable. It is true the eminent domain ^\c</fi/.u,J 

is a i)C)litical and sovereign power ; so is every other power vested in, or ' / 

exercised !)y, any government. Before a people institute a government, '''^^■'*M ^ r 
they are themselves necessarily the possessors of all political power Jo.^'^ / 
which men, by the natural and divine law, can rightfully exercise over - -pl^ 
each other. But by the constitu ti on of government, the political pow ers ^ cj 

reflj uisite to the exis tence of government and to the disc ha rge of those ^'^ ' 
f unct i ons for which the commun i ty created i t, are transferred by th e ^.'®'*^"' 
peo ple to the oovernm cnt. From the people, tlie government derives u_ ^ 'f^ 
t he ijower to act on and control the people themselves, unless in those ^ 
po ints in which the government is restricted by limitations of power . ^^U^^ ^^ 
With that exception, the powers of the nation become those of the %v^^ a^^^W 
g overnment, save only that over the constitution of government itse lf, .t y.^ 
t o abolish or alter it. The government of the United States is an excep- 
tion to the general principle, from its peculiar construction. To its 
formation the people of the several States were parties, and they, as 
the people of several States, have specially delegated to it particular 
powers for the purpose of making themselves one people, under one 
government, for particular purposes onl}'. But these incidental powers, 
derived by a fair, proximate, and natural implication from those enu- 
merated, or from the purposes of forming the Constitution, as declared 
on its face, have been exercised, and must be yielded. The government , 

of North Carolina, however, is not one of specially delegated powers : ^A^^ 
it is onl}' one of limited and restricted power. w ^r. 

The Constitution begins b}' simply " establishing a government for <■ 

this State," and vests "the legislative power in a Senate and House of Vt-^x. Ji*^^ 
Commons." There are no grants of power to the legislature except in <X*'7 \^'^ 
a few instances, where the power would not seem naturallv to arrange ^ 

itself under the general class of legislative powers, according to pre- 'Ix/^^^f 
cedent usage, as the election of the Governor and other high officers. i^yi^^Mj/iXv 
It does not even confer the revenue power, nor that of granting the / S f 
vacant lands ; yet the legislature has always exercised both powers, by -tC*. |p-^ (f 
levying taxes, and by authorizing dispositions of the public domain, , AfW 
although '•'•the right to the unappropriated soil is declared to be, in a ^ ' ' , 

free government, one of the essential rights of the collective body of the J/k "V-*"^ 
people," which means nothing more than that it shall not be seized on /^iAyinM^ 
by any individual or particular class, but shall be kept or disposed of ' ^ ^ 

for the common benefit of the whole people. This power, or right of ^'^■^^"^^^^ 
eminent domain, is likewise possessed In- the government, and ma}' be Ji<^^^ 
exercised by the legislature or under its authority. Unless vested ^10^ , 
there, it cannot be called into action, and without it neither the govern- 
ment nor the State could hold together. It is peculiarly fit to be wielded 
by the legislature — it is a power founded on necessity. But it is a neces- 



99G RALEIGH AKD GASTON EAILROAD CO. V. DAVIS. [CIIAP. VI. 

siU' that varies in urgcncT with a population and production increasing 
or diniinisliing, and demanding channels of coniuiunication, more or 
less numerous and improved, and therefore to be exercised according to 
circumstances, from time to time. The Legislature of North Carolina, 
when it was a province, and since it became a State, have ahvavs exer- 
cised it, either directly or through the intervention of the courts that 
administer the domestic police of the several counties. It is a power 
which the government is bound to the people to exercise, limited onl}' 
by a sound discretion as to the number and nature of the roads, and 
restricted as to the mode of exercising it b}- the provisions in the 
Constitution, if any sucli tliere be. It is contended that there are such 
provisions, and that the Act before us is in violation of them in several 
respects. 

It is said — first, that the right of property involves the right to pre- 
cedent comp ensation for i t, when taken for pubFic use . It is thence 
d educed as a corollary, that the questions whether the property s hall 
b e taken, and what compensation shall be paid for i t, do constitute a 
question at law respecting ))roperty , and must be tried by a lury , 
according to the 14th section of the Bill of Righ ts. 

I f tlie government can lawfully take private propert}' for pub lic use,. 
without compensation, then, confessedly, there is n o controversy t o 
be tried by a jury . But the government m ay pr escribe such terms 
as may be deemed befitting its own character and tlie justice of th e 
State . S o, though there be a co nstitutio nal obligation on the gov ern- 
m ent to make compensation, yet if the compensation need not preced e 
t he taking of the property, the condemnation of the defendant's land is 
not ille ga 1, because he may refer to the constitutional m od e of asce r- 
taining and enforcing payment of its value and other damag es. It 
behooves the counsel for the defendants, therefore, to establish both 
parts of the proposition. 

The right to compensation, as an absolute and legal right, was con- 
tested by the counsel for the plaintiffs, and strenuously asserted on the 
other side. The court do not decide it, but in this case will assume it 
to exist as contended on the part of the defendant, though not on all 
the grounds on which his counsel placed it. The court cannot adopt 
some of the several distinct sources from which it was derived. 

One of them was the Fifth Amendment of the Constitution of the 
United States, providing that " no person shall be deprived of his life . 
liberty, or property, without due process of law ; iior sha ll priva te 
p roperty be taken for public use without .ju st compensatio n." That 
h as always been understood to be a limitation of the power of the Fed - 
eral government, and not of that of the States. It was authoritatively 
so held by the Supreme Court of the United States, in Barron v. T/ ie 
Mayor of Baltimor e, 7 Peters's Rep. 243, which dispenses with further 
observations from this court. 

The natural right and justice of compensation, and the nature of our 
free institutions, were also relied on as suflflcient in themselves to create 



CHAP. VI.] KALEIGH AND GASTON RAILROAD CO. V. DAVIS. 997 

the supposed restriction oil this power. But the sense of right and wrong 
varies so much in different individuals, and the principles of what is 
called natural justice are so uncertain, that they cannot be referred to as 
a sure standard of constitutional power. It is to the Constitution itself 
we must look, then, and not merely to its supposed general complexion. 
There must be words in it which, upon a fair interpretation, and in ref- 
erence to the subject-matter, and to direct consequences, are incompat- 
ible with the enactments of the legislature, before a court can pronounce 
such enactments null. The principle is, however, so salutary to the 
citizen, and concerns so nearly the character of the State, that it may 
well be urged' that it must be consecrated by its adoption in some part 
of the free Constitution of this State. We should be reluctant to pro- 
nounce judicially our inability to find it in that instrument. If it be not 
incorporated therein, the omission must be attributed to the belief of 
the founders of the government that the legislature would never perpe- 
trate so flagrant an act of gross oppression, or that it would not be 
tolerated by the people, but be redressed by the next representatives 
chosen. There is no doubt that, while the legislature and the people of 
this State expressly restrict the action of the general government on 
this subject, it must have been supposed by the people that their own 
local government was in like manner restrained, or would never act in 
a manner to make such a restraint necessar}'. There is, however, no 
clause in that instrument which seems to bear on the point, unless it be 
that which is relied on in the argument for the defendant. It is the 
twelfth section of the B ill of Right s, which declares, " t hat no freema n 
sh all be disseised of his freehold , o r deprived of his life, liberty, or 
p roperty, but by the law of the la nd." Under the guaranty of thi s 
ar ticle, it has been held, and ni our opinion properly held, that private 
pr operty is protected from the arbitrary power of transferring it from 
o ne person to another . We doul)t not that it is also protected from th e 
p ower of despotic resumi^tio n, upon a legislative declaration of forfeit - 
u re, or merely to deprive the owner of it, or to enrich the treasury , 
unless as a pecuniary contribution by way of tax. Such Acts have n o 
foundation in any of the reasons on which depends the power, in virtu e 
of thejjght_of_eminent domain, to take private property for the pub lic 
u se, and they could not be sustained by the offer of the fullest compe n- 
sation. Though not so obvious, it may also be true that the clause 
under consideration is restrictive of the right of the public to the use of 
private property, and impliedly forbids it, without compensation. But 
it is a point on which the court is not disposed, nor at liberty, to give a 
, positive opinion on this occasion. It is not required as a preventive 
warning against unjust legislation. For it is more inadmissible to sup- 
^pose that the legislative Acts will be designed to work oppression and 
I \>^ wrong than to violate the Constitution directly. It is not deemed prob - 

conceived to be possible, that the lep-islat iire 



\)^ \\ \ able, and with difficulty 
'y/^ wi ll at any time take the 



the property of the cit izen for public use, witho.u t 
aP^ at the same time provid ing some reasonablejnethod of ascertaining a 






r\ 



99S 



EALEIGH xVXD GASTON RAILROAD CO. V. DAVIS. [CHAP. VI. 



j ust compensation, and some certain means of paying it. Moreover, it 
is not open to tlie court to give tlie definitive opinion demanded, be- 
cause it does not, in our judgment, necessarily arise here, and it is 
indecent to decide so grave a question extrajudicially. Here the stat- 
ute does give compensation fair and liberal, embracing not only the 
direct, but all incidental and consequential damages. For the purpos e 
of this cau se, therefore, it may be taken for granted that compensat ion 
is in all cases requisite, as no doubt it will in all cases be made. But 
with this admission, the court is of opinion that the proposition of the 
defendant's counsel, as to the mode of ascertaining it, and the period of 
pa\'ment, is not sound. 

Unless the compensation must precede the seizure of the propert}-, it 
is true that in many cases one of the principal securities for it is im- 
paired, and by possibility may be lost, — that of the judicial enforce- 
ment of the right. /W hen the property is taken for the public directly , 
a nd the payment is to be made out of the treasury, the compensa tion 
cannot be made the subject of litigation against the State, but the pa rty 
must rely o n the integrity o f the legislature a nd the general will to h ave 
equal right done to all . Yet it seems impossible to lav it dow^n as a 
principle that compensation is indispensably a condition precedent ; and 
t his must be added to the examples already know n, in which an injunc- 
tion of the Constitution cannot be made the subject of judicial co g- 
nizanc e, but finds its only sanction in the understanding and conscie nce 
of the legislato r. The exigencies of the public may be too urgent to 
admit of the delay requisite to the simplest mode of previous investi- 
gation. I n time of war, for example, an ar my must have food, o r 
ammu nition, or quarters, a field for encam|)ment, or an intrenchment for 
defence , and th e nec essity is pressing and mi mediate . Other instances 
suggest themselves, in which a previous assessment cannot be had with 
any reasonable hope of doing justice. The Act before us supplies one 
such in the 21st section. It authorizes an entry into lands adjacent 
to the road, to cut, quarry, dig, and carry away wood, stone, gravel, 
or earth for the construction or repair of the road. And for those 
materials, and for all incidental damages done in taking or carrying 
them away, reasonaI)le compensation is to be assessed by three free- 
holders, upon view and on oath. In the like manner, our public road 
law directs the overseer to cut timber and dig earth for bridges and 
causeways, and gives the owner a petition to the County Court for ade- 
quate compensation, to be fixed by the justices, out of the county funds. 
Antecedent assessments, in such cases, must be made entirel}' at a ven- 
ture, for it is uncertain what quantity of materials will be requisite or 
can be procured at a particular place, or how many tracks may be 
broken on the owner's land, and even the weather and season of the 
3'ear may materially vary the damage. Therefore the Acts must almost 
necessarily provide for payment for injuries done which can be seen, 
known, and truly estimated. T he compensation to be adequate must be 
subsequent . 



^^ 



\^ 



CHAP. VI.] EALEIGH AND GASTON KAILllOAD CO. V. DAVIS. 999 

It may be observed that in this we only adopt tlie established 
course of legishition and adjudication in that country from whicli we 
derive Magna Charta and most of the otiier free principles declared in 
our Bill of Rights. Tlie case oi Boi/Jield v. Forter^ 13 East, 200, is a 
decision upon a similar Act of Parliament, which confines the owner of 
the land to the remedy given by the Act. The case is cited with an 
acknowledgment that it is not an authority upon the question of legis- 
lative power in America ; for that in England is unquestionably tran- 
scendant, and ours is as certainly limited. But when it is recollected 
with what reverence the great charter has ever been held by botli 
branches of that legislature, and especially by that which is popular ; 
and when, moreover, it is called to mind that the rights of private prop- 
erty have never been more respected than in that country, where it is 
carried to the extent, perhaps injurious, of successfully opposing great 
political reforms, and generally prevents the abolition of even a public 
office without compensation to the incumbent, it may reasonabl}' be in- 
ferred tliat neither the Parliament, nor the courts, nor the people of 
that country perceived an infraction of the Magna Charta in those 
statutes. As practical evidence' of the true sense of that clause in it, 
which has been transferred into our Bill of Rights, those legislative and 
judicial proceedings, though not authorit}', are entitled to much respect. 
In a still greater degree does the l egislation of our ow n countrj', com- 
mencing at an early period of our provincial State, and continued up to 
the present time, upon the subject of laying out roads and making 
compensation, claim our attention as an authoritative exposition of the 
general sense, through a long course of time, of the relative rights of 
the public and of individuals. It estab lishes or recog nizes, on the on e 
hand, the o blig ations of the public to pa}" a fair re muneration f or in- 
j uries to individuals for the public service ; but, on the other, it evinc es 
the s e ttled usage, and thence the legality of providing that the co m - 
pensation may be antecedent, or subsequent to the injury, as t he 
necessities of the public for the property may be immediate or other - 
wise, and according to the convenience of both parties for truly es ti- 
mating the amount . In the Constitution of New York is contained an 
express clause for compensation for private property taken for public 
use ; and it is there settled also that neither the paj'ment nor the 
assessment need precede the opening of a road over the land of an indi- 
vidual. Core V. Thompson^ 6 Wendell, 634. Indeed, the principle 
applies alike to every entry on the land, and would exclude one even 
for examination and survey, if correct. The court concludes, there- 
fore, that it is competent to the legislature to take private property, 
for the pul)lic use, without a previous or cotemporaneous payment of 
its value. 

If the foregoing reasoning be just to establish the result declared, it 
seems to go far also to show that it is in the discretion of the legislature 
to appoint the tribunal by which the compensation shall be assessed. 
If the obligation on th e legisl ature to make compensation be perfec t 



1000 KALKIGII AND G-VSTON KAILUOAD CO. V. DAVIS. [cHAP. VI. 

and constitutional, it may be competent to the judiciary to declare that 
the title of the individual was never divested it' the le<j;islature were to 
refuse, or for a lonn: time delay, to make any compensation . Y et, if 
that which appears to be just, or docs not aijpear to l)e insuflicicnt, b e 
provided and ollered by the legislature, however it may have been fixe d 
on. there is no ground for the interposition of the court s. It is said, if this 
be true, the party to the controversy nominates the judges to decide , 
and might, indeed, make the decision directly without a referenc e to 
any other person. Perhaps the Act might be found so nearly allied to 
the judicial functions as to be forbidden to the legislature. If it be not, 
the court is not aware of anything to prevent a legislative assessmen t, 
except propriety and the unfi tn ess of large bodies for the impartial a n d 
minute investigations necessary to the justice of such cases. It is 
not likely that the attempt will ever be made, even in point of form, 
unless to carry into effect a previous agreement of parties. At all 
events, it was not done in this instance, but the decision was referred 
to persons judicially selected, impartial, and acting under oath, with 
opportunities for full information from evidence and from view. To 
such a tribunal no objection seems to be furnished by the principles of 
justice or b3- the provisions of the Constitution. 

It was, however, contended at the bar that it is an evasion of the 
spirit, if not a violation of the express words, of the fourteenth section 
of the Bill of Rights, by which, " in all controversies at law respecting 
p roperty, the ancient mode of trial by jury is to remain sacred an d 
inviolate." 

This is a controversy at law. Is it also one resmcting property? In 
what sense is it so? The necessity for the road between different 
p oints is a political question, and not a legal controversy ; and it be - 
l ongs to the legislature . >So. also, does t he particular line or route of 
t he road, whether it shall or shall not be laid out so as to pass ov er th _e 
lands of particular person s ; and that has also been decided by the 
l egislature or referred to scientific engineers . The only subject for 
the consideration of the jury is, therefore, the quantum of compensation. 
Reduced to that point, the case of Smith v. Campbell, 3 Hawks, 590, is 
a decision that it is not a controversy " respecting property," within the 
sense of tlie Bill of Riglits. But the remaining words of the clause yet 
more clearly exclude this case from its operation. " The ancient mode 
of trial by jury " is the consecrated institutio n. This e xpression has a 
technical, pecu lia r, and well-understood sense. It does not imp ort 
that every legal controversy is to be submitted to and determined by a 
ji H-v, but that the trial by jury shall remain as it anciently was . Causes 
mav yet be determined on demurrer, and that being an issue of law is 
determ ined by the court. Final judgment may also be taken on defaul t, 
when the whole demand in certainty is thereby admitted ; as is pro- 
vided for actions of debt by the Act of 1777, which was passed by 
nearly the same persons who composed the Congress of 1776. Interest 
at a certain rate, fixed by law upon notes as well as bonds, and in 



CHAP. VI.] RALEIGH AND GASTON RAILROAD CO. V. DAVIS. 1001 

actions of assun:ipsit, is computed by the clerk ; and costs, in all cas es. 
taxed by biu i. Tliese are all controversies respecting property in t Ue 
san^e sense witli the |)resen t, but they are none of them trials, or case s 
f or trials, bv jury . T here is no trial of a cause, standing on demurrer 
or defaul t. Trial refers to a dis|)utc and issue of fact^ and not to an 
i ssue of law, or inquisition of damag es. Tlie terms of this section are 
with respect to the controversies mentioned in it, analogous to those in 
tlie ninth section with respect to criminal prosecutions. That provides 
that " no freeman shall be convicted of any crime but by the unanimous 
verdict of a jury." Judgments may be undoubtedly given in indict- 
ments on demurrer, on tlie prisoner's standing mute and refusing to 
plead, upon submission, and upon corjnovit. When, therefore, a con- 
viction by verdict is spoken of, it has in view onl}' the case of a plea b}' 
the accused and issue on it. That raises a question which can be tried 
onl}' by jury, and determined against the accused only by the unani- 
mous consent of tlie jur}'. " T r ial by jury," in civil cases , is equivalent 
t o "conviction by verdict" in criminal proceedings . They do not 
i nclude, by force of those term s, any case ili which there is not an 
issue of fac t. I t is the course, both in England and this country, to 
resort to this favorite Anglo-Saxon mode of determinino- all legal con- 
t roversies, as well as trying issues, c ivil and criminal , where it can b e 
u sed without great inconvenience. It might have been adopted in this 
instance, and probably would have been prescribed in the Act, but for 
the dela}', expense, and difficulty of proceeding by writ of ad q^iod 
damnum on so long a road, passing over the lands of so many pro- 
prietors. But it is not indispensable in such a case, because it is not 
embraced in tlie words used in the Bill of Eights. Man}' of the State 
legislatures, to whose codes we have had access, have proceeded in a 
similar way ; and it has received judicial approbation. In New York, it 
was held by Chancellor Walworth, in Beekman v. The Saratoga a nd 
Sc henectady Railroad, 3 Paige's Rep. 45, that the ascertaining the d am- 
ages by commissioners was not repugnant to that part of the Constit u- 
tion of that State which preserves the trial by jury . In Livingston v. 
The Jlaijor of New York, 8 Wendell, 85, the same point was ruled 
unanimously, both in the Supreme Court and in the Court of Errors. In 
Lioingston v. 3Ioore, 7 Peters, 469, the distinction upon the words 
" trial by jury" is explicitly expressed by the Supreme Court of the 
United States. It arose upon these words in the Constitution of Penn- 
sylvania : "Trial by juiy shall remain as heretofore." The court say, 
"the distinction between trial b}' jury and inquest of office is so fa- 
miliar to every mind as to leave no sufficient ground for extending to 
the latter that inviolability which could have been intended only for 
the former." In the same light does the subject seem to have been 
viewed b}' our legislature in passing a variet}' of Acts. Not to mention 
the numerous charters for roads and canals, with provisions similar to 
that now before us, t he first Mill Act and those for partition and others , 
substitute commissioners for a jury to assess the value in the one case . 



1002 llALEIGH AND GASTON llAILROAD CO. V. DAVIS. [cHAP. VI, 

and to iBake the division in the other, w ith power to charge one lot 
N vith money to be i^aid to the othe r . 

T he opinion of the court is, that it was competent t o tlie legislatu re 
t o. adopt the mode it did_for Ihe assessment of the damages to th e 
defendant. 

It is I 'urther objected, that the charter takes more than the right of 
e minent domain authorizes . I t is said that the public is only entitled 
to the use of |)rivate property, leaving the property and right of soil in 
th e propriet ors ; and that here the whole fee is taken, and not for th e 
p ublic. but for the company, w hich is but a private corporatio n . 

The doctrine of the common law is, that t he public has only an case - 
ment in the la nd over which a r oa d ))asscs, and that the right of so il is 
undi stur bed thereby . The reason is, that ordinarily the interest of the 
p ublic requires no mo re. Every beneficial use is included in the e ase- 
ment, in respect, at least, to such highways as existed at the time th e 
principle was adopted, and to which it had reference . But if the use 
r equisite to the ijublic be such an one as requires the whole thing, the 
s ame ))rinciple which gives to the public the right to any use give s 
t he right to the entire us e, upon paying adequate compensation for the 
whole. It is for the legislature to judge, in cases in whichjt may be 
for the public interest to liave the use of private property, whether, i n 
fact, the public good requires the ])ropertv, and to what exten t. . . . 

Upon the supposition that the legislature may take the propert}' to 
the public use, it is next said that this taking is not legitimate, because 
t l^e property is bestowed on private person s. It is true that tliis is 9, 
private corporat ion, its outlays and emoluments being individual prop - 
erty ; but it is constituted to effect a public benefit by means of a roa d, 
and that is publici juris. Fn earlie"r times, there seems to havF I)e "en 
a necessity upon governments, or at least it was a settled polic}- with 
them, to effect everything of this sort by the direct and sole agency o f 
t he government. T he highways were made by the public, and the us e 
was accordingly free to the publi c. The government assumed the 
exclusive directio n as well as authority, as if thev,chose to be seen a n d 
felt in everything, a nd would avoid even. a remote connection betwee n 
private in t erests and public institutio ns. An immense and beneficial rev - 
ol ution has been brought about in modern times in- engaging individ ual 
enterprise, industry, and economy in the execution of public works of 
internal improvement. The general management has been left to in di- 
v iduals, whose private interests prompt them to conduct it beneficia lly 
to the public ; but it is not entirely confided to them . From the nature 
of their undertaking and the character of the work, t hey are under suf- 
fici ent responsibilities to insure the construction and ijreservation of the 
w ork, which is the great object of the governmen t. The public interest 
a nd control are neither destroyed nor suspended . The control con - 
t inues as far as it is consistent with the interests granted , and in all cases 
as far as may be necessary to the public use. The road is a highwav , 
although the tolls may be private property by force of the grant of the 



CHAP. VI.] KALEIGII AND GASTON RAILROAD CO. V. DAVIS. 1003 

franchise to collect them. I t is a common nuisance to a ll ow it to be- 
c ome ruiuous, or to obstruct i t. The government may, upon sufficien t 
caiise, clai m a forfeiture of the charter, or compel the execu tion and 
rep airs of the road by those undertakiug them , by any m eans apijH - 
cable to other persons charoed with the like duties in respect to oth er 
highways. The difference is, that the corporation, in lieu of the soy- 
ereign, has the custod}' and property of the road, and the collection of 
the tolls in reimbursement of the cost of construction and remuneration 
for labor and risk of capital. As to t he corporation, it is a franchi se, 
li ke a ferry or any other . As to the public, it is a highway, a nd in th e 
s trictest sense publici juris. The landneed ed for its constr uction is 
ta ken by Ih^jDublic for the public use , and not merely for the priyat e 
a dvantage of indiyiduals . It is only yested in the company for th e 
nn rnoses of the Act. — that is. to make tlie road . Tliis case is, there- 
fore, essentially different from that of Ilo/ce v. Henderson, 4 Dev. 
Rep. 1, which was so much insisted on at the bar. There, the office, a 
subject of property to a certain extent, was taken from one and vested 
in another, exactly in the same state and to the same public purposes 
as it was held by the first. The public interest was in the service of the 
officer, being precisely the same, with either person for the incumbent. It 
was, therefore, taken solely for the benefit of the new appointee, which 
could not be supported. But in this case, the land is taken from th e 
d efendant for a pablic purpose, to which it had not been applied while 
in his hands . It is taken to be immediately and directly ai^plied to a n 
e stablishe d public use, un der the control and direction o f the public 
a uthorities, wi th only such incidental priyate interests as the legislatu re 
has thought proper to admit, as the means of effecting the work and 
insuring a long preservation of it for the public use. 

It is the opinion of the court that no one of the objections is sufficient 
to arrest the proceeding for condemnation, and that the judgment o f 
t he Superior Court m u st be affirmed . This will be certified to that 
court, that a writ of ^j>roce(:?e;<c?o may issue thence to the County Court. 

Per Curiam. Judgment reversed.^ 

1 Compare Bloodgood v. Mohawk, .j-c. R. R. Co., 18 Wend. 9 (1837). —Ed. 



1004 EVERGREEN CEMETERY ASSOC. V. BEECHER ET AL. [CIIAP. VI. 

^ Um the evergreen cemetery association of new 

..vA.^4l.c^-N-e^.v^- HAVEN V. BEECHER et al. 

-^ "UZAA^-Ari^. Connecticut Supkeme Court of Errors. 1885. 

M ^L^ "^^ ^ [53 Conn. 551.] 

sjj)ri^c^i^ Action by the plaintiff, a cemetery association organized under the 
t^auJ^^cf- laws of the State, for tlie purpose of taking lands for the enlargement 
tJit^o\iK - °^ ^^^ territory, under the provision of Gen. Statutes, p. 293, sec. 4 ; 
(J brought to the Superior Court. The defendants demurred to the com- 
I tu4t plaint, and tlie case was reserved for the advice of this court. The 

v^^^^^^ixirtai case is sufficiently stated in the opinion. 
\j^ CU '^' ^- -4^^"'^ and J. H. Webb, for the plaintiff. 

S. E. Baldwin and J. H. IJ'hithif/, for the defendants. . . . 
^^c^^^.*.-.*-**^ Pardee, J. This is a complaint asking leave to take land for cerae- 
^ Vc /vv«.«-*^ery purposes by right of eminent domain. The case has been 

, , reserved for our advice. 
<i tx. (p.<^ - Th e plaintiff is the owner of a cemeter}^, and des ires to enlarge it bv 
. A^-^^^ t aking several adjoining pieces of lan d, each owned by a differen t 

Af-vco^A.- yj erson, and has made these owners joint d e fenda nts. . . . 

, The safety of the living requires the burial of the dead in proper 

. />v*-^'^*^ time and place ; and, inasmuch as it may so happen that no individual 

^,c4,,^Xa'*'^'<^'^ may be willing to sell land for such use, of necessity there must rema in 

t o the public the right to acquire and use it under such reoulations as 

'■^UAxJtlM-[ a proper respect for the memory of the dead and the feelings of su r- 

1^ vivors demands. In order to secure for burial-places during a period 

, extending indcfinitel^y into the future that degree of care universally 

demanded, the legislature permits associations to exist with power t o 

U, A^' M'^' discha rge in behalf and for the benefit of the public the d uty of pro- 

vid ing, maintaining, and protecting them . T he use of land by tliem 

(W'^'*''^'^ f or this purpose does not cease to be a public use because they require 

v<.^v>./o^ '^ varying sums for rights to bury in different localities ; not even if the 

4. ^ c ost of the right is the practical exclusion of some . (^ Coi-porations take 

^ ' land by right of eminent domain primarilj' for the benefit of the public, 

*^^ ^^ incidentally for the benefit of themselves.^ As a rule, men are not 

[^ "U^WaM. allowed to ride in cars, or pass along turnpikes, or cross toll-bridges, 

or have grain ground at the mill, without making compensation. One 

^ s^-v^ jYjr^n asks and pays for a single seat in a car ; another for a special 

y«A.. e-J^Ay^ train; all have rights ; each pays in proportion to liis use; and some 

i / .^ ^^'^ excluded because of their inability to pay for any use ; nevertheles s 

-XaM^/^ it remains a public use as long as all persons have the same measure o f 

- ^^/u^/•^>^ right for the same measure of money. 

; J. B ut it is a m atter of common knowledge that there are many ceme - 

^ ' t cries which are strictly private ; i n which the public have not, and can- 

/M^v^ - not acquire, the right to bur y. C learly the proprietors of these canno t 




■H 



^•^>^ » 









CHAP. Vl] boston and ROXBURY mill CORP. V. NEWMAN. lOOt 



t ake land for such continued private use by right of eminent do main, ^-^x^-x 
The complaint alleges that the plaintifTis an association duly organized ^ evu,A.i^^ 
under the laws of this State for the purpose of establishing a burying- 
ground ; that it now owns one ; that it desires to enlarge it ; and tliat r ^ 
such enlargement is necessary' and proper.^ Xliere is no allegation tliat c/^^^ ^"^ 
t he land which it desires to take for such enlargement is for the publi c ~thi. C A^^ 
u se in the sense in dic ated in this opinio n. 7 vCx^'t ^"^ 

Therefore the Superior Court is advised that for the reason that the 
complaint does not set out any right in the plaintiffs to acquire title to e,„JL<. ^^a^ 
the land of the defendants otherwise than b}- their voluntary deed, the ^x^,v<xfe^ 
de murrer must be sustaine d. v, v • hU j,m .Ajtr 

In this opinion the other judges concurred.^ ^ 



BOSTON AND ROXBURY MILL CORPORATION v. 
NEWMAN. 

Supreme Judicial Court op Massachusetts. 1832. 

[12 Pick. 467] 

[The statement of facts is omitted. They will appear sufficiently 
by reference to The Bost. W. P. Co. v. The Bost. & Wore. R. E. Co., 
supra, p. 969.-] 

Gorham and C. G. Loring, for the plaintiffs. 

Fletcher and D. A. Simmons, for the defendant. 

Putnam, J.,. delivered the opinion of the court.^ The plaintiffs claim 
an easement over the land of the defendant. It is admitted that he 
owns the fee. The plaintiffs contend that they have acquired a right 
to use the defendant's land as a receiving basin, into which the water 
retained in their full basin may flow, for the purpose of working the 
various mills which they have built and may erect ; and that such a 
right has been acquired in virtue of the grant of the legislature of this 
Commonwealth, to establish the Boston and Roxbury Mill Corpora- 
tion. They contend that the " public exigencies require " that the prop- 
erty of the defendant, as well as of divers other owners of flats ground 
constituting the receiving basin, should be appropriated to enable tiie 
corporation to carr}' their enterprise into effect, which enterprise the}^ 
sa}' was of public benefit ; that the appropriation is within the provi- 
sion of the 10th article of the Bill of Rights, an appropriation " to 

1 And so In the Matter of the Dpansmfle Cemeter u Assoc, 66 N. Y. 569 (1876), and 
B'd of Health v. Van Ilocsen, 87 Mich. 533 (1891). Compare Oitrt/ v. Goodwin, 26 Pac. 
Eep. 376 (x\.riz. 1891), Prop's Ml. Hope Cem. v. Boston ct al. 158 Mass. 509 (1893). 
— Ed. 

2 See also a plan of this part of Boston in 7 Pick. 388. — Ed. 
' Shaw, C. J., did not sit in the case. 



1006 BOSTON AND ROXBURY MILL CORP. V. NEWMAN. [CIIAI'. VL 

public uses ; " and that a reasonable compensation was provided for 
the owners of the flats ground in and by the Act of Inc'or[)oration. 

Those positions are denied by the defendant. He contends that the 
enterprise of the plaintiffs was and is of a private character, and that 
the legislature had no authority to take or subject the land of the 
defendant to an^' incumbrance or service for the benefit of the plain- 
tiffs. And further, tiiat if it were of a public character within the mean- 
ing of the Constitution, no reasonable compensation has been provided 
for the damage sustained by the defendant. 

Let us examine these pretensions. And first, was the enterprise of 
the plaintiffs so far of a public nature as to come within the meaning 
of the Constitution, and to require the appropriation of the property of 
the defendant to carry the undertaking of the plaintiffs into effect? 

The design was to construct a dam or dams, for the purpose of 
obtaining a head and fall of the waters of a navigable arm of the sea, 
whereby to work grist-mills, iron manufactories, and other mills for 
other useful purposes, and also to make an avenue or highwaj- over the 
dams, for the accommodation of all persons, cattle, horses and carriages, 
for a fixed rate of toll. 

To effect these objects, the right to obstruct the navigable water or 
arm of the sea, bj' the dams, and the right to pen up the tide-water in 
a full basin, and so to raise a head of water, must be obtained. And 
the right to exclude the tide-waters from the empt}' basin, into which 
the waters of the full basin should run, must also be obtained. The 
receiving basin would be emptied at low water, and the gates shut 
against the sea ; the pond would be filled by the flow of the tide, and 
kept in b}' the gates ; and thus a perpetual mill-power of great extent 
would be acquired. Connected with these water-powers, the dam, or 
avenue from Beacon Street to Sewall's Point in Brookline, made a 
prominent subject in the consideration of the enterprise and fixing its 
character, viz., whether it should be considered as one merely of a pri- 
vate nature, or as one involving great objects of public utility. 

The owners of the upland owned the flats ground to the extent of 
one hundred rods. The Commonwealth had the title to the flats be- 
yond. So far as it regarded the right of the pul)lic, it is llot contended 
but that the corporation acquired it by the act of the legislature. But 
the flats between the upland and those belonging to the Commonwealth 
must be subjected to the control of the corporation, or thej' could not 
carry their undertaking into effect. 

Here was a creation of an immense perpetual mill-power, as well as 
a safe and commodious avenue, in and over the waste waters of the 
ocean and adjoining to a great citj'. 

We should be at a loss to imagine any undertaking of an individual 
or association of persons with a view to private emolument, in which 
the public had a more certain and direct interest and benefit. 

It was conceded in the able argument for the defendant, that the 
toll-bridge or avenue might be sustained, so far as it affected the prop- 



CHAP. VI.] BOSTON AND EOXBURY MILL CORP. V. NEWMAN. 1007 

erty of individuals, upon tlie same principles that are applicable to 
turnpike roads, where the lands of individuals are taken by the road 
proprietors (with a view indeed to tlie tolls), because there is a right ^iyc\A t* 
in the public to pass on the avenue, paying toll, as on a highwa}'. But a^ '\-iy- (■ 
it is said that the analogy fails, when applied to laying bare the flats, /^ 

in order to get the water-power for mills, because the public have no ^'^y^'^-^^'^ 
right in respect to the manufactories, as they have to travel upon the u^ZU/Uh^ 
turnpike roads. But the public may be well said to be paid or com- ^ f^ 
pensated in the one as well as in the other case, and are benefited ''^^^ 
b}' the one improvement as well as b^' the other. Take the grist-mill S diA^ 
established in this city, as an example. Is it of no benefit to have the I /2^fiy^ 
corn ground near to the inhabitants, rather than at a distance? "• But 
3'ou cannot compel the miller to grind your corn for' the toll, as you 
may the proprietors of the turnpike to let you travel over the road for 
a toll." If there be not an actual, there is a moral necessity' imposed ' Jj^yiXA^ 
upon the owner of the mill, to accommodate the public to the extent of , 

his power. Who ever heard of a refusal? And in regard to the manu- ^ TUIa^a 
facturing establishments, is it nothing to the public that great numbers . Lj. 

of citizens have the means of employment brought to their homes? "^ I . 
and are not the proprietors obliged to give employment? The}' cannot -X^ y^ 
carry their works on without labor, and who that is disposed to Indus- 
try and to that kind of employment is prevented from its exercise? /^-♦'''M. ' 
This becomes a matter of interest, which will certainly direct and [aaJ/Im^ 
govern the parties. And it is among the most pleasant considerations , 
attending this branch of the subject, that the interest or benefit aris- ip^^'-^''^^'^ 
ing from manufacturing establishments is distributed quite as much, 






and oftentimes more, among the laborers and operatives, than among . /f 

the proprietors of the works. X^^-^A'^^^ 



But it is no sure test of the public exigency, that the land-owner ^^ J /i a 
shall have a certain right to use the thing thus brought into operation, t^ ^^^■^*'*^ 
Take an aqueduct, for example, brought by the enterprise and capital i,[LcJ^ a/^ 
of individuals through lands of others for the use of a cit}-, paying all i 

the damages for the taking of the waters at the spring, and for the Ip'^*^^ (r^ 
digging up of the soil of strangers in order to conduct it. Those -j^/» aaA, 
strangers have no right to the water thus brought into the city, unless 
the proprietors of the aqueduct shall permit it. And can it be ques- Q.sjuCV^-'Vv 
tioned that the legislature might subject the lands of individuals to the ^ . y -7*- 
control of the associated proprietors, to obtain such a public benefit? 1^'f'^-^'^^^^ ^ 
"Who could say that the public exigencies did not require individuals/ 2/ ( ^^^^ 
to grant the necessary privileges, for a proper compensation, to carry ^-j^-M ^o- 
such a work into effect? It would be for the interest of the proprietors 
to furnish the water at a reasonable price. fyl^iy^ ^^-^ 

The plaintiffs are an authorized association to procure water-power ^_x/ / 
to drive mills of various kinds b\' tide-waters. How does it differ in ^\ <^-'*^'*^'^| 
principle, from the effecting of such an intent by fresh water, and Jjj^.dr tL\ 
thereb}^ subjecting the lands of others to the service of the mill-owner? (j 
For more than a centurv the mill-owner has had the right to raise a ^ ^Vw*'^-^ 



1008 BOSTON AND KOXBUUY MILL CORP. V. NEWMAN. [CHAR VL 

head or pond of water by flowing the lands of others, pacing the dam- 
age. In man}- such cases valuable meadows have been inundated, and 
thus private propert}' has been taken, without the consent of the owners, 
excepting onl}' as they may be supposed to liave consented to the laws 
made by tlie legislature. But for those Mill Acts, as they are called, tlie 
mill-owner would liave been liable for the damages at common law, or 
the owner of the land might have removed the dam as a private nui- 
sance. But under and in virtue of those Acts, the dam is protected ; 
it is no longer removable as a nuisance ; and the owner of the land is 
thereb}' deprived of the entire dominion of the soil, because the public 
good required the sacrifice at his hands, for a reasonable price. 

The old statutes speak of mills as greatl}' beneficial to the public. 
The preamble of Prov. St. 8 Anne, c. 1, an Act for the upholding and 
regulating of mills, recites that the}' .sometimes fall into disrepair and 
are rendered useless and unserviceable, if not totally demolished, to 
the hurt and detriment of the public, as well as the loss to the partners 
who are ready to rebuild, etc. So the Prov. St. 12 Anne, c. 8, speaks 
of " mills serviceable to the public good and the benefit of the town ; " 
and gives to the mill-owners liberty to continue and improve the pond 
for their best advantage without molestation, paying damages for rais- 
ing the water, etc. The Prov. St. 1 Geo. II. c. 4, gave treble damages 
for the trespass of taking up, breaking down, or damnifying any dam 
made use of for the enclosing of water improved for the benefit of any 
mill, etc. 

These Acts were revised by the St. 1795, c. 74, which provides that 
the mill-owner may flow any lands not belonging to him (not merely a 
small quantity, as in the St. 12 Anne), which shall be found necessary 
to raise a suitable head of water to work his mill, paying damages, 
etc. The jury however are to determine how far the public con- 
venience and the circumstances of the case do justify such flowing. 

The St. 1824, c. 153, provides for the recovery of damages sustained 
by the owner of the land either above or below the mill. And the St. 
1825, c. 109, gives the mill-owner a right of tendering the amount of 
the damages ; thus putting trespass and contract upon the same foot- 
ing ; and it further limits the claim to two years before the process, 
etc. 

Now we have nothing to do with the expediency of those various 
Mill Acts, but it is certainly apparent, that the legislature have con- 
sidered it for the public good to encourage the erection of mills, and 
have subjected the property of the citizens to the control of the mill- 
owners, they paying the damage. In these cases the damage has been 
sustained by reason of the flowing of the lands. But in the case at 
bar, the damage is in laying bare the flats of the tide-water, so as to 
make a fall for the water in the pond or full basin. But we do not 
perceive that there is any difference in the principles applicable to the 
two cases. The object in each is to get a head and fall, for mill pur- 
poses. In one case, having a fall, you flow meadows and upland to 



CHAP. YI.] BOSTON AND KOXBUUY MILL CORP. V. NEWMAN. 1009 

get u head ; iii the other, hiiviug a head, 3-011 empty or lay bare the flats 
to make a fall. In each case a head and fall are obtained for the water 
power. In each case the mill-owner operates on the lands of other 
persons, and the damage, it should seem, cannot be greater where the 
land is made bare, than where it is overflowed. The soil in each case 
is in the owner, and he ma}- use it in an^- way which is not inconsis- 
tent with the rights granted to the mill-owner. But he ma}- do nothing 
more ; for we cannot accede to the position of the learned counsel for 
the defendant, that he has a right to All up his flats ground, and so to 
diminish the reservoir. The fallacy, we think, consists in taking it for 
granted, that the legislature had no authorit}- to make the grant to the 
corporation, and to subject the lands of the defendant to the service 
claimed. If it were not necessary thus to affect the propert}- of the 
defendant for public uses, the* argument would be sound ; but if 
the public exigencies required the appropriation of the defendant's 
property- to the extent defined in the grant to the corporation, they 
being accountable in damages, then it would seem clearly to follow, 
that the defendant cannot lawfully do an}- act or thing which shall 
counteract the grant. It should be, so far as regards these parties, 
just as if tiie defendant had, for a consideration paid, granted to the 
l)laintiffs the right which they now claim under the legislative grant. 
To recur again to the example of the aqueduct; — would it be lawful 
for one through whose lands it has been conducted by the authority 
of the legislature, and who has been paid his damages, would it be 
lawful for him to cut off the pipes, under the claim to dig upon his own 
land to any depth he pleased ? 

The principle is. that the lands of individuals are holden subject to 
the requisitions of the public exigencies, a reasonable compensation 
being paid for the damage. It is not taking the property of one man 
and giving it to another. At most, it is a forced sale, to satisfy the 
pressing want of the public. Now this is as it should be. The will or 
caprice of an individual would often defeat the most useful and exten- 
sive enterprises, if it were otlierwise. Property is nevertheless suffi- 
ciently guarded b}- the Constitution. The individual is protected in its 
enjoyment, saving only when the public want it, not merel}- for orna- 
mental, l)ut for some necessary and useful purposes. Then indeed the 
owner must part with it for an equivalent. 

It was argued for the defendant, that here was no jury to ascertain 
the extent to which the plaintiffs might flow, or lay bare the flats. And 
it seems to us that a jury was altogether unnecessary, because the legis- 
lature for themselves, being upon the spot, upon a full view and con- 
sideration of the matter, determined and ascertained the extent, as 
well as the public exigenc}' of the grant. 

It has been argued, that the legislature expected the plaintifl^s would 

obtain the consent of the owners of the flats ground. If that were so, 

and the expectation were not realized, it would become necessary- that 

the legislative power should enable the plaintiffs to effect their enter- 

voL. I. — 64 



1010 BOSTON AND ROXBURY MILL CORP. V. NEW.AIAN. [CIIAP. VL 

prise. And besides, b}' providing for damages which might be sus- 
tained, the legisUiture must have contem[)hited the case which might 
happen, of a dissent of some persons wliose property miglit be injured. 

The contracts which were made between the petitioners and the town 
of Boston, were ratified b}' the legishiture, as if they had been made by 
the corporation and the town. But tlie defendant did not come into 
any contract with tlie petitioners or the corporation, aflecting his own 
private property. He is not to be affected by those contracts, in an}- 
way, advantageously or injuriously ; but he stands npon his own rights 
as regulated by the law. 

It was said that it was not necessary that the plaintiffs should have 
the whole of the flats, to give effect to the legislative grant; though 
it seemed to be admitted that the whole was necessary for tlie comple- 
tion of the plaintiffs' enterprise. But the grant seems to us to embrace 
the whole which the plaintiffs claim. They were authorized " effectu- 
ally to exclude the tide-water, and to form a reservoir or empty basin 
of the space between the dam [from Charles Street] and IJoston Neck." 
The defendant's land is between those termini. 

We are clearly of opinion, that the grant to the Boston and Roxbur}' 
Mill Corporation was well warranted by the public exigencies, and that 
the undertaking, altiiougli commenced with a view to the private ad- 
vantage of the stockholders, promised to be of immense and certain 
utility to the State. That anticipation has been fully realized, so far as 
it related to the public. We regret that it did not prove beneficial to 
the enterprising projectors. 

But it is contended, that there was no reasonable compensation 
provided for the injury which the defendant has sustained. 

Let us examine the Act in that respect. B}' the sixth section it is 
provided, that any person or corporation sustaining an}- damage b}' the 
building of the dams, etc., " or from the exercise of any of the rights 
and powers given to the corporation," ma}^ have the same ascertained 
(if there be any), in the first place by a committee to be appointed by 
the Court of Common Pleas, and if tlieir report should not be satisfac- 
tory, tlien may have the same tried and determined by a jury. The 
committee are to inqinre, '' whether any damage has been sustained 
from the causes aforesaid, and if any, they shall estimate the same, 
and where the damage is annual they shall so declare the same in their 
report." It is said by the counsel for the defendant, that this provision 
was wholly inadequate ; that the defendant was benefited by having his 
land relieved from the tide-water ; that there was no present damage, 
and no provision for damage wdiicli should thereafter arise. And it 
said further, that the corporation had done no act in taking the defend- 
ant's land," so as to enable him to make an}' claim for damages. 

These suggestions are more ingenious than sound. Tlie depriving 
one of the beneficial use of his lands is, in the sense of the law, a 
taking of his lands. It would be very clear in the case of flowing. 
But the principle is the same in laying bare the lands. In each case, 



CHAP. VI.] BOSTON AND EOXBURY MILL CORP. V. NEWMAN. 1011 

the absolute, unqualified use of the soil is taken away. The owner 
cannot (as we have seen) counteract the efTect of the grant, by filling 
up his land, in tlie one case, any more than in the other. He has the 
fee remaining in him, subject only to the right of the mill-owner to 
flow, or to lay bare the land, in order to obtain the water-power for 
mill purposes. When therefore tlie plaintiffs had built their dams, and 
excluded the water from the defendant's flats, for an empty basin, there 
was in one sense a taking of the defendant's land. He thenceforward 
might claim any damage which he sustained from the diminished right 
to use his land as he pleased. Before the legislative grant, the defend- 
ant might have filled up his flats ground to a certain extent, not inter- 
fering with the rights of others. After the grant, he could not lawfully 
do it. He was deprived of the complete dominion and use which he 
enjoyed before. If he sustained any damage from tliat interference 
with his land, it accrued presently. If it vvere waste property, and no 
real injury was sustained, tliat nn'ght well operate with a reasonable 
man to prevent an}- claim for damage. The corporation then asserted 
their right to lay bare the defendant's flats forever. The}' took the 
defendant's land for their mill operations, as effectually as the mill- 
owner upon a fresh-water stream takes the land above b}" flowing. 
The mill-owner, in each case, claims an easement in the soil of another. 
To that extent the owner of the land may claim damage, and a present 
damage, for any injur}' or diminution in the value of his estate, which 
may be redressed in the mode pointed out in the Act of the Legislature. 
These views of the case have led us to a clear opinion, that the 
judgment should be for the plaintiffs, with damages (by consent in 
such event) at one dollar and full costs of suit.^ 

1 Compare Olmstend v. Camp, 33 Conn. 532, 545 (1866), a petition under a statute 
of 1864, for the right to flood certain land with the mill-pond of a grist-mill. 
McCcRDY, J., for the court, said : " The Constitution declares that ' the property of 
no person shall be taken for public use without just compensation.' This is indeed a 
principle of natural law. The decision of the case turns upon the meaning and 
effect of this provision. The defendant insists that, in favor of private rights, the 
construction should be strict, and that the term ' public use ' means possession, occu- 
pation, direct enjoyment, by the public. Or in other words that the property must 
be literally taken by the public as a body into its direct possession and for its actual 
use, as in the instances of a State house, a court house, a fort, an arsenal, a park, &c. 

" It seems to us that such a limitation of the intent of this important clause would 
be entirely different from its accepted interpretation, and would prove as unfortunate 
as novel. One of tlie most common meanings of the word 'use' as defined by 
Webster, is ' usefulness, utility, advantage, productive of benefit.' ' Public use' may 
therefore well mean public usefulness, utility or advantage, or what is productive of 
general benefit ; so that any appropriating of private property by tlie State under its 
right of eminent domain for purposes of great advantage to the community, is a tak- 
ing for public use. Such, it is believed, is the construction which has uniformly been 
put upon the language by courts, legislatures, and legal authorities. . . . 

"The question is asked with great pertinence and propriety, wliat tlien is tlie limit 
of the legislative power under the clause which we have been considering, and what is 
the exact line between public and private uses ? Our reply i.s that wliich has hereto- 
fore been quoted. From the nature of the case there can be no precise line. The 



1012 HAZEX V. THE ESSEX COMI'ANY. [ciLVr. VI. 



HAZEX V. THE ESSEX COMPANY. 
Supreme Judicial Court of Massachusetts. 1853. 

[12 Cash. 475.] 

Shaav, C. J.^ This is an action of tort at common law, in tiie 
nature of an action on the case, for raising a dam across the Merrimack 
River, b}- wliich a mill-stream emptying into that river, above the site 
of said dam, was set bacli and overflowed, and a mill of the plainlilT 
situated thereon, and tlie mill privilege, were damaged and destroyed. 
To this declaration the defendants demurred, and the plaintiff joined in 
demurrer. 

The defendant company were chartered by an Act of Incorporation. 
St. 1845, c. 1G3. They were incorporated for the purpose of construct- 
ing a dam across the Merrimack River, and constructing one or more 
locks and canals in connection with said dam, to remove obstructions 
in said river by falls and rapids, and to create a water-power, to be used 
for mechanical and manufacturing purposes. 

The plaintiff states in his declaration that he owns a mill situated in 
Andover, on a small stream flowing into the river on tlie south side, 
half a mile above the place of the defendants' dam, and that he had a 
right to the use of this stream at the level, at which it naturally flowed, 
but that the defendants, by color of an Act of March 20, 1845 (the 
statute above mentioned), erected a dam in the town of Lawrence, 
within the limits mentioned in said Act, that said river was a navigable 
river, thatbj' means of said dam, the defendants flowed back the waters 
on the wheel of the plaintiffs mill, prevented said stream from passing 
into Merrimack River at its natural height, «fec. 

power requires a depree of elasticity to be capable of meeting new conditions and 
improvements and llie ever increasing necessities of society. The sole dependence 
must be on the presumed wisdom of the sovereign authority, supervised, and in cases 
of gross error or extreme wrong, controlled, by the dispassionate judgment of 
the courts. In the case of Fletcher v. Peck, 6 Cranch, 128, Chief Justice INIarshall 
says : ' The question whether a law is repugnant to the Constitution is at all times a 
question of great delicacy, which ought seldom if ever to be decided in the affirmative 
in a doubtful case.' It may be remarked that the justice and propriety of a flowage 
law is peculiarly a (juestion for legiislative rather than judicial determination, although 
we have briefly discussed the subject on its merits. 

" But the defendant claims that, according to the facts found by the court, the use 
in this particular case is not of a public nature. Upon tiiis point we can entertain no 
doubt. From the first settlement of the country grist-mills of this description have 
been in some sense peculiar institutions, invested with a general interest. Towns 
have procured them to be established and maintained. The State has regulated tlieir 
tolls. In many instances they have been not merely, a convenience, but almost a 
necessity in the community. . . . 

" The report should be accepted and the doings of the committee established." 

The reporter adds that, "In this opinion the other judges concurred, except Hin- 
MAN, C. J., who dissented." — Ed. 

^ BiGELOw, J., did not sit in this case. 



CHAP. VI.] HAZEN V. THE ESSEX COMPANY. 1013 C'^ ^'^^'^ 

The demurrer atlmits all the material facts that are thus set out in y-.. -^ 
the docluratiou. In general, an Act of Incorporation of this description 

is held to be a public law, to be taken notice by the court without being eVi ^^ 

specially set out. But independentl}' of that rule, in the i)resent case, J^-^^r^. 'U 

the Act of Incorporation is referred to in the declaration, as the v V 

authority under color of which the defendants claimed title, and, there- '•^'^-^^ 

fore, its construction and validity are put in issue and brought before ,'ZPt^'^U'^ 

the court by the demurrer. n t- i 

As the owner of land through which a watercourse passes, has a ^^ 

right to the reasonable use of such current as it passes through his -^ i\^»^ 

land, the plaintiff would have a good right of action, were not the ^aiao^^ 

erection of the dam justified by their Act of Incorporation. The de- / ^ . 

fendants maintain that they are so justified, by an Act of the Legisla- -t ov^-i-^ 

ture, exercising, as they may, the sovereign power of the State, in the ^ hyC^J/^ 

right of eminent domain, to take and appropriate private propert}' for ' J 

public use ; that the plaintiff's property in the mill and mill privilege ^M^^-^'^/ 



was so taken, and that his remedy is by a claim for damages under the *) JUl^V^ 
Act, and not by action at couimon law, as for a wrongful and unwar- J j j> 
rantable encroachment upon the plaintiff's right of propert3\ '^^ 

The plaintiff denies this right under the said charter and Act of % I'ayj/iJ, 
Incorporation. ^ 

1. It is said it was not necessary to take this land and this mill-site -^ 

of the plaintiff, because within the terms of the Act, the dam might /U^^ "^ 
have been placed above the outlet of the particular tributary, and so it ^/ .^ / 
was not necessary to flow out the plaintiff's mill. But there is nothing <^ ''"^ ' 
to show that it might have been so placed, without flowing other mills, ^-6/^^^ - ^ 
as much privileged as the plaintiff's, or that it might have been placed ^ a 

so much higiier up, with the advantages to navigation and the much «aa.«^ 
larger mill-power of the river, for manufacturing purposes contemplated (/\\< ^^ff' 
b}' the Act. ^ -. 

But we think it is a fallac}' to suppose that a mill or mill privilege is, ° '<i.y\^'^ 
in principle, exempted from being taken under the power of eminent CL^^^^^JhZi^ 
domain over any other private propert}'. An impression of that kind y^,^ a A 
may have arisen from the rule applicable to the general Mill Acts, ll U 4 ' 

stands on a different principle. Thus, each successive proprietor on "Z^C^i. /r"^ 
the watercourse has an equal right to use the power of the sti'eam -f^2u-3Ji ■ 
through his own land, to erect a mill, which is for the general benefit ; 
he, therefore, who first appropriates it by erecting a mill, shall be held 
secure against the claims of another who has not so appropriated the 
stream. It would afford no encouragement to the building of mills 
generallv, if one which had been so built, could be superseded and 
destroyed by any other proprietor who should simply propose to build 
another mill. This is the sole ground on which, in the administration of 
the Mill Acts, a mill-proprietor, under a general rigiit to erect and 
maintain a dam on his own land, although it may flow the land of 
another, cannot flow a mill already erected. But this principle can 
have no influence on the legislature, in determining what is necessary 



1014 HAZEN V. THE ESSEX COMPANY. [CIIAP. VI. 

to be tiikeii for public use ; the value of a uiill cuii as well be compen- 
sated ill inuney, as that of any other property so taken. The case 
citeil, iSpriiu/fidd \. Connecticut liioer Jiailroad Coinjju/ti/, 4: Cush. G3, 
has no bearing on the present case. 

2. It is then contended that if this Act was intended to authorize the 
defendant company to take the mill-power and mill of the plaintiff, it 
was void, because it was not taken for public use, and it was not 
within the power of the government, in the exercise of the right of 
eminent domain. 

This IS the main question. In determining it, we must look to the 
declared purposes of the Act, and if a public use is declared, it will be 
so held, unless it manifestl}' appears, bN^ the provisions of the Act, that 
they can have no tendency to advance and promote such public use. 
The declaietl purposes are, to improve the navigation of Merrimack 
River, and to create a large mill-power for mechanical and manufactur- 
ing purposes. In general, whether a particular structure, as a bridge, 
or a lock, or canal or road, is for the public use, is a question for the 
legislature, and which may be presumed to have been correctly decided 
b}' them. Commonwealth v. Breed, 4 Pick. 463. That the improve- 
ment of the navigation of a river is done for the public use, has been 
too frequently decided and acted upon, to require authorities. And so 
to create a wholly artificial navigation by canals. The establishment of 
a great mill-power for manufacturing purposes, as an object of great 
public interest, especially snice manufacturing has come to be one of 
the great public industrial pursuits of the Commonwealth, seems to 
have been regarded by the legislature and sanctioned by the jurispru- 
dence of the Commonwealth, and, in our judgment, rightly so, in 
determining what is a public use, justifying the exercise of the right of 
eminent domain. See St. 1825, c. 148, incorporating the Salem Mill- 
Dam Corporation ; Boston and Roxbury Mill-Dam Corporation v. 
Newman, 12 Pick. 467. The Acts since passed, and the cases since 
decided on this ground, are very numerous. That the erection of this 
dam would have a strong and direct tendency to advance both these 
public objects, there is no doubt. We are, therefore, of opinion, that 
the powers conferred on the corporation by this Act, were so done within 
the scope of the authority of the legislature, and were not in violation of 
the Constitution of the Commonwealth. 

3. Another objection is taken to this Act, that it provides no ade- 
quate means of making compensation to private individuals, for the 
damage done to their property, by the erection and maintenance of the 
defendants' dam. and the necessary consequences thereof, in flowing 
tlieir lands. If it were so, it would certainly be a veiy serious objec- 
tion to the validity of the Act. Chadwick v. Proprietors of Harerhill 
Bridge, 2 Dane Ab. 687 ; Callender v. Marsh, 1 Pick. 430. We are, 
then, to look at the statute, to see whether it is obnoxious to this 
objection. It is said that compensation for property appropriated, is a 
common-law right, independent of the declaration of rights. If by 



CHAP. VI.] HAZEX V. THE ESSEX COMPANY. 1015 

this it is intended to sa}' that compensation in such case is required 
by a plain dictate of natural justice, it must be conceded. But this 
right maj' be regulated, and the remedy made certain and definite b}- 
law. The bill of rights declares a great general principle ; the particu- 
lar law prescribes a practical rule, b}- wliich the remedy for the viola- 
tion of right is to be sought and afforded. ... [It is then held that the 
statute provides onl}' compensation.] 

Demurrer sustained and judgment for the defendants. 
G. Mlnoty for the plainliff ; E. Merwin^ for the defendants.^ 

1 Compare Williams v. Nelson, 23 Pick. 141, Head v.Amoskeag Man. Co.. 113 U. S. 
9 ; S. c. ante, p. 760, and Lowell v. Boston, 1 1 1 Mass. 454, 464 ; S. c. infra, p. 1224; furner 
V. Ni/e, 154 Mass. 579, s. C. supra, p. 893. Compare also Gary v. Daniels, 8 Met. 466, 
476-478, with Occam Co. v. Sprague ^Ifg. Co., 35 Coun. 496, aud Elling Woollen Co. 
V. Williams, 36 Conn. 310. 

See Hotjioke Water-Power Co. v. Conn. Riv. Co. ,22 Blatchf. C. C. Rep. 131 (1884) ; 
s. c. 52 Conn. 570, as to a dam aifecting property rights iu another State. Compare 
Mannville Co. v. Worcester, 138 Mass. 89. Randolph, Em. Dom. ss. 28, 29. 

In the Watnypa Reservoir C o. v. Fall River , 147 Mass. 548 (1888), it was held 
that the legislature might appropriate to the use of a city the waters of a " great pond " 
without providing for compensation to the owners of land on either the pond or its 
outlet. The court (Mouton, C. J.) said • "Under the ordinance [of 1647J the State 
owns the great ponds as public property, held in trust for public uses. . . . As this 
case depends upon the effect of the Colony ordinance, the decisions iu England cannot 
be of assistance to us. They depend npou the common-law, wiiich, as we have said, is 
changed by the ordinance. The same may be said of the decisions in the other States 
of this country, most of which are governed by the rules of the common-law. In New 
York and Pennsylvania, it has been held that tlie rules of the common law do not apply 
to such great navigable streams as the Hudson, Mohawk, and Delaware Rivers, though 
they may not be tidal rivers throughout ; that the title of such streams is in the gov- 
ernment in trust for the people ; and that the State may use the waters, or authorize 
their use, for the purposes for which they are held iu trust, without any compensation 
to riparian proprietors who are damaged by such use. People v. Cannl Appraisers, 
33 N. Y. 461 ; Varick v. Smith, 9 Paige, 547; Carson v. Blazer, 2 Binney, 475, 
Shrunk v. Schui/lkill Navigation Co., 14 S. & R. 71 ; Rundle v. Delaware S^ Raritan 
Canal Co., 14 How. 80. 

"The industry of counsel has furnished us with references to between two and three 
hundred water Acts passed by the legislature, including some in which the right to use 
the waters of great ponds is granted, in most of which provision is made for compen- 
sation to those whose mill privileges or water rights are impaired. These show that 
the policy of the State has heretofore been to provide such compensation, but they do 
not show that the State has not the power to use the waters without compensation. 
The Act we are considering seems to mark a change in the jniblic policy in regard to 
the waters of the great ponds, as since its enactment several other Acts have been 
passed containing the same provisions as to damages." 

For a good statement of the common-law doctrine, in such a case, apart from the 
Ordinance of 1647, see Lord v. Meadville Water Co., 135 Penn. 122 (1890). See also 
Smith V. Rochester, 92 N. Y. 463 (1883). For the Ordinance itself, see .supra, p. 696. 

Compare Wat. lies. Co. v. Fall River, 154 Mass. 305 (1891). See also "The Watuppi 
Pond Cases," 2 Harv. Law Rev. 195 ; " Great Pouds," lb. 316, aud " The Law of Ponds," 
3 Harv. Law Rev. 1. — Ed. 



tf 



mm 



TALBOT ET AL. V. HUDSON ET AL. 



[CILVP. VI. 






*7 TALBOT ET AL. V. HUDSON et al. 

ijMAA/OL Supreme Judicial Court of Massachusetts. 18G0. 
^ ^ ^ [16 Gra^, 417] 

Jj. F. Thomas & J. G. Abbott (G. 11. Preston with them), for the 
plaintiffs, ami /6'. H. Phillips (Attorne3--General) & J. S. Kei/es, for 
the defendants. 

BiGELOW, C. J. This case comes before us for a hearing upon the 
bill and answer, somewhat out of the regular course of proceedings in 
chancery. A preliminary inj unction was heretofore issued ex parte b y 
ajustice of this court on the filing of tlie bill. Upon the return of the 
subpoena, a motion to di ssolve this injunction was made by the defend- 
ants . T his motion should properly have been heard, in the firs t 
in stance, by a single judge . But as the case of the plaintiffs, as stated 
in the bill, mainly depends on the determination of certain questions of 
law which can in no way be affected by proof, and as the case is one 
'/ y^cuM. ^^ gi'^at importance, invohing large interests both of a public and 
private nature, it was agreed by the parties, with the assent of the 
court, that these questions should now be heard and finally determined. 

The case, so far as is necessary to an understanding of these 
questions, may be briefly stated thus : Th e plaintiflTs allege that the y 
arc ow ners by purchase of a valuable mill privilege, water i-ights, and 
darrij situated in the northern part of the town of B illerica upon^the 
falls of the Concord River, with land in, upon and adjoining the same ; 



IL. cut- 



-U/CA. 



that they have erected on said river, at great cost, large mills and 
,jt4^i/jMJ^' oth er buildings, used and improved by them for the manufacture of 
various articles ; that th ese mills arc carried on and operated by the 
w ater power created by said dam and river, and are entirely depende nt 
thereon. They 









further aver that the defendants, assuming to act as 
commi ssioners under and by virtue of the authority conferred by a 
cert ain Act of the Legislature, passed on the 4th of April, 1860, entitjed 
"an Act in relation to the flowage of the meadows on Concord and 
Sudbury rivers," prop ose to take down and remove said dam to a 
le vel thirty-three inches below the top thereof, by which the wate r 
po wer, dam, and mills of the plaintiffs will be destroy ed, o r rendered of 
little or no value, and that they will thereby be subjected to serious and 
irrep arable loss , for which the defendants would be unable to recom - 
pense the m, and of such a nature that thev are remediless except by 
rel ief in equity . Thev then aver th at said Act of the Legislature is 
-^ . unconstit utional and void, and furnishes no real authority for the 

{/ J threatened action of the defendants as commissioners under its pro- 
J -^f^, visions. The defendants, in their answer, .admitting that the plaintifl's 
^^/l^^^,^,^^J 'ire owners of the dam, water rights, mill privileges, and mills, as stated 
J ^^y ^'^^ ^^''^' ^"^^ alleging their due appointment and qualification to act 
|. ttu, V^*-^ ' as commissioners under the Act of tlie Legislature aforesaid, aver, 
cCtoi (M^<. among other things, that said Act is valid and constitutional, and well 

-vC ituAJ^ 'liA^u^O/UAA^ (Al ^cuAuy(^ uA^KjiC /yi^<jesKjt<iiv^ m.K/.j^oJjSji l(^<rY~'u^'^'\ 



n-f a n^jtJji 

CHAP. VI.] TALBOT ET AL. V. HUDSON ET AL. 1017 D 

authorizes them to proceed in removing a portion of said dam in pur- ^ ^ 

suauce of its provisions ; and tliey demur to the bill on the ground that ^ 4X^./U 
the plaintiffs do not state a case which entitles them to relief in f^ ^ cyurv 
equity. J r^ 

It is manifest from these averments and denials that the ri<rht of the ^ 
plain tiffs to the relief which they seek depends chi efly on the allegation jj^ cAxs*-^ 
of the invalidity of the Act of tl)e Legislature under which th e defend- ^ iaaj- 
ants clai m to derive their authority to reduce the height of the dam iu \y 
t he manner set out in the bill. This question has been very fully and ■^-'rix^^-^^ 
elaborately discussed at the bar, and we have endeavored to bestow /^ 1<xa^ 
upon it very careful and deliberate consideration, not only on account -y^^^jUAA^ <^ 
of the important nature of the interests involved in our decision, but 7 - ^^JN, 
also because it requires us to determine whether the legislative depart- fW^^V 
ment of the government has not exceeded the constitutional limits of !^^cf^'<^^^ 
Its authorit}'. X(xif^rv— 

It is quite obvious that the first step in this inquiry is to ascertain, if ^^^^^^.^UruutX 
we can, under what head or branch of legislative power or authority the j^xinx 

Act in question falls. The intention of the legislature in this respect 
must be gathered mainly from the terms of the statute. There is no m) tXuj ^^ 
express declaration of the objects contemplated by it, but they are left jiAeLi ^k^ 
to implication. Looking to the general structure of the act and the ^j^^,.,,^ tg iX 
nature of its provisions, we cannot doubt that it was intended as an r^ug^^A^u 
e xercise of the right of eminent domain . It is similar to other legisla- f^ ' n 
tive acts which authorize the taking of private property for a pubUc ^*^ lAM. 
use. It expressly authorizes the taking and removal of the dam by a j^^^/^^^xuaaxa. 
board of public ofHcers appointed for this specific purpose ; it provides 
the same remedy in behalf of persons injured by such taking and -hJ^/lJ/ijuX. o^ 
removal as is given in case of damages occasioned b}^ the laying out of 4~ - L 
highways ; it affords to the party aggrieved by the award of the com- ^^^ ^~^ (J 
missioners a trial by jury, and confers on this court the power to hear cv r-i-t^^'^ 
and determine all questions of law arising in the i)roceedings, and to set JlJ.^y^jnJ^ 
aside the verdict of the jury for sufficient cause. These provis ions are d, ■ ' 
inconsis tent with the idea that the act was framed for the purpo se of ^VVaaaaj^v 
ex ercising the general police or superi ntending power over i)rivate JL^y. pUj( <. 
propert y, whic h is vested in the legislature, or in order t o prohibit_a - . /-^^/ 
use of it whi ch was deemed injurious to or inconsistent with the rights ^-^"^ 
and interests of the publ ic. I f such were the object of the statu te, ^^xXtMAAA^ 
th ere wou ld be no necessit v for the appointment of commissioners t o (?)yyl^ Jxt 
ta ke down and remove the dam, or for the provisions making com- . ^i 

pe nsation to those injured in their property thereb y. Such enact- ^ T'^'^^rv 
ments would be unusual in a statute intended only for a prohibition ^//iM- ^ 
and restraint ui)on the appropriation or use of private property by its •(] I \j^ 
owners ; but are the necessary and ordinary provisions when the legis- , , / 

lature intend to exercise the right to take it for a 'supposed public use. f^ iM L'^ 
Thacher v. Dartmouth Bridge, 18 Pick. 50L Commonweidth v. 
Tewksbury, 11 Met. 55. 

Such being the manifest design of Wv^ legislature in passing the Act 




lA^' 



:ir U^'"' 



^mi<' 1018 TALBOT ET AL. V. HUDSON ET AL. [CHAP. VI. 

in question, we are brought direct!}' to a consideration of the objections 

u^ ^^-^ urged by tiie plaintiffs against its validity. The first and principal on e 

, '^ i s that il violates the IQth article of the Declaration of Rights, becau se 

^^ it authorizes the taking and apijropriation of private property' to a use 

^jJi^U/JjAX ■ whic h is not of a public natur e. 

In considering this obje ction, we are met in the outset with the 
s uggestion, that it is the exclusive province of the legislature to det e r- 
jjjh ^ mi ne whether the purpose or object for which propert\' is taken is a 
uublic use , and that it is not within tlie province of the judicial depart - 
Z4/^'i ^^7 ment of the government to revise or control the will or judoment of th e 
^kLmA^^'^ legi slature upon the subject , wh en expressed in the form of a leg al 
e nactment. But thi s position seems to us to be obviously untenab le. 
-iA ^M^ ' The provision in the Constitu tfon, th at no part of the proi^erty pran 
A/) ftXCfM i ndividual can be taken from him or applied to public uses wi thout hi s 
c onsent or that of the legislature, and that when it is apjjropriated to 
yiy^i't^ public uses he shall receive a reasonable compensation therefor, neccs - 

/ ' s arilv implies that it can be taken onlv for such a use, and is equiva - 

le nt to a declaration that it cannot be taken and appropriated to a 
yiACMi^i p urpose in its nature i)rivat e, or for the benefit of a few individual s. 
/ /v/ Ti I n this view, it is a direct and positive limitation upon the exercise o f 
P"'^ legi slative power, and any act which goes beyond this Innitation mus t 

^ be unconstitutional and void . No one can doubt that if the legislatur e 

JdryLiM/' s hould by statute take the i^roi^erty of A^and transfer it to B, it would 
transcend its constitutional power . In all cases, therefore, w he re t his 
<X^ . A/i . po wer is exercised, i t necessa rily i nvolves an inquiry into the rightf ul 
C authority of the legislature under the organic la w.^ But the legislature 

■'^•^^ have no powei- to determine finally upon the extent of their author ity 

A~jsLj\ over private rights^ Th at is a power in its nature essentially judicial , 
( ' w hich they are by Aijjcle 30 of the Declaration of Rights exjjre ssly 
r-AiA^ f orbidden to exercise. The ques tion whether a st atute in a particular 

/^^^^ in stance exceeds the just limits prescribed by the Constitution m ust be 
I , d etermined l)y the judiciar y. In no other way can the rights of the 
X\X.A/3 ^r citizen be protected, when they are invaded by legislative acts which go 
beyond the limitations imposed bj' the Constitution. 

But it is to be borne in mind, that in determining the question 
, j whether a statute is within the legitimate sphere of legislative action, 

Mj' it is the d uty of courts to make all reasonable presumptions in favor 

fj^^ , o f its validit y. It is not to be supposed that the lawmaking power h as ■. 
t ranscended its authority, or committed under the form of law a viola - vA) 
tion of individual rights . When an act has been passed with all they 
requisites necessary to give it the force of a binding statute, it must be 
regarded as valid, unless it can he clearly shown to 1)C in confl ict with 
the Constit ution. It is therefore incumbent on those who den}' the 
validity of a statute, to show that it is a plain and palpable violation of 
constitutional right. If they fail to do so, or leave room for a reason- 
ablejlouht upon the question whether it is an infringement of any o f 
the guaranties secured by the Constitution, the presumption in favor of 




CHAP. VI.] TALBOT ET AL. V. HUDSON ET AL. 1019 

t he validity of the Act must stand . Opinion of Justices^ 8 Gray, 21. 
Besides, it is a well settled rule of exposition that in considering 
M'hether a statute is within the limits of legislative authority, if it may 
or may not be valid according to circumstances, courts are bound to 
p r esume the existence of those circumstances which will support it an^ l 
gi ve it vahdity . Wtllingfo/i, Petitioner^ IG Pick. 'JG. 

The ultimate purpose wliich the legislature had in view in passing the 
Act under consideration does not distinctly appear by the terms of the 
Act itself. But it may be inferred from the title of the Act and the 
general scope of its provisions, that it was intended to relieve the 
meadows lying on the borders of Concord and Sudbury rivers, chiefly 
in the towns of Lincoln, Concord, Sudbury, and Wayland, from large 
quantities of water with which they are constantly overflowed, and 
wiiich are supposed to be set back hy the dam owned by the plaintiffs. 
This purpose is quite clearly indicated by the provisions m the fourth 
section of the Act, by which the removal of the dam under the Act is 
made to operate as a bar to any suits by the proprietors of lands 
flowed thereby for damages sustained in consequence of such flowage. 
And indeed it is conceded by the parties that such was the main pur- 
pose of the statute. 

In many cases, there can be no difficulty in determining whether an 
api)ropriation of property is for a public or private use. If land is 
taken for a fort, a canal, or a highway, it would clearly fall within the 
firat class ; if it is transferred from one person to another or to several 
persons solely for their peculiar benefit and advantage, it would as 
clearl}' come witliin the second class. But there are intermediate cas es 
whe re public and ijrivate i nterests are blended to gether, in which it 
b ecomes more difficult to decide within which of the two classes th ey 
ma y be properly said to fall . Th ere is no fixed rule or standard b y 
whic h such cases can be tried and determined. Each must necessarily 
depend upon its own peculiar circumstances. In the present case 
there can be no doubt that every owner of meadow la nd bordering on 
thes e rivers will be directly benefited to a greater or less extent by the 
reducti on of the height of the plaintiffs' dam . The Act is therefore i n 
a ce rtain sense for a private use, an d enures directly to th e individ ual 
adv antage of such owners. B ut this is by no means a decisive test o f 
i ts validity. Many enterprises of the highest public utility are produc- 
tive of great and immediate benefits to individuals. A railroad or canal 
ma}' largely enhance the value of priyate propert}' situated at or near 
its termini ; but it is not for that reason an}' less a public work, for 
the construction of which private property ma}' well be taken. We are 
therefore to look further into the probable operation and effect of the 
statute in question, in o rder to ascertain whet her some public interest 
or benefit may not be likely to accrue from the execution of the power 
conferred by it upon the defenda nts. If any such can be found, then 
we are bound to suppose that the Act was ))asscd in order to effect it. 
We are not to judge of the wisdom or expediency of exercising t he 



1020 TALBOT ET AL. V. HUDSON ET AL. [CIIAP. VI. 

p ower to accomplish the object . The legislature arc tho sole and 
e xclusive .jikI^cs whether the exigency exists which calls on them to 
e xercise their authority to take private property. It' a use in its natu re 
p ublic can be subserved by the aijpropriation of a ijortiou of the 
p laintiffs' dam in the manner provided by this Act, it was clearl^^ with in 
t he constitutional autliority of the legislature to take it, and in the 
absence of any declared purpose, we must assume that it was taken f or 
s uch legitimate and authorized use . 

The g eogniphical_ features of the Concord and Sudbury rivers are 
properly wittiint he ju dicial co^iiizance of the court. They are stated 
in detail in the opinion oTTTiecourt in Sudbury Meadows v. lliddlesex 
Canal, 23 Pick. 45. From tliat case and an inspection of the map, it 
appears that these two rivers, forming parts of the same stream, pass 
for a distance exceeding twenty miles through a tract of country, 
forming their banks or borders, consisting chiefly of meadows compris- 
ing many hundreds of acres ; that throughout this extent the waters 
are very sluggish, having only a slight fall, until thej- reach the plain- 
tiffs' dam. It might well be supposed that the necessary effect of an 
obstruction in a stream of this nature would be to cause the waters to 
flow back in the bed of the rivers, to fill up their courses or channels, 
to overflow their sides, and to inundate to a great extent the adjacent 
land, which is naturall}- low and level, and thus to render it unfit for 
agricultural purposes and deprive it of its capacity to produce any 
profitable or useful vegetation. The improvement of so large a te rri- 
tor}', situated in several different towns and owned b}' a great numb er 
o f persons, by draining off the water and thereb\' rendering the lan d 
sui table for tillage, which could not otherwise be usefull}' improved at 
a ll, would seem to come fairlj' within the scope of legislative action , 
a nd not to be so devoid of all public utilit}' and advantage as to mak e 
it th e duty of this court to pronounce a statute, which might well be 
desig ned to effect such a purpose, invalid and unconstitution al. The 
Act would stand on a different ground, if it appeared that only a very 
f g.w individuals or a small adjacent_ territory weie-JLo—be- lienciHted b}' 
the tak ing o f private propert\'. But such is not the case here. The 
adv antages which may result from the removal of the obstruction 
cau sed by the plaintiffs' dam are not local in their nature, nor intende d 
to b e confined to a single neighborhoo d. They a rc designed to embrace 
a large sec ti on of land lying in one of the most populous and h ighly 
cultivated counties in the StaJbe^ and by increasing the productive cap a- 
cit}' o f the soil to confer a benefit, not only on the owners of the 
meadows, but on all thos e who will receive the incidental advantag e 
arising from the devel opment of the agricultural resources of so exten - 
sive a territo ry. 

It has never been deemed essential that the entire community or any 
consider able po rtion of it should directlj^ enjoy or participate in an 
im provement or enterprise, in order to constitute a public use, with in 
the true meaning of these words as used in the Constitution. Such an 



CHAP. YI.] TALBOT ET AL. V. HUDSON ET AL. 1021 

interpretation would greatly narrow and cripple the anlhority of the 
legislature, so as to deprive it of the power of exerting a material and 
beneficial intluence on the welfare and prosperity of the State. In a 
broad and comprehensive view, such as has been heretofore taken of 
the construction of this clause of the Declaration of Rights, evervthino- 
which tends to enlarge the resources, increase the industrial energic s , 
and prom ote the productive power of anv considerable number of th e 
i n h a 1 ) i ta n ts of a section of the State, or which leads to t he growth o f 
towns and the creation of new sources fo r the emp loyment of [)riv;ite 
ca]3.ital and lalxn-, indirectly contribut e_s_to the general welfare and to 
the pros|nT!l \- III' the whole cDiiiiiiuiiiU'.^ 

It is on tliis principle, that many of the statutes of this Common- 
wealth by which i^rivate property has been hei-etofore taken and appro- 
priated to a supposed public use are founded. Such legislation has 
the sanction of precedents, coeval with the origin and adoption of the 
Constitution, and the principle has been so often recognized and ap- 
proved as legitimate and constitutional that it has become incorporated 
into our jurisprudence. One of the earliest and most familiar instances 
of the exercise of such power under the Constitution is to be found in 
St. 1795, c. 74, for the support and regulation of mills. By this 
statute the owner of a mill had power, for the purpose of raising a 
bead of water to operate his mill, to overflow the land of proprietors 
above and thereby to take a permanent easement in the soil of another, 
to "the entire destruction of its beneficial use by him, on paying a 
suitable compensation therefor. Under the right thus conferred, the 
more direct benefit was to the owner of the mill only ; private property 
was in effect taken and transferred from one individual for the benefit 
of another ; and the only public use, which was thereby subserved, was 
the indirect benefit received b}' the community' b}- the erection of mills 
for the convenience of the neighborhood, and the general advantage 
which accrued to trade and agriculture b}- increasing the facilities for 
traffic and the consumption of the products of the soil. Such was the 
purpose of this statute, as appears from the preambles to the provincial 
Acts of 8 and 13 Anne, from which the statute of 1795 was substan- 
tially copied. It is thereby declared that the building of mills has been 
" serviceable for the public good and benefit of the town or considerable 
neighborhood." Anc. Chart. 388, 404. 

In like manner, and for similar purposes, acts of incorporation have 
been granted to individuals with authority to create large mill powers 
for manufacturing establishments, b}' taking private property', even to 
the extent of destroying other mills and water privileges on the same 
stream. JBoston & Roxhury Mill Dam v. Neivman, 12 Pick. 4G7. 
Hazen v. Essex Co., 12 Cush. 478. Commomcealth v. Essex Co., 13 
Gray, 249. The main and direct object of these Acts is to confer a 
benefit on private stockholders who are willing to embark their skill 
and capital in the outla}' necessar}' to carry forward enterprises which 
indirectly tend to the prosperity and welfare of the community. And 



1022 TALBOT ET AL. V. HUDSON ET AL. [CIIAr. VT, 

it is because they thus lead incidentally to the promotion of "one of 
the great public industrial pursuits of the Commonwealth," that they 
have beeji heretofore sanctioned by this court, as well as by the legis- 
lature, as being a legitimate exercise of the right of eminent domain 
justifying the taking and appropriation of private property. Hazen v. 
Essex Co., 12 Cush. 475. 

It is certainly difficult to see any good reason for making a discrim- 
ination in this respect between ditlerent branches of industry-. If it i s 
la wful and constitutional to advance the manufacturing or mechanic al 
interests of a section of the State by allowing; individuals acting p ri- 
marily for their own pr ofit to take private property, there would seem to 
be little, if an y, room for doubt as to the authority of the legislatur e, 
a cting as the representatives of the whole people, to make a similar 
appropr iation by their own immediate agents in order to promote the 
a gricultural interests of a large territor y. Indeed it would seem to b e 
most reasonab le, and consistent with the principle upon which legisla- 
tion of this character has been exercised and judicially sanctioned in 
this commonwealth, to h old that the legislature might provide that lan d 
w hich has been taken for a public use and subjected to a servitude or 
easemen t by which its value has been impaired and it has been ren- 
der ed less productive, should be relieved from the burden, if the pu r- 
pose fo r which it was so appropriated has ceased to be of public utility , 
a nd its restoration to its original condition, discharged of the inc um- 
bra nce, will tend to promote the interest of the community by contrib- 
uti ng to the means of increasing the general wealth and prosp erity.^ Ifi 
the right of a mill owner to raise a dam and flow the land of adjacent 
proprietors has ceased to be of any public advantage, and tends to 
retard prosperity and to impoverish the neighborhood, and the with-' 
drawal of the water from the land by taking down the dam and render- 
ing the land available for agricultural purposes would be so conducive 
to the interests of the community as to render it a work of public 
utility, there is no good reason why the .legislature may not constitu-i 
tionally exercise the power to take down the/lam.OB making suitablej 
compensation to the owner."^ l y};o^<^^^'0 " V '^^^ to apph^ to the mjU - 
owner for the benefit of agricultnro tho snmo rule which had bee n 
previously applied to the land-owiiLT for tln' in- >]ii. .linn of ma n.ufactu r- 
ing and mechanical pursui ts. 

Nor are~~we withour~precedent for acts of legislation by which 
private property has been taken for the purpose of improving land and 
rendering it fertile and productive. The St. of 1795, c. 62, for the 
improvement of meadows, swamps, and low lands, recognizes the right 
of taking private property for the purpose of redeeming lands from the 
effects of stagnant water and of being overflowed by obstructions in 
brooks and rivers. This statute, re-enacted by the Rev. Sts. c. 115, 
has been long in use, and many proceedings under it have taken place, 
some of which have passed under the judicial cognizance of this court. 
But in none of these has the validity of the statute been doubted or 



CHAP. VJ.] TALBOT ET AL. V. HUDSON ET AL. 1023 

denied. Coomes v. Bart^ 22 Pick. 422. Day v. ILdlmrt^ 11 ]Met. 
321. Under the provisions of this Act, not only is it competent to 
drain or overflow the land of a proprietor without his assent, and to 
compel him to pay a portion of the expense attendant on the proposed 
improvement, but also to open the flood-gates of any mill or make 
needful passages through or round the dam thereof and erect tem- 
porary dams on the land of any person who is not a proprietor or a 
party to the proceedings. For the injury thus occasioned to private 
property, a remed}' is provided by the statute. But it is clearly an 
appropriation of private property primarily for the benefit of the owners 
of the meadows or low lands which are intended to be improved, and 
where the public use or benefit which justifies such appropriation con- 
sists in the indirect advantage to the community, derived from the 
increase of the productive capacit}' of the soil and the promotion of 
the agricultural interests of the owners of the land. 

It was suggested at the argument, that there was an essential d i ff e r - 
ence between the provis ions of statute for the improvement of meado ws 
an d low lands anl that under consideration, because by the forme r it 
wa s provided that the damages should be paid by the parties benefited, 
wher eas by the latter they are to be paid out of the public treasur }' . 
Bu t we cannot see the force or bearing of tliis suggestion . The mode 
of compensating the party whose property is taken cannot affect the 
validity of the appropriatio n, so far as_ U^ depends on the questio ii^, 
w hether it was taken for a public us e. If the use is hot in its nature 
public, the appropri ation is invalid and unconstitutional, and the mod e 
by which comp ensation to the owners o f land taken i s to be made i s 
wholl}' imma terial./ It is only wlien pi'operty is taken for a purpose for 
which it may be constitutionally appropriated, that it becomes neces- 
sary to determine whether provision is made for compensation, suitable 
and adequate to furnish a remedy to the party injured. \ 

But if there were no precedent for such legislation, and if we were 
unable to see that an}' use in its nature public could be effected b}- the 
exercise of the power conferred on the commissioners by the terms of 
the Act under consideration, we should be slow to decide, on the case 
as stated in the bill, that the statute was invalid, and that the legis- 
lature in passing it transcended their constitutional authority. The 
burden of establ i shing this proposition is on the plaintif fs. They are 
l)ound to make such averments in their b ill , cither by way of allegations 
of fac t or conclusions of law, a s prima facie to make it appear tlifv^he 
A ct has no force or validity . . . . The bill contains no such allegatio n. 
Certainly In a hearing on bill and answer, the court cannot assume t he 
Act to be unconstitutional, in the absenc e of any stat ement of fact s or 
ot her averments to sustain the allegation that it takes propert}' " for 
u s es and purposes which are i n violation of the tenth article of tlie B i 1 1 
of Rights of the Constitution of the Commonwealth of Massachusett s." 
Nor is it to be overlooked in this connection, that the ordinary j^re - 
su mption in favor of the validity of an Act of the Legislature is gr eatly 



1024 TALBOT ET AL. V. HUDSON ET AL. [CIIAP. VI. 

st rengthened in the present case by the consideration that the power t o 
take the i) roperty of the defendants is not delegated to any persons or 
corpora tion for their private advantage and emolument, who are to 
make com pensatiou for the property taken out of their private cai)it al 
or stock. But it is an exercise of the power of eminent domain direc tly 
b}' t he State itself through agents specially appointed for the i^urpos e, 
an d the com|)ensation jjrovided for those whose ijroperty may be take n 
o r injured by the reduction of the dam is to be i)aid from the publi c 
t reasury. A n Act thus framed clearly indicates that m the judgment of 
the legislature it was designed to subserve some important public use , 
s o necessary that it ought not to be left to private enterprise, and so 
u niversal that the burden of accomplishing the object should be borne , 
not by individuals, or corporations, or towns, but by all the people of 
t he Commonweal th. (We know of no instance in the jurisprudence of 
this countiy, where an Act, so clearly intended to effect a pur[)0se 
which was deemed by the legislature to be of public utilit}-, has been 
adjudged unconstitutional and void. 7 Every reasonable presumption is 
against such a conclusion, and i t would require very strong circu m- 
sta nces to lead the court to overrule the Judgment of a co-ordin ate 
br anch of the government, so unequivocally expressed in a matter prim - 
arily within their province to determine. ^ 

The validity of the statute is called in question b}- the plaintiffs on 
the further and distinct ground that it contains no reasonable, certain, 
and adequate provision for compensation to those whose property ma}- 
l)e taken and appropriated in carrying out the purposes of the Act. 
But it seems to us that there is an obvious and decisive answer to this 
ol)jectlon. By the third section of the Act, it is provided that the dam- 
ages which may be recovered on due proceedings had by the parties 
injured shall be [laid out of the treasury of the Commonwealth, and the 
governor is authorized to draw his warrant therefor. This is clearly an 
appropriation of so much money as may be necessary to pay the dam- 
ages which may be assessed under the Act. The provision could not 
be more explicit or definite as to the amount appropriated. Until the 
damages are ascertained and adjudicated, the sum which will be re- 
quired to i)ay them is necessarily uncertain. There is no provision of 
law, which makes it requisite to the validity of an appropriation from 
the treasury of the Commonwealth that a specific sum should be named 
and set apart as a fund to meet a particular exigency. It is sufficient 
if by an Act or resolve passed during the same or the preceding 
political year the payment is authorized. St. 1858, c. 1, §§ 1, 2. Gen. 
Sts. c. 15, §§ 30, 31. That such an appropriation affords a remedy 
sufficiently adequate and certain is too clear to admit of doubt. It is a 
pl edge of the faith and credit of the Comm o nwealth, made in the mo st 
s olemn and authentic manner, for the payment of the damages as soo n 
as they are ascertained and liquidated by due process of law . Unless 
we can say that such a provision affords no reasonable guaranty tha t 
the per sons injured will receive compensation, we cannot adjudge the 




CHAP. YI.] TALBOT ET AL. V. HUDSON ET AL. 1025 

statute to Tip, nnconstifiitionnl. W e certainh ' cannot assume that th e 
Commonwealth will not f ulfil i ts obligat ions. The presumption is 
directly the other way. Indeed the plaintiffs do not aver in their bill 
that the damages which may be awarded to them under the Act will 
not be duly paid. How the n can it be said that no suitable a nd 
adequate provision is made in the A ct, by which the plaintiffs can 
receive the co mpensation to which they may be entitled? The answ er 
tq_the a rgument that no process is provided by which the payment ca n 
be secured and enforced is, that no such provision is nece ssary in ca ses 
w he re the power of eminent domain is exercised immediately by t h e 
State itself in pursuance of a statute which enacts that compe nsation is 
to b e made by a warrant drawn by the governor of the Commonwea lth 
u pon the public treasury . We are bound to presume that the chief 
magistrate of the State will perform his duty by drawing his warrant in 
conforniitj' with the requirements of law, and that payment of a public 
debt thus created will be duly made in like manner as all public dues 
and liabihties are paid out of the treasury of the State. The elemen tary 
prin ciple that the sovereign can do no w rong is the foundation on 
wh ich rests the rule, recognized in our jurisprudence, by which" t he 
State is exempted from being subject to process at the sui t of a cred- 
itor^ The presu mption of law is, that the State will keep its faith 
inviolate, a nd honesth' fulfil all its oblig ations. 3 Bl. Com. 255. 4 
Bl. Com. 33^ Broom's Max. (3d ed.) 5T Hill v. United States, 9 
How. 38G. Injunction dissolved.'^ 

1 That the improvement of Boston Harbor is an object of a public nature, and 
thus that lands taken for this purpose are taken for a public use, can hardly be con- 
troverted. It is not necessary tliat the entire community should direc tly enjoy or 
participate in an i mprovement or enterprise, in order to constitute a public use; and 
a benefit to the principal harbor of tlie Commonwealth is much more than^ local 
advantage. Nor when we consider tliat Acts of Incorporation have been granted, and 
fully recognized as constitutional, which authorized the taking of private property for 
the purpose of carrying forward enterprises such as the construction of railroads, or 
others which tend to the prosperity and welfare of large portions of the community, 
should we be willing to say, even if no improvement of Boston Harbor formed a part 
of the purpose, that the legislature might not properly provide for the reclamation of Q^ ^ 
a largo body of lands, such as flats, substnntially useless in their original condition, for ^^^^^ 
railroad and commercial purposes, by taking, subject to proper compensation, such oi^ ,, - 

them as were necessary for the accomplishment of the object. BoMon .'j- Rorlmrj/ Mill /^-^<^ 
Co. v.Neivman, 12 Pick. 467. Talbot v. Hudson, 16 Gray, 417. Bancroft v. Cambridqe, yy' ^-<i /> 
126 Mass. 438. — Devens, J., for the court, in Moore v. Sanford, 151 Mass. 28.5, 290. "^.^^ 
(1890.) Compare ayile, pp. 893-916 ; Kingman et al. Pet'rs, 153 Mass. 566, 571, s. c. ^jj^-i 






In Corners v. Moesta, 91 Mich. 149, 153 (1892), the court (Montgomery, J.) in • ^^^ ^ 



sustaining proceedings under a statute for taking land for tlie widening of a " boule 



s- >S- ^ 



infra, p. 1234 n. and Waterloo Co. v. Shanahan, 1 28 N. Y. 345 ( 1 891 ). "X^ 

yard " in Detroit, said -. " Complain t is also made of the definition of ' public nec es 
sity' employ ed. The judge charged as follows : ' The term " neces.sarv " doe.s not mean "^ .^t. 

t hat it is indispe nsable o r imperative, bu t only that it is convenient and useful, a nd .y^ 

t herefore, if you find that the improvement is useful, and a convenie nce and a benefi t ^ 

to the public sufiicient to warrant the expense of making it, then you may fin d it 
necessar y.' The jury must have understood this charge to mean that in order to 
justify a finding of necessity, jt mus t appear t hat the improvement was a convenienc e, 
VOL. I. — 65 



1026 HIGGINSON V. INHABITANTS OF NAHANT. [ciIAr. VI. 




(L . George higginson et al. v. inhabitants of naiiant 



ET AL. 



^ jt Supreme Judicial Court of Massachusetts. 1866. 

MA^O^ P^ J-O-u^^ [-11 ^//g„^ 530.] 

x/(,^X^'«'<-^^ Bill in equit}- against the inhabitants of Nahant and the selectmen 
^ thereof, to restrain them from constructing a way which had been laid 
a^x .£^^C*^<y^^'ont by the selectmen. . . . 
ffW iJ^\ The case was reserved for the determination of the whole court. 

.- c- S. Bartlett and H. W. Paine {F. 0. Prince with them), for the 

^ X^^^-^j plaintiffs. 
, t ZM U-'-fiUi- ^- ^* Eiidicott, for the defendants. 

Hoar, J. There are three principal questions presented for ad- 
\,JL (M^ judication upon tliis report ; the first two requiring a decision of the 
24 t^ rights of the plaintiffs, and the third concerning onh' the remedy. 

I T he first and most important of these is whether, when a town way 

U^L\ M? ha s been laid out bv the selectmen of a town with all the forms pr e- 

-inn}(i CUL- , . . . . 

— a benefit to the public of suiRciept importance to warrant the public in incurri ng 

v^ '^L'i/\— t he expense in making i t. T his would, under our decisions, constitute a public neces- 

_sjt\;^ Paw/ V. Z)eOo/<, 32 Mich. 119." 

^^^^JUii^ U Id -Po"^ v. Detroit, 32 Mich. 108, 113 (1875), the court (Campbell, J.) said : "The 

■ Constitution [of Micliigan] provides (Art. 18, Sec. 2) that ' when private nroperty i s 

" /fe. (^f ta ken for the use and benefit of the p u blic, th e nece.ssity for using suc h prop erty, and 

\J t he just compensation to be made therefor (except when to be made by the State), 

fy_,\£/i/r- /tJ^^- s hall be ascertained by a jury of twelve freeholders, residing in the vicinit}^ of su ch 

p roperty,' or b y commission ers appointed by a court of record. An exception was 

JCiXAji^di^ afterwards made of highway commissioners. . . . This provision is not found in 

^ co nstitutions general ly, and was never known in Michigan until the adoption of the 

''^' Constitution of 1851. Before that neither jury nor commissioners had any duty to ^ 

j^ perform except assessing damages, and the prerogative of taking property on their V 

x^,^s_i.f<. '^ Q^jj estimate of its necessity was exercised by legislatures or those persons or corpora- ^ 

p y- tions whom they allowed to act in the matter. ^ 

^J^-f-^^^ " The chanare was made from a well-founded belief, founded on experience, thatpr i- *,' 

v ate propertv was often taken improperly and without any necessity, and that the J 

p retence of public utility was often a cloak for private aggrandizem ent. Ways were \ j 

i,^c<^./<^ forced through private property to enrich the owners of other ])roperty, who were ^ 

^^"^ enabled by intrigues and sinister influences to induce municipal bodies to use the ^ ^ 

<XLkA_A^ public authority to subserve tlieir private schemes. The svstem was abused t o tlie ^ 

op pression of individuals by corruption and bargaining, and tlie sacredness of pri vate \^ 

Ji/^/-Jy>J^' ' p ropertv, and its immunity from any interference not required b}" actual public exi- ^"^ 

/- J jrencies. ceasc<l to be respecte d. ,^ 

1^- 'C/*^^-'*'**^^ " The Constitution has changed this by requiring the wliole subject to be determined ^ 

'f-J ^f l/Cdi ^y ^ i'^ry of freehohlers ; so that each case shall be determined bv a separate tribunal V^ 

^^^^ summoned expres.sly for the purpose, who must be unanimous in their views before ^^ 

y ^tvv a nv land can be taken ; w ho must act openly and before all concerned, in liearing an d 

y/ () receiv ing testimony ; wlio cannot listen to private persuasion , and where any attempt 

'" A/rctiC ^'^ influence them will subject the offender to severe and disgraceful p unishment. All 

these safeguards are implied in the use of the term ' jury ; ' and no action, by laws, or 

X^jsXa.''^^'^ ^y proceedings under them, can be maintained, if any of these securities are impaired 

or disregarded." — Ed. 






<5 



^ ^ I . 



\^^jiAAA^M^^~^-^ ^«L^vxaA (WOJl .v^^^ €L.^rv/.^^Xcy\ -^^./^ r«^^^ 

CHAP. VI.] HIGGINSON V. INHABITANTS OF NAHANT. 1027 *" * 

s cribed by the statutes of the Commonwealth, and has been duly ac- ^^;^ 
c epted by the to wn , it is competent, in order to imi)eac h th e validit y oC^-^fy, 




th ese proceedings, to show that tlie way is wholly on the land of tlie 
p laintiffs ; that it enters their land from a highway and returns to it at 
ai)ou t the same pla ce where it enters ; that it leads to no other way o r -^ 
landing-place, and can be used for no purposes of business o r dut}-, '^^ 
o r of access to the lands of any other person ; but that it was laid out '^^ z^ ^ 
b y the selectmen with the design to provide access, not for the tow n ^ ^^"^-^^ 
merely, but for tlie public, to points or places in the lands of the plain - y6^ ^' 
t iffs, esteemed bv the selectmen, and those who applied to tliem to l ay i& ^^^ 
out the way, as pleasing natural scenerv - It is certainly no objection -^ ^ 
to a town way that it will be serviceable not only to the inhabitants of ^ ^, 
the town, but also the public generally. Though it is laid out by the Q ^^^^ 
officers and constructed and paid for by the inhabitants of the town, ^-^^ . 

all persons have an equal right to use it after it is completed. 'JM^ -^"^ 
Cragie v. 3Iellen, 6 Mass. 7; Mo)derey v. County Commissionevs, ^ rlMfl^l' 
7 Cush. 394. ^ 

But the position of the plaintiffs is, that in the case presented the way ^ (^ji^ /v%a. 

- is not intended for the legitimate purposes of a way ; that the pretence /i a i 

of la3-ing it out as such is merely colorable ; and that private property i\A • ^A • "^^ 

cannot be lawfully taken and appropriated to such a use. atO^^ 

It has been held that, in laying out a town wa}^, a formal adjudica- 
tion that the public convenience and necessit}- require it is not made Jljic\l^-'<^^^ 
essential to its legality. Jo?ies v. Andover, 9 Pick. 154. The reason ^./aw 

of this seems to be that the inhabitants of the town, who constitute the ' v 

public for whose use and advantage the way is principally designed, \;V\/^"^^^'' 
and who are to bear the expense of constructing it, are to decide b}' , Vsyvv 
their vote whether it shall be established. The particular communit y ^ (] 
w hose convenience is to be consulted determine the matter for them - 
selves . That the town want the road is best settled by the town 's 
voti ng to have it and pay for it . 

But 3'et the statutes authorizing the laying out of town ways nn- , -j /Qm/J»' C^ 
doubtedly imply the exercise of an independent judgment by the select- ^ 

men that the way is needed. A way laid out by them in pursuance of / ^ ^ 

instructions b}' the town is not warranted by law. Kean x. Stetsoyi, .vvvClAl-'*^ 
5 Pick. 492 ; States. Newmarhet, 20 N. H. 519. And the purpose for ^ 
which the way is laid out may be inquired into, in order to show that 
it was illegal . T hus it has been decided in New Hampshire that wliere jM.^M/a-^^^^ 
th e object of a town way was merely to avoid a toll-gate upon a turn - -f~ , , K A/ 
pik e it could not lawfully be made, t he reason being that it was an i n- i-'^'^'*^ 
v asion of an existing franchise . Turnpike Co. \. (Jhampney^ 2 N. II. -j-^xX. ^ i^ ' 
199. And see West Boston Bridge v. County Commissioners., 10 ^ 

Pick. 270. And in Woodstock v. Gallup, 2?> Yerm. 587, it was said by t^ r^^AX^^^ 
the court that, while ornament and the improvement of the grounds -^^ ^iv^^-^x, 
about a public building might well be taken into consideration and re- 
garded in connection with the convenience and necessity of a proposed y^"*" 
highway, they do not alone constitute a sufficient basis for establishing x^^xvvtXnr* 



<^fe XLW (Pctt^ -uJvtAX ^0^ ;UeUctl>vx ^' /=>^X 






f i^V'^/V-'^- 



102S HIGGINSON V. INHABITANTS OF N All ANT. [CIIAP. VI. 

it. The doctrine that |)ublic ways are for travel, and not for places of 
a musement, has also been recotinized in this Coinuionwealt h. Blodgett 
V. Boston, 8 Allen, 237. 

But we arc not aware of any case in which it has been ever held t hat, 
where there is an amount of travel sutlicient to warrant the constru c- 
ti on of a road which ]^ernianently seeks a particular avenue, the pu r- 
p ose for which the public want to travel is to be regarded, if the jnirposc 
is lawfu l. The ijla intiffs have contended that the ijurpose for which a 
ro ad is wanted must be a pu ruose of b usiness or duty, i n order to creat e 
a public exioenc y. But we think it impossible to go into such refine- 
ments. Nahant itself is a town which owes much of its population to its 
attractiveness for other purposes than business or profit. Th e passin g 
f rom place to place is a rightful object of public provision in its el f ; and 
t he occasions for it are as extensive as the pursuits of life . P leasur e 
tra vel may be accommodated as well as business travel. The security' 
against an unreasonable invasion of private rights of propert}- in estab- 
lishing town ways unnecessaril}- is to be found, first, in the sense of 
justice and clut}' of the board of selectmen ; secondl}', in the improb- 
ability that the inhabitants of a town, with full opportunity for discus- 
sion and remonstrance, will vote to accept and construct a way which 
is not needed, and impose upon themselves the burden of constructing 
and maintaining it, as well as the damages to the landowners whose 
property is taken ; and thii'dly, in the power to apply to the count}- 
commissioners for the discontinuance of the way, if the town refuse to 
discontinue it. ^ But selectmen may lay out and towns may establish 
such ways as they think necessary for any of the lawful purposes of 
travel. \ In Blodgett v. Boston, before cited, the chief justice uses this 
language in reference to the obligation of a town to keep a way in re- 
pair: " The word 'travellers' ma}- well embrace within its meaning, 
as applied to the subject matter, every one, whatever may be his age 
or condition, who has occasion to pass over the highway for any pur- 
pose of business, convenience or pleasure. Nor is the motive or objec t 
with which a street or way is thus used, if it be not unlawful, at al l 
m a terial in determining: whether a person is entitled to an indemnit y 
f rom a city or town for an injury oc casioned by a defe ct. Tlie highway 
is to be kept safe and convenient for all persons having occasion to 
pa ss over it, while e n g aged in any of the pursuits or duties of l i fe . " 
And it would seem that roads may be established for the purposes for 
which they are afterward to be kept in repair. We think, therefore, 
that the only true test is whether a road is wanted for public trave l ; 
which, in the case of town ways, is to be decided by the inhabitants of 
the tow n ; and that we cannot go into a consideration of the rea sons 
w hich may induce people to wnsh to travel upon it, if the travel is for 
an innocent and lawful purp ose . 

If the doctrine for which the plaintiffs contend were supported, a road 
to the top of Mount Washingto n, t o Niagara or Trenton Falls, to the 
Mammoth Cave of Kentuc ky, or the Natural Bridge in Virginia, or 



CHAP. VL] HIGGINSON V. INHABITANTS OF NAHANT. 1029 

ev en to a ijublic yiark or common in th e cities, wo uld not come within tlie 
powers of t he officers intrusted with the duty of laying out wa ys. It 
w ould also follow that the legislature would not have the constitution al 
ri ght to take private [property for a public park or pleasure <;;round , 
making full compensation to the owner — a conclusion which we sho uld 
h esitate to arrive at without much farther consideration, in view of the 
important relations which air, exercise, and recreation bear to the general 
health and welfare of the community. 

Nor is it to be forgotten that, while sufficient public ways are a pro- 
tection against trespasses upon private pi'operty, there may be some 
reason to expect that a way furnishing access to " pleasing natural 
scenery " will lead to settlement and habitation, and that, in the plan 
of a town, it may be well to make some prospective provision for pr ob- 
a ble future wants of the inhabitants in this respect . . . . 

The bill must be dismissed tvUh costs.^ 

1 This may properly be deemed to be a public purpose, and a_statute authorizing 
t he raising of money bv taxation for the erection of such a memorial hall may be 
v indicated on the same grounds as statutes authorizing tlie raising of money for mon u- 
ments, statues, gates or archways, celebrations, the publication of town histories, parks , 
r oads leading to points of fine natural scenery, decorations upon public buildings, o r 
o ther public ornaments or embellishments, designed merely to promote the genera l 
welfa re, either by providing for fresh air or recreation, or by educating the publi c 
tastfi or by inspiring sentiments of patriotism or of respect for the memory of worth y 
individuals. Tiie reasonable use of public money for such purposes has been sanc- 
tioned by several different statutes, and the constitutional right of the legislature to 
pass such statutes rests on sound principles. Pub. Sts. c. 27, §§ 10, 11; Sts. 1882, 
cc. 15-4, 255, § 5 ; 1883, c. 119 ; 1884, c. 42 ; 1886, c. 76; 1889, c. 21 ; Hiyginson v. Na- 
hant, 11 Allen, 530. — Charles Allen, J., for the court, in Kuvjmanw. Brockton, 153 
Mass. 255, 256 (1891). - 



In the case of In the Matter of the Niagara Falls and Whirlpool Ry. Co. 108 N. Y. , 

375 (1888), the court (Axdkews, J.) in holding that the purpose in view was not one <Jl' ^ 

which would justify a resort to the right of eminent domain, said: "The Niagara jCi^JtMA'^^-^^^ 

River, from the foot of the American Falls, flows northerly for several miles with a Jf^^ni ^ ^ 
very rapid current, and the river on either side is faced by precipitous cliffs, the cliff . -1 Lt -^■ 

on the American side rising from near the edge of the river to a height of from one ^^^-^^-^^ 

hundred and fifty to two hundred feet, to the table land above. The river from the ^^ f^ ^'^^^^ 
falls to the point known as ' The Whirlpool,' a distance of about three miles, is inter- () . H jU^ 

esting, and persons visiting the falls have been enabled by means of what is known as y^''*-^'*^ 

an inclined railway to descend from the top of the bank or table land, to the margiu ^^ /^u^^'A^ 
of the river. This railway was originally a private enterprise, but is now included in L, uJ^a 

the land taken by the State for a State reservation. The ' Whirlpool ' adjoins the /i^^ 

lauds of De Veaux College. The college has constructed a stairway leading down to hurri. AJ^Oyi 

the margin of the river at this point for the convenience of visitors, and derives a / - . 

revenue from its use. The petitioner has located its road along the margin of the ^i/UAJ'aM >^ 

river, outside of the cliff, where the space is sufficient between the cliff and tlie river to ^^^tu/XJL ' iM- 
permit the track to be laid and at other points where the cliff rises wdth more abrupt- ./ 

ness from the margin, the location contemplates cutting into the face of the cliff for ■^r^ «/ yT* C^ 

the roadway. T he proposed road does not connect at either end wi tli a highway. _It "^ ^ ^6t^^^ 

can be reached only by passing over the lands of the State or t he lands of private ^^ - -i i 

owner s. T here can be no habitations along the line of the road, and no traffic, or ^vxM-'*^ ^ 

commerce, or business, except in conveying passengers over tlie road to see the river ^^^^j^pji^v^i^jZu 

and ' The Whirlpool.' and returning them again to the point from which they starte d. 7 Q 

The season for visitors at the Falls is substantially confined to June, July, August, and ,;>6(av\ . . 



CX7M. 



SHOEMAKER V. UNITED STATES. 



[chap. VI. 
S. 282, 297 (IS'Jo), in cuiisideriug 



tl. A^ 



'■ , 1030 

A In Shoemaker y. U. S. 1A7 \j 

^-^^-"""^ certain questions reUitiug to an Act of Congress of Sept. 27, 1890, 

"■"^ V'^ purporting to autliorize tlie establisliing of a public park in the District 

-t U iL ^^ ^'^liii^lji^ ^"<^^ t^i*^ condemnation of certain land tlierefor, the court 

/, September. The proposed road cannot be operated (luiiii.i:; the wiutcr on account o f 

•^^ \-a t he pili ng lip of the ice, and if its operation was practicable in the wiutcr season it 

1 cj< '^^j-yr/i/^ Nvould have nothing to do. It is apparent that the proijused enterprise lias been under - 
^i t aken and is to be carried on for the sole purpose of furnishing si^ht-scers during 

\y^ _ a bout four months of the vear. greater facilities than they now enjoy for seeing the 
part of Niaga ra River along whicli the proposed road is to be constructe d. . . . 

~' Wh^ is a public use is incapable of exact definition. The expressions puUi c 
interest and piiUic use are not syuonymo us. The etablishment of furnaces, mills, and 
manufactures, the building of churches and hotels, and other similar enterprises, are 
more or less matters of pul)Iic concern , an d promote, in a general sense, tiie publ ic 
welfar e- But tliey lie without the domain of public uses for which private owne r- 
ship may be displaced by compulsory proceedings. The ground upon which private 
property may be taken for railroad uses, without tiie consent of the owner, is pri- 
marily tliat railroads are highways furnishing means of communication betwe en 
different points, promoting trafBc and commerce, facilitating exchanges, in a word 
lJ^^_/»^ A-'o-ji*^ t hey are improved ways . lu every form of govcrnmeni the duty of providing puE - 
^^^^^^^^^ l ie ways is acknowledged to he a public duty . lu this State the duty of laying out 
'^■■''-^^^^^^■^-^ ^ amj maintaining highways has in the main been performed directly by the State 
I^V;^ #-£ or by local authorities, but from an early day the legislature has from time to time 
'^'^^^'^<i Vi delegated to turnpike corporations the right and duty to maintain public roads iu 
AT /uiuXfcM-localities, and canal companies have been organized with powers of eminent do- 
main. I t would be impracticable and contrary to our usages for the State to enter 
P^t.,U:X:o>-y/'** upou the general business of constructing and operating railroads, and, in analogy to 
( ^ • t he deleixation of the power of eminent domain to turnpike and canal companies, i t 

C^^;^^-"^"-^^''^^*^ wisely delegates to corporate bodies the right to construct and maintain railroads a s 
p ublic ways for the transportation of freight and passengers, and as incident theret o 
t he right to take private property under the power of eminent domain on making com - 
pensation. In considering the question what is a])ublic use for which private property 
may be taken Hi irivitum, Judge Cooley (Const. Lim. 669) remarks ' tj} at can onlj- ,be 
considered such wdieu the government isji^3plxJDXitSiJWIID_ee!;ls, gr is fujruishiiigjacjli- 
to these matters of Jjublk; necess ity which on account of 






H, A*' 



K^^LxJt^ 



AjlJAjLC 



-Uj^ 



ties ti 



\ I « ,'- their pe 
^ 1^-^^^^ fnr th'., 

L. 



Its cinzi'iis III n-gari 

•nliar charai'tir, an d the difficulty, perh a ps imposs ibility, uf making provision 
I Mtljonvi.-i', it is alikc4)r(4)er,lisef uk"and nee^lful for the jutl-lic to provide.' 

Whatever iiile, fuuinled "u the adjudged cases may be formulate 

cannot, we think, be framed so as to include the present case 






11 this suliject, it 
The fact that the road 
o f the petitioner may enable the portion of the public who visit Niagara Falls, mor e 
e asily or more fully to sratifv their curiosity, or tliat th e road will be public in tlie 



sen se that all who desire will be entitled to be carried upon it . is not sufficient. \ye 
t hink, in view of the other necessary limitations, to make the enterprise a public one 
.'io as to justify condemnation proceedings. The ca.«e does not, we thfnk, differ iii^ 
principle from an attempt on the part of a private corporation, under color of an Act 
of the Legiilature, to condemn lands for an inclined railway, or for a circular railway, 
or for an ol)servatory, to promote the enjoyment or convenience of tho.se who may 
l\ J) ^Ji^ visit the Falls. The State has, under recent legislation, taken lands for a park or pub- 
/X' O".' lie place at Niagara Falls. The taking of lands by municipalities for public parks is 
ijj.jj..jjU~ recognized as a taking for public use. Brookli/n Park Commissioners v. Armstrong, 45 
'^3^ N. Y. 234; In re Mm/or, etc., 99 Id. 569. They coutrilmte to the health and enjoy- 
ment of the people and are laid out with drives and ways for public use. The pro- 
ceedings in the case of The Nahant Road (11 Allen, 530) and The Mount Washington 
Qa^- Road (35 N. H. 134), were justified on the ground that they were public highways in 
the ordinary sense, although primarily intended as pleasure drives. It is, as we have 
• * said, di fficult to make an exact definition of a public us e. It is easier to define it by 



,Af^ 



\AtiA. 



CHAP. VI.] SHOEMAKER V. UNITED STATES. 1031 

(Shiras, J.) said: " In the memory of men now living, a proposition 
to take private propert}-, witliout the consent of its owner, for a 
public park, and to assess a proportionate part of the cost upon real 
estate benefited thereby, would have been regarded as a novel exercise 
of legislative power. 

negation thau by affirmation. We are conscious of the serious responsib i lity which 
tji^e co urt assumes in undertaking to dechire that not to be a public use , whic h tlie 
le gislature has declared to be such . The validity of an Act of the Legislature is not to 
be assailed for light reasons. It is especially necessary that the question of what con- 
stitutes a public use, sliould not be dealt with in a critical or illiberal spirit, or made to 
depend upon a too close construction adverse to the public. But having these consid- 
erations in miud, we are nevertheless constrained to conclude that the enterprise in 
q uestion is essentially private and not publ ic, and that private property cannot be 
tak en agai n st the will of tlie owners for the construc tion of the road of the petitioner. 
The oi'der appealed from should, therefore, be affirmed. All concur. Order affirmed." 
Compare Oun/ v. Goudwln, 26 Pac. Rep. 376 (Ariz. 1891), In re Rock It R. Co. 12 
N. Y. Sup. 566 (1890), In re Buffalo, 15 N. Y. Sup. 123 (1891). 

In Farist Steel Co. v. Bridgeport, 60 Conn, 278, 291 (1891), the court (Seymour, J.) 
said: "One otlier point demands consideration. It is claimed that, even if all the 
proceedings were legal in form, yet there is a fatal objection to the validity of the as- 
sessment, in that the case itself discloses the fact that the harbor lines were established 
and the appellant's laud condemned in order that the new bridge, ' that expensive and 
sightly structure should not be marred by placing buildings on either side thereof , ' 
and not for any legitimate public use whatever. The appellant says that, except for 
public uses, private property cannot be taken even upon the payment of just compensa- 
tion. We presume that no one will question the correctness of that proposition. The 
taking of private property in the legal establishment of harbor lines is prima facie a 
taking for puldic use. The legislature so considered it in granting the charter to the 
city of Bridgeport, and, though that fact is not conclusive, inasmuch as it is held almost 
universally that whether a particular use is public or not within the meaning of the Con 
stitution is a question for tlie judiciary, still there can be no question but that property 
taken in the legal establishment of harl)or lines is taken for public use. But the right 
to establish harbor lines, and to take private property for that purpose, must be exer- 
cised in good faith and for a public use naturally connected with their establishment 
Private property cannot be taken for other thau public uses under the guise of taking 
it for public use. There may be difficulty in many cases in applying this rule, as where 
nothing appears in the proceedings of the purpose for which the lines were established, 
and the presumption would be that they were established in the interest of navigation. 
But where, as in the present case, all the proceedings declare the purpose to be an 
ulterior one, which no one would claim to be a public one within the meaning of the 
Constitution, when this purpose is spread upon the very records which are laid before 
us as containing the authority on which the assessment committee acted, we should be 
shutting our eyes to the real state of affairs, and permitting property to be taken 
under the excuse of the right of eminent domain in a case where no public use was 
contemplated, if we should decide in accordance with the appellee's claim. That 
would commit us to the doctrine that we are bound by the fact that it was a harbor 
line that was estalilished, no matter for what purpose it appears to have been estab- 
lished nor how far it is removed from the harbor. We cannot accept tliat conclusion, 
but must hold that, whereas it ai)pears from the records themselves, wliich are intro- 
duced to show the facts upon which the legality of the assessment depends, that the 
harbor lines were laid for the purpose of preventing a new bridge from being marred 
by the building of structures connected with it which would obscure it, and not in the 
interests of navigation or any other public use, private property cannot be taken with- 
out violating constitutional rights. It is unnecessary to consider the other questions 
which were discussed. Upon those already considered we advise the Superior Court 
to render judgment for the appellant, annulling the assessment appealed from." — Ed. 



1032 SHOEMAKER V. UNITED STATES. [CHAP. VI. 

" It is true that, in the case of many of the older cities and towns, 
there \ver6 commons or public grounds, but the purpose of these was 
not to provide places for exercise and recreation, but places on which 
the owners of domestic animals might pasture them in common, and 
they were generally laid out as part of the original plan of the town or 
city. 

'' I t is said , in Johnson's Cyclopicdia, t hat the Central Park of Ne w 
Y ork w a s the first pl a ce deliberately provided for the inhabitants of a ny 
c ity or town in the United States for exclusive use as a pleasu i;e- 
g round, for rest and exercise in the open air . However that ma}' be, 
there is now scarcely a city of any considerable size in the entire countr}' 
that does not have, or has not projected, such parks. 

" Th e validity of the legislative A cts erecting such parks, and pro- 
v iding for their cost, has been uniformly upheld. It will be suflicient 
to cite a few of the cases. Brooklyn Park Commissioners v. Arm- 
strong, 45 N. Y. 234 ; In re Commissioners of the Central Park. 63 
Barb. 282 ; Owners of Ground v. Mayor of Albany., 15 Wend. 374 ; 
Molt V. Somerville^ 127 Mass. 408 ; Foster v. Boston Park Commis- 
sioners., 131 Mass. 225; also 133 Mass. 321 ; St. Louis County Court 
V. Griswold, 58 Missouri, 175 ; Cook v. South Park Com77iissi oners, 
61 Illinois, 115 ; Kerr v. South Park Commissioners, 111 U. S. 379. 
I n these and many other cases it was, either directly or in effect, held 
t hat laud taken in a city for public parks and squares, by authority o f 
law, whether advantageous to the public for recreation, health or bus i- 
ness, is taken for a public use . 

" In the case cited from the Missouri Reports, where the legislature 
had authorized the appropriation of land for a public park for the 
benefit of the mhabitants of St. Louis Count}-, situated in the eastern 
portion of the county, near to and outside of the corporate limits of 
the cit}' of St. Louis, it was held that this was a public use, notwith- 
standing the fact that it would l)e chiefly beneficial to the inhabitants 
of the city, and that the Act was not unconstitutional. 

" The adjudicated cases likewise establish the proposition that whil e 
th e courts have power to determine whether the use for which priva te 
p roperty is authorized by the legislature to be taken, is in fact a public 
use, 3-et, if this question is decided in the affirmative, the judicial func- 
tion is exhausted ; that the extent to which such property shall b e 
t aken for such use rests wholly in the legislative discretion, subject onl y 
to the restraint that just compensation must be mad e. 

"A distinction, however, is attempted in behalf of the plaintiffs in 
fMTor between the constitutional powers of a State and those of the 
United States, in respect to the exercise of the power of eminent 
domain, and this distinction is supposed to be found in a restriction of 
such power in the United States to purposes of political administration ; 
that it must be limited in its exercise to such objects as fall within the 
delegated and expressed enumerated powers conferred by the Constitu- 
tion upon the United States, such as are exemplified by the case of 
post-offices, custom-houses, court-houses, forts, dock3-ards, etc. 



CHAP. VI.] SHOEMAKER V. U^'1TED STATES. 1033 

" "We are nut culled upon, by the duties of this investigation, to con- 
sider whether the alleged restriction on the power of eminent domain in 
the general government, when exercised within the territory of a State, 
does really exist, or the extent of such restriction, for we are here 
deali ng with an exercise of the power within the Dis trict of Columbia , 
over whose territory the United States posses s , not merely the 
political authority that belongs to them as respects the States of th e 
Un i on, but likewise the power ^ to exercise exclusive legislation in a ll 
cases whatsoever o ver such District.' Constitution, Art. I., Sec. 8, par. 
17. It is cont ende d tha t, notwithstanding this apparently unlimited 
grant of power over the District, conferred in the Constitution itself, 
th ere was a limitation on the legislative power of the general govern- 
ment contained in the so-called Act of Cession by the State of Mar} '- 
land (Act of 1791, c. 45, § 2), a proviso to which is in the word s 
following : ' Provided, that nothing herein contained shall be so c on- 
strued to vest in the United States any right of property in the soil, as 
t o affect the ri2,ht of individuals therein , ot herwise than the same sh all 
or may be transferred by such individuals to the United State s.' It is 
s aid that the acceptance by the United States of the grant constituted 
a contract between Maryland and the United States, whereby, in view 
of the foregoing language, t he land owner was to be protected against 
a ny exercise by the general government of the sovereign power of 
eminent domain. It is sufficient to say that the history of the transac- 
tion clearl}' shows that the language used in the Maryland Act referred 
to such persons as had not joined in the execution of a certain agree- 
ment b}' which the principal proprietors of the Maryland portion of the 
territor}' undertook to convey lands for the use of the new city, and 
their individual rights were thus thought to be secured. The provision 
had no re fer ence to the i)ower of eminent domain, which belonged, to 
t he United St ates as t h e g rantee in the a ct of cessio n. 

" This position, contended for by the plaintiffs in error, was raised in 
the case of Chesapedke ct Ohio Canal v. Union Bank^ in the Cii'cuit 
Court of the United States for the District of Columbia, and Cranch, 
C. J., said : ' The eighth objection is that by the Maryland Act of 
Cession to the United States, of this part of the District of Columbia 
(1791, c. 45, sec. 2), Congress are restrained from affecting the rights 
of individuals to the soil, otherwise than as the same should be trans- 
ferred to the United States b}- such individuals ; and it is contended 
that this prohibits the United States from taking private property' in 
this District for public use, and that the right of sovereignt}', which 
Maryland exercised, was not transferred. We think it is a sufficient 
answer to this objection to say that the United States do not, b}' this 
inquisition or by the charter to the Chesapeake & Ohio Canal Company, 
claim any right of propertj' in the soil. The}' only claim to exercise 
the power which belongs to every sovereign, to appropriate, upon just 
compensation, private property to the making of a highway, whenever 
the pu1)lic good requires it.' 4 Cranch, C. C. 75, 80. 



V^-C"Mi_ 



1034 palairet's appeal. [chap. vr. 

" But this contontion can scarcely have been seriously made in view of 
the explicit language of the Maryland Act in its second section : ' That 
all that part of said territory called Columbia, which lies within the 
limits of this State, shall be, and the same is hereb}', acknowledged to 
be forever ceded and relinquished to the Congress and government of 
the United States, in full and absolute right and exclusive jurisdiction, 
as well of soil as of persons residing or to reside thereon, pursuant to the 
tenor and effect of the eighth section of the first article of the Constitu- 
tion of government of the United States.' Mattinghj v. District of 
Columbia, 97 U. S. 687, GOO; Gibbons v. District of Columbia^ 116 

PALAIRET'S APPEAL. WZ'. / 




SuPKEME Court of Pennsylvania. 

[C7 Pa. St. 479.] 

February' 14, 1871. Before Thompson, C. J., Agnew, Sharswood, 
and Williams, JJ. Read, J., at JVisi Prius. 

Appeal from the decree of the Court of Common Pleas of Philadel- 
phia : No. 221, to January Term, 1871. 

The proceeding was commenced Februar}' 24, 1871, b}' a petition in 
the name of the Commonwealth, at the relation of John Ganser 
against John G. Palairet and others, trustees, &c., of Maiy Ann 
Palairet, under the Act of April 15, 1869, Pamph. L., 18G9, p. 47, 
Purd. 1570, which is as follows : [The Act is given in a note.-J 

1 See ante, pp. 348-364 —Ed. 

2 " An Act to provide for the extinction of irredeemable rents. 

" Whereas, there were formerly reserved or created in Philadelphia and other 
parts of this Commonwealth, yearly rents, which in their nature or by lapse of time 
are or have been irredeemable by the owners of the land whereout they issue ; in con- 
sequence whereof the jjower of such landowners to sell or mortgage their land is 
greatly limited. 

" And whereas, the policy of tliis Commonwealth has always been to encourage the 
free transmission of real estate, and to remove restrictions on alienation, so that it is 
and is hereby declared to be necessary for the public use to provide a method of 
extinguishing such irredeemable rents, having a due regard for private rights : there- 
fore, — 

" Section 1. Be it enacted, &c.. That it shall be lawful for any owner of land, on 
or out of which any irredeemable rent has been charged or reserved, to ajiply l)y peti- 
tion, in the name of this Commonwealth, at his own relation, to the Court of Com- 
mon Pleas for the county in which such land shall be situated, for an order on the 
owner of such rent, to show cause why a decree for the extinguishment thereof should 
not be made on his being compensated therefor, in the manner hereinafter provided; 
whereupon the court shall cause a citation to issue to the owner of the rent, according 
to the practice of the said court ; and if he shall be unknown, or not a resident of the 
said county, the court shall cause notice to be given to him by advertisement, as they 
shall deem advisable, and the notice so given shall be deemed and taken to be actual 
service for all purposes. 

" Section 2. On the return of such citation, or after publication as aforesaid, if the 



CHAP, v:.] palajret's appeal. 1035 

The petition set forth that the relator was seised of two lots of land v 

in Philadelphia, subject to three irredeemable ground -rents, which are 
now owned bj' J. G. Palairet and others, trustees above named. ? 

The petition prayed for — 

An order and citation against the defendants to show cause why a 
decree for the extinguishment of the above-named ground-rents should 
not be made, upon their being compensated therefor, according to the ' 
terms and in the manner set forth in the above Act of Assembly. 1^-' '- "- \"M 

The answer of the defendants admitted that they were seised of the 
three irredeemable ground-rents, as stated in the petition, and submit- 
ted to the court that their title to the said three yearl}' ground-rents, so 
held b}' them in trust, could not be divested or taken away from them, 
unless the same should be required by the Commonwealth for public 
use, in exercise of her right of eminent domain; and that where no N iJuVsi 
public right is involved, and the question was merely between the said \ 

John Ganser, as owner of the property, and themselves, as the owners rwAjCvOd ' 
of an estate or encumbrance thereon, no act of the legislature could--l 
divest, or at all affect their right or title in and to the same. -'''- 

After argument the Court of Common Pleas decreed the extinguish- ', 
ment of the ground-rents. . . . 

The respondents appealed to the Supreme Court, and assigned the 
decree of the Court of Common Pleas for error. / 

owner of the land and the owner of the rent do not agree on the terras on which the *f/tv<. ^rv>^ 
former shall be allowed to purchase the rent, then the court shall cause a venire to " (/ 

issue, directed to the sheriff, requiring him to summon a jury of twelve disinterested a xwti t-^ 
freeholders of the county, who shall assess and determine the damages which the owner 
of the said rent will suffer by the compulsory extinction of the same, which shall not be ^ 1,^ ^J< 
estimated at less than twenty years' purchase thereof ; and the damages being so 
assessed, and the inquest confirmed by the court, it shall be lawful for the owner of (j^^\/\A^y^^ 
the laud to pay or tender to or for the use of the owner of the rent, in such manner as j./ 

the court shall direct, the sum so found, together with all the costs of the proceedings ; k^-^^ ^'^ 
and whereupon the court, upon due evidence of such payment or tender, shall enter a aJA/S t 

judgment that the said rent shall thenceforward be taken to be extinguished, and no f^^^'^'^^ ^ 
action thereafter for the recovery thereof shall be brought in any court of this Com- -y/ "hlu/U 
mouwealth. i^"^ ' 

" Section 3. If such rent shall be held wholly or partly by any person under any f-fix. >C A 
disability, or absent from the country, or by persons for successive estates, or on trust, ^ 
then the court shall have all such power to direct in what way the said damages, so A/X. 't'VO 
assessed, shall be tendered, paid or secured, as a court of equity could have in the aAjTIA 

premises ; and if the owner of the rent shall be unknown, then the money siiall be paid '^ ^'^ 
into court, to be invested in the loan of this Commonwealth to the use of such owner; 
and if no claimant shall appear therefor within the space of ten years thereafter, such 
loan shall be transferred by the State treasurer to the sinking fund provided by 
law. ... 

" Section 5. Tliat if the petitioner in any such case shall, after the confirmation 
of the return of the inquest, fail for the space of three months to pay or tender the 
damages and costs aforesaid, according to the directions of the court, it shall be lawful 
for the court thereupon, at the option of the respondent, to enter a judgment for the 
payment of such damages and costs by the petitioner, to be enforced by execution, as 
other judgments in the said court, or else to dismiss the petition, and vacate the pro- 
ceedings thereon at the petitioner's costs." 



1036 palaiket's appeal. [chap. vi. 

G. W. Biddle and W. H. JRawle, for appellants. 11. WJiarton, for 
appellee. 

The opinion of the court was delivered May 8, 1871, by Suars- 
WOOD, J. . . . 

It is contended that the property of tlic appellants has been taken 
in the exercise by the Commonwealth of her right of eminent domain, 
which she may exercise herself or confer upon corporations or indi- 
viduals. If so, as it is conceded that full provision for compensation 
is made, it is within the saving of that other section of the Declara- 
tion of Rights — " nor shall any man's property be taken or applied to 
public use, without the consent of his representatives and without just 
compensation being made;" Const. I'enna., Art. IX., § 10. No doubt 
the right of eminent domain, being for the safety and advantage of the 
public, overrides all rights of private property. But for what public 
use has this estate of the appellants been taken and applied ? It has 
been contended, as the preamble of the Act declares, that " the polic}' 
of this Commonwealth has always been to encourage the free transmis- 
uiM, rVV^c^lKSion of real estate, and to remove restrictions on alienation, so that it 
\ a{ iS' ^"^ ^s hereb}' declared to be, necessary- for the public use to provide 

v\ n^ ^^ method of extinguishing such irredeemable rents, having a due regard 
^^-^i^^f^Af* for private rights." (But if this is the kind of public use for which a 
man's property can be^taken, there is practically no limit whatever to the 
legislative power. It would result that whenever the legislature deem 
it expedient to transfer one man's property to another upon a valuation, 
the}' can effect their object. What that department of the government 
^-^X^ W-'\ . considers and pronounces to be the policy of the Commonwealth, the 
•A^ judicial department must accept as such. The members of the two 

, houses with the executive, are, upon all questions of polic}', the exclu- 

Jv^*^^ ■ sive exponents of the will of the people. Let us test the principle now 
y| t^ involved, by a case more extreme than that before us, but which will 
be experimentmn cruets. If we can show tliat a principle logicall}' car- 
*^*^'' ried out leads to an absurdit}', it is conclusive against it. Suppose then 

\ O I \ ^^ legislature should adopt what has been a favorite theor}- with many 

\ " political economists, that small farms are injurious to the communit}', 

prevent the full development of the agricultural resources of a country, 
and ought therefore, as speedil}' as possible, to be united and formed 
into large ones. Then reciting this to be the true policy of the State, 
let them provide that every farm of less than one hundred acres shall be 
attached to and become the propert}- of the adjoining owner of a larger 
farm at a valuation to be determined by a jurj-. When the King of 
Samaria coveted the little vineyard of XaV)oth hard by his palace, that 
he might have it for a garden of herbs, and offered to give him a better 
vinej'ard than it, or if it seemed good to him the worth of it in monc}-, 
be was met by the sturdy answer, — "The Lord forbid it me that I 
should give the inheritance of my fathers unto thee." Would any one be 
hardy enough to stand up in a republican country and claim for its gov- 
ernment a power which an Eastern monarch dared not to assume? It 



■ I' 



r ( 



CHAP. VI.] PALAIRET'S APPEAL. 1037 

was well remarked by Mr. Justice Gilchrist in the Concord Railroad Co. 
V. Greeley, 17 N. H. 57, that " even if the legislature should declare 
that an Act taking the property of A. and giving it to B. as his private 
property, was an application of it to public uses, no one would contend 
that such a declaration made that public which in its nature and object 
was private." It is not necessary to define what is a public use, — it 
is quite sufficient to say that the object as set forth in the preamble of 
this Act is not a public use within the right of eminent domain of the 
State. Other instances may be mentioned of the dangerous extent of 
this principle, should it be judicially approved, that the declaration of a 
general policy will constitute a valid public use. In the course of the 
development of the immense mineral resources of this State, it has 
become ver}' common to separate the estate in the mines from the 
estate in the surface. This has been held to be lawful — as in entire 
conformity with the established principles of the common law of Eng- 
land, which is the substratum of our system of jurisprudence. It may 
be found, however, in course of time to be a very inconvenient and 
even perilous state of things — more so than an intangible, incorporeal 
hereditament, such as a ground-rent. The legislature may adopt the 
policy of preventing it, and may well, by laws acting prospectively, 
prohibit the creation of such separate estates in the same land. But 
how as to existing estates which have been lawfully created under the 
sanction of the law and the decisions of this court, are they to be sub- 
ject to the legislative fiat? Can an Act of Assembly compel the owner 
of the minerals to surrender his property to the owner of the soil at the 
valuation of a jury ? Can a law say that twelve men shall determine at 
what price I shall sell ni}' property to another? In the consideration 
of the practical bearings of this question, we must strike out of the Act 
of 1869 the provision that the compensation to be awarded shall not be 
less than twenty years' purchase of the rent. If this is a legitimate 
taking for public use, that clause might well have been omitted. When- 
ever propert}' is so taken, all that is necessary is, that some impartial 
tribunal shall estimate the damages sustained b}' the owner, and in the 
case of an}' corporate body or individual invested with such privilege, 
that such corporation or individual shall make compensation or give 
adequate security therefor before such property shall be taken : Const. 
Art. VII. § 4. What would be the value of coal-mines and mineral estates 
if the owners could be deprived of them at an}' time to be selected ])y 
the surface proprietor, by the valuation of a jury, upon the principle 
that private property may be taken from one man and transferred to 
another, on the ground that it is the policy of the Commonwealth to 
put an end to such estates separate from the surface of the soil ? 
There are many rights of way resting on express grant — bought and 
paid for — but now very burdensome and annoying to the owners of 
the land over which they pass ; can they be blown away by the legisla- 
ture upon this same plea? I say nothing of private roads laid out by 
authority of law and paid for, nor of ways resting upon prescription 



1038 palairet's appeal. [chap. vi. 

and lapse of time, on account of the first section of the Act of April 21, 
184G, Pamph. L. 410, which gives the Courts of Quarter Sessions power 
to vacate such roads and wa^s without compensation, and the decision 
in Stuber's Koad, 4 Casey, 199, wiiicli alHrnied the constitutionality of 
that Act, except individually to express nn- surprise that the same learned 
judge who wrote the opinion in that case, when he came to decide 
Baggs's Appeal, 7 Wright, 512, did not advert to his first opinion. It 
is enough for the present purpose to say that the decision in Stuber's 
Koad is not put on the ground of the exercise of the right of eminent 
domain. That Act excepts private roads resting upon express grant, 
the evidence of which is still in existence ; and apart from the fact that 
no compensation is provided, it is evident that private propert}', 
though derived from express grant or contract, is not therefore exemi)t 
from the riglit of eminent domain. I put aside the decision in Stuber's 
Road, as resting upon grounds peculiar to itself, not affecting this argu- 
ment. One more illustration of the extent to which the principle may 
be carried will be sufficient.', A man provides by his will an annuity 
for his widow for her life, and charges it on his lands, or if he dies 
intestate, the law does the same thing on partition among his heirs. 
Here is an encumbrance of the same character as a ground-rent, which 
though not perpetual, ma}" still continue for an indefinite period, — the 
life of the widow. It is within the policy recited in this preamble — it 
is an impediment to the free transmission of real estate, and a restric- 
tion on alienation which ought to be removed out of the wa}'. If an 
act should be passed extinguishing this annuitj' of the widow on a 
valuation of her life interest — even though it were provided that it 
should not be less than the value fixed for such an annual sum by the 
annuity tables — would it not shock the moral sense and feeling of the 
entire community? Yet wherein does that case difl'er from the one 
before us except in immaterial circumstances ? 
; _ It is said that the Act of November 27, 1779, 1 Sm. L. 479, com- 
monly called the Divesting Act, by which the estates of the proprie- 
taries were vested in the Commonwealth, is an instance in which pri- 
vate property was taken on reasons of policy. That Act, like the Revo- 
lution from which its necessity arose, can be a precedent for nothing 
•in the ordinary course of legislation. It is well vindicated by its pre- 
amble, which claims that the rights of property and powers of govern- 
ment in William Penn and his heirs were stipulated to be used and 
enjoyed as well for the benefit of the settlers as for his own particular 
emolument, and that these rights and powers could no longer consist 
with the safety, liberty and happiness of the people. It is by no means 
clear that the Commonwealth, on the principles of public law, had not 
a strict legal right to all that was resumed, and that the compensation 
she made was not an act of liberality, as indeed it is declared in the 
Act, to be in " remembrance of the enterprising spirit which distin- 
guished the founder of Pennsylvania," as well as in consideration " of 
the expectations and dependence of his descendants." . . . 



CHAr. Yi.] palairet's appeal. 1039 

It has also been pressed upon us that private roads as well as lateral 
railroads are cases parallel with the Act now before us, as in them, on 
mere grounds of policy, private property is taken for a private use on 
compensation made. As to private roads, the}' originated at a very 
early period by an Act of Assembl}' of February 20, 1735-1736, Hall 
and Sellers 188, re-enacted in the 17th section of the Act of April 4, 
1802, 3 Sm. L. 512, and incorporated by the revisers in the General 
Road Law of June 13, 1836, Pamph. L. 555 ; yet it was not until the 
year 1851 that the question of the constitutionality of these Acts was 
raised before this court in Pocopson Road, 4 Harris, 15, a case from 
Chester County. The point seems to have been elaborately argued 
by Mr. P. F. Smith, for the appellant, and many authorities cited ; but 
Mr. Lewis, for appellee, contented himself with citing Harvey- v. 
Thomas, 10 Watts, 63. In the sliort opinion per curiam, affirming the 
proceedings, no notice whatever was taken of the point. In some of 
our sister States similar Acts have been held to be unconstitutional. 
Taylor v. Porter, 1 Hill, 140 ; Clack v. WJdte, 2 Swan (Tenn.), 450; 
Dickey v. Temiison, 47 Mo. 373 ; but their constitutionality was well 
vindicated in Hickman's Case, 4 Harrington, 580, in which it is said 
in the opinion of the Supreme Court of Delaware : " It is a part of the 
system of public roads, essential to the enjoyment of those which are 
strictl}- public ; for many neighborhoods as well as individuals would 
be deprived of the benefit of the public highway, but for outlets laid out 
on private petition and at private cost, and which are private roads in 
that sense, but branches of the public roads and open to the public for 
the purposes for which thev -are laid out." As to lateral railroads, the 
constitutionality of the Act of May 5, 1832, Paraph. L. 501, was even- 
tually' sustained not upon the ground assumed in Harvey v. Thomas, 
10 Watts, 63, but upon the better reason, that the public had the use 
of them for the purpose for which they were used. Hays v. Risher, 8 
Casey, 169 ; Brown v. Corey, 7 Wright, 495 ; Keeling v. Griffin, 6 
P. F. Smith, 307. It is not necessary to examine those cases in wliich, 
in some of our sister States, Acts authorizing mill-owners to flood the 
lands of an upper riparian proprietor, on compensation, may have been 
held good. " They were designed," saj's Chief Justice Shaw, "to pro- 
vide for tlie most useful and beneficial occupation and enjo^'ment of 
natural streams and water courses where the absolute right of each pro- 
prietor to use his own lands and water privileges at his own pleasure 
cannot be fullv enjoyed, and one must of necessity in some degree 
yield to the other." Fiske v. Framiiigham Man. Co., 13 Pick. 68; 
Hazen v. Essex Co., 12 Cush. 475. 

I pass from the argument that this Act is an exercise of the right of 
eminent domain. I have given more particular attention to it, because 
it is evidently the ground upon which the lawmakers themselves placed 
their right to pass the act in question. That respect which is due by 
this court to tlie co-ordinate branch of government, made it proper that 
this point should be fully examined and discussed. 



1040 palaiket's appeal. [chap, yl 

If this Act cannot be sustained on this ground, then it seems clear 
that it impairs a contract, and is therefore prohibited as well b}- the 
Constitution of the United States, Art. I. § 10, as by the Constitution 
of this Commonwealth, Art. IX. § 17. . . . 

Upon the whole, then, we have come to the conclusion that the Act 
of April 15, 1869, is unconstitutional and void. The particular provis- 
ions of this Act seem just and reasonable ; but they are not features 
which affect the character of the Act as contrary to the fundamental 
law — the lex legum. We are bound to look at the principle upon 
which it is based, and its logical and necessary consequences. As it 
appears to us, it would overthrow the most valuable barriers which ai'e 
reared against legislative tyrann}', and make all propert}- to be held b}' 
a most insecure and uncertain tenure. Tliis Act may be but an enter- 
ing wedge. Its salutary and conservative restrictions may be repealed 
hereafter without touching its principle, upon which rests the question 
of its constitutionalit}', and ever}' man will tlien hold his ground-rents, 

— and the same provision maj- be extended to other kinds of property, 

— upon the will of a jurj- in determining for what price he sliall be 
compelled to sell them. Judgment reversed. 

Agnew, J. This case has been argued as if the ground-rent owner 
had been deprived of his property by a taking for private use, contrary 
to the Constitution of the State. In my judgment this is not the char- 
acter of the law — it is remedial rather than aggressive. . . . 

It does not seek to take the ground-rent from its owner for public or 
for private use, but simply to tiansmute an annual sura of money into 
its equivalent sum of capital, in order that the impolitic, perpetual 
union of two estates, growing from a single stalk, may be separated 
for the welfare of the State. Are not the powers of government ade- 
quate for this? In thinking and speaking of the power of eminent 
domain, we are very apt to be controlled in our thoughts by tlie com- 
monest mode of its exercise, to wit, the taking of land for public use. 
But this is not its only form. Domain here means dominion, and it is 
eminent because of its high control. This high power or dominion of 
the State is not confined to a single mode of exercise, though seldom 
seen or thought of in others, but is to be found in all those forms 
grouped under the name of the police power of the State — a power 
exercised for the welfare of the people, and rendered necessary by the 
circumstances which affect the common good. ... I think the law 
can be impugned only on the ground that it impairs the validity of a 
contract ; and to tliis extent I agree tliat it is not competent for the 
legislature to sever the ground-rent from the land to which it is attached 
by its contract relation as between the parties to the contract and their 
immediate privies, to the extent that it is in the power of men to create 
a perpetuity, but no farther. Beyond tliis, to carry the sanctity of a 
contract is to make the act of two individuals rise higher than the 
powers of government and the interests of the State, and to dominate 



CHAP. VI.] LYNCH V. FORBES. 1041 

both the power of the legislature and the rights of the people. It can- 
not be that the contracts of a past generation are beyond the reach of 
law for a proper puipose, a purpose not to destroy, but to change, to 
suit the interests of the State. Otherwise a contract would stand on a 
higher platform than that of the people to change their form of govern- 
ment. A change of the State constitution would effect nothing, for 
the contract standing on the higher ground of the Federal Constitution 
would still claim its protection, and thus descending on unborn genera- 
tions, would cling like the fatal shirt of Nessus, until escheat or an earth- 
quake should end it. I think, ther efore, that the legisl ature can sev er 
the rent from the land by a fair valua tion and_p ayment in money in the 
case o f a gro u nd-ren t deed a l l of w hose parties are d ead a n d more~t han 
twent y-one ye ars have ela p sed s in ce the death ^fthe l ast su rvivor. But 
as these facts do not appear in this bill and answer, the judgment should 
be reversed.^ 



LYNCH V. FORBES. 






Supreme Judicial Court of Massachusetts. 1894. x.^J.va.<3 /^/lyvi^kX^ 

{SI North Eastern Rep. iZ7.-\ f^ tcL-l/^ ^jo.^^^ ^' 

Report from Superior Court, Norfolk County ; Justin Dewey, Judge. JiyvutX<v^ "^ 
Case reserved from Supreme Judicial Court, Norfolk County ; James 
M. Morton, Judge. /c^^XUxa/w^ 

(PU . e^vUi 

1 As to a public purpose, see supra, pp 901-916 ; infra, pp. 1209-1257. ^ . i^ 

In Savantiah v. Hancock, 91 Mo. 54 (1886), Black, J., for the court, said : " Section ^JUaX ^y-^-XT^'' 
20, Article 2, Constitution of 1875, provides ' that, whenever an attempt is made to take _ . / ^kX^ 

private property for a use alleged to be public, the que stion whe ther the contemplat ed c.i-^'-^^^^ <:s, 
use be r e ally public s hall be a judicial question , and, as such, judicially determin ed, /^a^v/vX ^^ 
without regard^to any 'legislative assertion that the use is public' As this is a new ar-^yi' 

section, not found in any of the former constitutions of this State, it may be well tO' '^^-^^^ ^jax^ 
^«i look to the state of the law before its adoption. ... It will thus be seen that the ques- ^,^,,^,7^ [aa*^ 
J tion whether the use for which the property is about to be taken is a public use, / ^ /zix-a.^ 
' -^ has already been regarded, in this State, as a judicial question, a question which the Ia^<^^^ „ 

S courts would for themselves decide. Notwithstanding this, it is undeniably true, that ,^j,.^ n^AAA^^-^ 
K^ the courts were disposed to defer somewhat to a legislative declaration upon the sub- jL.iJi i 

^Vs^ ject. Hence it is said, if the legislature has declared the use, or purpose, to be a ''''*' ■'*^'^*-"iy 
<i public one, its judgment will be respected by the courts, unless the use be palpably // LuaJ^-'*'^ 
>^ private. Dill., Mun. Corp. (3 ed.), sec. 600; Mills on Em. Dom., sec. 10, is to the same ^^(j^^'^ Ji^ 
' >^ effect. Now the constitutional provision of this State, before quoted, makes it the duty /^i,^^^''-'*''^ 
V '^f the courts to determine whether the use be a pul)lic use, or not, without any regard -jyL. o^aA^' 
' >f to a legislative assertion upon the subject. They are freed from the influence of any "^ / 

y expressed judgment of the legislature in that behalf, and enjoined to determine the ^j ^ p(_/A. i/^ 
I question, wholly regardless of what that branch of the State government asserted upon ~tJ^\^ H 

s, the subject. The method, however, by which the courts determine whether the use is ^t^"*-^^^'^'^^ ■ 
\. a public use, remains the same as before. Neither the Con.stitution, nor any statute, '' ^ja/CJ^ I- 
requires that question to be submitted to a jury. The courts will decide the question ''•''^.^-X-v "j 

without the aid of a jury." So Consts. of Col., Miss., and W ashingt on. — Ed. Ay'^ S/^ /■Jz^^'^ 

VOL. I. — 66 *^ fl/'U ■ ^ xH'^ • 



i4^^ 



1042 LYNCH -y. FOKBES. [CIIAP. \a. 

Ac tion b}' Daniel A. Lynch against Fayette F. Forbes, for tr espass 
to real estate . Defendant justitied under Acts 187 2, c. 343, and Acts 
1888, c. 131, a uthorizing the town of Brdokline to take land for t he 
erection and m a intenance of waterwork s, a nd proved tiiat the de- 
fen dant was the servant and agent of , a nd acted under the directio n 
of, the select men and w ate r board of the town, and was the super- 
int endent and engineer of its water works. The court refused to admit 
the evidence offered by the plaintiff, or to submit the evidence therein 
referred to to the jur}', but did rule that the question as to whether or 
not the town had exceeded its authority', and taken more land than it 
was authorized to take, or an}' land not within the authoritv given by 
said Acts, could not be tested in this suit ; tliat the defendant had 
shown that the town had conformed to the formal requirements of the 
statute as to method of taking land, and that defendant's justifica- 
tion was complete, — and directed a verdict for the defendant, and, at 
request of the parties, reported the case to the Supreme Judicial Court 
for determination. Judgment on verdict for defendant. 

Bill in equity by Daniel A. Lynch against the town of Brook line, 
p raying that tlie acts of the town in taking plaintiff's land be de creed 
t o be void, and for other relie f. The case was reserved, at the request 
of the parties, for the full court, upon the bill and demurrer. Bill dis- 
missed. 

Geo. Fred Williams and G. W. Anderson, for plaintiff. M. & C. 
A. ■ W-illiams, for defendant. 

Morton, J. The principal questions involved in these two cases are 
the same, and, b^' agreement of parties, they were argued, and are to 
be considered, together. The plaint iff contends, i n both cases, that th e 
ta king was unlawfu l ; and , at the trial of the case in trespass, he 
offere d to show that prior to the taking in question the town had t aken 
al l the land that it neede d, a nd that this was not suitable and was not 
n ecessary, useful, or proper, for any of the purposes named i n the 
Act s under which it was taken. The plaintiff concedes, what is well 
settled, that the question whether a necessity exists for the taking of 
private property for a public use is a legislative, and not a judicial, 
one. He does not deny that the taking of land for waterworks and a 
water supply for the general benefit of the inhabitants of a city or 
town is a taking for a public use ; bu t he contends that where, as her e, 
t he authority is given " to ta ke .. . . any land or real estate necessary ," 
etc.. the_question of necessity, so far as it relates to the land actual ly 
t aken, i s one of fact, to be settled by the court or jury. Such has n ot 
b een deemed to be the law in this State, t ho ugh it is said, in a work of 
e stablished authority, that the Constitutions of some of the Sta te s 
require it to be don e. Lund v. Nexo Bedford, 121 Mass. 286 ; Eastern 
R. Co. V. Boston & M. B. Co., ill Mass. 125 ; Borgan v. Boston, 12 
Allen, 223; Talbot v. Hudson, 16 Gray, 417; Coolc}', Const. Lim. 
§ 538, note. There is no constitutional right on the part of the lan d- 
o wners, in this State, to have the question of the necessity or ex pe- 



CHAP. YI.] CAKY LIBRARY V. BLISS ET AL. 1043 

di encY of the taking in any particular instance submitted to a court o r 
jury . Holt v. Somerville, 127 Mass. 411. In the absence of any pro- 
vision in the statutes submitting the matter to a court or jury, the 
de cision of the question lies with the body or individuals to whom t he 
St ate has delegated the authority to ta ke. They have the same pow er 
as the State, acting through any regularly constituted authority, wo uld 
have. Fall River Iron Works v. Old Colony & F. R. Co., 5 Allen, 
226 ; Peo2yle v. Smith, 21 N. Y. 597 ; Boom Co. v. Patterson, 98 IT. 
S. 406 ; Raihimy Co. v. Brown, 9 H. L. Cas. 246 ; Leiois v. Board, 
40 Ch. Div. 55 ; Coole}', Const. Lim. § 538. S ee Lewis. Em. Pom . 
§ 238, note, for collection of cases. Of course, neither the State nor i ts 
dele gates can take, under the guise of eminent domain, the property of 
A . for the purpose of conveying it to B., or for a purpose clearly in 
e xcess of, or at variance with, the ]Jowers gran ted. No question of 
good faith, however, arises here, and the purpose for which the land 
was taken is within the scope of the Acts authorizing it. The tes ti- 
m ony that was offered was therefore rightly excluded, as was also that 
offe red for the purpose of showing that the town was obtainin g water 
fr om land taken in February, 1889 , and that a part, at least, of the 
wa ter thus taken did not come from the river by percolation. The 
validi ty of the taking now in question does not depend on the con duct 
of t he town in regard to another and an earlier tak ing. 

The result is that in the first case the entry must be, " Judgment on 
the verdict," and, in the second, "Bill dismissed, with costs ; " and itr 



tiaU/A 




is so ordered. / j ^\{l.t. H 

In Carv Lihrarxi v. Bliss et al., 151 Mass. 364 (1890), the town o f -^^v ^^t'fi^ 
Le xington, in accepting certain propositions from Mrs. Maria G ary for " 

end owing a free public library upon certain terms, i f it should be estab - . 
lis hed by that town, proceeded to establish the library, and the trust ees - ■ ■- 
re ceived certain gifts from her and other persons for the benefit of th e -^p^,^/(^ 
in stitutio n. Several years afterward s, and after Mrs. Gary's death, a - *-• 

s tatute was passed purporting to incorporate a new body (the plaintiff), ^'^^ 

f or car ryin g out the same purpos es, with the assent of the town of Lex- ^ ^ 
ington , giving it power '^ to take and hol d . . . t he funds and proijert y 
now he ld by the trustees of Gary Library, " &c. The statute went on to 
provide that " any person sustaining damages by such taking may have ^vwrwotM 
his damages assessed," &c. A fter holding this statute unconstitutional, yjaa.wv^x^a^v^'i^ 
as impairing the obligation of contracts, th e court (Knowlton, J.) said : • jl^ 

"As if apprehensive that the statute, in the parts already considered, V j— 

was in conflict with the Gonstitutiou, the framers of the Act embodiedt^^^ '-'^ ^ 
in it a provision for taking the property under the right of eminent L^^La/*] jp 
domain. Of this iM'o.perty, fi ft een hundred dollars w as money d eposited / '^y d ^ 
i n a savings bank ; a nd th ere were two promi ssory notes of the town '^^ j^^ ^ 
of L exington, amounting to eleven thousand dollars, bearing interest, 4^My ^,'ir 
a nd payable to the t re asurer of the board of trustees. i-:,,uJiJU<. iiUUyh-O'^-^ 






•u^-xC' 



1044 CAKY LIBRARY t;. BLISS ET AL. [CHAP. VL 

' < P roperty can be taken in this wa^' onl^' iu the exercise of tiic para - 
niount ri<>lit of the government, founded on a pubhc necessit}'. The 
question has been somewhat cons idered whether that necessity- can ever 
extend to the taldng^f_ monex. In Burnett v. Sacramento, 12 Cal. 
76, Mr. Justice Field, now of the Supreme Court of the United States, 
says : ' Money is not that species of property which the s overeig n 
authority; can auth orize to be taken in the exercise of its right of emi- 
nent domain . T hat right can be exercised only w^ith reference to othe r 
pr operty than money, for the property taken is to be the subject o f 
co mpensation in money itsel f, a nd the general doctrine of the authori- 
ties of the present day is, tha t the compensation must be either made , 
o r a fund provided for it in .ndvancc' 

" In Cooley on Constitutional Limitations (4th ed.) 656, a similar 
opinion is expressed, and language to the same effect is found in 
People v. Brooklyn, 4 N. Y. 419, 424. S^There may be a great public 
exigency, as in time of war, which will authorize the government to 
take money in the exercise of this right. ] 3Iitchell v. Harmony, 13 
How. 115, 128; Williams v. Wilkermari, 41 Misso. 484; Yost v. 
Stout, 4 Cold. 205. But it cannot truly be said that the takin^j; o f 
money by a priva te corpo ration, created to administer a public charity, 
is a taking of property for public use . The money taken must be paid 
f or in mone y. It cannot be taken unless it is paid for in advance, or 
sufficient provision is made for immediate payment, which provision 
must be in money or in that which is deemed its equivalent. There 
ca n be no necessity for such a taking . In its nature it is not a taking 
f or a public use. T here can be a taking for a public use under th is 
p ower only when, in the nature of the case, there is or may be, a pub - 
li c necessity for the taking . T here cannot be such a necessity in favor 
of a private corporation, which must provide money to |?ay for money . 
F or this reason, we are of opinion that the legislature could not author - 
iz e the taking of this property by the petitioner . 

" The only statement of the use to which the property is to be put 
is found in the provision of the St. of 1888, c. 342, § 5, that it is 
' to be held and applied by the corporation in the same manner as if 
held by said trustees.' The question arises, whether takin ^ g property 
fro m one party, who holds it for a public use, by another, to hold it i n 
the s ame manner for precisely the same public use, can be authonzcd 
under the Constitution . Can such a taking be founded on a public 
necessity ? It js u nlike taking for a pubhc use property which i s 
already devoted to a different public use. Th ere may be a necessity fo r 
that. In the first case, the property is already appropriated to a publi c ^ 
u se as completely in CA-ery particula r a s it is to be. C an the taking be .'^ 
fo und to be for the purpose which must exist to give it validity ? In.>^ 
every case it is a judicial question wdiether the taking is of such a<^j 
liature that it is or may be founded on a public necessity . If it is of , 
tliat nature, it is for the legislature to say whether in a particular ca se 
t he necessity exists ^ We are of opinion that the proceeding authorized 



CHAP. VI.] CAST PLATE MANUFACTUREKS V. MEREDITH ET AL, 1045 

by the statute was iu its nature merely a transfe r of pro perty from one 
party to another, and not an appr opriati on of property to public use , 
nor a taking which was, or which coul d be found by the legislature to 
b e, a matter of public necessity . West Miver Bridge v. Dix^ 6 How. 
507 ; Lake Shore S Michigan Southern Railway v. Chicago & West- 
ern Indiana Railroad^ 97 111. 506 ; Chicago & Northivestern Bail- 
way V. Chicago & Evanston Railroad, 112 111. 589. 

" For these reasons, a majority of the court are of opinion that the 
St. of 1888, c. 342, is not in conformity with the Constitution of the 
United States. It follows, that the petitioner has no title to the prqp- 
ertv in the hands of the trustees of the Gary Librar y, and that the 
petition must be dismissed. Fetition dismissed." ^ 



THE GOVERNOR AND COMPANY OF THE CAS T PLATE 
MANUFACTURERS v. MEREDITH et al 



King's Bench, 1792. 

[4 Durnf. Sp East, 794.] 



This was an action upon the case, in which the plaintiffs declare d, i^uaH "^^^^ 
That before and at the time of committing the grievances mentioned, ^ c^jU^i 
t hey were a n d from thenceforth hitherto have been and still are pos- -*"^-^^'*^^ >^ 
sessed of a certa in messuage, &c. and a certain yard or piece of land, y^^ juaaA^^ 
with divers (to w it) three warehouses erected and built thereon , si tuate ''.- f '^*Jjl^ 
on the nort h side of High-Ground Street, in the parish of Christchurch 1/ r- 

i n Surr ey ; and al so of a certain entrance or gateway leading from th e Ai/'^^'^'^^'^ 
stree t through and under the messuage into the yard or piece of lan d ; j^ qJ^^ A ^u^ 

1 In Hammett v. Philadelphia, 65 Pa. St. 152 (1870), Sharswood, J., for the court, 
said: "It has been said by Judge Field, of California, now on the bench of the 
Supreme Court of the United States, tliat ' money is not that species of prop erty 
whic h the sovereign authority can authorize to be taken in the exercise o f its rig ht of 
emment domain. That right can be exercised onl}- with reference to other property 







t han money, for the~property take n__is_tOibe the subj ect of compensation in ra oney J^i^aju , 

itself ; and the general doctrine of the authorities of the present day is, that the com- ^/i ^ ^ t 

pensation must be made, or a fund provided for it in advance.' Burnett v. Sacramento, (?{/ -fr 

12 Cal. 76. I am not able, and do not feel disposed to enter the lists upon such a ques- . /»aa. 

tion, but it does seem to me that there may be occasions iu which money may be taken A^^^'^ 

by the State in the exercise of its transcendental right of eminent domain. Such (J^j^JC *J>,t ^^ 

would be the case of a pressing and immediate necessity, as in the event of invasion - ' 

by a public enemy, or some great calamity, as famine or pestilence, contributions could /(/l/v^ y*- 

be levied on banks, corporations, or individuals. The obligation of compensation is _^ aAa.i^ " 

not immediate. It is required only that provision should be made for compensation in 14^ % 

the future. Judge Ruggles confines the right to exact money by virtue of the eminent ^ (J ^fZfj^, 

domain to the case where it is for the use of the State at large in time of war. The l/^^ 

People ex rel. Griffin v. Brookli/n, 4 Comst. 419. I cannot see tliat there is any such Ay^ixf' ^ ' 

necessary limitation. The public necessity which gives rise to it, prevents its being " 

restrained by anv limitations as to either subject or occasion." /? - /i^ty^/^ tJ^^ '^ 

Compare People v. Mayor of Brooklyn, 4 N. Y. 419, 424. — Ed. /ml^u.xA''-- (^^ 

cvuO^-^ V^A -L-^ tri^ ,^..AJ^< — ^^ -^^^^^^ 



,1,^^, — J -^ - — — • 

^ 1046 CAST PLATE MANUFACTUKERS «;. MEREDITH ET AL. [CHAP. VI. 

Y' ' '^^^^ and which said entrance during all the time aforesaid, unti l, &c. was 

xov v^.-»^ used and o f right, &c. by the plaintiffs, for the passing and repassi ng 

of carts, wa gons, and other carriages, in the service of the p laintiffs 

.K^j^a..,tM^^ jj^^Q jjjjfl Q^,^ o f the yard or piece of land for the more convenient a nd 

{jt: X^ benefici al enjoyment and occupation of the ^ard, and of the wareho uses, 

•H A,^ &c. ye t that the defendant s on, «&;c. wr ongfully and iujuriously raised , 

'^^^ , &c. the said street, and the soil and pavement thereof, before the said 

df^ /Li>^ pf-i!^ entranc e, &c. by pla cing great quantities o f wood, & c. upon th e street, 

f ^ J &,c. th ere, to a much gre ate r height than the street or the soil and 

^yi^ A/C/M^ pa vement thereof were before raise d, (to wit) to the height of four feet 

M^ /wOH^ more, &c. and so close and near, &c. to the entrance, that it was and 

' J ^ still is thereby greatly blocked up and obstructed, insomuch that the 

dXAJt CuuA ^jm-js^ ^(.^ employed in the service of the plaintiff's have been and still 

MaJJu^ . are thereb}- prevented from passing and repassing through the enti'ance, 

/ and the plaintiffs are thereby' much injured, &c. 

C/iMx C4fv^ rj^jjg defendants pleaded the general issue ; and at the trial at King- 

-{A/i^cctivM <^ ston before Gould, J. a verdict was found for the plaintiffs with £150 
/ '. damages, subject to the opinion of this court on the following case. 

n^^'^^^^^ The plaintiffs were possessed of the premises mentioned in the decla- 

" ri~ Co^^^ ration under a lease for ninety-five years from Christm as, 1777. The 
wareho uses standing in the yard have been used by them since the y 
ha ve been in possession for the depositing and keeping of plate- glass, 
Lo-tK' "^^^ w hich is a commodity of large valu e ; and ver}' brittle in its nature. 
The gatewa y in question bef ore the committing of the grievance wa s of 
pj^^yt^ aL£j-l\^Q height of twelve feet and one inch, f rom the old pavement, wit h 
iX£y CaJf^ w hich the street in qu estion had been formerly pave d ; and th e gateway 
^~' was used for the purpose of admitting wagons into the yard, load ed 

wi th plate-glass , that they might be unloaded at the door of the wa re- 
ho uses . The d efendants, who acted as pavers under the authority of 
the c ommissioners, named in an Act passed in the last session, for p av- 
ing, &c. Upper-Ground Street in the parish of Christchurch in Surrey, 
and certain other streets, &c. raised^ the pavement two feet and 
on e inch higher than the old pavemen t. The g ateway in the centre o f 
t he arch is only ten feet high from the level of the new pavement, s o 
that t he height of the gateway is now reduced two feet and one inc h. 
The defendants soon after the passing of the above Act of Parliament, 
and before the commencement of the present action, in order to execute 
the powers and provisions of the said Act, proceeded to take the level 
of the street, in order to its being paved ; and for that purpose they 
caused a straight and halt line to be drawn in the front of the houses in 
the street, showing the level and height of the new intended pavement. 
And about three months afterwards the defendants laid the ground 
according to such level and agreeably to the line so marked out, and 
paved the same, which now makes a regular inclined plane with a decli- 
nation of only one foot of perpendicular height in seventeen feet of 

1 By sect. 13, the commissioners were empowered to cause the said street, &c to he 
paved, repaired, raised, sunk, or altered, &c. 



f^ l^o 



CHAP. VI.] CAST PLATE MANUFACTURERS V. MEREDITH ET AL. 1047 

Ieno"th ; and it would not be effectual if done in an}' otlier way : whereas 
in the original state the declination was about one foot in twelve, whic h 
was a ver}' unsafe declivity for horses and carriages going up or^qwu. 
T he line so made was necessary and prope r ; an d any alteration of th e 
inclin ed surface of the street less material was not sufficient to rend er 
the street safe for carriages passing throu gh. In order to admit car- 
riages as heretofore it will be necessary to take down the arch an d 
h eighten the sam e. The case tlien stated, that by these means the 
plaintiffs are deprived of the use of the gateway as they had it before, 
and wagons and other carriages are prevented passing to their ware- 
houses, and are obliged to be unloaded in the street. It was also 
proved that the plaintiffs had given notice to the defendants, and also 
to the commissioners, that unless the buildings were so altered as to 
enable the plaintiffs to enjoy their warehouses as they did before the 
Act passed, an action would be brought against them for a satisfaction 
in damages. 

Garroiv, for the plaintiffs, r elied upon the case of Leader v. 3foxon 
and Other s,'^ which was directly in point with the pres ent ; an d estab - 
li shed the principle, that the commissioners under such an Act as th e 
present are liable to make good to individuals any actual damage sus - 
ta ined by their ac ts. And this is founded in good sense, for it could 
never be supposed to be the intention of the legislature that the avenue 
to one man's house should be blocked up for the convenience of his 
neighbors without some compensation. 

Fielding, contra, was stopped by the court. 

Lord Kenyon, Ch. J. If this action could be maintained, every 
tu rnpike Act, paving Act, and navigation Act, wou ld g ive rise to a n 
in finity of actions. If the legislature think it necessary, as they do in 
ma ny cases, they enable the commissioners to award satisfaction to th e 
i ndividuals who happen to suffe r. But if there be no such power th e 
p arties are without remedy, provided the commissioners do not excee d 
t heir jurisdiction. But it does not seem to me that the commissioners 
acting under this Act have been guilty of any excess of jurisdiction. 
S ome individuals suffer an inconvenience under all these Acts of P arlia- 
ment ; b ut the interests of individuals must give way to the accommo - 
dati on of the public. I doubt the accuracy of the report of the case 
cited from Wils. ; for I cannot conceive that the judges, in considering 
whether or not the action could be supported, laid any stress on the 
enormity of the damage sustained by the plaintiff. That circumstance 
might have induced the jury to increase the damages, if the action could 
be supported, but could not of itself give a cause of action : that must 
have depended on the question, whether or not the commissioners 
exceeded their jurisdiction. 

BuLLER, J. Th e question here is, whether or not this action can be 
maintained ? an d I am clearly of opinion that it cannot, because a par- 

1 3 Wils. 461, vid. 2 Bl. Rep. 924, s. C. [See ante, 673, n. — Ed.] 



1048 V^ ^\^iJ. CALLENDER V. MARSH. [CHAP. VI. 

I 
ticular remedy is pointed out by the Act.^ If ttiere bad been no claus e > 

in tlie Act empowering tlie commissioners to give satisfaction to the party >^ 
gri eved, I am by no means satisfied that, on the broad priuciijie stated b y 'J^' 
t he plaintiffs' counsel, any action could be maintained. There are man)- yj^ / 
cases in which individuals sustain an injury, for which the law gives no(^ \n 
action ; for instance, pulling down houses, or raising bulwarks, for the y\ 
preservation and defence of the kingdom against the king's enemies. >^ Y 
The civil law writers indeed sa}', that the individuals who suffer have a ^y 
right to resort to the public for a satisfaction : but no one ever thought c 
that the common law gave an action against the individual who 
pulled down the house, &c. Thi s is one of those cases to which the 
maxi m applies, salus x>opy'li suprema est lex. I f the thing complai ned 
of were la wful at the time, no action can be sustained against the pa rty 
doin g the ac t. In th is case express power was given to the comm is- 
sion ers to raise the pavement ; and, not having exceeded their po wer, 
thejr are not liable to an action for having done it . 

Grose, J. The clause in the act which empowers the commission- 
ers to award satisfaction, is decisive against this action. 
~\, ^vA r Fostea to the defendants. 

^ ^ CALLENDER v. MARSH. ;3^^^^_^i^^ 

^ Supreme Judicial Court of Massachusetts. 1823. yu|^^*^;»^_S^±^ 

.J^^J^CU^c^ [1P.CL 418.1 V'.^v^^U^^ 

j4. /^ This was an action of trespass on the case for digging down the tty^ 
■" ^"Y^ streets by the plaintiff's dwelling house, in Boston, and taking away/^*~AA^ 
u t<j -^^^ the earth, so as to lay bare the foundation walls of the house and \Ji_f^ 
trxj^ XivjL^ endanger its falling ; in consequence of which the plaintiff was obliged, ^2_^,^^,^ 
^AA/vetjttLvv*^ at great expense, to build up new walls, and otherwise secure the house, i^^ 

/dA. i-t iJ^ ^^^ render it safe and convenient of access, as before. _^ 

■aJJ/^ *-^ T he defendant pleaded the general issue, and filed a brief stateme nt,'^'^^^^' 

A/iX. '=^Mt- p ursuant to the statute, in which he set forth his appointment and 
■^■^^oja-aM- Q ualification as surveyer of th e h ighways for the city of Boston, th e 
.Z^^ c ondition of the street, and the purposes for which the acts complained 

iT-^ of were do ne. 

^ . j^i/^)^ At thg tj-ial before Parker, C. J., the plaintiff proved the digging 

roA -^>' down of the streets, as stated in his declaration, and gave evidence of 
,^^^, ^^;^ the trouble and inconvenience which he had suffered in consequence. 
■ A " L^^^ house was built about twenty years ago, the streets having been 
^^Aa.^ ^previously laid out. 

.^/- ^/u-^AAA/^ J ^^^ 46th section authorized the commissioners "to make any allowance, or pay 

>.^ a,^OL-UA^ part of the expenses incurred by the proprietors of any such house or building, in re- 
,c moving any of the obstructions, nuisances, or annoyances, as aforesaid, in such cases 

.Avtcvv£^ XM»- ^hgre the pr oprietors should or might be materially injured on.account of the pave- 
^j^ meut being necessarily raised or lowered, and whereby such cases might be particu- 

> larly entitled to some compensation." 



CHAP. VI.] CALLENDER V. MARSH. 1049 ou.^>^Xio^^<^ 

The defendant proved, by the certificate of the city clerk (which ^^ ^^a^o'^^ 
evidence was not objected to), that he was appointed one of the sur- o-C tituJci Oi/\ 
veyors of highway's on the 13th of Ma}', 1822, and that he was sworn e, ^^ 

into oflSce on the 17th of the same month. Ko limits were assigned toC/ ' -^'^z ^^ 
the surveyors respective!}' by the city government. T he 'defendant al so /ix^U-ixax. - 
proved, that he did the acts complained of in virtue of his suppos ed n^AJi.xJt -^^ 
authority as survey or. Before he began the digging, he consulted with /ll^/in f) /^^ 
Rahco ckf the only other acting surveyor at the time, and after t he . [) u 
ap pointment of Cotton , with him ajso ; having begun the work before Lu<i^ ^ 
Cotton was appointed. He also proved, that for a year or two pre - -hu-Aj^ nuun 
ceding, pro positions had been made to the selectmen for levelling an d /^i*^t ^ 
di gging down the stre ets, a nd that plans and levels had been taken for q^cvc*^ *^ 
t hat purpose, with a view to red u ce the slop e, which was so steep as V^^Jij ^^ 
to render it difficult to pass up and down the streets with carts and ca r- « - ' i 
riages. No order of the selectmen or of their successors , the mayor c^^^ QJ]' 
and aldermen, on this subject was offered in evidenc e, nor did it appea r ^^i^Jf-f^^ fT 
th at either of those boards had acted thereon, in any other manner tha n ~io.4raji aJ^ 
b y appointing a committee to take care of the streets . This commit- ^^ f^ ttui 
tee was frequently present during the performing of the acts com- ^^ _ / 
plained of, and approved of them ; and the bills of some of the work- ^*'^ ^ 
men were rendered to the city officers and by them passed. AiA-vj^*^^^" 

A verdict was taken for the plaintiff, subject to the opinion of the \xjd^°^^^ 
whole court. t^^Jlo^' 

J. T. Austin, for the defendant ; Davis, Solicitor General, and Hand, 
for the plaintiff. 

The opinion of the court was delivered at the following November 
term, by 

Parker, C. J. . . . The counsel for the plaintiff have, with laudable 
diligence, looked into the civil law, to see what course was pursued in j^.t(juuJL ^ ^ 
ancient times respecting public roads, presuming that on a subject of y, 

such common concern the principles adopted by all governments in all ^'^-^^^ M3 
times would be nearly the same ; and although our own statutes are to yu/d« «^*<^^ 
be the sole guide of decisions in matters altogether of a local nature, ^^^^^ ,,cw^ 
it is well enough to see whether any information can be drawn from so 
ancient a source, in regard to the use and meaning of terms employed ^^^ ^^^^*^^^ 
by our own legislature. j^aa*-''^-^-''^ 

The general care of the roads was in the ^diles ; who probably ^-,(^a_v.---*^ 
exercised the power and jurisdiction which is given by our statutes to i^^^ 

the court of sessions. These appointed subordinate agents for the 'I 

care of roads within the city, who were called quatuor viri from tiieir (Z^ <^ A^^ 
number ; and to the duum viri was given the care of the roads without y ixA^i 
the city. These officers probably answered to tlie character of our ^^-"^^ q 
surveyors. The first were called gjm^Mor mn, w\*s urhanis curandis ; Jia-<^<^ *- 
the second, duum viri, viarum publicarum extra iirhem curatores. j^fiui^l ^ 
Their duty was among other things adrnquare, to level the highways, ^^^jj_^j^^^ 
and to construct bridges when necessary. Each individual citizen was 
obliged to make certain repairs near his own house, as our citizens are 't'^rvA- /2^ 




/7j^J^ 1050 CALLENDER V. MARSH. [CHAP. VI. 

^^^ '^'^ obliged to make and keep iu repaii- the sidewalks. The interdict which 

x'PuaJo- >vas quoted iu the argument, viz. Interdictuni hoc perjietuo dabitur, et 

' ^ omnibus et in onuies, &c. related to private persons, not to au}- of the 

/ above-named public officers. Heinecc. sec. Ord. Fund. part. 1, § 74; 

D. 1, 2, 2, 30*, B. 43, tt. 10, 11, 19, et uotis. 

No inference can be drawn from these provisions in favor of the 
plaintiff in the present action, as it does not appear that an^^ means 
were provided of idemuifying those who might be put to charge or 
expense in consequence of the necessary repair of the highway's ; nor 
does it appear that the levelling a way already laid out was a subject 
of adjudication on which persons bordering on the road were parties, 
having a right to claim compensation. And indeed if such were the 
provisions of the Roman law, it is difficult to perceive how the}- could 
be introduced into ours by an}^ other power than the legislature. We 
have only to look at our statutes, and we think they explicitly and 
clearly give the power to the survej'ors, which was exercised b}'' the 
'i/i. defendant in the case before us. 

But it is said, if such be the construction of the statute, the legisla- 
ture exceeded its constitutional powers, and that the defendant there- 
fore cannot justify under the statute. This objection is founded upon 
the last clause in the 10th article of the Declaration of Rights, which 
provides "that whenever the public exigencies require that the prop- 
erty of an}' individual should be appropriated to public uses, he shall 
receive a reasonable compensation therefor." 

There has been no construction given to this provision, which can 
ext end the benefit of it to the case of one who suffers an indirect o r / 
c onsequential damage or expense, by means of the right use of prop- // „ 
erty alreadv belonging to the public . It has ever been confined, i n 
j u dicial api^lication, to the case o f prope rt y actually taken and appro - 
priated by the governmen t, f Thus, if by virtue of any legislative Act 
the land of any citizen should be occupied by the public for the erec- 
tion of a fort or any public edifice upon it, without any means provided 
to indemnify the owner of the property, the title of the owner could not 
be divested thereby, and he might maintain his action for possession, 
or of trespass, against those who are instrumental in the act ; because 
such a statute would be directly contrary to the above cited provision ; 
and as no action can be m ain tained against the public for damages , the 
only way t o secure the partv in his constitutional rights would be t o 
declar e vo i d the public appropriati on.^ It is upon this principle that 
the legislature have, in the general law respecting highways, and in 
their numerous Acts authorizing the making of turnpikes, bridges, 
canals, etc., provided that the party, whose pi'operty is taken to carry 
into effect these purposes, shall be indemnified and have secured to 
him an eventual trial by jury on the question of damage, if no com- 
promise shall be made by the several parties. But this course has 
b een confined to the direct loss of property sustained by th e indi- 
vi dual, and such expenses as are necessarily incident to the very a ct 
of taking it. 



Ij^ 



CHAP. VI.] CALLENDER V. MAESH. 1051 

The streets on which the plaintiff's house stands had become public 
property by the act of laying them out conformably to law, and the 
value of the land taken must have been either paid for, or given to the 
public, at the time, or the street could not have been legally established. 
Being legally established, although the right or title in the soil remaine d 
i n him from whom the use was taken, yet the publi c acquired the righ t, 
n ot only to pass over the surface in the state it was in when first mad e 
a street, but the riirht also to repair and amend the street, and for this 
pur pose, to dig down and remove the soil sufficiently to make the p as- 
sage safe and convenient. Those who purchase house-lots borderin g 
upo n streets are supposed to calculate the chance of such elevati ons 
a nd reductions as the increasing i)0|)ulation of a city may require, in 
order to render the passage to and from the several parts o f it safe and 
co nvenient, and as their purchase is always voluntary, they may indem - 
n ify themselves in the price of the lot which they buy, or take the 
cha nce of future improvements, as they shall see fit. The standing 
laws of the land giving to surveyors the power to make these improve- 
ments, every one who purchases a lot upon the summit, or on the 
d ecline of a hill, is presumed to foresee the changes which publ ic 
ne cessity or convenience may requi re, and may avoid or provide against 
a loss . 

That this has been the practical construction of our statute we can 
entertain no doubt ; for many instances must have occurred within 
our principal towns, of streets raised or reduced in such manner as to 
occasion expense to borderers, and no claim of damages has ever been 
heard of; and in the country towns it is not unusual to level roads, so 
as to oblige the owners of fields to rebuild their fences or stone-walls, 
and no complaint has been made. 

There are cases, without doubt, where an individual may suffer by 
the exercise of this power, and thus be made involuntarily to contri- 
bute much more than his proportion to the public convenience ; but 
such cases seem not to be provided for, and must be left to that sense 
of justice which every community is supposed to be governed by. 

A fort may be erected on public ground so near to a man's dwel ling- 
ho use as ma terial ly to reduc e its re nt and v alu e ; the public would n ot 
be b ound to indemnify the suffering party, for when he built so near to 
un occupied groun d, w hich the public had a right to occupy for any pu r- 
po se its exigencie s migh t r equire, he s h ould have fo re seen the pos sible 
purpose to which it might be applied, and should have guarded against 
a future loss, by abstaining from building there . So the location of 
school-houses upon public land may materially diminish the value of an 
adjoining or opposite dwelling-house, on account of the crowd and 
noise which they usually occasion ; but it cannot be imagined that the 
public are obliged to consult the convenience of the individual so far 
as to abstain from erecting the school-house, or to pay the owner of 
the dweUing-house for its diminished value. T hese are cases of da vi- 
n um sine injuria, and though in-oper for the favorable interposition 



1052 



CALLENDER V. MARSH. 



[chap. VI. 



A^' 



X^^ 



o f the comm unity for whose benefit the individual suffers, they do no t 
gi ve a right to demand indemnity, by virtue of the above cited article 
in the Declaration of Rights . 

The case of highways or public streets is analogous ; w hen rightful ly 
laid out, they arc to be considered as purchased by the public of hi m 
w ho owned the soi l, and by the purchase the right is acquired of do ing 
ev erything with the soil over which the passage goes, which may ren der 
it safe and convenien t ; a nd be who sells may claim damages, not onl y 
o n account of the value of the land taken, but for the diminution of the 
value of the adjoining lots, calculating upon the future probable reduc - 
tio n or elevation of a street or road ; and all this is a proper subject 
for the inquiry of those who are authorized to lay out, or of a ju ry, if 
the parties should demand one. (And he who purchases lots so situ- J 
ated, for the purpose of building upon them, is bound to consider the/ 
contingencies which may belong to them. 

Cases apparently hard will occur ; the present is such a one. The 
plaintiff's house has been standing twenty years, and he had reason to 
expect, that in any contemplated improvement in the streets his lia- 
bility to expense would have been attended to by the city authorities, 
who, had they forbidden the surveyor to proceed, even if they had no 
legal right to restrain him, would have exposed him to an opinion of 
the jury that his proceedings were unnecessary and wanton, and so 
subjected him to damages ; b ut there being no such interposition, on 
th e contrary , the other surveyors having concurred in the ac t, the 
com mittee of the board of aldermen knowing and approving it, it is 
impossible for us to find the surveyor guilty of a wron g ; it not being 
denied that the acts done have rendered the streets more safe and con- 
venient than they were before. I t may be a case very suitable for th e 
c onsideration of the cityautb orities, whether according to the pract ice 
in like cases of improvements designed for the general good nece s- 
saril}' c reating expense to individuals, some fair indemnity ought no t 
to be allowed ; bu t of this they are the judges . If it is not now within 






the authority of the city officers, it is certainly worthy considerat ion, 
wh ether an application to the legislature ought not to be made, to VJ^ 
auUionz(LthenLto_indenm^ whjj^may, i n the necessary*^ 

exercise of powers used for public improvement or convenienceTTje 
made indirectly to contribute an undue proportion for those purposes ; 
and there seems to be no good reason why others, wh ose property is 



en hanced in value at their neighbor's expense, should not be held to 
furnis h part of the indemnity. If the reducing or raisnig of streets 
which have been laid out for a definite number of years, and on which 
houses have been erected, should be made a matter of adjudication, 
like that of altering, widening, or turning a street, subject to the same 
provision for damages, the mischief would be cured ; for although, theo- 
retically, all this may be considered as determined when the street is 
originally laid out, yet practically there may be cases where this just 
provision has been overlooked. 



^ 



/ 



A^"^ 



\JUx, 






^. 






i^CLyCA^ e^^ 



\r^^ 



A^l^^ 



CHAP. VI.] CALLENDER V. MARSH. 1053 

We do not find in any of the cases cited, or in any authorities pre- 
sented to our consideration, anything which impugns the opinion we 
have adopted. The passages from Dalton only show that the law in 
respect to highways and the duty and power of surveyors is nearly the 
same in England as with us. Without doubt our statutes were framed 
with reference to the common law and statutes of England. When- 
ever a new road or way is to be laid out, or an existing one enlarged 
or widened, provision is made for indemnity. The inquiry of damages 
on a writ of ad quod damnum, or by jury summoned by the quarter 
sessions, is applicable only to such cases. So by our statutes the com- 
pensation is given, when a road is laid out, or turned, or altered, or 
discontinued, but in no other case ; and this compensation is for the 
land taken, or for the immediate expense consequent upon the act. 
Le veiling a road is not anywhere found to be considered an al terat ion 
of it : n or do we find that the injury it may produce has been compe n- 
sated, unless it be in the case of Leader v. Moxon, 3 Wils. 461, which 
y^ case is spoken of with disapprobation by Lord Kenyon and Mr. Justice 

^ b'' Buller in a subsequent case in 4 D. & E ._794, and the principle of it 
overruled. Indeed in a report of the same case by Sir W. Blackstone, 
vol. 2, p. 926, it is stated that the commissioners had grossly exceeded 
their authority ; which seems, according to this last report, to have been 
the principal ground of the decision. 

We can perceive no difference in the principle on which this action 
is founded and that which was involved in the case of Thurston v. 
Hancock, 12 Mass. Rep. 220 ; and the decision in that case was ap- 
proved of and adopted by the Supreme Court of New York in the case 
of Panton v. Holland, 17 Johns. Rep. 100. 

That it might be proper for the legislature, by some general Act, t o 
p rovide that losses of the kind complained of in this suit should b e 
compensated by the town or city within which improvements may be 



made for the public good, or by the owners of land which may be par - 
t icularly b enefited, is not for us to deny ; but wit h out such legislati ve 
p rovision we have no authority upon the subject, it bei ng clear that by 



the common law, as well as by our statutes , th e defendant in this action 
is not liable to damages .^ In no case can a person be liable to an ac-' 
tion as for a tort, for an act which he is authorized by law to do ; and 
a s the statute auth orizes surveyors to amend roads and streets by d ig- 
gi ng them down an d building them up where necessary, the legislature 
not be ing prohibited by the Constitutio n f rom enacting such a statut e, 
w e think the defendant i s entitled to j udgment. cV . ^ ^ ,^ 

Verdict set aside and a nonsuit entered.^ r g,^ 

i^ The legislature acted npon this sugge stion. See St. Mass. 1825, c. 171, s. 5, Mass. yj^j^^f^jcn ^ 

RevT St. c. 43, s. 14, and Pub. St. Mass. c. 49, s. 14. — Ed. '^ ^ 

2 And so Woodbury v. Beverly, 153 Mass. 245; Proctor v. Stone, 158 Mass. 564 A. Ca-^ '^ 

(1893), Man. Nav. Co. v. Coons, 6 W. & S. 101, 109 (1843); Brookes v. Cedar Brook -U •. ~ 
Co., 82 Me. 1 (1889) ; Ravenstein v. N. Y. L. ^^. W. R. Co., 136 N. Y. 528 (1893). In ^^^^ '^ 

City Council v. Maddox, 89 Ala. 181 (1890), the effect of a change in the State Con- t^OA^- 
stitution is stated. Compare Transp. Co. v. Chicago, 99 U. S. 635; a.O.infra,^. 1081; 
Randolph. Em. Pom. § 398 . — Ed. 



1054 O'CONNOR V. PITTSBURGH. [CHAP. VI. 



■a^ c^ ciun^i^ *^(./0'C0NN0R v. PITTSBURGH. ^"'"'^^ • 

" ''^-^ ^ ^ /Supreme Court of Pennsylvania. 1851. 

H-KCt^ K.cCW-<^*- / [18Pn. 187.] 

■^*'^"^- Error to the District Court of Allegheny Count}-. 

_ (X /Xcvt^ This was an action of trespass on the case, brought b}' the Riglit 
rf /^ >/ Revei'end Michael O^onnor, Roma n Cathol^ie Bisjiop of Pittsburgh, for 
^"^ the use of the Roman Catholic congregation of .St. P aul's Church, Pitts- 

A"*'^^ burgh V. The Mayor, Aldermen, and Ci tiz ens of Pittsbur gh. 
iyu.ttctL'^^ The action was brought to November Term, 1849, in the court below, 

t o recover damages from the city of Pittsburgh for injuries done to the 




- 7 '-' C athedral, by cutting down Grant and Fifth streets, in that city. The 
AijA/M. bi shop held the title of the property in trust for the Roman Catho lic 
^Tvo /lAA c ongregation of St. Paul's Church, Pittsburg h. . . . 

/ -^y^ The j ury returned a verdict o n two of the counts in the declaration in 

, , favor of the plaintiff for the sum of $4,000 damage s ; n otwithstan ding 

'"^-'^^^^^ w hich LowRiE, J., subsequeutl}^ entered judgment on a reserved ques - 
t7n^<^<^ t ion for the defendan ts. . . . 
tCu KAi^'^nA^ Error was assigned, inter alia, to the entry of the judgment. 

I |« The case was argued by McCandless and Loomis^ for the plaintiff in 

U ^ r error. ICtilm, for the city. 
xAji* /A^ -pjjg opinion of the court, filed November 24, 1851, was delivered by 
,i- Gibson, C. J. We have had this cause re-argued in order to dis- 
» cover, if possible, some way to relieve the plaintiff consistently with 
l/iA,.^ 'Jj^f^ la^^ . })Qt I grieve to say we have discovered none. To the Common- 
iAjJbixt, wealth here, as to the king in England, belongs the franchise of every 

i_^ <:k^^^ highwa}' as a trustee for the public ; and streets regulated and repaired 
by the authority of a municipal corporation are as much highways as 
^^'^'^^ are rivers, railroads, canals, or public roads laid out b}' the authority Of 

t CMV^^" the quarter sessions. In England a pubhc road is called the king's 
Jjiijw.!^ highway ; and though it is not usually called the Commonwealth's 
highway here, it is so in contemplation of law, for it exists only by 
force of the Commonwealth's authority. Every railroad, canal, turn- 
pike, or bridge company has its franchise by grant from the State, and 
uxjiJ. cvJO consequently with its original qualities and immunities adhering to it. 
. . Every highwaj-, toll or free, is licensed, constructed, and regulated by 

4iM Vu ^T^Q immediate or delegated action of the sovereign power ; and in 
,v^yil<^«7i.(v- ever}- Commonwealth the people in the aggregate constitute the sov- 
' ereign. B ut it is the prerogative of a sovereign to be ex empt fro m 

c oercion by actio n : for jurisdiction implies supejiority, and a sovereign 
can have no superio r. At the declaration of American independence, 
prerogatives which did not concern the person, state, and dignity of 
if2AXA.<^iz} ii^Q king, but such as had been held by him in trust for his subjects, 
^Lj^tn ^'6''® assumed by the people here and exercised immediately by them- 
llQ ' selves ; among the rest, unwisely I think, the prerogative of refusing 



VtA'Vwv^ 



H' 



'^pf-' 



CHAP. VI.] O'CONNOR V. PITTSBURGH. 1055 C^f^-^^^ f^ 

to do justice on compulsion. Tli at a suit cannot be maintained aga inst ^•^"^^'''^^ ^ 
th e State without its consent, is shown by tiie statute wliicli ena bled ~Haj r^AA^ 
Pennsylvania cla imants to sue the State for the value of the lands c eded / ^ Jjf^^ 
to Connect icut claimants within the seventeen townships in Luzerne ' ^ 
C ountj\^B ut this prerogative would be unavailing if it could not protect rw --m^"*- 
the agents whom the Commonwealth has necessarily to employ. ■ It was -Y^^t^ /cl^ 
applied to the protection of a private corporation in the Mononfjahela , 

Navigation v. Coons^ and Henry v. The Allegheny Bridge ; in wliich it •^^- ^'^ 
was held that a chartered company to improve the navigation of a pub- '^^-^^9 /^^^^ 
lie highway, or to build a bridge, is not answerable for consequential ^h^iyfL^ry. 
damages ; and it was applied to the protection of a municipal corpora- fj jp ^ / 
tion in Green v. The Borough of Beading, The Mayor v. Randolph, and Uu 'Hc'kAttA 
the Philadelphia and Trenton Bailroad ; to which may be added every ^ 

decision on the subject in our sister States, except the decisions in 
Ohio, which, however founded in natural justice, are not founded in the 
law which prevails elsewhere. 

Yet it must be admitted that, while it is inequitable to injure the 
property of an individual for the benefit of the many, it would be im- 
possible for a corporation to bear the pressure of successive common- 
law actions for the continuance of a nuisance, each verdict being more 
severe than the preceding one. The modification of the remedy would 
be for the legislature, which can turn compensation for a permanent 
detriment into the price of a prospective Ucense ; but to attain com- 
plete justice, every damage to private property ought to be compen- 
sated by the State or corporation that occasioned it, and a general 
statutory remed}- ought to be provided to assess the value. The con - 
stitutio nal j[3i-ovision for the case of private property taken for publi c 
us e, extends not to the case of property injured ov destroyed ; but it 
follows not that the omission may not be supplied by ordinary legisla- 
tion. No property was taken in this instanc e ; b ut the cutting down o f 
th e street consequent on the reduction of its grade left the build ing 
us eless, and the ground on which it stood worth no more tha n the 
ex pense of sinking the surface of it to the common level . The loss t o 
the co ngregation is a total one, while the gain to holders of proper ty 
i n the neighborhood is immense . The legislature that incorporated 
the city never dreamt that it was laying the foundation of such injus- n^ kjiJ^i^ 
tice ; but, as tlie charter stands, it is unavoidable. / ^ 

Judgment affirmed} CVuM^^uMi^ 

'■^^^-^^■ 

1 In O'Brien v. Philadelphia, 150 Pa. 589 (1892), in a like case, the coiart, -f-^-frJw 
Sterrett, J., said : " If any regard is to be had for the constitutional mandate [Const. ',Qy^^-WM^ 
1874, Art. xvi. s. 8] that ' municipal and other corporation s . . . shall make just co m- 
[l eiisation for pmpRrty tnk-p n i njured, or destroyed by the cons truction or enlargement 
of their works, highways, or improvements,' we are at a loss to see how the learned 
judge could do otherwise than decide the reserved question as he did. Nobody co n- 
versaiit_wTth_theJiistoi^ the constitutional provision above quote d can entertain a ny 
douBt~that it was intended to provide, inter ciUa^iav_X\i^ class of cases of which O'Con- 
nor V. P itJshuraJi, 18 Pa, 187, is a conspicuou s examidcT" I t has uniforml y been so re- 
ga rded from the date of its "aclop tion until the^£resent time. ... In Ogden v. Fhila- 



1056 PEART ET AL. V. MEEKER. [CHAP. VI. 

In Peart et al. v. Meeker (45 La. Ann.), 12 Southern Rep. 490 
(1893), in reversing a judgment for the plaintiff, who complained of the 
acts of the defendant, President of a Levee District, in locating and con- 
structing a line of levee on the Red River, the court (Fen:ner, J.) said : 
" The quantum of damages is admitted between the parties, and the 

delphia, 143 Pa. 430, the claim was for damages caused by gradiug North Street. 
After stating that the uudisputed facts were ' that the first grade . . . was established 
on the city plan in 1871, but nothing was done on the ground until 1887,' our Brother 
Mitchell says . ' For the establishment of the grade of 1871 there was no right of action. 
O'Connor v. Pittsburgh, 18 Pa. 187; Philadelphia v. Wright, 100 Pa. 235. Therefore 
the Statute of Limitation could not begin to run from that date. But th e Consti- 
t ution of 1874, Artic le xvi. s . 8, gave a right to owners to have compensation for prop - 
e rty injured, as w ell as for property taken by municipal and other corporations in the 
construction or enlargement of their works.' " 



= ri r 

■^'^'^'^yr^ ^ I n Smith v. Washinc/ton, 20 How. 135, 148 (1857), t he defendant city was sued in an 

>dJL "to iAMi a ction on th e c ase to recover damages for an alteration of the grade of the street o n 
w hich the plaintiff had h is dwelling-hou se In sustaining a judgment of the Circuit 
•jL^'^ o-f^ Court of the United States for the District of Columbia in favor of the defend ant, the 

L ^. y/j^/A- court (Grier, J.) said: " Having performed this trust, confided to them by the law, 
L-^ . dM' ^ according to the best of their judgment and discretion, without exceeding the jurisdic- 
tion and authority vested in them as agents of the public, and on land dedicated to 
'^^^ ^^ t public use for the purposes of a highway, they have not acted ' unlawfully or wrong- 

'\^3j\. «-'^ fully,' as charged in the declaration. They have not trespassed on the plaintiff's prop - 

f • , ■ 6 'JKj e rty, nor erected a nuisance injurious to it, and are, cons equently, not liable to 
y^ JLvoA/T- 1, damages where they have committed no wron g, but have fulfilled a duty i mp osed o n 
4i A-otM t^ t hem by law as agents of the public . T he plaintiff may have suffered inconve nience 
^ and b een put to expense in consequence of such ac tion ; yet^ as t he act of defend ants 

/tAVVvvt^ i s not ' unlawful or wrongful,' they are not bound to make any recompe nse. It is 

^^,^„^,^^^Jt*/v.^ what the law styles damnum ahsgue injuria . Private interests must y ield to p ublic 
'~7^^7T~T£ui>jiAl'^^£^''^'^^o(]^tion ; o ne cannot build his house on the top of a hill in the midst of a ci^y , 
i5P^ ~~(\^ and requ ire the graTre'"orTIi<rst"reet to co nform to his conveuience~at Ihe expense_pf 
thaFof the publ ic. Tlie lawl)n this subject is well settle'd", both liTEngland and this 
country. The cases are too numerous for quotation ; a reference to one or two 
more immediately applicable to the questions arising in this case will be suiBcient. ^ 

j_X£a><-'^*^ " In Cal knder v. Mars h, 1 Pick. 417, the defendant, as surveyor of the highw aysrl $-*^^ 

, was charged with digging down a street in Boston, so as to lay bare the founda tions ^<J 

[yiiaA/yU. of plaintiff's house, and endanger its falling . The authority under which he acted was i'^ 

If^JLK*- giv en by a statute wh icli requir ed ' that all highways, townways, etc., sliould be kent i n [ . 
(Ui AruL>-^ ^gp„^,. ^ „^/ amended~iTom time to time, that the same may be safe and convenient for ^^yj^ 
\jjU^**-^-^ tr avelle rs.' ' This very general and exclusive authority,' say the court, ' would seem to ^ --^ 

VytutwU^' include everything which may be needed towards making the ways perfect and com- y?*^ 

. v^ [0 )/ plete, either by levelling them where they are uneven and difficult of ascent, or raising 'i J- 
'^ ''*' ■ them where they should be sunken and miry.' It wa s held, also, that the law do es ^ 

(0 iClAA (33*5 n ot give a right to compensation for an indirect or consequential damage o r expense, 

resulting from a right use of property belonging to the public. 
/^XVvH ^/i^» - "In Green v. The Borough of Reading , 9 Watts, 282, the defendants, by virt ue 
J of their authority to ' improve and repair.' graded the street in front of plaintiff 's 

^h'^ ~hou se fi ve feet higher than it had been befor e, and i t was held th a t the corporatio n 
» , . was not liable to an action for any consequential injury to plaintiff's property by 
My ftAW^tA-' r eason of su ch i mprovement or change of grade in the public stre et. 

^ "In the case of O'Connor \. Pittsburg h, 18 Penn. Rep. 187, a church had been built 

XAxxt. according to the direction of the city regulator, and by a grade established in 1829. 

CoJ^o-^^^jlfiA. Afte rwards, in p ursuan ce of an ordinance, the grade of the street was reduced sev en-' 

t een feet ; t he church had to be taken down and rebuilt on a lower foundation, at a 

IVW<A/vC\. . damage of $4,000 . The authority given to the city was ' to improve, repair, and keep 



'-> 



>.tti^*g 



CHAP. VI.] PEART ET AL. V. MEEKER. 1057 

sole question before us is the leg al liabili ty of defendant. "Whatever 
ma}' be the law elsewhere, we consider the law of Louisiana too wel l 
se ttled to admit of further dispute to the followin g; effect : That under 
article QQb of our Civil Code riparian pi-operty on navigable rivers in 
this State is subject to a servitude or easement imposed by law for th e 
p ublic or common utili ty, authori zing the appropriation by the govern - T^olxcc 
ment, under proper la ws, of the space required for the making and ^ 

r epairing of levees, roads, and other public works ; that the State is Si L«^.^3ii>'^C' 
char ged w ith the administration of this public servitude ; that in locat - 
i ng and building levees she does not expropriate the property of 
t he citizen, but lawfully appropriates it to a use to which it is subjec t '-'^'tA. /VA.*-eU 
under the title itsel f; t hat in so doing she acts, not under the power of I ^ ■ 
eminent domain, but in the exercise of the police" powe Ty that laws , ^, . . , 
c onstitutional or statutory, concerning the expropriation of privat e i 

p roperty for public use, and requiring adequate compensation therefor, ^c\, i^ccv'-, 
have no application to property legitimately required for levee purpose s, /~I , / T" 

and that private injury resulting from the legitimate exercise of this ^^ 
l egal right is damnum absque injuria, to which the individual mus t <^'^. aj^*^J^\^ 
s ubmit as a sacrifice to the public safety and welfare . RucJi v. City of n^ ^^ /ujh <»^ 
Neiv Orleans, 43 La. Ann. 275, 9 South. Rep. 473 ; Bass v. State, 34 , i j{^ 

La. Ann. 494; State v. Maginnis, 26 La. Ann. 558 ; Cash v. Whit- ^^^■'^^<^Y^c^ 
loorth, 13 La. Ann. 401 ; Duhose v. Commissioners, 11 La. Ann. 165 ; J^^i*-tn£,tkh^ 
Police Jury V. Bozma^i, 11 La. Ann. 94; Zenory. Concordia, 7 La. y-^^J, <: >x. J^^^ 
Ann. 150. It is useless to quote from these decisions. They are .j!j^ -u .y<y<^ 
familiar to the profession, and their tenor, as above stated, is unam- .J „^^^.ju^ -^ 

biguous, harmonious, and emphatic. They were rendered under the f\^ /- 

regime of constitutions which prohibited the taking of private propert}' * p-^'"*^''^ ^ ^ 
for public purposes without compensation; and, however broad and LajJA^ ^-^^^^^^ 
emphatic may be the same prohibition in our existing constitution, it -+{ j±xi^ M~»^ 
had not either the intention or effect to repeal Article 665 of the Civil ^ / f^^iK 
Code, or to bring within its grasp the lawful appropriation of propert}' '^^^ , hU ■x i 
for levee purposes. On the contrary, the Constitution itself charges /vt^/- ''- ^ , 

the General Assembly with the duty of maintaining a levee S3'stem, -^-^-h^vk.^^^ 
authorizes the creation of levee districts under the administration of com- y^f -rU:.. /^*^ 
missioners to be appointed or elected, and grants specified powers of tax- ' '^huM. " 
ation for this purpose. Const, arts. 213-216. In the execution of these '^■^''^'^ 
powers and duties, the Red River, Atchafalaya & Bayou Boeuf Levee ,-c^ Ci^-c.*-*-^ 
District was created by Act 79 of 1890, amended and re-enacted b}' Act -^ ^viA^*^ 

46 of 1892, and the defendant commissioners were appointed. . . . . /ij^^ 

The Constitution itself (Article 214), in authorizing the appointment of ■^-^■^'^^ , w 
commissioners for levee districts, expressly declares that they * shall in /^v(v^ ^ 






in order the streets, ' etc. The court say, ' We had this case re-argued in order to dis- jtu\)U\ 'iM^ 

cover, if possible, some way to relieve the plaintiff consistently with law, bat grieve ^ n' f£u 

to say we can find none. The law is settled, not only in Pennsylvania, but by every X o^-^'^^'n'^'^'^^ 

decision in the sister Stiites, except one.' /,/ ■i^-'jiM.'^ 

" We are of opinion, therefore, that the instructions given by the court below on ^^ff-^ ' • j 
these points were correct, and affirm their judgment." — Ed. -a -^ ^ zU^ax t^ y\yi^l<^'-'^ ^'^ 

VOL. I. -67 •^'^ " i - tr 



1058 PEART ET AL. V. MEEKER. [CHAP. VI. 

the method and manner to be provided by law, liave supervision of the 
erection, repair, and maintenance of the levees in said districts.' 
T hese commissioners were therefore bound, under an express constitu - 
t ional mandate, to exercise their functions exclusively '• in the meth od 
and manner ' prescribed by law . The law confined their powers to the 
c onstruction, maintenance, and repair of s uch levees only as, ' in the 
opinion of the Board of State Engineers, will protect said levee distric t 
fr om overflow,' and further devolves upon the State Engineers the 
e xclusive authority and duty ' to survey and locate, repair or remo ve 
a nd change all levees,' and further charges said engineers with the full 
' responsibility of all such location. ' 

" The evidence in the case full}' establishes that the levee complained 
o f is built on the line surveyed, lo c ated, approved by the State Eng i - 
neers . . . . What was the board to do ? The levee was an impo r- 
t ant one, involving the protection o f an extensive region from over - 
flow . Under the mandates of law above referred to its duty was 
clear and manifest to build the levee on t he li ne located b}^ the Stat e 
Engineers, who are charged with the authority, duty, and responsibilit y 
of making such location . It is difficult to understand how this corpora- 
tion can incur liability for performing the plain duty imposed on it by 
law, or how, in any event, the corporate funds could be used in satis- 
faction of such liabilit}'. It is clear that the commissioners, even if 
they desired to do so, could not, under section 11, devote the corpo- 
rate funds to the satisfaction of plaintiff's claim, without violating the 
■ law, and the judicial power could not be invoked to compel them to vio- 
late the law. To hold otherwise would be to authorize such officers to 
create unwarranted debts against this corporation, wliich is a mere 
functionary of the State, and for their paj-ment to divert public funds 
from the purposes to which the}- are lawfully and exclusivelj' dedicated. 
Whatever be the rights of plaintiff, and whatever be her remedies for 
tl leir vindication, the latter cannot possibly take the shape of an actio n 
o f damages against this corporatio n. The law under which the officer s 
o f this corporation and the State Engineers have acted is a valid law . 
and nothing done in the proper execution of its mandates can give rise 
t o any action of damages . If such an action exists, it must arise from 
acts of these officers in violation of the autliority conferred upon them. 
This brings the case within the dilemma propounded in Bass' Case, 
where we said : ' Tlie dilemma seems irresist ible : Either the Board of 
E ngineex'S, the public agents of the State, have acted within the scop e 
o f their mandate and authority, or they have not. If they have, the n, 
a s they have carried out a valid law, neither they nor the State can be 
held responsi ble . I f they have acted beyond that scope , their iM'incipal 
c annot be made responsible for their unauthorized act, and they alon e 
are chargeable .' Bass v. State^ 34 La. Ann. 494. For the reasons 
heretofore indicated we think the corporate liabilitj- of this levee district 
is governed by the same rules which apply to the State herself. If 
there is any liability for damages it rests on the officers individual!}' 



CHAP. VI.] PEART ET AL. V. MEEKER. 1059 

who have acted in excess of their authorit}', and under the law in this 
case, which we have heretofore quoted, it seems quite clear that, as 
between these commissioners and the State Engineers, the hitter alone 
would be oharged with whatever responsibility might result from the 
improper location of the levees. We need not advert to the strong 
shield of protection which the law extends over public oflicers charged 
with discretionar}- duties, and which exempts them from liubilit}- for 
honest errors, and except in clear cases of oppression and injustice ; 
and it is onh' proper to saj* that nothing in this record indicates any 
but honest motives and conscientious action on the part of all the public 
officers concerned. It is undoubtedly the duty of the public officers 
charged by the State with the execution of its police power, to make no 
greater sacrifice of private rights than the public welfare demands. In 
several cases this court has said that power so conferred is not arbitrarj', 
and that the citizen is not without remedy to subject it to judicial con- 
trol in proper cases. "VVe are not called upon in this case to consider 
this question further than to sa}' that th e present action of damage s 
again st this levee district is not an appropriate remedy , a nd cannot be 
sustained . It is therefore decreed that the judgment appealed from 
be reversed, and that plaintiff's demand be rejected, at her costs in 
both courts." ^ 

^ The exact scope and limitations of property rights may, of course, differ mate- 
rially in different States. Compare the doctrine of the Appropriation of Waters in 
the Pacific and adjacent States, by which a permanent right to running water, even as 
against riparian owners, is acquired by actual prior appropriation to mining or any 
other useful purposes. See Black's edition of Pomeroy's Water Rights. 

In Drake v. Earhart, 2 Idaho, 716, 720 (1890), Beatty, C. J., for the court, said: 
" The important question, for the settlement of which this appeal was chiefly brought, 
is what, if any, rights the appellant has to any of that water as a riparian proprietor. 
His claim is not based upon prior or any appropriation under our territorial laws, but 
upon the fact that the stream in question flows by its natural channel through his 
lands ; hence, that he is entitled to the use thereof allowed by the common law. This 
doctrine of riparian proprietorship in water as against prior appropriation has been 
very often discussed, and nearly always decided the same way by almost every appel- 
late court between Mexico and the British possessions, and from the shores of the Pacific 
to the eastern slope of the Rocky mountains, as well as by the Supreme Court of the 
United States. But for the fact that it has elsewhere repeatedly appeared in the same 
court, it would seem surprising that it shouhl now be seeking another solution in this 
While there are questions growing out of the water laws and rights not fully adjudi- 
cated, this phantom of riparian rights, based upon facts like those in this case, has been 
so often decided adversely to such claim, and in favor of the prior appropriation, that 
the maxim, ' f irst in time, first in right,' should be considered the settled law here . 
Whether or not it is a beneficent rule, it is the lineal descendant of the law of necessity . 
When, from among the most energetic and enterprising classes of the east, that 
enormous tide of emigration poured into the west, this was found an arid land, which 
could be utilized as an agricultural country, or made valuable for its gold, only by the 
use of its streams of water. Th_e ne w inhabitants were without law, but they quickl y 
recognized that each man should not be a law unto himsel f. Accustomed, as they had 
been, to obedience to the laws they had helped make, as the settlements increased to 
such numbers as justified organization, they established their local customs and rules 
for their government in the use o{ water and land. They foun d a new condition of 
t hing s. T he use of water to which they ha d been a ccustomed, and the laws coucern « 



6 90 



1060 




PtfMPELLY V. GREEN BAY COMPANY, 



[chap. VI. 









PUMPELLY V. 
Supreme Court 



U' 



GREEN BAY COMPANY. 

OF THE United States. 1871? 

t [13 Wall. 166.] 

Error to the Circuit Court of the United States for the District of 
Wisconsin ; the case being thus : 

Tlie Constitution of Wisconsin ordains that " the property of no ue r- 
son shall be t aken foijjublic u se without just co mpensa tion therefor." 

With this provision in force as fundamental law, one Pum|)ell3 Yin 
S e ptember, 1867, brough t trespass on the case against the Green B a}- 
an d Mississippi Canal Co. for overflowing 640 acres of bis land by 
means of a dam erected across Fox River , the northern outlet of Lake 
Winnebago, by which , as the declaration averred, t he waters of th e 
lake^were ra ised so high as to forcibly and with violence overflow al l 
his said land, f rom the time of the completion of the dam in 1 861 to 
t he commencement of this suit : the water coming with such a vio- 
lence, the declaration averred, as to tear up his trees and grass b}' the 
/ a/ IA/ iUu-^^'^^^' ''^"^^ wash them, with his hay by tons, away, to choke up his drains 
V) and fill up his ditches, to saturate some of his lauds witli water, and to 






i ug it, had no application hep e. The demand for water they found greater than th e 
suppl y, as is the unfortunate fact still all over this arid reg ion. Instead of attempting 
to divide it among all, thus making it unprofitable to any, or instead of applying the 
common-law riparian doctrine, to which they had been accustomed, thev disregarded 
t he traditions uf tiie i^ast. and established as the only rule suitable to their situati on 
t hat of prior ai)prupriatio n. This did not mean that the first app ropriator could take 
all lie pleased, but what be actually needed, a n d could pro]jerly use without wast e. 



T hus was cstabli.slied the local custom, which pervaded the entire west, and becam e 
t he basis of the laws we have to-day on that subject . Very soon these customs 
attracted the attention of the legislatures, where they were approved and adopted, and 
next we find tliem undergoing the crucial test of judicial investigation. As far back 
as 1855, the Supreme Court of California, in Irwin v. Phillips, 5 Cal. 145, and in 
P J Tartar v. Minin/j Co., Id. 397, distinctly held that the prior appropriator of water 

't^'*- should hold it against the riparian claim of the owner of land through which it flowed, 

and, also, that in all branches of industry the prior appropriator of laud, water, and 
easements would be protected. Not only had such become the law by custom, by t he 
l egislative will, and the decisions of the courts, without dissent, but the general gov - 
e rnment. for many years, without protest, acquiesced in such occupation and use of it s 

/^L/^Cui n^n^ l ands and waters by its citizens, while valuable riropcrties and ind u stries were buildi ng 
u pon this principl e. T o put the Question beyond uncertainty , to approve and adopt 
what already existed as the common law of the west, t he Congress, by it s Act of .Jul y 
26, 1866, § 9, provided ' that whenever, by priority of possession, rights to the use of 
w ater for mining, agriculture, manufacturing, or other purposes have vested a nd 
a ccrued, and the same are recognized and acknowleilged by the loca l custom s, laws, 
an d the decisions of courts, the possessors and owners of such vested rights shall be 
maintained and protected in the sam e.' It will be observed that the act is based upon 
t he existence of local customs, laws, and decisions of courts. It is not necessary that 
all these conditions shall exist for the protection of the right ; but, as held in Baseif 
v. Gallagher, 20 Wall. 684, the existence of either condition is suflicient." 

Compare Stowell v. Johnson et al, 7 Utah 215, Strickler v. Col. Springs, 25 Pac. Eep. 
(Col.) 313. — Ed. 







I 



1 . „ vi 



/(aaxX.'< cXa^^O^ 



L^f oJJi)A yuiy^f*^0)AAJ^ -fy^^ 






ipi^MJL Mj tUiL yicu^i^<^^ 



^ 




CHAP. VI.] PUMPELLY V. GREEN BAY COMPANY. 1061 T^t^ccc A^*> 

dirt}' and injure ottier parts by bringing and leaving on them deposits . 

of sand, and otherwise greatly injuring him. The canal company ca-^ftXiA^aXX^^ 
pleaded six pleas, of which the second was the most important, but of .x^vv-e^.-^s^'^f 
which the fourth and sixth may also be mentioned. j jUlm 

This second plea was divisible, apparently-, into two parts. "^ " 

The first part set up (quoting it entire) a statute of Wisconsin Ter- X^^^ U^<jlX£ 
ritory, approved March 10th, 1848, b}^ which one Curtis Reed and his 
associates were authorized to construct a dam across Fox River, the 
northern outlet of Winnebago Lake, to enable them to use the waters cx-.^A ^^m^ 
of the river for hydraulic purposes. ... ^ ^ 

A general demurrer to these three pleas being overruled by the 
court, the plaintitf brought the case here. 7^ uy^u-^iM 

Messrs. JB. J. Stevens and H. L. Palmer, in support of the ruling ^^f^y^jfJ tt. 
below. " 

Ilessrs. J. 31. Gillet and D. Taylor, contra. X.a-<-A<?(. 'C-i-' 

Mr. Justice Miller delivered the opinion of the court. . . . '7AJULt^ ^ 

As we are of opinion that the st atute did not authorize the erection of // ^ ^ 
a dam which would raise the water of the lake above the ordinary level, -^ o^aju.^ , 
a nd a s the p lea does not deny that the dam of the defendant did so yl y^ ^ 
raise th e water of the lak e, we must hold that, so far as the plea rel ies 
on th is statute as a defence, it is fatally defectiv e. T'<4'*-*^^ ^ 

But this same plea further alleges that the legislature of Wisconsin, t^yi^-iy4uA^ 
after it became a State, projected a system of improving the navigation ' ^ rf 
of the Fox and Wisconsin rivers, which adopted the dam of Reid and ^^-^"-^^ 
Dot}', then in process of construction, as part of that system ; and that, -©--(/vc^-"-*'^^ 
under that Act, a board of public works was established, which made -itciwat^ <l^ 
such arrangements with Reid and Dot}' that they continued and com- 
pleted the dam; and that by subsequent legislation, changing the ^^yQ^^t^^ /^ 
organization under which the work was carried on, the defendants / , 

finally became the owners of the dam, with such powers concerning the ^^^f^'^'^^^ 
improvement of the navigation of the river as the legislature could con- fiXaJ^ tU^^ 
fer in that regard. But it does not appear that any statute made pro- f*^nyo a Ta^ 
vis ion for compensation to the plaint iff, o r those similarly injured, for _ . ^ i 

da mages to their lands. So that the plea, as thus considered, present s ^"^^ -^ jp 
sub stantially the defence that the State of AYisconsin, having, in the - {XyinrM. 
pr ogress of its system of improving the navigation of the Fox Rive r, (7 

autho rized the erection of the dam as it now stands, without any pr o- plvuA, j/iu 
vi sion for compensating the plaintiff for the injury which it does hi m, j^ ^.^ ^ 
t he defendant asserts the right, under legislative authority , t o build an d y / Ajd^ 
continue the dam without legal responsibility for those injuries . /'^ . , 

And counsel for the defendant, with becoming candor, argue that A^l'^- 
the damages of which the plaintiff complains are such as the State had -W /\^. C 
a right to inflict in improving the navigation of the Fox River, without <> ' 

making any compensation for them. (~di^U/X M</ 

This requires a construction of the Constitution of Wisconsin ; for 'lytj/t/h^ 
though the Constitution of the United States provides that private ^ / , 
property shall not be taken for public use without just compensation, it y^^^H ^/ ^^ 



1062 PUMPELLY V. GREEN BAY COMPANY. [cHAP. VI. 

is well settled that this is a limitation on the power of the Federal gov- 
ernment, and not on the States. The Constitution of Wisconsin, how- 
ever, has a provision almost identical in language, viz., that " the 
property- of no person shall be taken for public use without just compen- 
sation therefor." ^ Indeed this limitation on the exercise of the right of 
eminent 'domain is so essentially a part of American constitutional law 
that it is believed that no State is now without it, and the onh- question 
that we are to consider is whether the injury to plaintiff's property, as 
set forth in his declaration, is within its protection. 

The declaration states that, b}- reason of the dam, the water of the lake 
was so raised as to cause it to overflow all his land, and that the over- 
flow remained continuousl}' from the completion of the dam, in the year 
1861, to the commencement of the suit in the 3'ear 1867, and the nature 
of the injuries set out in the declaration are such as show that it worked 
an almost complete destruction of the value of the land. 

The argument of the defendant is that there is no taking of the la nd 
w ithin the meaning of the constitutional provision, and that the damage 
is a consequential result of such use of a navigable stream as the go v- 
ernment had a right to for the improvement of its navigation. 

It would be a very curious and unsatisfactory result, if in construing 
a provision of constitutional law, always understood to have been 
adopted for protection and securit}- to the rights of the individual as 
against the government, and which has received the commendation of 
jurists, statesmen, and commentators as placing the just principles of 
the common law on that subject beyond the power of ordinary legisla- 
tion to change or control them, it shall be held that if the government 
refrains from the absolute conversion of real property to the uses of 
the public it can destro}' its value entirel}', can inflict irreparable and 
permanent injury to an}' extent, can, in eff"ect, subject it to total de- 
struction without making an}- compensation, because, in the narrowest 
sense of that word, it is not takeii for the public use. Such a construc- 
t ion would pervert the constitutional provision into a restricti on upon 
the riohts of the citizen, as those righ ts stood at the common law , 
inste ad of the government, and make it an authority for inva sion qL. 
private righ t under the pretext of the public good, which ha d no war-_ 
rant in the laws or practices of our ancesto rs. . . . 

[Here follows a statement of Sinnickson v. Johnson, 2 Harrison, 
129 ; and Gardner v. Newhurgh, 2 Johns. Ch. 162 {ante, pp. 979 and 
986, with quotations from them.] 

If these be correct statements of the limitations upon the exer- 
cise of the right of eminent domain, as the doctrine was understood 
liefore it had the benefit of constitutional sanction, by the construction 
now sought to be placed upon the Constitution it would become an 
instrument of oppression rather than pi'otection to individual rights. 

But there are numerous authorities to sustain the doctrine that a 

1 See supra, p. 956, note. — Ed. 



CHAP. YI.] PUMPELLY V. GREEN BAY COMPANY. 1063 

serious interruption to the common and necessary use of property may 
be, in tlie language of Mr. AngcU, in his work on water-courses, equiv- 
alent to the taking of it, and that under the constitutional provisions it 
is not necessary that the land should be absolutely taken. Angell on 
Water-courses, § 465 a ; Hooker v. New Haven and Northampton 
Co., 14 Connecticut, 146; Howe v. Granite Bridge Co., 21 Pickering, 
344; Canal Appraisers v. The People, 17 Wendell, 604; Lackland 
V. North Ifissouri Railroad Co., 31 Missouri, 180; Stevens v. Pro- 
prietors of 3IuMlesex Canal, 12 Massachusetts, 466. And perhaps 
no State court has given more frequent utterance to the doctrine that 
overflowing land by backing water on it from dams built below is within 
the constitutional provision than that of Wisconsin. In numerous cases 
of this kind under the Mill and Mill-dam Act of that State this question 
has arisen, and the right of the mill-owner to flow back the water has 
been repeatedly placed on the ground that it was a taking of private 
property for public use. It is true that the court has often expressed 
its doubt whether the use under that Act was a public one, within the 
meaning of the Constitution, but it has never been doubted in any of 
those cases that it was such a taking as required compensation under 
the Constitution. Pratt v. Broivii, 3 Wisconsin, 613 ; Walker v. 
Shepardson, 4 Id. 511; Fisher v. Horicon Iron Co., 10 Id. 353; 
Nexoell v. Smith, 15 Id. 104 ; Goodall v. City of Milwaukee, 5 Id. 39 ; 
Weeks v. City of Milwaukee, 10 Id. 242. As it is the Constitution o f 
t hat S ta te that we are called on to construe, these decisions of. her 
S upreme Court, that overflowing land by means of a dam across a 
s t r e a m is taking private property, within the meaning of that instr u - 
m ent, are of special weight if not conclusive on us . And in several of 
these cases the dams were across navigable streams. 

It i_s d i fficult to reconcile the case of Alexander v . Milwa uke e, 16 
Wisconsin, 248 , with those just cited, and in its opinion the court 
seemed to feel the same difficulty. They assert that the weight of 
authority is in favor of leaving the party injured without remedy when 
the damage is inflicted for the public good, and is remote and conse- 
quential. There are some strong features of analogy between that case 
and this, but we are not prepared to say, in the face of what the Wis- 
consin Court had previously decided, that it would hold the case before 
us to come within the principle of that case. At all events, as the 
court rests its decision upon the general weight of authority and not 
upon anything special in the language of the Wisconsin bill of rights, 
w e feel at liberty to hold as w e do that the case made b}' the plaintifl^'s 
declaration is with in the protection of the constitutional princip le 
embodied in that instrume nt. 

We are not unaware of the numerous cases in the State courts in 
whic h the doctrine has been successfully invo ked that for a consequen - 
tial, i \ m\v\ to the uroperty of the individual arising from the'prosecu tio n 
o f improvements of roads, streets, rivers, an d other highways, for the 
public good, there is no redress ; and we do not den3' that the princip le 



y^f^^^ajji U 1064 EATON ^;. BOSTON, CONCORD, ETC. KAILROAI). [CHAP. VI. 

^ ^ is a sound one, in i ts proper a pplication, to man.y injur ies to property 

so orjoinating. And when, in the exercise of our duties liere, we shall 

be called upon to construe other State constitutions, we shall not be 

unmindful of the weight due to the decisions of the courts of those 

States. But we are of opinion that the decisions referred to have gone 

to the uttermost limit of sound judicial construction in favor of this 

. ' principle, and, in some cases, beyond it, and that it remains true that 

J^^^^^^ \vhe re real estate is actually invaded by superinduced additions of 

KuAAXjLi^ watei-. earth, sand, or other material, or by having any artificial stru c-; 

\/j^jtXuAA ture p laced on it, so as to effectually destroy or impair its usefulnes s ,| 

,^^ U^ c^ it is a taking, within the meaning of the Constitution, and that thi a 

i ^ Ij roposition is not in conflict with the weight of Judicial authorit}^ ira 

f^^^ , t his country, and certainly not with sound principl e. Beyond this wel 

' o^aaW^^U ^^ j^^j. g^^ ^^^^ ^^lg ^^gg ^,^jjg yg J.Q gQ jj^ further. ^ 

<j ^ 'O^;'^^ We are, therefore, of opinion that the second plea set up no valid 

i^^uL^4A- defence, and that the demurrer to it should have been sustained. 
f /J<7^ [A discussion of the fourth and sixth pleas is omitted, as not ma- 

■/u^ ^~t *- terial to the subject in hand.] 

Judgment reversed, and the case remanded to the Circuit Court for 
further proceedings not inconsistent with this opinion.^ 



-faxA^ 



{, t^^^A-^-^ EATON V. THE BOSTON, CONCORD, AND MONTREAL 
^^,,^^ CcotffX^, RAILROAD. 

i^ -^rH^ Ccu^'^ Supreme Judicial Court of New Hampshire. 1872. 

K.Cs.A.^^o^ y^.' A-'^ ' '- [51 N. U. 504.] 

'^>o^>A<.<'C Actions on the case, against the Boston, Concord, & Montreal Rail- 

yi^(/U/^ tJLi road, — one brought by Ezra B. Eaton, the other by Milo Aiken, to 
f/ J recover damages done during the freshet of October, 1869, to their 

-aAX(M ^ respective farms in Wentworth, and alleged to have been occasioned 
!«>/< -XmmM. . ^y ^jjg construction of the defendants' railroad. 

AM^./iCd'^'^ The defendants were duly incorporated by legislative authority, and 
/ A constructed their road across the farms of the plaintiffs during the 
I r-JlyL prfu^ ygg^j,g 1349^ 1350, and 1851, — the road having been previously sur- 
vuvio.q/'^ <^\ veyed and located. Damages were duly appraised and paid. 

C t r Eaton, on March 24, 1851, after the construction of the road, gave 
Z/UMAjA- <Hi^ ^.^g defendants a warranty deed of that part of his farm on which the 
' road is located, and on the same day executed the following release : 

" I, the subscriber, do hereby acknowledge that I have received of 
the Boston, Concord, & Montreal Railroad the sum of two hundred 
and seventy-five dollars, in full for the amount of damages assessed to 

. , 1 See Mills et al. v. U. S., 46 Fed. Rep. 738. — Ed. 







XX.AA£/a o'"^ 



Ujrcrd^ ^L.--^ UjlUuZ^ o-^n^^iM^i^-^ /ftrurt^.^ ^cua^ 



CHAP. VI.] EATON V, BOSTON, CONCOIID, ETC. RAILROAD. 



me by the railroad commissioners of the State of New Hampshire, in '^^^ 



7^ Ca 



conjunction with the selectmen of Wentworth, on account of the laying C^.c<^ '^^ 



out of the said Boston, Concord, & Montreal Railroad through and 



CayCix\ 



over my land ; and I do hereby release and discharge the said corpora- 
tion from said damages." /^._^Jx.<-<^ 
Aiken, on November 7, 1849, gave the defendants a warranty deed /UX-^y~^1 
of that part of his farm on which the road is located. Said deed con- yQx,^,.,^ ^<a^ 



tains the following clause : " And in consideration aforesaid, I hereby 
release said corporation from all damages, direct or consequential, by 
reason of the constructing, maintaining, and using their railroad on and 
over the land hereby conveyed, and through my said land." This re- 
lease, and that executed b}' Haton, were printed, save names, amounts, 
&c., which were inserted in blanks left for that purpose. 

Northerly' of the plaintiffs' farms, which consist of meadow lands 
lying on Baker's River, there is a narrow ridge of land, some twent}-- 






five feet or more in height, extending from the high lands on the east-^'^-'^'^^ 
westerlj' to said river, completel}' protecting said meadows from the 
effect of floods and freshets in said river. 






SArCUy 



1^^ 



m saitl river. Said ridge is about twenty 
rods wide upon the top, and a small part of it in width is included in 
the plaintiff Aiken's farm, — the northerly line of his said farm being 
near the southerly edge of the top of said ridge. The plaintiff Eaton's 
farm lies south of said Aiken's. Through this ridge the defendants, 
in constructing tlieir road, made a deep cut, through which the waters 
of said river in floods and freshets sometimes flowed ; and the damages --^ c^^ '^^-^^ 
sued for were occasioned by the waters flowing through said cut, and f jjuCytoi 



^ giMi^ 



carrying sand and gravel and stones upon said Aiken's farm, and over 
and across it to and upon the farm of said Eaton. The plaintiffs claim 
that the defendants are liable for the damages so occasioned, although 
they may have constructed their road at said cut with due care and pru- 
dence. The defendants say that they are not so liable. The defend- 
ants claim that, under the circumstances of this case, the corporation 
are not liable for any damages accruing to the plaintiffs from a proper 
construction of their road, and that in constructing the same thej- were 
only bound to do it in the usual manner, and so as to make the owners 
of adjoining land reasonably safe, and with ordinary cai-e and prudence, 
and tliat they were not bound to preclude the possibility of damage by 
reason of such construction. 

The parties consented that the foregoing questions be determined by 
the court, and that afterwards either part}' may have a trial by jur}' i^ 
desired, without prejudice from anything herein contained. 

Upon the foregoing facts appearing, and the parties having stated 
their positions and claims, the court, jtjro/brwia, ruled that the plain- 
tiffs would be entitled to recover such damages as have been caused 
them in consequence of the defendants' cutting away the ridge north of 
the plaintiffs' farms, and thereby letting the river in times of freshet /Qi^yO^ ^ 
run through this cut and damage the plaintiffs' land; to which ruling i'^ 
the defendants excepted. ^ 4- A 










tiu. 






I . 



:-^. -to. 



*^ Ci..^pi 



1066 EATON V. BOSTON, 4;0NC0RD, ETC. RAILROAD. [CHAP. VI. 

Carpenter and Flanders, for the plaintiffs. H. Bingham^ Bur- 
rotes, and Jr'age, for the defendants. 

Smith, J. Eaton's case will be considered first. 
It is virtually conceded that, if the cut through the ridge had been 
made by a private land-owner, who had acquired no rights from the 
plaintift" or from the legislature, he would be liable for the damages 
sought to be recovered in this action. It seems to be assumed that 
the freshets were such as, looking at the history of the stream in this 
■^^^'^^M^ respect, might be " reasonably expected occasionally to occur." The 

^^l^^/f/^A^ defendants removed the natural barrier which theretofore had completely 

. , protected the plaintiff's meadow from the effect of these freshets ; and, 
CM/VM- j.^j. j^j^g damages caused to the plaintiff in consequence of such removal, 
j/ktC^ ^^ the defendants are confessedly liable, unless their case can be distin- 
«^ guished from that of the private land-owner above supposed. Such a 
'■'^^' distinction is attempted upon two grounds, — first, that the plaintiff 

^sivsd iViu^^ has already been compensated for this damage, it being alleged that 
jyur^AjAjX^ the defendants have, by negotiation, or by compulsor}' proceedings, pur- 
chased of the plaintiff the right to inflict it ; second, that the defend- 
ants are acting under legislative authority, by virtue of which they are 
/rtxvtXM^^ entitled to inflict this damage on the plaintiff without any liabilit}' to 
y yl compensate him therefor. 

fc.W^, f In support of the first ground, the defendants rely upon the plain- 

^ J^ j^^^'^tiff's release, and upon the appraisal of damages under the statute. 
J din ^^^^ release does not support the defendants' claim. The plaintiff 
' released the defendants from damages on account of the laying out of 
ip( /T/y\MM*A tiie railroad through and over his land. The damages which the court 
-pLj ruled that the plaintiff would be entitled to recover were not occasioned 

. by the laying out of the road over the plaintiff's land, but bj- the con- 
<A/^^^'^ '^ struction of the road over the land of other persons. See Delaware & 
p ^ Haritati Canal Co. v. Lee, 2 Zabriskie, 243. The ruling was, that the 
plaintiff could recover such damages as have been caused him in con- 
sequence of the defendants' cutting away the ridge north of the plain- 
tiff's farm. . . . 
/\jj^jUuCl^ The defendants' first position is, that the plaintiff has already re- 

/)a*^ ceived compensation for this damage. This position the court have now 
^ U overruled. The defendants' next position is, that the plaintiff is not 
^ i^Uw^. legally entitled to receive an}- compensation, but is bound to submit to 
the infliction of this damage without any right of redress. The argu- 



rtXAfJ^fU 



'.juAt 



"^^^ fnent is not put in the precise words we have just used, but that is 



'{\M/h^' 



Mp^^iri. what we understand them to mean. The defendants say that the legis- 

lative charter authorized them to build the road, if they did it in a pru- 
dent and careful manner ; that they constructed the road at the cut 
P-4m^ with due care and prudence; and that they cannot be made liable as 
) tort-feasors for doing what the legislature authorized them to do. This 
~lP^~ involves two propositions : first, that the legislature have attempted to 
authorize the defendants to inflict this injury upon the plaintiflT without 
^^^^'^■^'^^ making compensation ; and second, that the legislature have power to 

5^J^ Oou^ 4^.0^ Ahju^ A/<A/^ ^v\^^<^^(^ .^&4.cJax^ J^^f^^^'^ 



CHAP. VI.] EATON V. BOSTON, CONCORD, ETC. KAILKOAD. 1067 '^^-^•^^ "^ 

f confer such authority. S There are decisions which tend to show that 
0^« the charter should not be construed as evincing any legislative inten- i^ (pU^ - 
p^ tion to authorize this injury, or to shield the defendants from liability ^^^^^^^ 2;^ 
in a common-law action. Tins?na)i v. Helvidere Delaware li. M. Co.^ f-'S—r 

2 Butcher N. J. 148 ; Sin)iickson v. Johnson, 2 Harr. N. J. 129 ; ^^^^nx^'-^iX^ 
Hooker v. N'ew Haven & Northampton Co.^ 14 Conn. 146 ; Fletcher itciviouf ^ 
V. Auburn '& Sijracuse R. K. Co., 25 Wendell, 462; Brown v. o^^.c^u^Ct^-^ 
Cayuga & Susquehamia E. R. Co.^ 12 N. Y. (2 Keruan), 486, p. 491. ^ . - 
See, also, Eastman v. Comjmny, 44 N. H. 143, p. 160; Hooksett y.(f^'^ ^^ 
Company, 44 N. H. 105, p. 110 ; Company v. Goodale, 46 N. H. 53, ^^^^'^-^^ " 
p. 57; Barrows, J., in Lee v. Pembroke Iron Co., 57 Maine, 481, SU^-p^^^ 

1 p. 488. { But we propose to waive inquiry on this pointy and to consider of-Z/p o. 

I only the correctness of the second proposition, or, in other words, the ^^^ 

j q[uest i on of leojslative po wer. / -^ *- V^ 

The defendants cannot claim protection under an implied power, Jjij^^aJ ck 
where an express power would be invalid : the legislature cannot do 
indirectly what they cannot do directly-. Unless an express provision A(^ma//um. 
in the charter, authorizing the infliction of this injury without making /Li\*^itxiX 
compensation, would be a valid exercise of legislative power, the de- ""^x^ka^X^ 
fendants cannot successfully set up the plea that the injury was neces- 
sarily consequent upon the exercise of their chartered powers, andi ^^*''*^ ^ 
therefore impliedly authorized. The defence, then, really presents this 
question : Have the legislature power to authorize the railroad corpora- 
tion to divert the waters of the river, by removing a natural barrier, so 
as to cause the waters " sometimes in floods and freshets" to flow over 
the plaintiff's land, " carrying sand, gravel, and stones" upon his farm, ' -4^/U^ 
without making any provision for his compensation? ^141A/i^ , 

Although the Constitution of this State does not contain, in an}' one u 
clause, an express provision requiring compensation to be made when r\ ^ 

private property is taken for public uses, yet it has been construed by '^ if~<y^ 
the courts, in view of the spirit and tenor of the whole instrument, as ^<tXeM ^' 
prohibiting such taking without compensation ; and it is understood to Jri^ *_**•( 
be the settled law of the State, that the legislature cannot constitu- ' ^ 
tionall}' authorize such a taking without compensation. JPiscataqua 
Bridge v. N. H. Bridge,' 7 N. H. 35, pp. 66, 70; Perley, C. J., in ^/U^^^ 

%^ ^ 

1 The language here referred to is as follows ■ " That franchise, as we have said, is if J 

property. ' No part of a man's property shall be taken from him or applied to public t^^CC-^u^'-^ 
uses, without his own consent, or that of the representative body of the people." N. H. /> /» 

Bill of Rights, Art. 12. This has always been understood necessarily to include, as a '^*-''-*> '^ 
matter of right, and as one of the first principles of justice, the further limitation, that_^-^^j_jg,j_^ ^nl 

in case his property is taken without his consent, due compensation must be provided. > 

I Black. Com. 139; 2 Johns. C. R. 166; Gardner \. Village of Newhim/h, and author-'^ yi^ioM^ 
ities there cited. It is not supposed here that even the consent of the representative , ^ 

body of the people could give authority to take the property of individual citizens^for 1/-<*-''t.-'t'*-*^C 
higliways, bridges, ferries, and other works of internal improvement, without the xJAj/a 
assent of the owner, and without any indemnity provided by law. Such a power Q *■ 
would be essentially tyrannical, and in contravention of other articles in the Bill of 
Rights." — Parker, J., for the court, in Prop' rs of Piscataqua Bridge v. N. 11. Bridge 
et al., ubi supra. — Ed. 






1068 EATON V. BOSTON, CONCORD, ETC. KAILROAD. [CUAP. VI. 

Petition of Mount Washington Road Co., 35 N. H. 134, pp. 141, 142 ; 
Sargent, J., in Eastman v. Amoskeag Mamif. Co., 44 N. H. 143, 
p. IGO; State \. Franklin Falls Co., 49 N. H. 240, p. 251. The 
counsel for the defendants have not been understood to question the 
correctness of this interpretation of the Constitution. 

Tlie vital issue then is, whether the injuries complained of amount 
to a taking of the plaintiff's property, within the constitutional mean- 
ing of those terms. It might seem that to state such a question is to 
answer it ; but an examination of the authorities reveals a decided con- 
flict of opinion. The constitutional prohibition (which exists in most, 
or all, of the States) has received, in some quarters, a construction 
which renders rt of comparatively little worth, being interpreted much 
as if it read : " No person shall be divested of the formal title to prop- 
erty without compensation, but he may without compensation be de- 
prived of all that makes the title valuable." To constitute a " taking 
of propertj'," it seems to have sometimes been held necessary that there 
should be " an exclusive appropriation," " a total assumption of pos- 
session," " a complete ouster," an absolute or total couA'crsion of the 
entire property, " a taking of the property altogether." These views 
seem to us to be founded on a misconception of the meaning of the 
term " propert}'," as used in the various State constitutions. 

In a strict legal sense, land is not " property," but the subject of 
propert}-. The term " property," although in common parlance fre- 
quentl}' applied to a tract of land or a chattel, in its legal signification 
" means only the rights of the owner in relation to it." " It denotes 
a right . . . over a determinate thing." " Property is the right of any 
person to possess, use, enjoy, and dispose of a thing." Selden, J., in 
JVynehamer v. The People, 13 N. Y. 378, p. 433 ; 1 Blackstone Com. 
138 ; 2 Austin on Jurisprudence, 3d ed., 817, 818. If property in 
land consists in certain essential rights, and a phj'sical interference with 
the land substantially subverts one of those rights, such interference 
" takes," ^:)ro ta7ito, the owner's "property." The right of indefinite r 
user (or of using indefinitely) is an essential quality or attribute of ^ 
absolute propert}', without which absolute property can have no legal 
existence. " Use is the real side of property." This right of user 
necessarily includes the right and power of excluding others from using 
the land. See 2 Austin on Jurisprudence, 3d ed., 836 ; Wells, J., in 
Walker v. O. C. W. B. R., 103 Mass. 10, p. 14. From the very 
nature of these rights of user and of exclusion, it is evident that the}- 
cannot be materially abridged without, ipso facto, taking the owner's 
" property." If the right of indefinite user is an essential element of 
absolute propert}^ or complete ownership, whatever phjsical interfer- 
ence annuls this right takes " property," although the owner may still 
have left to him valuable rights (in the article) of a more limited and 
circumscribed nature. He has not the same property that he formerly 
had. Then, he had an unlimited right ; now, he has only a limited 
right. His absolute ownership has been reduced to a qualified owner- 



CHAP. VI.] EATON V. BOSTON, CONCORD, ETC. RAILROAD. 1069 

ship. Restricting A's unlimited right of using one hundred acres of 
land to a limited right of using the same land, may work a far greater 
injury to A than to take from him the title in fee-simple to one acre, 
leaving him the unrestricted right of using the remaining ninety-nine 
acres. Nobody doubts that the latter transaction would constitute a 
" taking of property." Why not the former? 

If, on the other hand, the land itself be regarded as " property," the 
practical result is the same. The purpose of this constitutional prohi- 
bition cannot be ignored in its interpretation. The framers of the Con- 
stitution intended to protect rights which are worth protecting ;• not 
mere empty titles, or barren insignia of ownership, which are of no 
substantial value. If the land, " in its corporeal substance and entity," 
is " propert}'," still, all that makes this property' of any value is the 
aggregation of rights or qualities which the law annexes as incidents 
to the ownership of it. The constitutional prohibition must have been 
intended to protect all the essential elements of ownership which make 
" property " valuable. Among these elements is, fundamentally, the 
right of user, including, of course, the corresponding right of excluding 
others from the use. See Comstock, J., in Wynehamer v. The People, 
13 N. Y. 378, p. 396. A physical interference with the land, which 
substantially abridges this right, takes the owner's " property " to just 
so great an extent as he is thereby deprived of this right. " To de- 
prive one of the use of his land is depriving him of his land ; " for, as 
Lord Coke said : " What is the land but the profits thereof ? " Suther- 
land, J., in People v. Kerr, 37 Barb. 357, p. 399 ; Co. Litt. 4 b. The 
private injury is thereby as conipletel}^ effected as if the land itself were 
" physically taken away." 

The principle must be the same whether the owner is wholl}- deprived 
of the use of his land, or only partially deprived of it ; although the 
amount or value of the property taken in the two instances may widely 
diflfer. If the railroad corporation take a strip four rods wide out of a 
farm to build their track upon, they cannot escape paying for the strip 
by the plea that the}- have not taken the whole farm. So a partial, but 
substantial, restrictioft of the right of user may not annihilate all the 
owner's rights of property in the land, but it is none the \e?s true that 
a part of his property is taken. Taking a part " is as much forbidden 
by the Constitution as taking the whole. The difference is only one of 
degree ; the quantum of interest may var}^ but the principle is the 
same." See 6 Am. Law Review, 197-198 ; Lawrence, J., in Nevi?is v. 
City of Peoria, 41 Illinois, 502, p. 511. The explicit language used 
in one clause of our Constitution indicates the spirit of the whole in- 
strument. " No part of a man's property shall be taken. ..." Con- 
stitution of N. H., Bill of Rights, article 12. The opposite construction 
would practically nullify the Constitution. If the public can take part 
of a man's property without compensation, the}' can, by successive tak- 
ings of the different parts, soon acquire the whole. Or, if it is held 
that the complete divestiture of the last scintilla of interest is a taking 



1070 EATON V. BOSTON, CONCORD, ETC. RAILROAD. [CIIAP. Vj. 

of the whole for which compensation must be made, it will be easy to 
leave the owner an interest in the land of infinitesimal value. 

The injur}' complained of in this case is not a mere personal incon- 
venience or annoyance to the occupant. Two marked characteristics 
distinguish this injur}- from that described in man}- other cases. First, 
it is a physical injury to the land itself, a physical interference with the 
rights of property, an actual disturbance of the plaintiffs possession. 
Second, it would clearl}- be actionable if done b}- a private person with- 
out legislative authority. The damage is " consequential," in the sense 
of not following immediately in point of time upon the act of cutting 
through the ridge, but it is what Sir William Erie calls " consequen- 
tial damage to the actionable degree." See Brand v- //. & C. li. Co., 
Law Reports, 2 Queen's Bench, 223, p. 249. These occasional inunda- 
tions ma}- produce the same effect in preventing the plaintiflf from 
making a beneficial use of the land as would be caused by a manual 
asportation of the constituent materials of the soil. Covering the land 
with water, or with stones, is a serious interruption of the plaintiff's 
right to use it in the ordinary manner. If it be said that the plaintiff 
still has his land, it may be answered, that the face of the land does 
not remain unchanged, and that the injury may result in taking away 
part of the soil (" and, if this may be done, the plaintiff's dwelling- 
house may soon follow ") ; and that, even if the soil remains, the plain- 
tiff may, by these occasional submergings, be deprived of the profits 
which would otherwise grow out of his tenure. '• His dominion over 
it, his power of choice as to the uses to which he will devote it, are 
materially limited." Brinkerhoff, J., in Reeves v. Treasurer of Wood 
County, 8 Ohio St. 333, p. 346. 

The nature of the injury done to the plaintiff ma}- also be seen by 
adverting to the nature of the right claimed by the defendants. The 
primary purpose of the defendants in cutting through the ridge was to 
construct their road at a lower level than would otliervrise have been 
practicable. But, although the cut was not made " for the purpose of 
conducting the water in a given course " on to the plaintiff's land, it 
has that result ; and the defendants persist in alMwing this excavation 
to remain, notwithstanding the injury thereby visibly caused to the plain- 
tiff. Rather than raise the grade of their track, they insist upon keep- 
ing open a canal to conduct the flood-waters of the river directly on to 
the plaintiffs land. If it be said that the water came naturally from 
the southerly end of the cut on to the plaintiflTs land, the answer is, 
that the water did not come naturally to the southerly end of the cut. 
It came there by reason of the defendants' having made that cut. In 
consequence of the cut, water collected at the southerly boundary of 
the ridge, north of the plaintiffs farm, which would not have been there 
if the ridge had remained in its normal and unbroken condition. 
They have " so dealt with the soil " of the ridge, that, if a flood came, 
instead of being held in check by the ridge, and ultimately getting away 
by the proper river channel without harm to the plaintiff, it flowed 



CHAP. VI.] EATON V. BOSTON, CONCORD, ETC. RAILROAD. 1071 

through where the ridge once was on to the plaintiff's land. " Could the 
defendants sa}- the}- were not liable because they did not cause the rain 
to fall," which resulted in the freshet ; or because the water " came 
there b}- the attraction of 'gravitation? " See Bramwell, Baron, in 
iSmith V. Fletcher^ Law Reports, 7 Exchq. 305, p. 310. If the ridge 
still remained in its natural condition, could the defendants pump up the 
flood-water into a spout on the top of the ridge, and thence, by means 
of the spout, pour it directly on to the plaintiff's land? If not, how 
can they maintain a canal through which the water by the force of gravi- 
tation will inevitably find its way to the plaintiff's land? See Ames, 
J., in Shipley v. Fifty Associates, 106 Mass. 194, pp. 199, 200; 
Chapman, C. J., in Salisbury v. Herchenroder, 106 Mass. 458, p. 460. 
To turn a stream of water on to the plaintiff's premises is as marked 
an infringement of his proprietary' rights as it would be for the defend- 
ants to go upon the premises in person and " dig a ditch, or deposit 
upon them a mound of earth." See Lawrence, J., in Nevins v. City 
of Peoria, 41 Illinois, 502, p. 510; Dixon, C. J., in Pettigreiv v. Vil- 
lage of Evansville, 25 Wisconsin, 223, pp. 231, 236. The defendants 
may, perhaps, regret that they cannot maintain their track at its pres- 
ent level without thereb}' occasionally pouring flood-water on to the 
land of the plaintiflJ". Indeed, the passage of this water through the cut 
may cause some injury to the defendants' road bed. But the advan- 
tages of maintaining the track at the present grade outweigh, in the 
defendants' estimation, the risk of injury by water to themselves and 
to the plaintiff. In asserting the right to maintain the present condi- 
tion of things as to the cut, the defendants necessarily assert the right 
to produce all the results which naturally follow from the existence of 
the cut. In eflfect, the}- tlius assert a right to discharge water on to the 
plaintiff's land. Such a right is an easement. A right of " occasional 
flooding" is just as much an easement as a right of "permanent 
submerging ; " it belongs to the class of easements which " are bj- their 
nature intermittent — that is, usable or used onl^'at times." See God- 
dard's Law of Easements, 125. If the defendants had erected a dam 
on their own land across the river below the plaintiff's meadow, and b\- 
means of flash-boards thereon had occasional!}' caused the water to flow 
back and overflow the plaintiff's meadow so long and under such cir- 
cumstances as to give them a prescriptive right to continue such flow- 
age, the right thus acquired would unquestionably be an " easement." 
The right acquired in that case does not differ in its nature from the 
right now claimed. In the former instance, the defendants flow the 
plaintiff's land by erecting an unnatural barrier below his premises. In 
the present instance, they flow his land by removing a natural barrier on 
the land above his premises. In both instances, the}' flow his land by 
making " a non-natural use " of their own land. In both instances, 
they do an act upon their own land, the effect of which is to restrict or 
burden the plaintiff's ownership of his land (see Lecov field v. Lonsdale, 
Law Reports, 5 Com. Pleas, 657, p. 696) ; and the weight of that burden 



1072 EATON V. BOSTON, CONCORD, ETC. RAILROAD. [CHAP. VI. 

is not necessarily dependent upon the source of the water, whether from 
below or above. See Bell, J., in Tillotson v. Smith, 32 N. H. 90, 
pp. 95-96. In both instances they turn water upon tiie plaintiffs land 
" which does not flow naturallj' in that place." If the right acquired in 
the former instance is an easement, equally so must be the right claimed 
in the latter. If, then, the claim set up bj- the defendants in this case 
is well founded, an easement is already vested in them. An easement 
is property, and is within the protection of the constitutional prohibi- 
tion now undei- consideration. If the defendants have acquired this 
easement, it cannot be taken from them, even for the public use, without 
compensation. But the right acquired by the defendants is subtracted 
from the plaintiff's ownership of the land. Whatever interest the 
defendants have acquired in this respect the plaintiff has lost. If what 
the}^ have gained is property, then what he has lost is property- If the 
easement, when once acquired, cannot be taken from the defendants 
without compensation, can the defendants take it from the plaintiff in 
the first instance without compensation ? See BrinkerhofT, J., uhi sup. / 
Selden, J., in Williams v. iV. T. Central R. R., 16 N. Y. 97, p. 109. 
An easement is all that the railroad corporation acquire when they 
locate and construct their track directly over a man's land. The fee 
remains in the original owner. Blake v. Hich, 34 N. H. 282. Yet 
nobody doubts that such location and construction is a " taking of 
property," for which compensation must be made. See Redfield, J., in 
ITatch V. Vt.. Central R. R.,2b Vt. 49, p. 66. What difference does it 
make in principle whether the plaintiff's land is encumbered with stones, 
or with iron rails? whether the defendants run a locomotive over it, 
or flood it with the waters of Baker's River? See Wilcox, J., in March 
V. P. & C. R. R., 19 N. H. 372, p. 380 ; W'alworth, Chan., in Canal 
Com'rs & Canal Appraisers v. The Peoj^le, 5 Wendell, 423, p. 452, 

If it should be held that the legislature had conferred a valid author- 
ity upon the defendants to make this cut, if necessary to the constrirc- 
tion of the railroad, or if made with care and skill, the question of 
necessity or of care would become material, and might have to be 
decided bv a jurv. See Johnson v. Atlantic & Sc. L. R. Co., 35 N. H. 
569 ; EstahrooTcs v. P. & 8. R. Co.,\2 Ctish. 224 ; Mellenx. Western 
R. R.. 4 Gray, 301; Curtis v. Eastern R. R.,\A Allen, 55 ; same 
case, 98 Mass. 428. But in the view now taken, these questions are 
immaterial. The defendants are not held liable, as in some other cases, 
because their acts were unnecessar}', or unskilful, and hence not within 
the contemplation of the charter. They are held liable, irrespective of 
any negligence on their part, on the ground that it was beyond the 
power of the legislature to authorize the infliction of this injury on 
the plaintiff, without making provision for his compensation. 

We think that here has be en a taking of the plaintiff's prop erty ; 
that, as the statutes under which the defendants acted make no pro - 
vision f o r the plaintiff's compensa tion, they afford no justification ; that 
the defendants are liable in this action as wrong-doers ; and that the 



CHAP. VI.] EATON V. BOSTON, CONCORD, ETC. KAILROAD. 1073 

r uling of the court was correct. These conchisions, which are sup- 
ported by authorities to which reference will soon be made, seem to us 
so clear, that, if there were no adverse authorities, it would be un- 
necessary to [)iolong the discussion of this case. But, as there are 
respectable authoi'ities which are in direct conflict with these conclu- 
sions, it has been tliought desirable to examine some arguments which 
have, at various times, been advanced in support of the opposite view. 

In some instances, as soon as it has been made to appear that there 
is a legislative enactment purporting to authorize the doing of the act 
complained of, the coini)laint has been at once summarily disposed of 
by the curt statement "■ that an act authorized by law cannot be a 
tort." This is begging the question. It assumes the constitutionality 
of the statute. If the enactment is opposed to the Constitution, it is 
" in fact no law at all." " The term unconstitutional law, in American 
jurisprudence, is a misnomer, and implies a contradiction." "The will 
of the legislature is only law when it is in harmony with, or at least is 
not opposed to, that controlling instrument which governs the legisla- 
tive body equally with the private citizen." Cooley's Constitutional 
Limitations, 1st ed., pp. 3, 4. The error in question originates in a 
" fallacy of reference." It arises from following English authorities, 
without adverting to the immense difference between the practically 
omnipotent powers of the British Parliament and the comparatively 
limited powers of our State legislatures, acting under the restrictions 
of written constitutions. Parliament is the supreme power of the 
realm. It is at once a legislature and a constitutional convention. 1 
De Tocqueville's Democracy in America, Reeves's Translation, 2d Am. 
ed., 80. Parliament can " do everything that is not naturall}' impos- 
sible ; " and what it does "no autiiority on earth can undo." 1 Black- 
stone's Com. 161 ; 4 Coke's Inst. 36. A State legislature, on the other 
hand, " is powerless when it attempts to pass the limits prescribed by 
the Constitution." See Cooley's Const. Lim., 1st ed., 4.5, 46. In 
England, whenever it appears that the act complained of was author- 
ized by a parliamentary statute, the court are perfectly justified in dis- 
missing the complaint, on the ground that the act was " authorized by 
law." In this country, when it appears that the legislature have gone 
through the form of enacting a statute purporting to authorize the act 
complained of, the further inquiry remains, whether the legislature 
had the constitutional power to pass such a statute. If they had not, 
then their enactment is not " law," and can afford no justification. 
The error of blindly following English authorities, as to the justifica- 
tion afforded by statutory enactments, has repeatedly been exposed. 
Swan, J., in Crawford v. The Village of Delaware, 7 Ohio i^t 459, 
pp. 466, 477 ; Maison, Senator, in Bloodgood v. Mohawk & Hudson 
Railroad Co., 18 Wendell, 9, pp. 29-31 ; Archer, C. J., in Barron v. 
Mayor of Baltimore, 2 Amer. .Jurist, 210; Smith, J., in Goodallv. 
City of Milwaukee, 5 Wisconsin, 32, pp. 38, 45 ; Cooley's Const. Lim., 
1st ed., 85 ; and see, also, Angell on Watercourses, 6th ed., sec. 461 ; 
VOL. I. —68 



1074 KATOX V. BOSTON, CONCORD, ETC. RAILROAD. [CIIAP, VI. 

Sutherland, J., in People v. Kerr^ 37 Barb. 357, pp. 412, 41o ; 1 Redi". 
on Railways, 4tli ed., 232. 

The error in the argimient just commented upon, may, perhaps, be 
summed up in the statement, that it confounds tlie legislature with the 
constitutional convention. Closely allied to this is the error of con- 
founding the legislature with the Supreme Court. It seems to have 
been contended that the legislature is competent to determine vjhether 
a franchise will be injurious to other interests, and that it is to be pre- 
sumed, after a legislative grant, " that there is no just claim for result- 
ing damages which has not been provided for." See American Law 
Magazine, vol. 1, No. 1, April, 1843, 58-GO. This assumes both the 
omniscience and omnipotence of the legislature. If the legislators 
themselves are to finally decide whether they have transcended their 
constitutional powers, "then," in the words of Daniel Webster, "the 
Constitution ceases to be a legal and becomes only a moral restraint 
upon the legislature." It " is admonitory or advisory on!}-, not legally 
binding. . . ." Speech on the Independence of the Judiciary, quoted 
in Cooley's Const. Lim., 1st ed. 4G, note 1. It is now universally 
conceded to be the province and dut}' of the judiciar}' to pass upon 
the constitutionalit}' of statutes ; but it is to be regretted that some 
courts have manifested excessive reluctance to pronounce statutes un- 
constitutional. " \Yhatever respect may be due to the legislature, that 
due to the Constitution is still greater." Lawrence, J., in Bunn v. Tlie 
People^ 45 Illinois, 397, p. 419. The result has sometimes been "to 
sacrifice the individual to the community." See Sedgwick on Damages, 
5th ed., 121, 122. "It is not," said Mr. Sedgwick, "an agreeable 
observation to make, but I believe it cannot be denied, that the pro- 
tection afforded b}- the English government to property is much more 
complete in this respect tlian under our system, although Parliament 
claims to be despoticalh' supreme, and although we boast our submis- 
sion to constitutional restrictions. • . ." Sedgwick on Stat, and Const. 
Law, 523, 524, note. Parliamentary Acts, at the present time, usually 
contain carefully drawn clauses, scrupulously providing for the indem- 
nit}' of those who are liable to be injured by the exercise of the powers 
granted by the Act. In this country it too often happens that the 
legislature neglect to carefully perform this duty, and the failure of the 
courts to pronounce the Act unconstitutional leaves the injured party 
without remedy. In view of the " form that the constitutional provision 
has assumed," in the hands of some courts, " it must," said the same 
author, "be admitted that in practice our constitutional guarantees 
are very flexible things. . . ." Sedgwick on Stat, and Const. Law, 534. 

It is said that " if the legislature is competent to furnish the remedy, 
there is no denial of justice, though no action can be sustained at law." 
1 Araer. Law Magazine, April, 1843, 57. Leave to apply to a future 
legislature for an act of indemnit}- is not the "certain remedy" to 
which (by Article 14 of the Bill of Rights) every subject is entitled 
" for all injuries he may receive ... in his property-." Besides, "is 



1 



CHAP. VI.] EATON V. BOSTON, CONCORD, ETC. RAILROAD. 1075 

the obligation to make him compensation any stronger upon a future 
legislature than it was ou that one b}- whose authority his property has 
been taken ; " and if they have " failed to make a constitutional pro- 
vision for his compensation," " what assurance can he have" that any 
future legislature will do so? " It was, however, to place the rights of 
pi'operty upon higher grounds than the mere legislative sense of justice 
and equity, that this prohibition upon legislative power was embodied 
in the bill of rights." Moore, J., in Buffalo B. B. & C. R. li. Co. v. 
Ferris, '2Q Texas, 588, p. 602. . . . 

It is familiar law that " where an agent exceeds his authority, what 
he does within it is valid, if that part be distinctly severable from the 
remainder." 1 Parsons on Contracts, 4(h ed., 58. The same principle 
applies to the exercise by tlie legislature of the power delegated to them 
b}' the Constitution. No sound argument can be founded upon the 
hardship to the grantees of not receiving all that the legislature under- 
took to convey to them. Conceding that the grantees, by assuming the 
performance of the duties required of them by the charter, have paid a 
full consideration for all the privileges which the charter purported to 
convey to them, how does their case differ from that of other unfortu- 
nate persons who have purchased propert}' of an irresponsible party who 
had no right to sell ? Is the fact that the purchaser paid a full consid- 
eration to the wrongful vendor allowed to divest the title of the true 
owner? Yet, upon what other theory can it be said (1 Araer. Law 
Magazine, 75) that " we cannot look bej'ond the charter itself to deter- 
mine the duties and liabilities of the grantee " ? 

It is said that a land-owner is not entitled to compensation where 
the damage is merely "consequential." The use of this term " conse- 
quential damage" '' prolongs the dispute," and " introduces an equivo- 
cation which is fatal to any hope of a clear settlement." It means 
both damage which is so remote as not to be actionable, and damage 
which is actionable. Sometimes it is used to denote damage which, 
though actionable, does not follow immediately, in point of time, upon 
the doing of the act complained of; what Erie, C. J., aptly terms 
" consequential damage to the actiona'jle degree." Brayxd v. H. & 
C. B. Co., Law Reports, 2 Queen's Bench, 223, p. 249. It is thus used 
to signify damage which is recoverable at common law in an action of 
case, as contradistinguished from an action of trespass. On the other 
hand, it is used to denote a damage which is so remote a consequence 
of an act that the law affords no remed}' to recover it. The terms 
"remote damages" and "consequential damages "" are not neces- 
saril}' s3'nonymous, or to be indifferently used. All remote damages 
are consequential, but all consequential damages are by no means 
remote." Sedgwick on Damages, 5th ed., 56. When, then, it is said 
that a land-owner is not entitled to compensation for " consequential 
damage," it is impossible either to affirm or deny the correctness of the 
statement until we know in what sense the phrase " consequential 
damage " is used. If it is to be taken to mean damagn which would 



107G EATON V. BOSTON, CONCORD, ETC. KAILROAD. [CHAP. VI. 

not have been actionable at coniiiion law if done by a private individual, 
tlie proposition is correct. The constitutional restriction was designed 
" not to give new rights, but to protect those already existing." Pierce 
ou Am. R. R. Law, 173 ; and see Rickett v. Directors, c&c, of Metro- 
2)olikin Railway Co., Law Reports, 2 House of Lords, 175, pp. 188, 
189, 11)6. But this does not concern the present case, where it is vir- 
tually conceded that the injury would have been actionable if done by 
a private individual not acting under statutory authorit}-. If, upon the 
otlicr hand, the phrase is used to describe damage, wiiich, though not 
following immediately in point of time upon the doing of the act com- 
plained of, is nevertheless actionable, there seems no good reason for 
establishing an arbitrary rule that such damage can in no event amount 
to a " takiii-g of property." 

The severity of the injury ultimately resulting fi-om an act is not 
always in inverse proportion to the lapse of time between the doing of 
the act and the production of the result. Heavy damages are recov- 
ered in case as well as in trespass. The question whether the injur}' 
constitutes a " taking of property" must depend on its effect upon 
proprietary rights, not on the length of time necessary to produce that 
effect. If a man's entire farm is permanently- submerged, is the dam- 
age to him any less because the submerging was only the " consequen- 
tial " result of another's act? It has been said " that a nuisance by 
flooding a man's land was originall}' considered so far a species of 
ouster, that he might have had a remedy for it bj' assize of novel dis- 
seisin ; " but if it be conceded that at present the only common law 
remedy is by an action on the case, that does not change the aspect of 
the constitutional question. The form of action in which the remed}' 
must be souglit cannot be decisive of the question whether the injury 
falls within the constitutional prohibition. " We are not to suppose 
that the framers of the Constitution meant to entangle their meaning 
in the mazes " of the refined technical distinctions bj- which the com- 
nion-la\v system of forms of action is " perplexed and encumbered." 
Such a test would be inapplicable in a large proportion of the States, 
where the distinction between trespass and case has been annihilated 
by the abolition of the old forms of action. We are not alone in the 
opinion that the phrase " consequential damage " has been misapplied 
in some of the discussions on this constitutional question; — see the 
criticisms of Miller, J., in Pumpelhj v. Green Bay Company, 13 Wal- 
lace U. S. 166, p.. 180; Paine, J., in Alexandet' v. City of Mihcaukee, 
16 Wisconsin, 247, p. 258 ; Sutherland, J., in People v. Kerr, 37 Barb. 
357, pp. 403, 408 ; — and we think that the confusion thus engendered 
will account for some erroneous decisions. If this most ambiguous 
expression is to be used at all in this connection, the meaning attached 
to it should always be clearly defined, as is done in Pierce on Am. 
Railroad Law, 173. 

It may perhaps be urged that a decision in favor of the plaintiff will 
give rise to a multiplicity of suits by other claimants, many of whom 



CHAP. VI.] EATON V. BOSTON, CONCORD, ETC. RAILROAD. 1077 

have sustained no substantial damage. But this affords no ground for 
denying redress to this plaintiff, who has clearly sustained a substantial 
injur}'. Nor will the present decision be a precedent in future cases 
differing in their nature from the one before us. The answers given 
b}' other courts to similar objections are quite decisive. Ld. Den- 
man, C. J., in Regina v. Eastern Counties Railway Co., 2 Queen's 
Bench, 347, pp. 3G2, 363 ; Montague Smith, J., in JJrandy. II. & C. 
Railway Co., Law Reports, 2 Queen's Bench, 223, p. 245 ; Parker, C. 
J., in Boston & Roxhury Mill Corp. v. Gardner, 2 Pick. 33, pp. 38, 
39. . . . [Here follows, at considerable length, a leainied classification 
and consideration of the cases, ending with those designated as " the 
highway grade cases." The opinion closes as follows :] 

By the foregoing review of authorities, it appears that the number of 
actual decisions in irreconcilable conflict with the present opinion is 
much smaller than has sometimes been supposed, and that, in a large 
proportion of the cases cited, the application of the principles here main- 
tained would not have necessitated the i-endition of a different judgment 
from that whicli the courts actually rendered in those cases. 

Thus far Eaton's case alone has been under consideration. The only 
difference between Eaton's case and Aiken's case arises from the fact 
that a small part of the ridge is included in Aiken's farm, while none 
of it is on the farm of Eaton. This difference does not affect the pres- 
ent inquiry, which relates solely to the correctness of the ruling at the 
trial. The court did not rule that Aiken could recover the damages 
occasioned to him by the entire cut through the ridge. The ruling was 
carefully limited to " such damages as have been caused" the plaintiffs 
" in consequence of the defendants' cutting away the ridge noilh of the 
plaintiffs' farms." If any damage was caused to Aiken by the defend- 
ants' removing any portion of that " small part" of the ridge which was 
included in his farm, he is not entitled to recover for it under this 
ruling. So far, then, as the correctness of the ruling is concerned, 
Aiken's case stands on the same legal principle as Eaton's. Under 
this ruUng it will be for a jury to say how much of the injury to Aiken's 
meadow was occasioned by the removal of that part of the ridge which 
was north of Aiken's farm. 

In both cases the exception is overruled. As the defendants elect 
trial b}' jui-y, the order must be, Case discharged.^ 

1 Of this strong and closely reasoned jiulgment, it has been said that, "The leading 
case upon the subject, and the one which has contributed more than an_y other toward 
bringing about the change referred to in the last section is Eaton v. B.C. S,- M. R. R. 
Co., 51 N. H. 504." Lewis, Em. Domain, s. 58 (Chicago, 1888). The change here 
referred to is one thought by Mr. Lewis to have taken place " within the last twenty 
years," the nature of which is sufficiently indicated in the opinion. 

" That the flowing of lands against the owner's consent, and without compensation, 
is a taking of iiis property in violation of that provision of our Constitution, and that of 
most or all the American States, which prohibits the taking of property without com- 
pensation, is a proposition which seems to me so self-evident as hanlly toadmitof illns- 
tration by any example which can be made clearer ; and which therefore can hardly 



1078 EATON V. BOSTON, CONCORD, ETC. RAILROAD. [CHAP. VI. 

need the supjiort of authorities. But see Hooker v. New Haven and Northampton Co., 
14 Conn. 146; Rowe v. Granite Bridge Corp., 21 Pick. 344; Nevins v. Citi/ of Peoria, 
41 111. 502, 510; Peltigrew v. V^iUage of Evansville, 25 Wis. 223, 231, 236; Pumpelly v. 
Green Bay Co., 13 Wallace, 106. But tlie most satisfactory and hest considered case 
wliich can be found in the books upon this subject, which examines, classifies, and 
analyzes nearly all the cases, and in the conclusions of which I wholly agree, is that 
of Eaton V. B. C. ^ M. R. R. Co., 51 N. 11. 504-535." — Grand Rapids Booming Co. 
V. Jarvis, 30 Mich. 321 (1874), Christiancy, J., for the court. 

See the elaborate affirmation of this case in Thompson v. Androscoggin Riv. Imp. Co., 
54 N. H. 545 (1874). Compare Weaver v. Miss. ^- Rum River Boom Co., 28 Minn. 
534, 538 (1881); Janesviile v. Carpenter, 77 Wis. 288 (1890); Anderson v. Henderson, 
124 111. 164; Kandolph, Em. Dom. s. 429; Atty.-Gen. v. Tomline, 14 Ch. Div 58 
(1880) ; Head v. Amusk. Co., supra, pp. 767-768 ; Turner v. Nye, supra, p. 893 ; Wil- 
liams V. Nelson, 23 Pick. 141 ; see also Strong, J., for the court, in Transport. Co. v. 
Chicago, infra, p 1082; and Earl, J., dissenting, in Slory v. El. Ry. Co., infra, p. 1105. 
It will be observed tliat the judgment in the princip al case may re stjipo^i other 
grounds than those on which the court puts it. 

The question of wiieiher property has been taken under the power of eminent 
domain is, indeed, a question of substance , it is not a mere matter of names, or of the 
alleged or nominal ground on which the legislature assumes to act. It seems tliat it 
should make no differen ce un der what head of legislativ e power it is sought to justify 
an act, e. g., under the so-called police power or taxation, — if t here be, in reality, and 
u pon a large and just conside rati ou of the matter, a taking, divesting, or destruction 
of prope rty bv the St ate for public purposes, compensation mu st be made. Such a 
d octrine, h owever, is to be applied wi th a recognition of well-known exc eptions and 
q ualificatio ns, in ful l view of tha t hi storical conception ofthe meaning of a taking 
of pro p erty for public purposes, as contraste d with the usual opera tions of public 
a uthority, not thought of as requiring compensation, wliich may b e gatlfefen Tron\ the 
estal)lished pra ctices of all civilized gover nments, and particularly of our own an- 
cestors, and which is illustrated in such a case as Com. v. Alger, 7 Cush. 53 (supra, 
p. 693), or Com. v. Tewksbury, 11 Met. 55. See supra, p. 699 and note. Compare also 
Mugler v. Kansas, 123 U. S. 623 (supra, p. 782) ; and Milter v. Horton, 152 Mass. 540. A 
comparison, in the last case, of the dissenting opinion with that of the court will illus- 
trate the true nature of the inquiry in such cases and the difficulties of the subject. In 
reasoning on such questions there is danger in assuming that the framers of our con- 
stitutions used language in the definite and exact sense reached by modern analysis. 
It is moreover never to be forgotten_thatmuch_iu our constitutions is addressed_to 
l egislatures and not at all to courts ; t hat much i njusti ce, in the way among othe r 
w ays, of n ot making compensation where it should be given, for injuries suffered from 
acts of the~executiv e and the legislature is beyond the reach of cou rts. See supra, 
pprr51-154. 

Compare what is said in " Origin and Scope of the American Doctrine of Con- 
stitutional Law" (Little and Brown, 1893), 26 et seq., in discussing the meaning of the 
rule that laws are not to be set aside as unconstitutional unless they are so beyond 
a reasonable doubt = " In such a work there can be no permanent or fitting ?nodus vivendi 
between the different departments unless each is sure of the full co operation of the 
others, so long as its own action conforms to any reasonable and fairly permissilde 
view of its constitutional power. Tlie ultimate arbiter of what is rational and permis- 
sible is indeed always the courts, so far as litigated cases bring the question before 
them. This leaves to our courts a great and stately jurisdiction. It will only imperii 
the whole of it if it is sought to give them more. They must not step into the shoes 
of the law-maker, or be unmindful of the hint that is found in the sagacious remark of 
an English bishop nearly two centnries ago, quoted lately from Mr Justice Holmes : — 
' Whoever hath an absolute authority to interpret any written or spoken laws, it is he 
who is trulv the law-giver, to all intents and purposes, and not the person who first 
wTote or spoke them.' ... If what I have said be sound, it is greatly to be desired 
that it should be more emphasized by our courts, in its full significance. It has been 



CHAP. VI.] KOCH V. DELAWARE, ETC. RAILROAD. 1079 



KOCH V. DELAWARE, .fee. RAILROAD COMPANY. ^ jec^JfituM/- 
Supreme Court of New Jersey. 189L ^ ^unJT^fu^ 

[53 iNr.XZ««., 256.1 ^^^^^ ^^ 

On demurrer to declaration. Argued at November Term, 1890, , 

before Beasley, Chief Justice, and Justices Dixon and Magie. n^PUnA/iM j 

For the plaintiff, McDermit and Maker. For the demurrants, Bedle, y^^^ lA/co^a. 
3Iuirheid, and 3IcGee. ^ 

The opinion of the court was delivered by /0^>ixxe-£. _ 

Beasley, Chief Justice. T he declaration complains of damag es 'tf'urzK 

arising from the flooding; of her lands by an act of the defend ant alleged ^ 

to be Tllegal. X^.-^«^ 

The lands so injured are described as adjoining a certain stream of j^i^^^^,^^^v^Ux,<! 
water called Ned's Creek, which empties into a contiguous creek, known 
as Kingsland's Creek, and that th e premises in question were draine d (\ AATuA-^ 
a nd kent dry, until the grieva nce complained of, by means of a sluice ^^^^^^yj^t^-v^y 
a t the month of the last-named stream. 

These allegations do not appear to have any relation to the case, /Oaa^M^'^ 
except to show, with unnecessary particularity, that antecedently to the aa^ola^ <XA 
tort complained of, the plaintiffs' premises had not been subject to any J^^jy -tCA 
watery influx. No complaint is ma de of any interference with the 
sl uice or creeks thus in a measure describe d. /j<yutyA. [T^ 

The declaration then proceeds to the gravamen of the supposed cause , -^ISjJt/ 
of action. Briefly it is thus stated : That by a certain Act of the Lcgis- " ^ 
lature, the same being a supplement to ^' An Act to inf-ovpornte the J]A(Ka/\i^^ 
Kingsland and Saw Mill Comi)any, " a certain tract of land is describe d, v { . * 
th e northerly side of which abuts upon the line of the Boonton branch AH^ • ■''f^^ 

often remarked that private rights are more respected by the legislatures of some v^/ ^^^ ^ 

couutries which have uo written constitution than by ours. No doubt our doctrine of _. /- ^ ; 

constitutional law has had a tendency to drive out questions of justice and right, /JK^ >O^^^J^ 

and to fill the mind of legislators with thoughts of mere legality, of what the Consti- 0] 

tution allows. And moreover, even in the matter of legality, they have felt little (AAAf /'^'•-■ 

responsibility; if we are wrong, they say, the courts will correct it. Meantime they A' nit 

and the people whom they represent, not being thrown back on themselves, on the C'y^-^ LKAy\ 

responsible exercise of their own prudence, moral sense, and honor, lose much of wliat i^^^aX^ 

is best in the political experience of any nation ; and they are belittled as well as ''^ i 

demoralized. If what I have been saying is true, the safe and permanent road towards ^/_ ,^,^^cx/C( 

reform is that of impressing upon our people a far stronger sense than they have of ^ 

the great range of possible mischief that our system leaves open, and must leave open^ /^ L-(r<* (K 

to the legislatures, and of the clear limits of judicial power, so that responsibility may 

be brought sharplv home where it belongs. The checking and cutting down of legis- ,^^^ |^ AM.^ 

lative power by numerous detailed prohibitions in the Constitution, cannot be accom- 

plished without making the government petty and incompetent. Tin's process has v^^ oJjnMK 

already been carried much too far in some of our States. Under no system can the , ' ^ ^ 

powerof courts go far to save a people from ruin ; our chief protection lies elsewhere -aaaS .'^'^ ^ 

If this be true, it is of the greatest public importance to put the matter in its true 

light." — Ed. r 



1080 KOCH V. DELAWARE, ETC. RAILROAD. [CHAP. VL 

of the Morris and Essex Railroad Compan}-, and that the plaintiffs' 
premi ses are a part of the tract so set forth. Then follows an aver- 
Jc/yt. inent that by another provision of the statute referred to it is enacted, 
'' that it shall not be lawfid to make any opening through the cause- 
way or roadbed of the Boonton branch of the Morris and Essex Rail- 
road Company, whereby any overflow or tide-water from the meadows 
lying beyond the same shall be discharged upon" the tract of land just 
mentioned. 

T he tort laid to the defe nda nt is, that it ^^ unlawf ully made a n open- 
in g th rough the causeway or road bed of th e Boonton braiich, and 
th ereby ca used t he plaintiffs' lands to be over flowed by the tide-water." 

These statements can have but a single meaning. Thev denote tha t 
the . plaintiffs' lands are protected from the incoming of tide-water by 
the artificia l structure described as the causeway of the railroad, and_the 
w rong done is, th at the defendant has, in part, rem oved that dam. 

I t is, consequ ently, plain , that the plaintiffs, in order to show_ a 

sua ble wrong, must make i t evident that they have a legal right t o 

1 n sist on the maintenance of the r ailroad s tr ucture in questiono It is 

n ot sufficient for them to show that th ey will sustain a d etriment by its_ 

removal ;l th e ground of their action i s, and must be , a deprivation of a 

\ri ght that the law secures to them ; an d, therefore, if they canno t 

jre quire the keeping up of thi. emban kment, the y cannot complain, in ^ 

/c ourt of la w, of its destruction or its impairment, whether such act b e 

d one by it s owner or by a stranger as an act of trespa ss. 

And this seems to be the theory upon which the present pleading has 
been composed. The plaintiffs' legal right to the unimpaired existence 
of this defensive roadway, so beneficial to their property, is described in 
the declaration as emanating from the legislative prohibition against 
any'persons making an opening in it. As the language of the Act is 
plain to that effect, there can be no doubt of the validity of this reliance 
of the plaintiffs, if the Act itself be sustainable. 

And tliis seems to me to be the flaw in the plaintiffs' case ; t he stat - 
n te appears to be destitute of all semblance of lega lity. It is a private 
Act, and it is not shown that it has even been accepted by tlie corporate 
b o_dy for whose benefit it was designed . I t arb itrari ly forbids th e 
Boonton branch railroad to make use of its roadway in a particula r 
m anner — tha t is, to remove it at its pleasure, in whole or in pa rt. 
T his is not within the competency of legislation. It is not perce ived 
h ow the law-maker can direct this corporate body to forever refrain fro m 
re moving a roadbed constructed by it on its own property . The legis- 
l ature, bv its ed ict, cannot burden the la nd of the railroad fo r the be n- 
efit of other propert y. 

Inasmuch, therefore, as this statute cannot be sustained, the plain- 
tiffs' supposed cause of action lias no basis. 

The defendant is entitled to judgment on the demurrer. 



CHAP. VI.] TR.\NSPORTATION CO. V. CHICAGO. \ (7 1081 r /(I ^^ 

In Transportation Co. v. Chicago, 99 U. S. 635 (1878), on.error_to_the C^uyueuu^ 
C ircuit Cou rt of the United S tates f or the N orlliern District of Illinois, ^ -H, a/tii 
Strong, J., for the court said : " We are of opinion that no error has been fj 
shown in this record, though the assignments are very numerous. The ac- OX lUi 0^ 
tion was case to recov er damages for inj uries alleged to have been_sus- ) cJjuJpa.^^ 
t ained by the ulaintitfs in consequence of the action of the city authori ties \ ^ 

i n constructing a t unnel or |jassagevvay along the line of La Salle Street /u>v. '^i-^'Vt^*^ 
a nd under the Chicago River, where it crosses tha t street. Tlie plaintiffs -^.^^o ^ tuU^ 
were the l essees of a lot bounded on the eas t by the street, an d on the / (/> r> 

so uth by the ri ver, and the principal injury of which they complain is, '€xiMjcAa.'J'C4 
th at by the operations of the city they were deprived of acc ess to their a^^ a^^^fC 
p remises, both on the side of the river and on that of the street, during x^ ^ 

t he prosecu tion of the work. It is not claimed that the obstruction ^*''*^, 
was a permanent one, or tliat it was continued during a longer time Oua^o^Ac 
than was necessary to complete the improvement. Nor is it contended fpjiL^ , iMtAX 
that there was unreasonable delay in pushing the work to completion, Sj,^^y!,^cEA. v-t 
or that the coffer-dam constructed in the river, extending some twenty- (]*-/' 

five or thirty feet in front of the plaintiff's lot, was not necessary, indeed ^ ■=« ^^J^ 
indispensable, for the construction of the tunnel. - yov^^ m^\Aa'^ 

"The c ase has been argued on the assumption that the erection of l ci^^^^ 
the coflfer-dam, and the necessary excavations in the street, constitut ed -"^ ' 
a public nuisance, c ausi ng special damage to the plaintiffs, beyond tho se ^u ^'^-^M^ 
i ncident to the public at larg e, a nd hence, it is inferred, the city is re- Aaoa-v^ 

s jjonsible to them for the injurious consequences resulting theref rom. '*^^*'*'*'Y^ 
The answer to this is that the a ssump tion is unwarranted. That cannot ^/ A/^'^^^'^-^ 
b e a nuisance, such as to give a common-law right of action, whi ch -j4 ,Ar{/u 
t he law authorizes . We refer to an action at common law such as this "^yl ^ / 

is. A legislature may and often does authorize and even direct a cts p-^^^^^^ % 
t o be done which are harmful to individuals, and which without the aUHA^-"^^ ^ 
a uthority w ould be nuisances \_ b ut in s uch a case, if the statute be such r^^^^ }yi^ 
as the legislature has power to pa ss, the acts are lawful, and are n ot - fftu 

n uisances, unless the power has been exceeded. In such grants of '^^'^ i I 
po wer a right to compensation for consequential injuries caused by the ~>v^9 ^^ (j 
a uthorized erections may be given to tho se who suffer, but then_the /,,^j<^t;tlM ^ 
ri ght is a creature of the statut e. It has no existence without it. If _i/ / 

this were not so, the suffering party would be entitled to repeated rv-i '(MV^ , 
actions until an abatement of the erections would be enforced, or _V/ / v Ijlxj 
perhaps he might restrain them by injunction. ... J. ^ . 

" It is immaterial whether the fee of the street was in the State o r X^X-tM^^ 
i n the city or in the adjoining lot-hold ers. If in the latter, the State j/ fijkXi^l 
had an easement to repair and improve the street over its entire length " '^ 

and breadth, to adapt it to easy and safe passage. -(i,tXAAA 

" It is undeniable that i n making the improvement of which th e ^ /, ^.j^/,<^^ 
pl aintiffs complain the city was the agent of the State, and perform - . . 

in g a public duty imposed upon it by the legislature ; and that per sons ' /^<^^ ' 
ap pointed or authorized by law to make or improve a highway are n ot y-ci^iLinAyx. -^ 
an swerable for consequential damages, if they act within their juris dic- ^ 4. ^^ 



<<ua^ cUyiA. yutX tioL MlvU^ ^jl^ia^^^ ^ ^^ 



/^i-<>^K^'*^ 



^t*/ 



1082 TRANSPORTATION CO. V. CHICAGO. [CIIAP. VI. 

t ion and with care and skill, is a doctrine almost uiiivoisally accepted 
L^Ao a^ a like in England and in this coun try. It was asserted unqualifiedly in 
v^v ^i' .i^ru "^^^"^ Governor and Company of the British Cast- Plate Manufacturers 
J V. Meredith^ 4 Durnf. & E. 794 ; in Sutton v. Clarke, 6 Taun. 28 ; and 

riAA/h. in Boidton v. Croiother^ 2 Barn. & Cres. 703. It was asserted in Green 

} ^ V. Tlce Borowjh of Reading, 9 Watts (Pa,), 382 ; O'Connor v. Pitts- 

y pA^^^ ' burgh, 18 Pa. St. 187; in CaUender y . Marshy 1 Pick. (Mass.) 418; as 
«- "^ well as by the courts of numerous other States. It was asserted in 
^ ^^"^^ Smith V. 2'he Corporation of Washington (20 How. 135), in this 

/. C-fW^' court; and it has been held by the Supreme Court of Illinois. The 
I rr - decisions in Ohio, so far afe we know, are the solitary exceptions. 

/ fl ^^ The doctrine, however it may at times appear to be at variance with 

^ ti, '■/^^^'^^^ natural justice, rests upon the soundest legal reason. The State ho lds 
- "/^6^, i ts hjoh wa^s in trust for the pilUhc. J mi)rove ment s made by its direc- 
J^f (/ ' ti on or by its authority are its acts, and the ultimate responsibility , of 
' / f-^^c^jx t^ Q"^'st-'> s hould rest upon if. B ut it is the prerogative of the State t o 
y . ^ V b e exempt from coercion by suit, except by its own con sent. This 
^ exyjyp^^^ "^ pr erogative would amount to nothing if it does not protect the agen ts 
V \l //^ for improv ing highways which the State is compelled to empl oy. The 
^ re medy, theref ore, for a consequential injury resulting from the Stat e's 

'/^ — ^^ a ction th rough its agents, if there be any, must be t hat, and that oidy, 
d u>XaX^ ^" tiich the legislature shall give . I,t does not exist at common la w. 
^ _ The decisions to which we have referred were made in view of Magna 

^/luJ^^^ ^ Charta and the restriction to be found in the constitution of every 
(j State, that private property shall not be taken for public use without 

lA^A^ j"^^ compensation being made. But acts done in the proper exerci se 

Ci ' of govern mental powers, and not directly encroaching upon priva te 
p roperty, though their consequences may impair its use, are universa lly 
h eld not to be a taking within the meaning of the constitutional pro - 
vision. T hey do not entitle the owner of such property to compen sa- 
ti on from the State or its agents, or give him any right of action . This 
is supported by an immense weight of authority. Those who are curi- 
ous to see the decisions will find them collected in Cooley on Consti- 
tutional Limitations, page 542 and notes. The extremest qualification 
of the doctrine is to be found, perhaps, in Pwnpelly v. Green Pay 
Com,pany, 13 Wall. IGG, and in Eaton v. Bosto?i, Concord, & Ilontreal 
Railroad Co., 51 N. H. 504. In those eases it was held that perma- 
nent flooding of private property ma}' be regarded as a " taking." In 
those cases there was a ph3'sical invasion of the real estate of the 
private owner, and a practical ouster of his possession. B ut in the 
present case there was no such invas ion. No entry was made upo n 
t he plaintiffs' l ot. All that was done was to render for a time its use 
m ore inconvenie nt. 

" T he present Constitution of Illinois took effect on the 8th of Augu st, 
1 870, after the work of constructing th e tunnel had been substant ial 1 y 
c omplete d. It ordains that private property shall not be ' taken or 
damaged ' for public use without just compensation. This is an exten- 



CHAP. VI.] CHIC.VGO V. TAYLOR. 1083 

si on of the common provision for the protection of ])rivatc propert y. 
But it has no application to this case, as was decided by the Supr eme 
Co urt of tlie Stat e iu Chicwjo v. Bumsey, recently decided, and re- 
ported in Chicago Legal News, vol. x. p. 333, 87 111. 348. That cas e 
al so decides that the city is not liable for consequential damages resul t- 
i n g from an i mprovcnient made in the street, the fee of which is in t he 
city, ])rovided the i mi )rovemc nt had the sanction of the legislature. It 
also decides that La Salle Street is such a street, and declares that a 
recover}' of such damages by an adjacent lot-holder has been denied 
by the settled law of the State up to the adoption of the present Con- 
stitution. There would appear, therefore, to be little left in this case 
for controversy." ^ 



ur' 



^y 



^«-^ CHICAGO t;.- TAYLOR. / -. 

°'h o r. „ TT.,,..„. o....„. i««7 A^^Ji^r^^ ^^^^f 



^2ja&^'*^«^x<u k 



' ky Supreme Court of the United States. 1887. -^ ^ /? 

[125 U. S. 161.] r^XAy^,cJ.x^ V^ 



Tr espass on the case. Judgment for plaintiffs. Defendant sued /VO^-^^^-^rw c 
out this writ of erro r [to the C ircuit Court of the United States for the^ 
Northern DistricTof Illinois.] The case iS stated in the opinion o 



court. ~ (:2/(AAA.ytt<4 

Mr. Frederick S. Winston and M)\ John W. Green, for plaintiff in f // ^ 
error. 3fr. George A. FoHansbee and 3Ir. Thomas M. Hoyne, for ^ 
defendants in error. f/ CiMJtfxj^^ 

Mr. Justice Harlan delivered the opinion of the court. 

This action was brought by Moses Taylor, as owner of an undivided *!■, « l/l^ 
interest in a lot in Chicago, having sixt}' feet front on Lumber Street, , J ft .^ 
one hundred and fifty feet on Eighteenth .Street, and three hundred feet 
on the South Branch of Chicago River, to recover the damages sus- wa, AA/i^^' 
tained by reason of the construction, by that cit}', of a viaduct on Eig h- —J/J,^ in/u 
teenth Stre et, in the immediate vicinity of said lot. The city did this work _^ *X. a Jj/ 
imdertiie power conferred by its charter " to lay out, establish, open, ^ | ' \) / 
alter, widen, extend, grade, pave, or otherwise improve streets, alle3"s, f.f- 
avenucs, sidewalks, wharves, parks, and public grounds, and vacate ^ /j^ <t/0^ 
the same," and " to construct and keep in repair bridges, viaducts, and n, 
tunnels, and to regulate the use thereof." It appears that the con- f-^ ^^^ 
stru ction of the v iaduct was direct ed by special j )rdinances of the c\iy_^,-^^),uyt^^^^ 
council. // y ji 

For many years prior to, as well as at, the time this viaduct was built, ^ ^^ 
the lot in question was used as a coal-yard, having upon it sheds, ma- ^^ <JC^!-^^ 
chinery, engines, boilers, tracks, and other contrivances required in the ^ L ^-- 

business of buying, stoi'ing, and selling coal. The premises were long^'-^ '^ n 
so used, and they were peculiarly well adapted for such business. 'y-fiUM^ k 
There was evidence before the jury tending to show that, b y reason o f -^ £^ u- 

1 See City Council v. Maddox, 89 Ala. 181 (1890). — Ed. - , Jy^iJ /pix 



y-O-^M^ 



^1 



^i 

"^^ 



J ^ 10S4 CHICAGO V. TAYLOR. [CUAP. VI. 

*- the construction of the viaduct, the actual market value of the lot, f or 

^' "■ t he uurijoses for which it was speciall y adapted, or for any other purpose 

^ 7- f or which it was likely to be used^ was materially diminish ed, access to 

^' "^ i t from Eig hte enth Street being greatly obstructed , a nd at some poi nts 

t(v/<^^^ practically cut otf ; and t hat, as a necessary result of this work, the use 

/ of Lumber Street, as a way of approach to tlie coal-yard by its occupan ts 

'^'^'^'^ '' a nd buyers, a n d as a way of exit for teams carrying coal fiom the 

Uxil^^^ v ard to customers, was seriously impaire d. Tliere was also evidence 

(J tending to show that o ne of the results of the construction of the viaduc t, 

i/WV. an d the approaches on either side of it to the bridge over Chicago 

)y( CyVy^~ K i^ ei'^ was, that the coal-yard was often flooded with w\ater running on 

, „ t o it from said api^roaches , whereby the use of the premises as a plac e 

•u/O. e-^m-^ for handling and storing coal was greatly interfered with, and ofte n 

roy^ b ecame wholly impracticable. 

■to^Jbici On behalf of the city there was evidence tending to show that the 
pla intiff did not sustain any real dam age, and that the inconvenie nces 
(/tv€ A^ ~ to . occupants of the premises, resulting f rom the co nstruction and main- 
r ' ten ance of the viaduct, were common to all other person s in th e vicin- 

I i ty, and could not be the basis of an individual claim fo r damages 

^■^^-^ ^> a gainst the ci t}'. 

, y 7 There was a verdict and j udgment against the c ity. The court below 

AdMi^^y jj^^^.jj^g refused to set aside the judgment and grant a new trial, the case 
, <tiaAUy<U has been brought here for review in respect to errors of law which, it is 
/ ^ contended, were committed in tlie admission of incompetent evidence, 

p\r CJi/^ ^ .^^ j.j^g refusal of instructions asked by the city, and in the charge of the 
^Azrh^^^' court to the jury. 

/ • /c y. Before noticing the assignments of error it will be well to ascertain 
Uaa^ Ca^^^j^^^^ principles have been announced by this court or by the Supreme 
X A^^-' Court of Illinois in respect to the liability of municipal or other cor- 
■^^ porations in that State, for damages resulting to owners of private 

^^^^ . property from the alteration or improvement, under legislative author- 
w* -t^^for-^ ity^ of streets and other public highways. 

a,^,,yu^i^ " "^Bv the Constitution of Illinois, adopted in 1848, it was provided that 
i no man's property shall " be taken or applied to public use without just 
-p^^^-""-^ compensation being made to him." Art. XIII. § 11. While this Con- 
y^ - stitution was in force Chicago commenced, and substantially completed, 
^r'^ - ^ ^^^^^^j ^^^^^^ Chicago River, along the line of La Salle Street, in that 
'nA.yiM^U^ city. It was sued for damages by the Northern Transportation Com- 
/^/^pany, owning a line of steamers running between Ogdensburg, New York, 
^^^^■^^y^and Chicago! and also a lot in the latter city, with dock and wharfage priv- 
^ Ut^"^ ileges, the principal injury of which it complained being that, during the 
U£44,A<^ «-Pi'Osecution of the work by the city, it was deprived of access to its 
I ^ premises, both on the side of the river and on that of the street. This 

4iWa>-«X qoxxyI — in Transportation Co. v. Chicago, 99 U. S. 635, 641 — held 
:Aj;jJlj-<v^.<AjLi\\v,i in making the improvement of which the plaintiflf" complained the 
^"^^ ;/ city was the agent of the State, performing a public duty imposed by 
^ AM-^y the legislature ; and that " persons appointed or authorized by law to 



CHAP. VI.] CHICAGO V. TAYLOK. 1085 /i.'«.^t*i_ ..-t^IX^ 

make or improve a highway are not answerable for consequential dam- 
ages, if the}' act within their jurisdiction, and with care and skill, is a 2L<» -^l/^-'-'^-^ 
doctrine almost universally accepted, alike in England and in this coun- , f \ qi 
try," — citing numerous cases, among others Smith v. Corporation of (j^ 

Washington, 20 How. 135. "The decisions to which we have re- i^y,/v«j. M A<, 



<iJ/v-tx 



Y 



ferred," the court continued, '■'■ were made in view of Magna Charta, 
and the restriction to be found in the Constitution of every State, that 

private property shall not be taken for public use without just compen- 1^ ,-i*aj^< 

sation being made. But acts done in the proper exercise of govern- /4j,^. K [ 

mental powers, and not directly encroaching upon private property, , , 

though their consequences may impair its use, are universally held not Aa^oa^v-a^-" 

to be a taking within the meaning of the constitutional provision. They '\j-aJiUxx ^ 

do not entitle the owner of such property to compensation from the u ] 
State or its agents, or give him any right of action." This view, the 

court further said, was not in conflict with the doctrine announced in -\Xjsa. ' tnr 

Pumpelly v. Green Bay Co., 13 Wall. 166, which was a case of the /^ - 

permanent flooding of private property, a physical invasion of the real ^'^ M*^ 

estate of the private owner, a practical ouster of his possession. 'i'^ ^ '*T^ 

In City of Chicago v. Rumsey., 87 Illinois, 3-18, 363, the Supreme - a^Jr^ hi- 

Court of Illinois, upon a full review of previous decisions, and espe- '^^J^i 

cially referring to Moses v. Pittsburg, Fort Wayyie, & Chicago R, R. -p-r^-t "t/M 

Co., 21 Illinois, 516 ; Roberts v. Chicago, 26 Illinois, 249 ; 3Iurphy v. /^^^ xVvA 

Chicago, 29 Illinois, 279 ; Stone v. Fairhury, Pontiac, and JSforth- \ 

v^estern Railroad Co., 68 Illinois, 394 ; Stetson v. The Chicago and AAAx/PtwA^ 

Eoanston Railroad Co., 75 Illinois, 74; and Chicago, Burlington, 'x j.^acL^'JdL a- 

and Qiiincy Railroad Co. v. McGinnis, 79 Illinois, 269, held it to have ^i ^ ( j 

been the settled law of that State, up to the time of the adoption of the ''^ 

Constitution of 1870, that there could be " no recovery b}- an adjacent aa^ X<A^'?^ 

property-holder, on streets tlie fee whereof is in the city, for the merely / , \ 

consequential damages resulting from the character of the improvements ' 
made in the streets, provided such improvement has the sanction of the — h/>v.A^ fV^ 
legislature." 

But the present case arose under, and must be determined with refer- -^^^ 

ence to, tiie Constitution of Illinois adopted in 1870, in which the pro- >^ aJmx 

hibition against the appropriation of private propert}- for public use, ^^ 

without compensation, is declared in different words from those em- ~tASfM ^ ^ 

ployed in tlie Constitution of 1848. Tlie provision in the exist ing / ^^ ^ 
Constit ution is, that " priv ate property shal lnot be taken or damaged T^ 

for public use without just compensation." An important inquiry in stL^ttxxZvt^" 

file" preseiiiTcase is to the meaning of the word "damaged" in this J-yi^/C^x^t^ 

clause. / 

The earliest case in Illinois in which this question was first directly ^::^Cf^^^^^^ 'l 

made and considered, is Rigney v. City of Chicago, 102 Illinois, 64, / 
74, 80. That was an action to recover damages sustained by the plaintiff 
by reason of the construction by Chicago of a viaduct or bridge along 
Halstead Street and across Kinzie Street, in that city, some 220 feet 
west of his premises, fronting on the latter street. There was no claim 



1086 CHICAGO V. TAYLOR. [CIIAP. VI. 

that the plaintlflf' s possession was disturbed, or that any direct phjsical 
injury was done to his premises by the structure in question. But the 
complaint was, that his communication with Ilalstead Street, b}' way 
of Kinzie Street, had been cut oft", whereb}' he was deprived of a pub- 
lic right enjoyed by him in connection wilh his premises, and an injury 
indicted upon him in excess of that sustained by the public. For 
that special injury, in excess of the injury done to others, he brought 
suit. The trial court peremptorily instructed the jury to find for the 
city, holding, in effect, that the fee of the streets being in the cit}-, 
there could be no recovery for the obstruction of which the plaintiff 
complained. 

That judgment was reversed, an elaborate opinion being delivered, 
reviewing the principal cases nnder the Constitution of 1848, and re- 
ferring to the adjudications in the courts of other States upon the 
general question as to what amounts to a taking of private property for 
public use within the meaning of such a provision as that contained in 
the former Constitution of Illinois. After alluding to the decisions of 
other State Courts to the effect that such a provision extended only to 
an actual appropriation of property by the State, and did not embrace 
consequential injuries, although what was done resulted, substantially, 
in depriving the owner of its use, the Supreme Court of Illinois re- 
viewed numerous cases determined by it under the Constitution of 1848. 
Nevins v. City of Peoria, A\ Illinois, 502, decided in 1866; Gillam 
v. Madison Oowity Railroad, 49 Illinois, 484 ; City of Axirora v. Gil- 
lette 56 Illinois, 132 ; Aurora v. lieed, 57 Illinois, 29 ; City of Jackson- 
ville V. Lambert^ 62 Illinois, 519 ; Toledo, Wabash, &c. liailroad v. 
Morrison, 71 Illinois, 616. It says: " Whatever, therefore, may be 
the rule in other States, it clearly appears from this review of the cases 
that previous to, and at the time of the adoption of the present Consti- 
tution, it was the settled doctrine of this court that an}- actual physical 
injury to private property by reason of the erection, construction, or 
operation of a public improvement in or along a public street or high- 
way, whereby its appropriate use or enjoyment was materially inter- 
rupted, or its value substantially impaired, was regarded as a taking of 
private propert}', within the meaning of the Constitution, to the extent 
of the damages thereby occasioned, and actions for such injuries were 
uniforml}' sustained." 

Touching the provision in the Constitution of 1870, the court sai d 
t hat the framers of that instrument evidently had in view the giving of 
greater security to private rights by giving relief in cases of hardsh ip 
not covered by the preceding Constitution, and for that purpose e x- 
t ended the right to compensation to those whose i^ropcrty had bee n 
" damaged " for public use ; t hat the introduction of that word, so far 
f rom being superfluous or accidenta l, indicated a deliberate purpose to 
make a change in the organic law of the State, and abolished the old 
test of direct physical injury to the corpus or subject of the proper ty 
affecte d. The new rule of civil conduct, introduced by the present 



I 



CHAP. VI.] CHICAGO V. TAYLOR. 1087 

Constitution, the court adjudged, required compensation in till case s 
w here it appeared ^^ there has been some ijhysical disturbance of a 
r i^ht, either iKiblic or private , which the plaintiff enjoys in connection 
with his proijcrty, a n d which gives to it an additional value, and that 
by reason of such disturbance he has sustained a special damage wit li 
r espect to iiis property in excess of that sustained by the public gener- 
ally." The Chief Justice concurred in the judguient, and in the general 
views expressed by the court, holding that while the owner of a lot on a 
street held it subject to the right of tlie public to improve it in any ordi- 
nar}' and reasonable mode deemed wise and benelicial by the proper 
public functionaries, he was entitled, under the Constitution of 1870, to 
c ompensation in case of a sudden and extraordinary change in the 
grade of the street or highwa y, whereby the value of his property is in 
fact impaired. Three of the justices of the State court dissented. 

As we understand the previous cases of Pekiii v. Brereton^ 67 Illi- 
nois, 477 ; PeJcin v. Winkel, 77 Illinois, 56 ; Shawneetown v. Mason^ 
82 Illinois, 337 ; Elgin v. JEaton^ 83 Illinois, 535 ; and Stack v. St. Louis, 
85 Illinois, 377, — all of which arose under the present Constitution of 
Illinois, — they proceeded upon the same grounds as those expressed 
in iUffney y. Chicac/o, although in no one of them did the court dis- 
tinctly declare how far the present Constitution differed from the 
former in respect to the matter now before us. 

At the same term when Rigney's case was decided, the State court 
had occasion to consider this question as presented in a somewhat dif- 
ferent aspect. The Union Building Association owned a building and 
lot three and a half blocks from a certain part of La Salle Street in 
Chicago, which the city proposed to close up, and permit to be occupied 
by the Board of Trade with its building. As the streets adjacent to 
the plaintiff's property were to remain in the same condition as to 
width, etc., that the}^ were in before, and as the closing up of a portion 
of La Salle Street would not, in any degree, interfere with access to its 
lot, or with the use and enjoyment of it, it was hehl that there was no 
special or particular injury done for which an action would lie against 
the city. That case was distinguished from Rigney v. Chicago in this, 
that in the latter case the court held that " property-holders bordering 
upon streets have, as an incident to their ownership of such property, a 
right of access b}- way of the streets, wliich cannot be taken away or 
materially impaired by the cit}-, without incurring legal liability to the 
extent of the damages thereb}- occasioned." City of Chicago v. Union 
Building Association., 102 Illinois, 379, 397. 

In Chicago S Western Indiana Railroad v. Ayres, 106 Illinois, 518, 
tlie court — all the justices concurring — observed : " It is needless to 
say our decisions have not been harmonious on this question, but in the 
case of Rigney v. City of Chicago., 102 Illinois, 64, there was a full 
review of the decision of our courts, as well as the courts of Great Brit- 
ain, under a statute containing a provision similar to the provision in 
our Constitution. The conclusion there reached was, that under this 



1088 CHICAGO V. TAYLOR. [CHAP. VI. 

constitutional provision a recovery may be had in all cases where pri- 
vate property has sustained a substantial damage b}^ the making and 
using an improvement that is public in its character, — that it does no t 
r equire that the damage shall be caused by a trespass, or an actua l 
physical invasion of the ovvnei''s real estate, but it' the construction a n d 
o ijcration of the railroad or other improvement is the cause of the dam - 
age, thou<rh consequential, the party may recove r. We regard that 
case as conclusive of this question. The case of Pittsburg & Fort 
Wayne Railroad Co. v. Reich, 101 Illinois, 157, is in point on this 
question of damages, and the case of City of Chicago v. Union Build- 
ing Assoctatio)i, 102 Illinois, 379, also reviews the authorities and 
approves the doctrine in Rigney v. Chicago, supra. These cases, there- 
fore, overrule the doctrines of the earlier cases." Our attention has 
not been called to, nor are we aware of any subsequent decision of the 
State court giving the Constitution of 1870 an interpretation different 
from that indicated in Rigney v. Chicago^ and Chicago, &c. Railroad 
Co. v. Ayres. We concur in that interpretation. The use of the word 
" damaged " in the clause providing for compensation to owners of pri- 
vate property, appropriated to public use, could have been with no 
other intention than that expressed by the State court. Such a chan ge 
in the organic law of the State was not meaningle ss. But it wou ld 
be meaningless if it should be adjudged that the Constitution of 187 
g ave no additional or greater security to private property, sought to be 
appropriated to public use, t han was guaranteed by the former 
Constituti on. 

The charge to the jur\' by the learned judge who presided at the trial 
gave effect to the principles announced in the foregoing cases arising 
under the present Constitution of Illinois. It covered every vital ques- 
tion in the case, in language so well guarded that the jury could not 
well have misunderstood the exact issue to be tried, or the proper 
bearing of all the evidence. So far as the special requests for instruc- 
tions in behalf of the city contained sound propositions of law the}* were 
fully embodied in the charge to the jury. 

In behalf of the city it was contended that, if liable at all, it was only 
liable for such damage as was done to the market value of the property 
by rendering access to it difficult or inconvenient. The court said, in 
substance, to the jur}' that the flooding of the lot b}' water running 
down upon it from the approaches to the viaduct was an element of 
damage which they might consider; though if such flooding merely 
caused inconvenience to the occupant in the conduct of his business, 
such as his coal getting wet, or its becoming more difficult to keep his 
scales proi)erly adjusted, these were not elements of impairment to the 
value of the property for purposes of sale. The jury were also instructed 
that although the occupant may have found it difficult to haul coal out 
of the lot, and although it may have been much more unprofitable to 
conduct the business of selling coal at this lot, that did not weigh upon 
the question as to the value of the lot in the market. Other obser- 



CHAP. VI.] CHICAGO V. TAYLOE. 1089 

vations were made to the juiy, but the court, in different forms of ex - 
p ression, said to them that the qiiestiun was, whether., by reason of the 
c onstruction of the viaduct, the value, that is, tlie marlvet price, of t he 
p roperty had been diminished. The scope of the charge is fairly indi- 
cated in the following extract: " The real question is, has the value o f 
th is property to sell or rent been diminished by the construction of this 
v iaduct ? It m ay be that it can no longer be used for the purposes of a 
c oal-yard, or for any purpose for whic h it has heret ofor e be en used , but 
t hat would not be material if it can be rented or sold at as good a pr i ce 
for other p urposes, e xcept that if the proof satisfies you that an}' of the 
p ermanent improvements put on the lot for the partijyalar b usiness w hich 
h as be en heretofo re carried o n there, a nd fo r which it was improved, 
have been impaired in v alue, o r are not w orth as much after this via- 
d uct was built and the bridge was raised as before, and you can from 
t he proof determine h ow much these improvements are damaged_^the 
p laintiff would b e entitled to recover for sucli damage to the impr ove- 
ments, — tiiat is to say,^thi3 lot being improved for a specific purpose, if 
the proof satisfies you that it can no longer be rented or used for that 
purpose, and that thereby these improvements have been lost or im- 
paired in value, then the impairment of value to these impi'ovements is 
one of the elements of damage which the plaintiff is entitled to have 
considered and passed upon and included in his damage." V 

It would serve no useful purpose to examine in detail all the requests 
for instructions, and compare them with the charge, or discuss the 
questions arising upon exceptions to the admission of evidence. After 
a careful considerat ion of all the propositions advanced for the cit}', we 
are unable to disco ver any substantial error committed to its prejudice. 
It ma}' be, as suggested by its counsel, that the present Constitution of 
Illinois, in I'egard to compensation to owners of private property " dam- 
aged" for the public use, has proved a serious obstacle to municipal 
improvements ; that the sound policy of the old rule, that private prop- 
ert}' is held subject to any consequential damages that may arise from 
the erection on a public highwa}' of a lawful structure, is being con- 
stantl}' vindicated ; and that the constitutional provision in question 
is "a handicap" upon municipal improvement of public highways. 
And it may also be, as is suggested, doubtful whether a consti- 
tutional convention could now be convened that would again incor- 
porate in the organic law the existing provision in regard to indirect or 
consequential damage to private property so far as the same is caused 
by public improvements. Wedismiss these several suggestions wills 
the_single obsein^ation that they can be add ressed more properly to 
t he people of the State in support of a proposit i on to change the i r 
Constitutio n. 

We perceive no error in the record, and the judgment is 

Affirmed.^ 

1 See also Osborne v. Afo. Pac. Ri/. Co., 147 U. S. 248 (1893) ; Jackson v. Chic. ^c. 
Ry. Co., 41 Fed. Rep. 656 (West. U. Mo 1890) ; Peel v. Atlanta, 85 Geo. 138 (1890) ; 
VOL. I. — 60 



/ 



1090 PHILADELPHIA AND TKENTON RAILROAD CASE, [CHAP. VL 

In the Case of tJie Philadelphia and Trent m Hailroad Company y 
6 AMiarton, 2o, 43 (1840), in considering a statute purporting to auth- 
orize the corporation to construct and operate its road in public highways 
and providing no compensation, the court (Gibson, C. J.) said: " The 
remaining exception is more important, because it calls in question, for 
specific reasons, the validity of the statute which is the foundation of 

Tex. Sf-c. Ri/. Co. V. Meadoios, 73 Tex. 32; McMahon v. St. Louis, 4x. Ry. Co., 41 La. 
Auii.827 ; Omaha R. R. Co. v. Janccek, 30 Neb 276 (1890) , Gainesville, ^x. R. Co. v. 
Hall, 78 Tex. 169 (1890) ; Smilh v. JSl. Joseph, 27 S. \V. Kep. (Mo. 1894). 

In Hoi S/yrim/s R. R. Co. v. Williamso n, 136 U. S. 121, 129 (1890), Lamar, J., for 
the court, said : " It is proper to add tliat we concur iu the view taken of this case by 
the Supreme Court of Arkansas. That court held that the Act of Conj^ress granting the 
right of way totiie defendant company over the strip of land upon which its road was 
to be operated (which in this case was along the line of Benton Street, an original 
street in the town of Hot Springs, and used as such at the time of the passage of the 
Act) carried with it the right to construct, maintain, and operate its line of railroad 
therein, and to appropriate such right as a location for its turn-table and depots, and for 
any other purpose necessary to the operation of its road ; but that it was equally clear, 
under the provisions of the present Constitution of the State of Arkansas, that if, in the 
exercise of that right, the property of an adjoining owner was damaged in the use and 
enjoyment of the street upon which the road was located, such owner would be entitled 
to recover such damages from the company. It further held that the contention of the' 
plaintiff in error that the Act of Congress invested it with an absolute title to the street 
along which its road was located, and exempted it from any lialiility for consequential 
damages resulting to an abutting owner from the laying of its track in a proper and 
skilful manner, was founded upon cases arising under the familiar constitutional re- 
striction that private property shall not be taken for public use without compensation, 
which decisions generally turned upon the question, what is a taking, within the mean- 
ing of such provision ? That the Constitution of that State of 1878, which provides 
that ' private property shall not be taken, appropriated, or damaged for public use 
without just compensation,' has changed that rule ; tliat all the decisions rendered 
under similar constitutional provisions concur in holding that the use of a street by a 
railroad company as a site for its track, under legislative or municipal authority, when 
it interferes with the rights of adjoining land-owners to the use of the street, as a 
means of ingress and egress, subjects the railroad company to an action for damages, 
on account of the diminution of the value of the property caused by such use ; and, 
lastly, that even conceding the authority of the town of Hot Springs to pass the ordi- 
nance authorizing the company to construct and maintain the railroad embankment, 
track, and turn-table complained of, it cannot impair the constitutional right of the 
defendant in error to compensation. 

" We think those views are sound and in accordance with the decisions of this court 
in Pennsylvania Railroad Contpani/ v. Miller, 132 U. S. 75, and N'eio York Elevated Rail- 
road V. Fifth Nat. Bank, decided May 5, 1890, 135 U. S, 432." 

Compare Clti/ of Pueblo v. Strait, 36 Pac. Rep. 700 (Col. May, 1894). In this case 
Hayt, C. J., for the court, said •. " The insertion of the word ' damaged ' first appears 
in the amended Constitution of Illinois, adojjted in 1 870. It has since been incor- 
porated into the constitutions of West Virginia, Pennsylvania, Arkansas, Missouri, 
Alabama, Nebraska, Texas, (ieorgia, California, Colorado, Kentucky, Montana, and 
the Dakotas." A previous case in Colorado is cited, in which the court "was of opin- 
ion that it [this provision] was a recognition of a new right of action not necessarily 
known to the common law ; and this principle has been recognized since in several of 
the cases supra." 

In Omaha v. Kramer, 25 Neb. 489, 492 (1889), the court (Maxwell, J.), after 
criticising the decision in Pa. R. R. Co. v. Marchant, 119 Pa. 541, .said : "Section 21, 
Article I. of the Constitution of this State provides that ' the pro])erty of no person 






CHAP. VI.] PHILADELPHIA AND TRENTON RAILROAD CASE. 1091 



^ <a^i-< lA-U}^ 






the proceeding, and which is said to be unconstitutional because it ly^H^^ "^ 

impairs the obHgation of contracts ; by viohiting the chartered rights of ^£^ -J^ai>^- 

the districts of Spring Garden and the Northern Liberties ; b}' violating // /jk. 

the contract under which the right of passage is assured to the inhabi- <<2-*^^pr 

tants of this particular street ; by taking the property of the street (X^i^o^tuAX^. 

without compensation to the districts or individual proprietors ; and by "^ ,(uJb^ 

monopolizing the street in derogation of the public and private uses to . /xtdM^ ^ 

shall be taken or damaged for public use without just compensation therefor.* The 'i^ Z^-iAXAx^ 
section above taken, except the words 'or damaged,' was in the Constitution of 1867. 
Under that Constitution, if any portion of a person's real estate was taken for public 
use, he could recover all the damages sustained by the taking ; but if none of his real 
estate was taken for public use he could recover nothing, although his property had ck /\. A . 
been greatly damaged by such use. The provision, therefore, is remedial in its 
nature, and the well-known rule that, in the construction of remedial statutes, three 
points are to be considered, viz., the old law, the mischief, and the remedy, and so to 
construe the Act as to suppress the mischief and advance the remedy, is to be applied. 
1 Blackstone Com. 87. Applying this rule to the provision in question, and it em- 
braces all damages which affect the value of a person's property, and includes cases 
like that under consideration. In other words, tlie words ' or damaged,' in Sec. 21, 
Art. I. of the Constitution, include all actual damages resulting from the exercise of 
the right of eminent domain which diminish the market value of private property. 
Reardon v. San Francisco, 66 Cal. 492 ; Atlanta v. Green, 67 Ga. 386 ; C. <^" \V. I. li. 
Co.v. Ajires, 106 111. .511 ; Rigneij v. Chicago, 102 Id. 64; St. L., V^Sf T. H. R. R. Co. 
V. Hal/er, 82 Id. 208 ; Hot Springs R. R. Co. v. Williamson, 45 Ark. 429 ; Gottschalk 
V. C. D. Sf Q. R. Co., 14 Neb. 550; Schaller v. Omaha, 2.3 Id. .325. 

"The fact that damages are consequential will not preclude a recovery, if the con- 
struction and operation of the public improvement is the cause of the injury ; and it is 
not necessary that the damages be caused by trespass or an actual physical invasion of 
the owner's real estate. The test is : Excluding general benefits, is the property in 
fact damaged ■? If so, the owner is entitled to compensation. 

" It is not within the scope of the authority of the law-making department of the 
government to take the property of A and give it to B, even if B has the right to 
condemn property for public use. This being so, it is equally beyond the power 
of such department to confer the right on B to damage or destroy the property of A 
without making compensation therefor. The right of the legislature to authorize the 
taking of private property for public use is based on the condition that an equivalent Wl l~¥rn 
in value be paid to the owner. If property is diminished i n actual value by reason of ^ ' ^ 

a public improvement, i t is to the extent of the diminution taken for publ ic use, as ^aA^y<.ei4jC '^^ 
much so as if it was directly appropriat ed. The cases differ in regard to the mode of , y (/ , 

appropriation only. In the one case all the property is taken, wjiile in the other it is ^ '^ e^y*^ f^ 
taken only to the extent that it is diminished in value, and in either case the owner is ^ J^v-^'(j-c::\ 
entitled to be compensated for his loss. Laws are made to protect private rights, and 
not to destroy them, the only exception being where a party by his own fault has for- 
feited the same. By protecting and enforcing the rights of each individual, the rights 
of all are respected and secured, and the humblest person made to feel that he can suf- 
fer no wrong to his estate without receiving adequate redress. Constitutional guaran- 
tees are of little avail unless carried out in the spirit in which they were framed, and 
no plea of public benefits should be permitted to impoverish the owner of private prop- 
erty, or override a plain constitutional inhibition. If the public desire to erect works 
for public use, then the public — the party benefited — must bear the burden, while 
each owner of private property, as one of the pul)lic, in some of the modes provided by 
law, must pay his share of the indebtedness or expense, and thus the burdens are 
equalized. The judgment of the District Court is reversed, and the cau.se remanded 
for further proceedings. Reversed and remanded." 

But see Kandolph, Eminent Domain, s. 154. — Ed. 



liXlyCy*^ 



1092 PHILADELPHIA AND TRENTON RAILROAD CASE. [CHAP. VI. 

which it had been applied. This, perhaps, is the substauce of all these 
multil'aiious specilications. 

" What is the dominion of the public over such a street? In England, 
a highwa}' is the property of the king as parens ])atrice, or universal 
trustee ; in Pennsylvania, it is the property of the people, not of a par- 
ticular district, but of the whole IState ; who, constituting as they do 
the legitimate sovereign, may dispose of it by their representatives, and 
at their pleasure. Highways, therefore, being universally the property 
of the State, are subject to its absolute direction and control. An 
exclusive riglit of ferriage across a navigable stream, which is a public 
highway, is grantable onl}- by it; and the navigation of the stream may 
be impeded or broken up by it at its pleasure. In the construction of 
her system of improvements, Pennsylvania has acted on this principle. 
Her dams across her principal rivers to feed her canals, have injured if 
they have not destroyed the descending navigation by the natural 
channels ; and this without a suspicion of want of constitutional power. 
The riglit of passage b}- land or b}^ water, is a franchise which she holds 
in trust for all her citizens, but over which she holds despotic swa}', the 
remedy for an abuse of it being a change of rulers, and a consequent 
change of the law. No person, natural or corporate, has an exclusive 
interest in the trust, unless she has granted it to him. Her right 
extends even to the soil, being an equivalent for the six percent, thrown 
into every public grant as compensation for what may be reclaimed for 
roads ; and she has acted on the basis of it ; for though damages for 
special injuries to improvements have been allowed by the general road 
laws, nothing has been given for the use of the ground. This prin- 
ciple was broadly asserted in The Conimomvealth v. Fisher^ 1 Penns. 
Rep. 466. 

" Such being a highway as a subject of legislative authority, in what 
respect is a street in an incorporated town to be distinguished from it? 
A municipal corporation is a separate community ; and hence a notion 
that it stands in relation to its streets as the State stands in relation to 
the highways of its territory'. That would make it sovereign within its 
precincts — a consequence not to be pretended. The owner of a town 
plot lays out his streets as he sees fit, or the owner of ground in an 
incorporated town dedicates it to public use as a street; but it 
follows not that the dominion of the State is not instantly attached to 
it. The general road law extends to every incorporated town from 
which it is not excluded by provision of the charter ; and the statute 
book is full of special Acts for opening, widening, altering, or vacating 
streets and alleys in Philadelphia and our other cities. Were it not for 
the universalit}' of the public sovereignt}-, the public lines of communi- 
cation, by railroads and canals, might be cut by the authority of every 
petty borough through which they pass ; a doctrine to which Pennsyl- 
vania cannot submit, and which it would be dangerous to urge. It 
would be strange, therefore, were the streets of an incorporated town, 
not public highways, subject perhaps to corporate regulation for pur- 



CHAP. VI.] PHILADELPHIA AND TRENTON RAILROAD CASE. 1093 

poses of grading, curbing, and paving ; but subject also to the para- 
mount authority of the legislature in tlie regulation of their use by 
carriages, rail-cars, or means of locomotion yet to be invented, and this 
without distinction between the inhabitants and their fellow-citizens 
elsewhere. The doctrine was carried to its extent in. Hung v. Shoen- 
berger, 2 Watts, 23, in which it was affirmed that, though a city has a 
qualified propert}' in its public squares, it holds them as a trustee for 
the public for whose use the ground was originally left open ; and that 
the enjoj'ment of them is equally free to all the mhabitants of the Com- 
monwealth, subject to regulations not inconsistent with the grant. In 
Barter v. The Commonwealth^ 3 Penns. Rep. 259, it was inadvertently 
said that the title to the soil of a street is in the corporation, whose 
right to improve it for purposes which conduce to the public enjoyment 
of it, is exclusive and paramount to the right of an inhabitant. The 
point was onl}' incidentally involved, and consequently not very partic- 
ularly considered ; but the question of title, involving, as it has done, 
no more than the bounds of the grant, has lain between the grantor and 
the grantee, or those deriving title from them. In no case has title 
been claimed by the corpoiation. In the Union Burial Ground 
Company v. Bobitison, 5 Whart. 18, in which the point was elaborately 
argued, the contest was betwixt the grantor and a purchaser from the 
grantee ; and though the cause was eventually decided on another 
ground, the court inclined to think, on the authority of many decisions, 
that the title to the street, even had it been opened, would Iiave remained 
in the grantor ; and such appears to be the principle of Klrkham v. 
Sharp^ 1 Whart. Rep. 323. The legal title to the ground, therefore, 
remains in him who owned it before the street was laid out ; but even 
that is an immaterial consideration ; for an adverse right of soil could 
not impair the public right of wa}' over it, or prevent the legislature 
from modifying, abridging, or enlarging its use, whether the title were 
in the corporation or a stranger. I take it then that the regulation of a 
street is given to a corporation only for corporate purposes, and subject 
to the paramount authorit}- of the State in respect to its general and 
more extended uses ; and that there would have been no invasion of 
chartered rights in this instance, even did either of these districts stand in 
a relation to the public which would impart to its charter the qualities 
of a compact. 

" What then is the interest of an individual inhabitant as a subject of 
compensation under the constitutional injunction that private property 
be not taken b}- a corporation for public use without it? Even agreeing 
that his ground extends to the middle of the street, the public have a 
right of way over it. Neither the part used for the street, nor the part 
occupied by himself, is taken away from him ; and as it was dedicated 
to public use without restriction, he is not within the benefit of the 
constitutional prohibition, which extends not to matters of mere annoy- 
ance. The injury of which he can complain, is not direct but conse- 
quential. It consists either in an obstruction of his right of passage, 



1094 



nilLADELl'IIIA AND TllEXTUN RAILROAD CASE. [CIIAP. VI. 



{.di^ 



tv 



\^CLKU^X 



which is personal ; or in a depreciation of his property b}- decreasing 
the enjoyment of it ; but no part of it is tal^en Iroiu him and acquired 
by the company. The prohibition, even when it precluded a seizure of 
private property immediately by the State, was not largely interpreted, 
nor was there reason that it should be, as ample compensation was 
obtained from her sense of justice without it. The suflerers were over- 
paid, and this sort of aggression was always courted as a favor. But 
though she usually compensated consequential damage, it was of favor, 
not of right. Nor did she always make such compensation. In one 
well-known instance she destroyed a ferry by cutting off access to the 
shore, without provision for the sufferer; and in The Commonwealth 
V. Bichter, 1 Penns. Rep. 467, damages were unavailingly claimed from 
her for flooding a spring by a dam. The clause in the amended Con- 
stitution which narrows the former prohibition to a taking of private 
property for a public use by a corporation, is to receive the same con- 
struction ; the word 'taking' being interpreted to mean, taking the 
property altogether ; not a consequential injury to it which is no taking 
at all. Yov compensation of the latter, the citizen must depend on the 
forecast and justice of the legislature. 

" On the subject of the next specification, it seems scarcel}' necessary 
to say that monopolies are not prohilMted by the Constitution ; and that 
to abolish them would destroy man}- of our most useful institutions. 
Every grant of privileges, so far as it goes, is exclusive ; and every 
^"exclusive privilege is a monopolj'. Not onl}^ is every railroad, turn- 
pike, or canal such, but every bank, college, hospital, asylum, or church, 
is a monopol}' ; and the ten thousand beneficial societies incorpo- 
rated by the executive on the certificates of their legality, b}- the attor- 
nej'-general and judges of the Supreme Court, are all monopolies. 
Nor does it seem more necessary to remark, on the subject of the con- 
cluding specifications of exception to the confirmation of the report by 
the associate judges of the sessions alone, that the approval was an act 
of the court ; and that they were competent to hold it. 

" Proceedings affirm.ed"'^ 

1 Compare 1 Hare, Am. Const. Law, 371, 378-380, Siruthers v. Dmilirk.^-c.Ri/. Co., 
87 Pa. 282 (1878). In Borough of Millrale v. Evergreen Ry. Co., 131 Pa. 1,22,23 
(1889), the court (Green, J.) cited the case of the Phil. ^- Trenton Ry. Co. as "the 
leading case upon this subject," aud quoted with approval the followiug language of 
Black, C J., in Com. v. R. R. Co., 27 Pa. 354 : "The right of the supreme legislative 
power to authorize the building of a railroad on a street or other public highwa}- is not 
now to be doubted. ... If such conversion of a pul)lic street to purposes for which it 
was not originally designed does operate severely upon a portion of the people, the 
injury must be borne for the sake of the far greater good Avhich results to the public 
from the cheap, easy, and rapid conveyance of persons and property by railway. . . . 
The right of a company, therefore, to build a railroad on the streets of a city, depends, 
like the lawfulness of all its other acts, upon the terms of its charter. Of course, when 
the power is given in express words, there can be no dispute about it. It may also be 
given by implication." — Ed. 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1095 

STORY V. THE NEW YORK ELEVATED RAILROAD ^^ ^ Q£\Xjd 

COMPANY. ^^.1^.66^ ^j^ 

New York Court of Appeals. 1882. _ '^-f^^ A^tf<^. AiAixAj^*^*^^ 

[90 N. Y. 122.] MctrulaJL ^(Uh^^ 

Appeal from judgment of the General Term of the Court of Common h-cnyt-^^ t^" 



Pleas in and for the city and count}' of New York, entered upon an j/^ jLx-'U-/- 
order made November 10, 1879, which affirmed a judgment in favor f^J^AA,,ol>^^^ 
of defendant, entered upon a decision of the court on trial at Special , 
Term. ^Ua^-: ^ 

T his action w as brought to restrain defendant from constructing its -^4j /QcfH* 
r oad in that portion o f Front Street, in the city of New York, op posite oo<_^eC \>l'. 
plaint ifTsjD remises . . . . [Here follows a statement of the plaintiff's _ /^-^^^t^ 
title to his lots, consisting mainly of extracts from certain deeds.] 

The trial court found the following facts among others : "tt^ aa>^->^- 

" Sixtli. Tha t the railway of the defend ants, as proposed to be .^IW^ ''^'~ 
constructed on Front Street, will cause no substantial or material _Z _ 
i mpediment to the passjtge of person s, ani mals, and vehicles in an d ^ \ 

along the street, and but slight obstruction to the light or air from the (x.<^A TtLa^ 



:sc 



street^ -^ JtW 

" Thirteenth. That the title of the plaintiff and of his grantors of ^ 

his said premises was derived from the grantees under the said grants /iHA^'^-'t/tUA! 
from the city in some cases by devise, in some b}' inheritance, and in ,,^y^Jlf\AX(A ^ 
some by conveyance ; and that in all the descriptions the premises ,.j_^vMJt t--^ 
are described as bounded in front on Front Street. ^ 

'■'■Fourteenth. That Front Street occupies the strip of land which in O-^p-^^^'' 
the said grants is mentioned as Water Street, and that prior to the Jl\4^ -^^ 
execution of the grants, that street was projected across the lots thereby ^(xnAX^^^'A 
granted and conveyed. ^ 

" Fifteenth. That shortly after the execution of the said grants, the /S/^Xi/^^-<-^*^ 
water lots therein described were filled in by the grantees or those -^ j tiM> 
claiming under or through them : that by them Front Street was erected .^ ^^Ij^a 
and made, and that presumably, it was erected and made as directed b}' / 
one of the surveyors of the cit}'. I/La^v*.*/^ 

'■^Sixteenth. That upon plaintiffs said premises is erected a ware- ^Co^ ^ 
h ouse, occupying the entire front and four stories high ; and that since ^,^^ jLi~i 
his occupation he has used the same for his office, and for the sale of . , 

the merchandise in which he deal s. v^tj-^vcc^-^ 

'■'■ Seventeenth. That Front Street, for the length of the block in .. ^^^^ 
front of the plaintiff's said premises, is a street, of the width about ' 
forty-five feet ; that the street-way between the curbstones is about S>^^f '-'^^ 
twenty-four feet wide ; that on the southerly side from the curbstone to ^j^^^uaclI ^ 
the building is about eleven feet ; that on the northerly side from the ^ ' . 









y^rPCu(Xx~ 1^^^ STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VI. 




f - 
"^ "^^^^^curbstone to the buildings is about ten feet ; and that of the space 
^ /Jl/UAjct- between the curbstone and the buildings about four and one-half feet 
JL A Ha. '^ ^^^^ for the stoops and entrances to areas, and the residue for 

sidewalk. 

j,i^^d \Ar(vi u Eighteenth. That the defendants propose to construct an elevated 
trviA. chi railroad through Front Street, in front of the plaintiffs premises, to 
_ extend from the Battery to the Harlem River ; that the general mod e 

'txM^^a^ of c onstruc tion in Front Street, consists of a series of columns about 
Jto CU^ii fift een inc hes square, fourteen and one- half feet high, pjaced about 
■ 1^4 five inches inside the eclge_of_the sidewalkj and car rying cross-girde rs, 
x/L AiA^^'^ which support four sets o f long itudinal girders, upon which are placed 
f yiyu^\rtK/tt'^ cross-ties for three sets of r a ils fo r a steam railroad ; that the trans- 
\ I < verse girders are thirt^'-nine inches deep, the longitudinal girders thirty- 

(r^ ' three inches deep ; that the cars which the defendants propose to run 

,,^jiy^^s^UM/t over such railroad will have bodies eleven feet high above the tracks ; 
till ^^^'^ '^^ '^^^^ ^^^ running will project about two feet over the sidewalk 

^^ on either side of the street; that the y will reach to within about nine- _ 
*> /r feet of the plaintiff's premises ; and that the defendants pro|)osc to run 

■ud ^ "y^ trains as of ten as once in every three m inutes and at rates of speed a s 
Lcvir-^ ^^ h igh as eighteen or twenty miles an ho ur. 

rf/^ " Nineteenth. That the plaintiffs premises occupj' the southeasterly 

"} ' corner of Front and Moore streets, and that the defendants propose to 

i^AvXAA^ put one of their columns at that corner on the line of Moore Street, and 
x^'taJf^^*^ inside the curb line. 

■~ J ■ " Twentieth. T hat the said elevated railroad structure will to som e 
'^*^(P'^^^ extent obscur e the light of the abutting premises opposite to it ; that 
ke a,x^ the pass ing trains will also to some extent obstruct su ch li ght, and give 
y to the light a flickering characte r, which wo uld be to so me extent ob- 

^^^y^^ jectionable for b usiness purposes , when an uninterrupted light was 
Yw tl/uxAt^ necessary, and t o some extent impair the general usefulness of plai n- 
a^ouAx., t iffs premises. 

" Twenty -first. That the line of columns abridges the sidewalk, and 
•^ aaaM*'^'^' Q OYi'Qs.Y>ox\d i\x\ 2\y xniex^eve&YiMh the stre et, as a thorouglifare, where such 
■f;^ ,/vaujL columns are located thereon. 

" Twenty-second. That the fronts of the abutting buildings would 
.^3<i-^'^ be exposed to observation from passengers in the passing trains, and 
ji\^,jJt>JUjj!La.- ^^^ privacy of those in the second or upper stories of the premises 

\ invaded. 

v-«A -\^J^^ <■<■ Twenty-third. That the structure as proposed in Front Street 

1 also will fill so much of the carriage-way of the street as is about fifteen 

feet above the road-wa}'." 
0>LAU--9?fcCf Also, that the board of aldermen of the city had, b}' resolution duly 
adopted, given its consent for the construction and operation of its road 
^^^ A/x through Front Street. 

Jfy,^J^X^U'^Q John E. Parsons and Wm. M. Evarts, for appellant. JosepJi H . 
H/^ \iKi C hoate., for prope rty own ers. Julian T. Davies and Roger Foster, for 
Caso and others, David Dudley Field, for respond ent. . . . 

tiuL r^iwL^ CK-^^ Z^ rt^vx^X^i^j ouAnsxrtLTtU ^o^-w^-^*-^ ^^ "^ • 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1097 y^^'^(f^ 

Tracy, J. The principal question to be determined in this ease is, ^^^JjJ A^ 

h as the plaintiffs property been taken for public use within the mean ing qji^oU;^ 

o f the C onstitutiou of this^tate ? 1;jb^oi<i 

Th e plaintiff claim s that by the true construction of the deeds from g • 

the city to his original grantors, the bed of Front (then Water) Street SsioAr- o-^^ 

was included in the grant, an d that he is n ow the owner of the fee of J7xc*X(^ ^ 

o ne-half of the bed of Fr on t Street in front of his lots . But if this claim ti± 

be not sust ained, then he insists that, in the original grants of t he ^ p-oxx-^"^ 

pre mises in question, the city of New York covenanted with h is ^/^ Cft . -C ^ 

g rantors that Front Street should be and remain an open st reet forever. , / ^x 

T hat this covenant, being for the benefit of the abutting lands, is~o ne 0"^^^ 

runni ng with the land, an d the right or privilege secured there by con- JQAAn^u^^^^^ 

stit utes property within the meaning of article 1, sectio n 6, of the A^y^ ca.,^ 

Constitution, which provides that " private property shall not be taken iyx.Ajf^bt±J u/ 

for public use without just compensation." . . . ^/uaa^cl^^ 

The trial court finds that the grantees made and constructed the . 

several streets mentioned in the grant, and that the plaintiff is now the ytu^AX^iXYC 

I owner of said lots upon which "is erected a warehouse occupying ^^^ /^taX 

V I the entire front, and four stories high." The defendant insists, and the ^ )oA^ 

/ tri al court found, that, by the true construction of the deed, the bed o f "^^ ^ -^r 

^ 1 Fr ont Street was excepted therefrom , an d never passed to the plaintiff's iLtt^ViA. ^ 

' o riginal granto rs. . . . ~jJ (^. tir 

^ A ssuming the construction placed upon the grant by the court belo w / -^ 

to be correct, we have to consider the effect of such a covenant in a tuciA -^ 

gr ant of land made by a municipal corporation having authority to la y T,^^^ C>t 

out and open streets, and to acquire lands for that purpose . ... . J^tUd 

These cases are directly in point, and it follows that, by the law of -^p^'*'''^ 

this State as interpreted and held by its highest courts for the last fifty i^ odM^ 

years, without criticism or doubt, t he grantees of the city, by force of yi,.^yfru/fi{ 
their grant, acquired the right to have Front Stre et ke pt fore ver a s a 

public street. T he street thus became what is known to the common ^'—'•^■'^ 

law as the servient tenem ent, an d the lots abutting thereon the domi- /QaaJt^^^m/^ 

nant tenement . Such servitude constitutes a private easement in th e / -i_ jfjph^ 
b ed of the street attached to the lots abutting thereon, and passed to 

t he plaintiff as the owner of such lo ts. That an easement is proi:)crt 3', i^ /P«/a^ a, 

within the meaning of the Constitution, cannot be doubte d. Tliis was }■ ..l-^i 

expressly adjudicated in this court in the case of Arnold v. The *[) ^ l'^^^^^^^ 

Hudson River Railroad Company (55 N. Y. 661). Arnold owned a "^ 'T^ ^'^ 

nail factory, together with the right to take a certain quantity of water ^^ 

from a creek, and to convey it over or under the surface of intervening «. AxoUi 
lands to such factory to propel machinery. For this purpose he built «5=^ ^ 

a trunk about six feet above the surface, through which the water was -^^ .m/l/^ 

conveyed. In 1850, the defendant, having acquired title to a portion ^ / / y^y^ 

of the intervening lands, constructed tracks thereon, removed the por- "' 

tion of the trunk over said surface without Arnold's knowledge, and v 

constructed another trunk under the lands, through which the water -i ^ 

was conveyed and then raised by a penstock into the old trunk near rj i^^- - 

"V?-.», ..^r^. V^. « ^^^ .rm^^ ^.jHUj cJjuyin a^ X i*^ij>L 






^. 



j2. a>'V^,fc*-«-t'«^t7t A- 






^^ 1098 






STORY V. NEW YORK ELEVATED RAILROAD CO. [CIIAP. VI 






-^ 



the factor}'. Held, by the concurrence of all the judges voting, that 
Arnold's easement was property within the meaning of Article 1, 
section 6, of the Constitution, and therefore could not — nor could a.ny 
portion of it — be taken for public use without compensation. 

In Doyle v. Lord (G4 N. Y. 432; 21 Am. Rep. G29), this court 
held that a lessee of a store had an easement for tlie purpose of light 
and air, in a yard attached to the building. In Sixth Ave. R. R. Co. 
V. Kerr et al. (72 N. Y. 330), this court also held that an easement iu 
a public street may be condemned and taken for public use. 

The next question to be considered is, has the plaintiffs property 
been taken by the defendant, wi thin the meaning of the Constitution of 
this State? 



To constitute such a takiii^^it is sufficient that the 



person 



AM. ctiaamA 



c laiming compensation has some right or privilege, secured by grant, in 
th e property appropriated to the public use , which right or privilege i s 
d estroyed, injured, or abridged by such appropriatio n. Has the plain - 
tiflTs easement in Front Street been destroyed , or iniured, by the 






AA4UX'A 



appr opriation of the street to the use s of the defend ant's roact ? As we 
have seen, the plaintiff acquired nothing more than a right to have the 
street kept as a public street, and this must be deemed to be held 
subject to the power of the legislature to regulate and control the 
public uses of the street. 

This brings us to the question whether the occupation of the street by 
the defendant's road is compatible with, or destructive of its use as a 
public street. 

Front Street is about forty-five feet in width, the road-way between 
ji/x e a/i M^ the curbstones being about twent3--four feet wide. 

The trial court has found as a fact that the defendant's road is to be 
constructed upon a series of columns about fifteen inches square, four- 
teen and a half feet high, placed about five inches inside the edge of 
the sidewalk and carrying cross girders, which support four sets of 
JUjja/^tK ~ longitudinal girders, upon which ai'e placed cross ties for three sets 
1^.0 of rails for a steam railroad; that the girders are thirty-nine inches 

deep ; the longitudinal girders thirty-three inches deep ; that the line 
of columns abridges the sidewalk and correspondingly interferes with 
the street and thoroughfare where such columns are located thereon. 

That the structure as proposed on Front Street will fill so much of 
the carriage-way of the street as is about fifteen feet above the road- 
way. The effect of such structure the court finds will be to some extent 
to obscure the light of the abutting premises opposite to it, and will to 
some extent impair the general usefulness of the plaintiff's premises 
and depreciate their value. 

Can the street be lawfully' appropriated to such a structure withou t 
making compensation to the plaintiff for his easement therein? This is 
a question of power . If the legislature has power to authorize such a 
structure, without compensation, its exercise cannot be regulated by 
the courts. If one road may be authorized to be constructed upon two 



(M 



AAJ- 






{kI u^<v^ 
ti/MU 



series of iron columns placed in the street, another may be authorized 



^rkjLjKjLV^ -/"AA, I 



'/\-~ f\l\Airi rS lA cpCxd 



oo 






CHAP. V^.] 



STORY ^. NEW YOKK ELEVATED RAILROAD CO 



o-^ A^^ 



1099 






to be supported upoii1)rick columns, or upon brick arches spanning tlie 
street. If a superstructure may be authorized which spans tlie enti re 
carriao"e-w ay at fi fteen feet above the bed of the street, one may b e 
authori zed wliich^ sp ans the entii-g street, f rom building to buildin^ , 
tljus excluduig light and aif from the street and from th e pro perty 
abutt ing thereon . T lnis an open street would be converted into a 
covered way, and so filled wit h column s or other p^miancnt^sti-uctures - AcueJU 
as to be practically impass able for vehicle s. The city undertook and y^^^^-'^jf^^^^ 
agreed with thel)lai'ntiff's grantors that Front Street, when constructed '/?<H^-*^ 
by them, should forever thereafter continue and be kept as a public 
street in like manner as otlier streets of the same city now are or law- 
fully ought to be. This fixes with definiteness and precision the char- 
acter of the street which the parties to the contract intended to secure. 
As the other streets of the city were, or l awfully ought to be, so^this 
st reet was to be ; it was to be an open street ; one whicli \v(nikl fu rn ish 
li ght and air to the abutting pro|)er ty, and a free and unobstiucted 
])assa ge to the inhabi tants of the city. A covenant to keep a strip o f 
l and open as a public street forever is a covenant not to build thereo n , 
and brings this case directly within the principle of the cases of Hills v. 
Miller, The Trustees of Watertoion, and White v. Coiven and Bagg^ 
and the Phoenix his. Co. v. The Continental Ins. Co. While 



the 



legislature 



may regulate tile uses of the street as a street, it 



has, we think, no power to authorize a structure thereon which is sub- 
v ersive of, and repugnant to the uses of the street as an open publ ic 
street . Whether a particular structure authorized by the legislature is 
consistent or inconsistent with the uses of the street as a street must be 
largely a question of fact depending upon the nature and character of 
the structure authorized. 

The court below found that the series of iron columns abridges the 
street, and the superstructure erected thereon obscures the light to 
the adjoining premises, and depreciates the value of the plaintiffs 
property. 

The extent to which p laintiff's pro j^erty is appropriated is not mate 
rial ; it cannot, nor can any part of it, be appropriated to the public use 
without compensation. 

We think such a structure closes the street p7'0 tanto and thu s 
d irectly invades the i^laintiff's easement in the street as secured by the 
grant of the cit y. 

Whatever view be taken of the facts of this branch of the case, the 
same result must be reached. If the title to the bed of the street 
passed to the grantees of the cit}', then the public acquired a mere 
easement in the street, resulting from its dedication to public use, the 
easement resting upon the express covenant of the owner of the fee 
that the street shall be kept as a public street forever. The fee 
remained in the owner making the dedication, and he having sold lots 
abutting upon the street, the purchaser, as we have already seen, 
obtained a perpetual right of way over the space called a street to the 






,4L l/^ 










M,V6-/V^ 'kzX^AA- (>-i.-vo^ 



\f^ -Xa^Cx (f\c^ 



^^ 6 




Aj<. ^^i/i^ ^/<^ /^K- 



t^^PUSO'"*^ 



^ cLa 

I 1100 STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VL 

'(A^^lM^" ^^^^^ extent of its dimensions. " Whether the bed of tlic street was 
(J e xcepted from th e grant of the city, and the title thereof never vested 
CkM. in the grantees, or whether the bed of the street was included in th e 

*^, , grant and passed to such grantee s, is of little importance, as in either 

^-^■^'^^ event the plaintitf has a private easement of a right of way in the street , 
£u.\Ji\ ~ cou pled with an express covenant that the entire space, marked on the 
Q map as Front Street, shall forever be kept as a public str eet, 

'^i llie de fendant's railroad, as authorized by the legislature, directly 

^ encip:' ' 11 1 the plaintiff's easement and appropriates liis property 

t o the M 111 1 purposes of the corpora tion. This constitutes a taki ng 
of property for public use . It follows that such a taking cannot be 
authorized except upon condition that the defendant makes compensa- 
tion to the plaintiff for the property thus taken. 

The conclusion here reached is not in conflict with the determination 
of this court in the cases of The People v. Kerr (27 N. Y. 188), Kel- 
linger v. Forty-Second St., etc., Ji. H. Co. (50 Id. 206), and other sim- 
ilar cases. 

We agree with Church, Ch. J., in the case last cited, that " it is 

r^^*'***^not quite clear as to what was intended to be decided by the court in 
/ The People v. Kerr, relative to the rights of abutting owners." . . . 

^ ^ By the Act of 1813 the city acquired the fee in the street, in trust, 

PUAt^m/^'^- however, for a particular public use. Conceding that this trust is for 
(1/ the benefit of the abutting owner, as well as for the public, the only 

^ ''^^'^^ right which he has in the street is the right to insist that the trust be 
n^fi-^- faithfully executed. So long as the street is kept open as a public 
street, the abutting owner cannot complain. The question presented 
/ ^/ in the case of People v. Kerr, was whether the particular structure 

^ • there authorized was inconsistent with the continued use of the streets 

jC4\/y,^ as open public streets of the city. Whether it was or not was a ques- 

A_<«ya tion of fact dependent upon the nature and character of the structure 
/^ - there involved. The court found and determined that it was not incon- 

u.d. -"Xf^ sistent with the public use of a public street, but was in aid of such 

'''^^^ And in Kellmger v. TJie Forty-second Street, etc., E. K. Co. (50 

^OAA^V^ N. Y. 206), this court limits the decision in the case of The People v. 
^A r^^i^MjdiA Kerr, to a " simple declaration that the legislative authority to con- 
struct a railroad on the surface of the street without a change of grade 
A^jj^ajlX*^. ^j^g f^ legitimate exercise of the power of regulating the use of public 

A . . streets for public uses." 
>- • \}^^^^^^MA rpj^g question whetlier the abutting owners upon streets opened under 
cM vc/^ ' ^'^^ -^^^ ^^ ^^^^ "^^^^ ^^® "c'y^^t to prevent their being converted to a use 
destru c tive of their existence as public streets was not deemed by the 
' <^Uvvl court t o be involved in th at case. . . . 

""Had the Act in that case authorized the corporations to take perma- 

X Ci(\y^^^^^ ^^^^ ^^^ exclusive possession of portions of the street, to build sidings, 

Vo/X^^A/- f^nd to permanently occupy them with rows of cars standing in front of 

LA the stores and residences of abutting owners, and to erect permanent 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1101 

depot buildings within the limits of the streets for the accommodation 
of their passengers, we cannot doubt that a different result would have 
been reached in that case. The fact that a particular structure is 
found to be consistent with the uses of a street is no evidence that a 
different structure is not inconsistent with such uses. The conclusio n 
reached in the present case is based upon the character of the structu i'e 
here involved. The language of Wright, J., in The People v. Kerr^ 
that the abutting owners have no property, estate, or interest in land 
forming the bed of the street in front of their respective premises to be 
protected by the right of eminent domain, must be construed with ref 
erence to the point thus being considered. This court had held in the 
case of Willia?7is v. The New York Central B. B. Co. (16 N. Y. 107), 
that wliere the public had acquired a mere right of way over the land 
of another, the laying down of railroad tracks and constructing a steam 
railroad in the street of a cit}' was an enlargement of the use as under- 
stood and contemplated by the parties at the time the land was 
acquired, and imposed an additional burden upon the fee, and that 
such Act could not be authorized without compensation to the owner. 

This case was cited and relied upon in support of the claim of the 
abutting owners ; but the answer was that the abutting owners did not 
own the fee of the street; that such fee being in the public, the legis- 
lature might lawfully appropriate it to any public use consistent with 
the trust for which it was held, notwithstanding such use of a street 
may not have been known or contemplated at the time the land was 
acquired. Having parted with the fee, the abutting owner could not 
maintain trespass or waste, and against an Act which did nothing more 
than to impose an additional burden upon the fee, he could not invoke 
the inhibition of the Constitution that private property shall not be 
taken for public use without compensation. Thus understood, we think 
the language of Wright, J., not subject to criticism, and furnishes no 
support to the claim now made that the owner, whose lands were taken 
and are now held in trust, to be appropriated and used as open public 
streets forever, has no standing in court to insist that the trust shall be 
kept and that tlie streets shall not be destroyed. . . . 

That this trust created by the Act of 1813 was intended to be for the 
benefit of the abutting owner, as well as for the public, we cannot 
doubt. C ity propert y has jittlejor jio^ value -disconnected from the 
streets upon which it abuts. The opening of a city street makes the 
property abutting thereon available for the purposes of trade and com- 
merce, and greatly enhances its value. The Act of 1813 proceeds 
upon the assumption of this well-known fact, and the damages sus- 
tained by reason of the taking were assessed in view of the trust 
assumed by the public, that such lands were to be kept as open public 
streets forever. The public did not assume to take the lands in fee- 
simple absolute, but took and paid for a lesser estate ; and, in pur- 
suance of the theory of the statute that the abutting owner has a special 
interest in the street, the cost of the lauds was immediately assessed 



1102 STORY V. NEW YORK ELEVATED RAILROAD CO. [cHAP. VL 

back upon the abutting property'. All the owner has ever received fo r 
t he land s taken under this Act is the benefit accruing to his al)ntt ing 
I jroperty by reason of the trust for which the lands are held . Having 
surrendered his land in consideration of the trust assumed by the pub - 
l ic, if the trust can now be abrogated and the streets surrendered to 
the uses and purposes of a railroad corporation, it follows that, by in- 
direction , i)rivate property may be taken for i)ublic use against the con - 
sent of the owner, and without compensatio n. 

We have examined the other cases cited by the learned counsel for 
the respondent, and in none of them do we find authorit}- for the claim 
here made. The case of The Trcmsportation Company v. Chicago 
(99 U. S. 635), is not in point. The injury there complained of was 
necessarily done in the extension of a city street. The interruption 
was temporary, ceasing with the completion of the work. This case is 
d ecided upon the elementary principle that the public have a right t o 
m ake such use of the land taken for a street as may be deemed nece s- 
s ary for its iproper construction, repair, or maintena nce. Within this 
power is included the right to fix the grade of the street, and to change 
such grade from time to time as the necessities of the public may 
require; but, whether the grade be elevated or depressed, it is still a 
public street, to which the public have the right of free access, subject 
to such police regulations as may be adopted b}- the public authority 
having charge and control of the same. 

The argument has been pressed upon our attention with great ability 
that as railroads, like streets, are intended to facilitate trade and com - 
merce, and la nds taken for either are taken for public use, t he legisl a- 
tu re may, in its discretion, appropriate the public streets of our cit ies 
t o the u se of railroad corporations, and this without reference to the 
f orm of their structure or the extent of the injury wrought upon pr o p- 
ert}' abutting thereon . This is a startling propositio n, and one well cal- 
culated to fill the owners of such propert}- with alarm. It cannot be th at 
the vast property abutting on the streets of our great cities is held b y 
so feeble a tenu re. This court has repeatedly held that such a rule has 
no application where the abutting owner owns the fee of the bed of the 
street ; and we are of opinion that in cases where the public has taken 
the fee, but in trust to be used as a public street, ( no structure upon the 
s treet can be authorized 'that is inconsistent with the continue d use of 
t he same as an open public stree t.,> The obligation to preserve it as 
an open street rests in contract written in the statute under which th e 
l ands_were taken and which may not be violated by the exercise of an y 
legislative discretion. Whatever force the argument may have as 
a pplied to railroads built upon the surface of the street, without chang e 
of grade , ai ^d where the road is so constructed that the public is not 
excluded from any part of the street , it has no force when applied to a 
str ucture like that authorized in the present case. The answer to th e 
a rgument is th at lands taken for a particular public use cannot b e 
appropriated to a different use without further compensation ; that th e 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1103 

niitboritv attempted to be conferred by the legislature upon the defend - 
ant to take exclusive possession of portions of the public street, and 
t o erect a series of iron columns on either side thereof, upon which a 
s uperstructure is to be erected spanning the street and filling the road - 
wa y at fifteen feet above the surface, t li us excluding light and air fr om 
t he adjoining premises, i s an attempt to appropriate the street to a use 
essent ially inconsistent with that of a public street, and in respect to 
th e land in question violates the covenant of the city made with th e 
]j laintiff's grantors, and in respect to lands acqun-ed under the Act 
of 1813 violates the trust for which such lands are held for public use. 

The argument drawn from the great benefit which these roads have 
conferred upon the city of New York can have but little weight in 
detern>ining the legal question presented in this case. No doubt these 
roads have added much to the aggregate wealth of the city of New 
York, and have greatly promoted the convenience of its citizens ; but 
t he burden of so great a public improvement cannot rightfully be cast 
u pon a few of its citizens, by appropriating their property to the p ublic 
use, without compensation. The inhibition found in the Constitution 
against the right of the sovereign to appropriate private property to 
public use without making compensation therefor was intended to secure 
all citizens alike against being compelled to contribute unequally to the 
public burdens. 

We are of opinion that the law under which the defendant is incor - 
po rated authorizes it to acquire such property as may be necessary for 
its uses and purposes, upon making compensation therefor. This was 
substantially determined in the Matte?' of New York Elevated Rail- 
road (70 N. Y. 327) ; Gilbert Elevated Railway Co. (Id. 361). 

W e jbave reached in this case the following conclusions : 

First. T hat the plainti ff, by force of the grant of the city, made to 
his grantors, has a right or privilege in Front Stre et, which entitles h im 
to have the same kept open and continued as a public street for the 
benefit of his abutting property . 

Second. That this right or privilege constitutes an easement, in th e 
bed of the street , w hich attaches to the abutting property of the plai n- 
ti ff, and constitutes private property, within the meaning of the Consti- 
tution, o f w hich he cannot be d eprived witho ut compensati on. » 

Third. That such a structure as the court found the defendant was 
about to erect in Front Street, and which it has since erected, is incon- 
sistent with the use of Front Street as a public street. 

Fourth. That the plaintifl^'s proper ty has been take n a nd appr o- 
iM Jated by the defendant for public use without compensation b eing 
made therefor. 

Fifth. T hat the defendant's acts are unlawful, and as the stru c- 
t ure is permanent in its char acter — and, if suffered to continue, will 
infli ct a permanent and continuing injury upon the plaintiflT — he ha s 
t he right to restrain the erection and continuance of the road by in- 
junction. 



1104 



STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VI. 



Sixth. Tliat the statutes under which the defendant is organized 
authorize it to acquire such propert}' as may be necessary' for its con- 
struction and operation by the exercise of the right of eminent domain. 

Seventh. The injunction proliibiting the continuance of the road in 
F ront Street should not be issued until the defendant has had a reason - 
able ti me after this decision to acquire the plaintiff's prouerty by agr ee- 
me nt, or by proceedings to condemn the same . 
/w P^ARL, J. (dissenting). At the threshold of this case is presented the 

inquiiy whether the plaintiff's lot extends to the centre of Front Street. 
(y.\^ I think it does not. . . . 

P"or a long time anterior to the date of the deed Front Street had 
become like the other streets of the cit}', and had been maintained and 
kept in repair by the city. It owned the fee of nearly all the streets 
within its limits, and it must have been the common practice of con- 
veyancers to exclude the streets from the grants of adjoining lots b}' 
confining measurements to the margin of the streets. Reading the 
precise measurements in plaintiff's deed, in the light of these circum- 
stances I think there is little ground for dispute that his grantors 
intended to limit their grant to the margin of the street, and that such 
intent should have effect is shown by the authorities above cited. 

T here fore as the plaiutifi f did not own any of the soil in Front Street , 
i t mat ters not where the title to it rested. As to him, it may be trea ted 
as if it were in the city, an d I shall s o treat it in the further discussi on 
of this ca se. 

W hatever private rights then the plaintiff has in this street are such 
an d such only as belong to him as an abutter upon the street, l^ Such 
rights as he has in common with the public generally cannot be 
enforced in this action or in any other action in his name.\ It is not 
disputed that to maintain this action the plaintiff must show that in 
violation of the Acts under which the defendant was organized, and of 
the Constitution, " private propertj^ " of the plaintiff has been taken 
without compensation. It is not sufficie nt for him to show that he is 
in jured or su ffers damage from the construction or operation of defend- 
a nt's railw ay , or that his adjoining propert}^ is deterio rated in vajue. 
H^ must show that his private property is in some proper sense tak en , 
a nd to this effect are nearly all the authorities in this country, exc ept 
i n States where provision is made in the Constitution or law s tha t 
compensation shall b e made for property damaged or injuriou sly 
affected, as well as for property taken. In Sedgwick on Statutory and 
Constitutional Law, 519, the learned author, speaking of the constitu- 
tional provision which prohibits the taking of private property for 
public use without compensation, says: " It seems to be settled to 
e ntitle the owner to protection under this clause the property must be 
a ctually taken in the pliysical sense of the word, and that the proprietor 
i s not entitled to claim remuneration for indirect or consequential dam- 
ages, no matter how serious or how clearly and unquestionably resultin g 
from the exercise of the power of eminent domain." In Dillon on Mu- 



1 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1105 

nicipal Corporation, § 784, it is said tliat " although the adjoining prop- 
erty may be injured, still it is not, in a constitutional sense, taken for 
public use." In Transportation Co. v. Chicago (99 U. S. 635), Judge 
Strong said that '' acts done in the i^roper exercise of governm ental 
p ower s and not directly encroaching upon private property, though their 
c onsequences may impair its use, are universally held not to be a ta king 
wi thin the meaning of the constitutional provisio n. They do not entitle 
the owner of such property to compensation from the State or its 
agents, or give him any right of action. This is supported by an 
immense weight of authority." In 0' Connor v. Pittsburgh (18 Penn. 
St. 187), it was held, after two arguments of the case and much con- 
sideration, that the constitutional provision for the case of private prop- 
erty taken for public use extends not to the case of property injured 
or destroyed. See, also, the cases of Hatch v. The Vermont Central 
11. R. Co. (25 Vt. 49), and Richardson v. The Vermont Central R. 
H. Co. (Id. 473), where will be found a very learned discussion of the 
subject and many observations quite applicable to this case. The same 
rule is laid down in Radclijf's Executors v. The 3Iai/or, etc., of Brook- 
lyn (4 N. Y. 195). It was there supported by such cogent reasons 
and full citation of authorities as to place it beyond question in this 
State, and it has received the uniform sanction of our courts. 

Our attention- is called to two cases { Pumpelly v. Gr een Bay Co., 13 
"Wall. 166; and Enton v. The B. C. & M. R. R. bi JN. H.''504; 12 
Am. Rep. 147), which are supposed to take a new departure in the 
construction of the constitutional provision we are now considering. 
They are spoken of in the subsequent case of Transportation Co. v. 
Chicago as " the extremest qualification of the doctrine " to be found ; 
t hey hold that permanent fl ooding of priva te prop erty may be regarded 
as a '' taking ," a nd thus they may be justified on the ground that there 
wa s a physical invasion of the real estate of the private owner and a 
p r actical ouster of his possession. 

We should not be embarrassed by any subtle meanin g to be given to 
th e word ^' property " in the constitutional provision. The broad mean- 
ing sometimes given to it by law writers whose definitions are more apt 
to confuse than enlighten, or a meaning which can be evolved only by 
philologists and etymologists, was probably not in the minds of the 
fr amers of our Constitution ; they m ust be supijosed to have used the 
w ord in its o rdi nary and popular signification, as represen ting some- 
t hing that can be owned and possessed and taken from one and tra n s - 
ferred to anoth er. I n popu lar parlance ther e is a distinction between 
t aking p roperty and injuring property . If the word is to have the 
br oad meaning given to it by Austi n and certain German and French 
C i V ilians, to whose d efin itions our attention has been c alled , tl i e n it 
w ould include every in terf erence wit h an d injury or damnge t o land by 
w hich its u se and enj oyment become les s conve nient or valuable.^ Such 
a sense has never beenL_giv_en to it or countenanced in any deci sion 
in volving t he constitutional provision as to taking private property. If 
VOL. I. — 70 



1106 STORY V. NEW YORK ELEVATED RAILROAD CO. [cHAP. VL 

the word is to have such a broad signification, then it was useless to 
provide in the EngHsh Land CUxuses Act of 1845, that compensation 
should be made for land taken not only, but also for land " inju- 
riously affected," and in the Constitution and laws of some of the 
States that compensation shall be made for both land taken and land 
damaged. 

I do not deem it necessary to define precisely what ])roperty righ ts 
a butting owners have in the streets of the city of New York adjoin i ng 
t heir lots. I will assu me, without deciding it, th at the str eets cannot 
be absolute ly closed against their conse nt without som e compensation 
to them ; for the limitations upon the power of the legislature in refer- 
ence to closing streets have not been precisel}- determined in this State. 
{Brooklyn Park Comm'rs v. Armstrong, 45 N. Y. 234 ; 6 Am. Rep. 
70; Coster v. Mayor, etc., 43 N. Y". 399; Fearing v. Irioin, 55 Id. 
486.) If the plaintiff has an unqwalified private easement in Front 
Street for light and air and for access to his lot, then such easement 
cannot be taken or destro3ed without compensation to him. {Arnold 
v; The Hudson E. R. R. Co., 55 N. Y. 661.) But whatever right an 
a butter, as such, has in the str ee t is subject to the paramount autho rity 
o f the S tate to re gulate and control the stre et for all the purpo ses 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, an d thus great damage may be done to an abu tter. T^ie stre et 
may be cu t down in front of his lot so that he is deprived of all feasible 
access to it , a nd so tha t the walls of his house may fall into the street, 
a pd yet he will be entitled to no comi)ensation {Eaddiff's Executors 
V. The Mayor, etc., supra; O'Connor v. PittshurgJi, siqrra; Callen- 
der v. Marsh, 1 Pick. 418) ; and so the street may be raised in fro nt 
o f his house so that traveller s can look into his windows and he can 
h ave access to his house only through the roof or upper stories, a nd a ll 
li ght and air wil l be sh ut away, and yet h e would be without any 
remedy . T he legislature may prescribe h ow streets s hall be use d, as 
such, by limiting the u se of some stree ts, or the parts of streets, to _ 
p edestrians or omnibuses, or ca rriages, or drays, or by allowing them 
t o be occupied under proper regulations for the sale of hay, wood, o r 
other produ ce. 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 w ere 
d evoted when first open ed. 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; sewe r, 
w ater, and gas pipes may be la id ; l amp-posts may be erected, a nd 
o mnibuses w i th their n oisy r attle over stone p avements, and other new 
a nd strange v ehicles may be authorized to use them. All these thin gs 
m ay be do ne and they are still streets, and used as such. Streets a re 
f or the pass age and tran sportation of passengers and proper ty. Sup- 
pose the legislature should conclude th at to relieve Broadway in the c ity 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1107 

Qf New Y ork from its burden of travel and traffic it was necessary to 
have an underground street below the sam e ; can its authority to 
a uthorize its constru ction be doubted? And for the same purpose 
co uld it not autliorize a wav to be made fifteen feet above Broadw ay 
f or the use of |)edestrians ? W hen the streets become so ci'owded w i i h 
v ehicles that it is incon venient and dangerous for pedestrians to cross 
fr om one side to another, can it be doubted that the legislat ure co uld 
authorize them to be bridged, so that pedestrians could pass over t hem, 
an d that it could do this without compensation to the abutting owners, 
w l)Ose light and ai r and access might to some e xtent be interfered 
witli? These improvements would not be a destruction of or a depar- 
ture 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 
pu rpose for which it was made, to wit ; travel and transportation." If 
b y these imp rovements the abutting owners were injured, the}- would 
h ave no const itutional righ t to compensation, for the reaso n that no 
p roperty would be taken_and the injury 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 pub- 
lic corporations, organized for the purpose, as it can authorize plank- 
road and turnpike companies to take possession of highways and take 
toll from those who use them. 

So in process of time railway s came to be used for transportation of 
persons and propertj- ; and a controversy soon arose whet her - they 
co uld be constructed in the streets of cities without compensatio n to 
the f abutting own ers. I t was determined that they could not, when 
s uch owners owned the fee of the street. (Wac/er v. The Troy Union 
a. E. Co., 25 N. Y. 526 ; Craig v. The Rochester City & Brighton 
R. R. Co., 39 Id. 404.) . But where they do not own the fee the y are 
e ntitled to no compensation, as no private propertv is taken from them 
within the mea ning of the Constituti on. That this is the rule was 
distinctly recognized in the two cases last cited and was adjudicated 
in the cases of T/ie People v. Kerr (^2,1 N. Y. 188), and KeUinger 
V. The Forty Second- Street, etc., R. R. Co. (50 Id. 206). In the 
case of The People v. Kerr, there was uncontradicted proof that the 
construction and operation of the railway in the street would cause 
serious damage to the owners of adjoining propert}',' and that such 
propert}' would be depreciated in value from twenty to twenty-five per 
cent, and the court found that the construction and operation of tlie 
railway "would be a material interference with and injury to the use 
and enjoyment of the lots fronting on said street in such manner and to 
such extent tliat the same would constitute a continuous private nui- 
sance to the plaintiffs" as owners of adjoining lots; and vet it held 
that the abutting owners were not entitled to compensation. It was 
adjudged that the construction of a city railroad upon the surface of 
the street was an appropriation to public use ; that tlie street was 
under the unqualified control of the legislature, and that any api)ro- 



1108 STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VL 

priation of it to a public use b}' legislative authority was not a taking 
of piivule proi)eity so as to require compensation to tlie cit\- or abut- 
ting" owners. The deci sio n seems to have been based upon the bro ad 
g round lliat the lesj;islature could authorize the land in the street whic h 
had been taken for or dedicated to a ijublic use to be devoted to any 
public use whatever. But even if it did not go so far as this, it cannot 
b e disputed that it went so far as to hold that the legislature co u Id 
a u thorize the streets to be devoted to any ijublic use not inconsiste n t 
with their use as street s. 

In Kellinyer v. The Street Haihva^/ Co. the case of The Peojyle v. 
ICerr was approved, and it was held that the owners of propert}- 
adjoining a street in the city of New York, laid out under the Act of 
1813, have an easement in the street in common with the whole people 
to pass and repass and also to have free access to their premises, but 
that the mere inconvenience of such access occasioned b}' tlie lawful use 
of the street by a railroad is not the subject of an action ; and that a 
complaint alleging that defendant laid its track so near the sidewalk in 
front of the plaintiff's premises as not to leave sufficient space for a vehi- 
cle to stand, and that he and his family were thereby incommoded in 
leaving and returning to their residence, and the rental value of his 
premises was greatly depreciated, did not contain a cause of action. 
Church, Ch. J., speaking of the case of The Pe ople v. /igrr, said : 
'' It c learly holds that the abutting owners had no property in the 
st reet, which was taken for the railroad, for which they were enti tled 
t o compensati on." 

The decisions in these two cases were in no degree based upon the 
fact that the railways were constructed upon the surface of the streets. 
It can make no difference in principle whether the railway be on the 
surface or above or below the surface so long as it serves the same 
public purpose, to wit : the transportation of persons and property. 
The |)rinci|)le lying at the foundation of these cases, stated most fav or- 
ably to the plaintiff, is t hat a railway was simply a new mode of using 
t he streets for the purpose for whic h they v\ere originall y made", a nd 
t hat if the new use pro duced any greater inconvenience or injury to the 
abutting owners than the old use , it was damnum absque inju ria. 
N or did these cases proceed upon any distinction between ho rse rail- 
w avs and tliose \\\)o\-\ which steam is the motive-po wer. If the legisl a- 
tu re could authorize a railwa y to b e operated in any street by h orse 
p ower, it certainly must ha ve the same right to allow it to be op erated 
by ste am, electricity, or any other motive-pow er. As stated b}- the 
learned author of Thompson on Highways, 400, " The distinction be- 
tween horse railroads and those on which steam is the motive power is 
not made by any of the cases in the Court of Appeals, but is expressly 
denied by some of them, and is in conflict with the reasoning and prin- 
ciple of all of them." In Wager v. Troy Union R. R. Co.., Smith, 
J., wiiting the prevailing opinion, said : " It is true that the actual use 
of the street by the railroad may not be so absolute and constant- as to 



i 






CHAP. VI.] STORY V. NEW YORK ELEV.\TED RAILROAD CO. 1109 

exclude tlie public from its use. With a single track, and particularly 
if the cars used upon it were propelled bj' horse-power, the interruptiou 
of the public easement in the street might be very trilling and of no 
practical consequence to the public at lai-ge. But this consideration 
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." In the same case, Sutherland, J., in his dissenting opin- 
ion, said : " In this case the railroad, I assume, was intended to be and 
was operated by steam. I cannot see how that alfects the question of 
power." In Craig v. Rochester City, etc., R. li. Co. {supra), 
Miller, J., writing the opinion, said: "I am at a loss to see any 
apparent distinction in the application of the rule between cases where 
steam-power is employed and those cases where the road is operated by 
horse-power." Judge Dillon, in his excellent work on Municipal Cor- 
porations, vol. 2, § 577, says: " Where the fee of the street is in the 
municipality in trust for the public, or in the public, the control of the 
legislature is supreme, and it may authorize or delegate to municipal 
bodies the power to authorize either class of railways to occupy streets 
without providing for compensation either to the municipality or to the 
adjoining lot-owners." In Cooley's Constitutional Limitations, 555, 
the learned author, speaking of the appropriation of the street to the 
use of all kinds of railroads, says : " A strong inclination is app arent 
to bold that, when the fee in the public way is tak en from the former 
o wner, it is taken for any public use whatever to which the p^iblic 
au thoriti es, with the legislative assent, may see fit afterward to devote 
i t in furtherance of the general purpose of the original appropriation, 
and if this is so, the owner must be held to b e compensated at the time 
o f th e origi nal taking for any such possible u se ; a nd he takes his 
ch ances of that use or any change in it proving beneficial or delete rious 
to any remaining property he may own or bu siness he ma y be _e iign ged 
in," and " w hen land is taken or dedicated for a town street it is un - 
qu estionably appropriated for all the ordinary purposes of a tow n 
st reet, no t merely the purposes to which such streets were f ormerly 
appl ied, b ut those demanded by new improvements and new wan ts." 

I think 1 have now sufflcientl}' demonstrated that the legislature may 
a uthorize a surface railway oj^crated by any motive-power to be co n- 
s tructed in publ ic streets, and that when the abutting owners do not 
o wn the fee of the streets they cannot claim any compensation for a ny 
i nconvenience or inj ury caused t hem in the construction and o [) e r a lion 
o f the railway, provided the street still remains open and practica ble 
f or the or dinary use of the publ ic ; and I am entirely unable to see wh y 
the reasoning and autho rities whi ch lead to this co nclusion do not lead 
to. the furth er conclusion that railways operated above the surface of 
t he street may be authorized nijon the same term s. An elevated rail - 
way is only a new mode of using the streets for the tra nsportation o f 
persons and ])roperty . It is not a change or subversion of the use for 



1110 STORY V. NEW YORK ELEVATED RAILROAD CO. [CHAP. VL 

which the streets were originiilly oi)ened and laid. The time came 
when the increasing business and population of the cit}' of New York 
made the surface railroads a necessity. T he time has now c ome whe n 
th e convenience an d the wants of a vast city ma ke this new m ode of 
tr avel and transp ortation, if not a n ecessity, at least a great conven- 
i ence ; and tli c devotion of the s t reets to th e us e of tlie elevated ra il- 
w ay s was only in furthei'ance of the trust and p u rpose for which th e 
soil of the streets was originally dedic ate d or tak en. If the surface 
railways were raised up fifteen feet in tlie streets and used for the same 
purpose for which tliey are now used, could not an Act of the Legisla- 
ture make them lawful structures without compensation to the abutting 
owners? As relates to the question of legislative power, what differ- 
. en ce could it make whether a railway remained u|)on the surface or 
w as raised up? Are the elevated r ailways unlawful elevated fiftee n 
fe et above the surface of the streets, while they would be lawful lower ed 
t o the surface of the streets ? The legislature in regulating any stree t 
c ould build an embankment fifteen feet high and then autliorize a 
s urface railroad to be built u|)on that, to be oix-rated by any mot i ve 
u ower, and the noise and dust and interruption of air and light, a nd 
d isturbance of privacy might be much g reater than is caused by an 
elevated railway . Instead of building an embankment and thus raising 
the street, the legislature could authorize the whole travel of the street 
to be carried above the surface upon an elevated road by all the vehi- 
cles used for the transportation of persons and property, and the abut- 
ting owners could have no legal or constitutional ground of complaint. 
This is so because the fee which the city owns in its streets extends 
i ndefinitely upward and downward, and the space above as well as the 
sp ace below a street may be utilized for street pu rposes. 

I have not claimed that the legislature could, without compensation 
to abutting owners, authorize a street in the city of New York to be 
absolutely closed or wholly and exclusively appropriated to the use of 
a railroad. There are authorities which would tend to uphold such a 
claim. I do not aflfirm or deny the validity of such a claim. I leave 
the question of the right to exercise that more extensive legislative 
authority under the Constitution to be determined in some future case 
wherein it shall be involved. It is sufficient to determine now that the 
leg islature may constitutionally, without compensation to abutti ng 
o wners, devote the streets of a great city to any use which is not in- 
co nsistent with the use for which they were opened or dedica ted . 

Front Street, adjoining the plaintiff's lot, is not closed by this elevated 
railway, but it remains an open public street. The finding of the court 
is that it "will cause no substantial or material impediment to the 
passage of persons, animals, or A'ehicles in and along the street, and 
but slight obstruction to the light or air from the street." |^" \Ve mus t 
take this case as the trial cour t has found It and not assume a cas e 
such as the i maginatio n can pa int.^'J ^he stream of traffic and travel 
wi th no material diminution can flow through Front~Sti-eet as ireely as ^ /^, 

-yU-WoJl ^t^r^jj^ '>^ww^ XA-, 0^ .wAV^ ^ay^ /5.<A^'' 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1111 

b efore the construc tion of the railway. If it be a question of fact 
wlietber the street is in some sense closed b}' the defendant's structure, 
then the trial court must be deemed to have found the fact in favor of 
the defendant. 

A steam railway operated upon the surface of one of the streets in 
the city of New York would probably be much more damaging than an 
elevated railway, and yet, as I have shown, it could undoubtedly be 
authorized without compensation to abutting owners ; and it is impossi- 
ble for me to perceive upon what reasoning or theory it can be claimed, 
that abutting owners who have no rights upon the surface of a street 
for which they can claim compensation, yet have such rights when the 
railway is elevated above the surface. Thev have no easemen t upon or 
o ver the surface which cannot be interf ered with an d greatly impaired 
* under legi slative authority withou t compensation, and yet it is claimed 
that thev have an easement somewhere up in the air wliich is under the 
const itutional protection as private prope rty. >yhere do these aerial 
rights come fro m? T hev do not rest upon any grant, and as the d oc- 
tr ine of ancient lights has no footing in this country, they canno t rest 
upon prescription. Buildings may be erected upon a street so high and 
in sucli a way as to shut out light and air from an adjoining building. 
They may be erected so as to cast tlieir shadows across the street upon 
houses there standing and yet no right or easement is invaded. It can- 
not be doubted that the legislature could authorize surface railways to 
be operated with double-decked cars fifteen feet high and thus cause 
nearly all the inconvenience to the abutting owners of an elevated rail- 
way, and yet it must be conceded that under the authorities the abut- 
ting owners would have no legal cause of complaint. 

Li ght and air are mere incidents and accidents of a str eet. Street s 
ar e, not constructed and maintained to furnish th em. T hey come from 
a street because the street exists, and when tlie street disappears it is 
d ifficult to perceive how any right to them in an abutting owner sur- 
vive^. But as I have before said, it is sufficient now to determine tha t 
if there can be any such thing in a street as an easement for light and 
a ir, it is subordinate to all the uses and burdens to which a street may 
b e subjected by the paramount authority of the legislature. 

I am led to this conclusion by principles fairly to be deduced from 
decided cases which are binding upon tiiis court as authority. T cannot 
perceive how this case can be determined in favor of the plaintiff with- 
out substantially overruling the cases of The People v. Kerr, and 
Kellinger v. The Street Haihony Co. In The Matter of the Gilbert 
Elevated Railway Co. (70 N. Y. 361), Church, Ch. J., said that "the 
principles adjudicated in these cases will be regarded as obligator}' 
upon this court in deciding future cases." In the case of Kellinr/er v. 
The Street Bailwny Co., the same learned judge, speaking of the case 
of The People v. Kerr., said: "We should feel bound to adhere to 
this decision and its necessary legal results, even if we doubted its 
soundness, because large sums of money have been expended upon the 



1112 STORY V. NEW YORK ELEVATED RAILROAD CO. [ciIAP. YL 

faith of it, and in many obvious waj's it has become a rule of proi)eity 
which should never be abrogated, except for the most cogent reasons." 
And more than four hundred years before these utterances a learned 
English judge said : "^ If we judge against former judgments it is a 
bad example to the barristers and students of law ; they will not have 
any faith in or give an}' credit to their books." (Year Book, 33 Hen. 
VI. 41.) 

It is suflficient to say of the Elevated Railway cases reported in 70 
N. Y., that the questions we are to determine in this case were not 
there involved. It was there determined that provision was made in 
the Rapid Transit Acts for compensation for any rights of private 
property which the abutting owners had in the streets of the city. But 
whether they had such rights or not was intentionally and expressly 
left an open question. 

The plaintiff and many other abutters upon the streets through which 
this elevated railway is constructed undoubtedl}' suffer great damage 
from its operation and have the right to complain of the injustice done 
them ; but they must seek their remedy by appealing, not to the courts, 
but to the legislature, and if they fail there, b}- appealing to the people 
who make legislatures. T hat is the final anneal open to every citizen 
w ho suffers injustice under the forms of the Constitution and the l aws. 
Tii e legislature undoubtedly has ample power to compel the defen dant 
ye fe to make compensation to abutting owners f or all the d amage d one 
th em, and arrest the exercise of its franchise , if it sh all refuse to ma ke 
s uch compens a tion. (3IonongaheIa JVav. Co. v. Coon, 6 Penn. St. 
379.) T he power which it possesses under the Constitution and t he 
la ws to alter or repeal the charters of corporations includes the ab so- 
lu te right to regulate the exercise of corporate franchise s, and to pre- 
s cribe the terms and conditions upon which they may c onti nue to be 
e xercised. {Albany Northern Uailroad Co. v. Brownell, 24 N. Y, 
345.) 

T will close this discussion by quoting the language of a very learned 
jurist in Hatch v. The Vermont Central Railroad Co.: "In the 
absence of all statutory provision to that effect, no case and certainly 
no principle seems to justif;y the subjecting a person, natural or artifi- 
cial, 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 sfore or school often 
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 jiroprietors. 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 como loo 
near some and too remote from others. They benefit mnny and injure 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1113 

some. It is not possible to equalize the advantages and disadvantages. 
It is so witli 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 ol" 
life. The advantages and disadvantages of a single railway could not 
be satisfactorily balanced by all the courts of the State in forty j-ears ; 
hence the}' must be left, as all other consequential damage and gain are 
left, to balance and counterbalance themselves as they best can." 

The judgment should be affirmed. 

For reversal, Andrews, Ch. J., Rapallo, Danforth, and Tracy, JJ. 
For affirmance, Miller, Earl, and Finch, JJ. 

Judgment reversed. 

[The opinion of Danforth, J., concurring, and the dissenting opinions 
of INIiLLER, J., and Finch, J., are omitted. The opinions of Dan- 
forth, J., and Tracy, J., are each entitled by the reporter " Opinion 
of the court." This title seems to belong, properly, only to the last. 
They take substantially the same ground, but the former also holds that 
the plaintiff had the fee of the street.^] S^ Ux^^ 1 1 H 4 - ^^^ - 

1 See Randolph, Em. Dom. ss. 404, 416. Compare Fulton v. Short Route Ri/. Co., 
85 Ky. 640 (1887). Sperb v. Met. El. Ry. Co., 32 N. E. Rep. 1050 (N. Y. Jauy. 1893). 

In Lahr v. Metrop. Elev. R//. Co. 104 N. Y. 268 (1887), the court (Ruger, C. J.) (^(^ aX^^^^O^ 
said : " This action is the sequel of the Story case (Story v. N. Y. El. R. R. Co., 90 

N. Y. 122), and its defence seems to have been conducted, upon the theory of securing 7{) SAjC/^oOi^ 

a re-examination of the questions then decided, and in case that effort should prove iJ - ..-jf-^ 

fruitless, of limiting and restricting as much as possible, their logical effect. ^■''^^^ X'^ 

"The endeavor to secure a reexamination of the doctrines of that case must fail, ^j ^iA/UL V 
since the decision there made embodied the deliberate judgment of the court, pro- 
nounced after the most careful and thorough consideration, and after two arguments S^ dA^ ■ 
at the bar, made by most eminent counsel, had apparently exhausted the resources of -^ -iHjLA. ^'*- 
learning and reason in the discussion of the questions presented. n j ^ L^ 

" It would be the occasion of great public injury, if a determination thus made could -'lAXA.t^ 

be inconsiderately unsettled and suffered again to become the subject of doubt, and ,il,Pa/is aCut) 

theme of renewed discussion. '~"^ '^ 

" The reasons advanced by the able counsel for the appellant to induce us to recon- \yt,Mi-^V<- *^ 

sider that case, seem to us to be insufficient to render it wise or expedient to do so. ' ,— ' 

The doctrine of th e Story case therefore, although pronounced by a divided conrt. mus t ^t^iA-t'i't/^'-vv^ 

b e considered as stare d ec isis upon all questions involved therein, and as establishi ng y(^,^^[/^rCvi-^ 

t he law, as well for this court as for the people of the State, whenever similar question s , 

may be litigated. -tfexAAA.^-^ , 

" Wherever, therefore, the principles of that case logically lead us we feel constrained p^ jCA/- 

to go, and give full effect to the rule therein stated, th at abutters upon public streets in ^"-' 

c ities are entitled to suc h damages, .as they may liave sustained by reason of a diversion ^^j^.^x^'^ 

of the stree t, f rom the use for which it was originally taken, and its illegal approp ria- ^^^ i^ 

t jon to ot her and inconsistent u,ses. ' "^ 

"The case is not only authority upon the questions which it expressly decides, but^ If^CC*-^ ^^^^ 

also upon all such as logically come within the principles therein determined. - ^ ti/A^ 

"It is therefore unnecessary to enter into a general discussion of those questions, -^ ' .^ 

but after restating such propositions as seem to be controlling in this case, we shall /3-t-fX n 

simply refer to some alleged distinctions between the present case and the Story 77!^ •^c-o^t- 

case. We hold tliat t he Story case has definitely determine d : iu 

" First. That an elevated railroad, in tlie streets of a city, onerated by steam-pow er t/l-TtAM. /2^ 

a nd constructed as to form, equipments, and dimensions like that described in t he ^ 

^ ' / -f< ; .' '.•^<^ .-f- •'■ ^-^ '^' 



etA*^ 






/0.co<tX^«-^ 1114 STOllY V. NEW YORK ELEVATED UAILKOAD CO. [CHAP. VI. 



St orv case, is a ])erversiou of the use o f the street ^roin^lie pu rposes ori ginally 
tie- signed fo r it. an d is a u.se which neither the city antliorities nor the legislature ca a 
^ if K';^:ali/.e or sanction, without providing compensatioii for the injury iutiicted ui)on the 

'*' p roperty of abutting own ers. 

'l'y^^Q^f}^ibLx^' "Second. T liat abutters upon a public street claiming'title to their premises by grant 

. fr om the municipal authorit ies, whicli contains a covena nt that a street to be laid out 

-ffM. ^/3/*xA-«, i n fnmt of sucli i^ropcrty, sliall forever thereafter continue for the free and commo n 

rf^ J p assage of, and as public streets and ways fur the inhabitants of said city, and all 

(/vM. X'CC*^ otliers passing and returning through or by the same, in like manner as tlie other 



Aa^-^^vCm 



-^ /) _^ciutJU. streets of the same city now are or lawfully ought to be, acquire an easement in th e 

i) b ed of tlie street for ingress and egress to and from thei r premises, and also for the 

A. tJifXr*^'^ fr ee anil uninterrupted passage and circulation of light and air tlirough and over su ch 

.sr.reet for the benefit of property situated thereon. 
{oR-^ (/K. <• Third. That tlie ownership of such easement is an interest in real estate , const! tu- 

LxA^ a. /O^ t ing property witliin the meaning of that term, as used in the Constitution of the State. 
an d reijuires compensation to be made there for, before it can lawfully be taken from 
<. , / zi-t't'f'-' ' 'l-S owner, for public use. 

. " Fourt h. That the erection of an elevated railroad, the use of which is intended to 

^'^'tcvvt-ttA be permanent, in a public stree t, a nd upon which cars are propelled by steam-engin es, 

//- 1/2_ r y^Aj ■ g enerating gas, steam, and smoke, and distributing in the air cinders, dust, ashes, and 

' other noxious and deleterious substances, an d interrupting the free passage of light 

H\j^(_n^.~^- an d air to and from adjoining premises, constitutes a taking of the easement, and its 

. J ( _ appropriation bv tiie railroad corporation, rendering it liable to the abutters for t he 

f^-<^ ^ ^T^-^ (Ja mages occasioned by such takin g. 

/2aaJ^' " T he jury in this case, under tlie instructions of the court, have found, u pon evidence 

which justifies tiie finding, that the structure of the defendant in Amity Street, in 

^^^*-'^^-*^^ connection with the running of ears thereon, propelled by steam engines with the cou- 

«.<^ A^aAlA. - sequences natur.ally flowing therefrom, c onstitutes an employment of the street fo r 

, ., x/ purp oses not originally designed and a perversion of its use, from legitimate street 

Jr^ p urposes . . . . 

^/^^^x " The logical effect of the decision in the Story case is to so construe the Consti tu- 

' j-^y^A. ti on. as to operate as a restriction upon the legislative power over tlie public streets 

o pened under the Act of 181-3, a nd confine its exercise to such legislation, as shall 

, — /CA^S^ ' a uthorize their use for streot imr j ^rises aj one. Whenever any other use is attemjited 

, t o be authorized, it exceeds its constitutional authority . Statutes relating to iniblic 

-^^ '^ st reets which attempt to authorize their use for additional street uses, are obvicjnsly 

yfl^c^ l( witliin the power of the legislature to enact , but questions arising under such legisla - 

' '■' , t ion are inapplicable to the questions hero involved. 
JL<XA4AMJ^ ^ a Such are the cases in respect to changes of grade ; the use of a street for a surface 
horse railroad ; the laying of sewers, gas, and water pipes beneath the soil ; the erection 
of streets lamps and hitching posts, and of poles for electric lights used for street 
lighting. All of these relate to street uses sanctioned as such by their obvious p ur- 
D Ose. and long continued usage, and authorized by the appropriation of land for a 
public street. . . . 

> " But a single question of any importance remains to be discussed, and that refers to 

\^x ^TUU^^-^A-^the claim made, that the defendant is not liable for the operation of its trains, and the 

L consequences flowing therefrom, in respect to the manufacture and distribution in tlie 

"^'^ air of gas, smoke, steam, dust, cinders, a-shes, and other unwholesome and deleterious 

substances from its locomotives and trains, as they move to and fro over its tracks- 

" We have been unable to see any reason why the de fendant should no t be liable for 
t he injury thus occasioned, provided the evidence established th e fact that t hey were 
d estructive of the easements of light, air, and access belonging to the plain tiff. 

" I t follows necessarily from the proposition that a perm anent structure erected in a 

^^ya. ~\jJUa^JL str egt, interrupting to any considerable extent the passage of light and aii- to adjacent 

, pr emises, works the destruction of easements for such purposes; that any incident of 

(\/:^ /pyi^ - t he -structure which necessarily increases and aggravates the injury mast be subject to 

" the same rule of damage. ... _.^ 

lu, cyuuA^ ipLd~tL aaL<^ Q;tM.utz^AA. a^^^ .c^a.M^i^<^ . 








K 



CHAP. VI.] STORY V. NEW YORK ELEVATED RAILROAD CO. 1115 

" Xo partial justificatiou of tlie damages iuflicted by an unlawful struc ture, and its 
unlawful use, cau be predicated upou the circumstance, that uuder other couditions 
aud tlirougli a lawful exercise of authority, some of the cousequeuces complaiued of, 
might liave been produced witliout reuderiug their perpetrator liable for damages. 

"The structure here, aud its intended use, caimot be separated aud dissected, auijkit 
must be regarded in its entirety in cinisidering the effect wliich it produces upo^ the 
propertv of the abutter. However tlie damage may be iuflicted, provided it be etfected 
by an unlawful u se o f the street, it constitutes a trespass reuderiug the wrong-doer 
liable for the consequences of his acts. 

" The legislature, as we have seen, had no power to authorize the street to be used 
for an elevated steam railroad, and that want of authority extends to every incident 
neces.sarv to make the road an operative elevated steam railroad, which occasions in- 
jury to the riglits of abutters on the street. [Bait. ^- Pot. R. R. Co. v. Fijlli Bap. Cli., 
108 U. S. 317, 329.) . . . 

"Andrews aud Daxforth, JJ., concur. Rapallo, J., took no part. Eakl and 
Finch, JJ., concur in result, handing down the following memoraudum . 

"Earl and Einch, JJ., not being able to concur in all the views expressed in the 
foregoing opinion, concur in tiie result on the authority of tiie Story case (90 N. Y. 
122) ; deeming it necessary to add that, while they are unwilling to extend the scope 
of the decision in that case beyond its fair import, yet in their opinion it gives to 
abutting owners only damages for the construction and operation of the railway in 
front of their premises, resulting from the taking or destruction of their street ea.se- 
nieuts of light, air, and access, and for such damages to their adjoining property as 
are necessarily caused by such taking and destruction ; that the abutters cannot reco ver 
damages to o r upon th^ abutting pr o perty caused b y_the_jjiwful operation of _the 
road, and not by the depi'ivatij)iL_orjlMtr!KliiiU_M,their^asemeutsjn_^ thai; 

there can be^no recovery for aiy'iJLi!Xg_di!JifiJjyiJ<lie-jail\\'ayLJa_the^ it 

dmn-i vp-<,~f>r t.end^'to d fijirive, tiie abuttjii's of_the_ease meu ts ^meutjoned^ and that they 
believe these principles were not violated upon the trial of this action. Judgment 
affirmed." 

In Fob£S v. The. Rome. Watertown. &- Oqd . R. R. Co., 121 N. Y. ,50.5 (1890) the -/ ^ 
plaintiff, as owner of real estate in Syracuse bounded by the side line of Franklin ' ' "^ '— — *- 
Street, brouglit an action to restrain the defendant from interference with, and occupa- ^l )t^,*jJb-^^ 
tion of, his easement of light, air, and access in and to that street, by the maintenance " 
and operation of its steam railway therein, and to recover past damages suffered by ^X% - ir*^ ' 
him from such maintenance and operation. _- 

In reversing a judgment below in favor of the plaintiff, the court (Peckham, J.) /^"^^ 
after citing Drake v. Hudson Riv. R. R. Co., 7 Barb. 508, Williams v. N. Y. C. R. R. Xa. Lou^ 
Co., 16 N. Y. 97, Wager v. T. U. R. R. Co., 25 N. Y. 526, and People v. Kerr, 27 « , ^ 

N. Y. 188, said: "I think there is no authority in this court which holds that there is ^Mf^^^ ^WJ- 
any differenc e bet ween a railro adoperated by horse-pow er a nd one operated by the Xsjh, (i-^ma^. 
p owder of ste am in the stre- ets of a city. If the legislature can authorize the one, jt ^^l 
caU;_unde r the sam e circumstances, authorize the other. I refer to railroads on the 'X\m lU-^ ' 
.same grade as the street itself, and where the chief difference lies in the different 
motive powers which are used. "(/vCA wa/jlA 

" In Craifj v. R. R. C. q- B. R. Co. (39 N. Y. 404), it was held tha t the owner of a 
lot_oa_a.atreet, wh o owned the fee thereof su])ject only to the public easement for a \MK crvV/v^X" 
street, w^as entitled to compensati^) n for the new and additional burden upon the land fj-\ky^ aJK 
spjised as a street, by the erection of even a horse railroad thereon. In this case, b 
Judge Miller said he saw no distinction in the application of the rule between cases 'iLv>.ii jLo^ 
of steam and cases of horse-power. ' 

" In Kellmger v. F. S. S. <S- G. S. F. R. R. Co. (50 N. Y. 206), it was h eld that on e ■\<.<in> Xiut 
who djd not o wn the fee of the street, could not recove r damages for inconvenience ^j 

of access to hi s adjoining_Jands caused by the lawful erection of a street railroad o^-^ \AA-*^ 
t hrough the stree t. _. ^ 

" By t hese last two decisions, it is seen, that to construct even a horse railroad in a ^^^^^ 'OVn^/'*/' 
cit y street, is to place a new and additional burden upon the land, the right to do _ ^-fTr^A <? 



1116 STOIIY V. NEW YORK ELEVATED RAILROAD CO. [('HAP. VL 



which does not exist by reason of the general right of passage through the street, but 
if the ailjuining owner of hiiul is not tlie owner of the fee in the street, and tlie rail- 
r oad conipan\ lias ubtaiucd tiie proper authority, he bus no rigiil to eoiii|aMisaliu u for 
such added burden, nor to coniphiin of sucii use so long as it is not exclusnc or e xces- 
sive. The same reasoning applies, as we have seen, in the case of a steam surface^ 
railroad. Such a use of the streets would be an additional burden upon the land, and^ 
of course, if the adjoining owner had title in fee to the centre of the street, subjec 
only to the public easement, he would have a rigiit of action, as held by the Williams 
and other cases, while if he did not, no such right would exist in his favor merely 
because it was a steam instead of a horse railroad which was to be constructed.) The 
authority of the law and the consent of the city would be enough to authorize the 
building of either, and tlie difference between the steam and the horse railroad would 
not be one of such a nature as to require or permit any difference in the decision of 
the two cases. If the use of either became unreasonable, excessive, or exclusive, or 
such as would not leave the passage of the street substantially free and unobstructed, 
then such excessive, improper, or unreasonable use would be enjoined, and the adjoin- 
ing owner would be entitled to recover damages sustained by him therefrom, in his 
means of access, etc., to his laud. iMahady v. B. R. R. Co., (91 N. Y. 14St). In 
Washi)Hjton Cemetery v. P. P. ^ C. I. R. R. Co. (68 N. Y. 591, at 593), Andrews, J., 
assumes the right of the legislature to authorize the construction of a railroad on a 
street without exacting compensation from the corporation authorized to construct it, 
to the owners of adjoining land, provided such owners did not own the fee in the 
street. The statute in the case cited permitted the use of steam on some portion of 
this road, so that Judge Andrews' remarks were not confined to horse railroads. 

" Assuming that the plaintiff had no title whatever to the land in the street through 
which the defendant laid its rails and ran its trains uuder legislative and niunici|ial 
authority, I thiuk it clear that prior to the decision of this court in the Story case (90 
N. Y. 122) he had no cause of action against the defendant based upon any alleged 
taking of the plaintiff's property or easement by defendant. If its user of the street 
became excessive or exclusive, and hence degenerated into a nuisance, the plaintiff 
had another remedy. Tlie claim is now made that the Story case (supra), and those 
cases which followed and are founded upon it, so far altered the law as to permit a 
recovery in all cases where the easement of the adjoining lot-owner, through the build- 
ing and operation of the road, is injuriously affected by any deprivation or diminution 
of light, air, or access to his lot, even though he do not own the fee to the ceutre of 
the street ; and, where such injury occurs, it is claimed that the property of '.,he owner 
in his easement of light, air, or access has been taken to a greater or less extent, and 
compensation is guaranteed to him therefore by the Constitution. 

" It was not intended in the Story case to overrule or cliange the law in regard to 
steam surface railroads. ^The ca.se embodied the application of what was regarded as 
■well established principles of law to a new combination of facts, such facts amount- 
ing, as was determined, to an absolute and permanent obstruction iji a portion of the 
public street, and in a total and exclusive use of such portion by the defendant, and 
such permanent obstruction and total and exclusive use, it was further held, amounted 
to a taking of some portion of the plaintiff's easement in the street for the purpose of 
furnishing light, air, and access to his a<ljoining lot. This absolute and permanent 
obstruction of the street, and this total and exclusive use of a portion thereof by tlie 
defendant were accomplished by the erection of a structure for the elevated railroad of 
defendant, which structure is fully described in the case as reported. The structure, 
by the mere fact of its existence in the street, permanently and at every moment of 
the day took away from the plaintiff some portion of the light and air which other- 
wise would have reached him, and in a degree very appreciable, interfered with and 
took away from him his facility of access to his lot ; such interference not being inter- 
mittent and caused by the temporary use of the street by the passage of the vehicles of 
the defendant while it was operating its road through the street, but caused by the 
iron posts and by the superstructure imposed thereon, and existing for every moment 
of the day and night. (Such a permanent, total, exclusive, and absolute appropriation 
of a portion of the street as this structure amounted to, was held to be illegal and 




(/yCL/« 

■pxu (^ 



I 



CHAP, vl] stoky v. new york elkvated r\ilkoad CO. 1117 -^fX^v^-"^^^^*^^ 

wholly beyoud any legitiiniite or lawful use of a pulilic street. The taking of th(iO ' \ 
property of the plaintiff in that case was held to follow upon the permanent and exclu- ^it,,«„«/i.Aj«-^ 
sive nature of the appropriation by the defendant of the public street or of some por- .^-^-^ 

tiou thereof. If that ai)pro])riatiou had been held legal, any merely conse()uentiaI /X<-a_^*^ O^ 
damage to tlie owner of tiie adjoining lot, not having any title to the street, would . n^tXAAA 

have furnished no ground for an action against tiie defendant. It was just at this""^ '^ 



poiut that the disagreement existed between tlie members of this court in the Story 
case. The jud'i-e who wrote one of the dissenting opinion s did not tliiulv that the iwiiA ~AA/'^-^ 
pres ented any dilTerent jjrinciple from that of an ordinary stea m surface railroa d 
o perating its road througii the streets of a c ity und er the autliority of the legislature 
and of the municipa lity, i n a case where the adjoining lot owner did not own tlie fe e 
i n the street. Tl ic cliaracter of the structure, and all the facts' incident thereto, were 
r egarded by him as simply resulting in an additional burden upon the street, some- 
w hat greater in degree it is true than a steam surface railroad, but still it was suc h a 
u se of the street as the legislature might permit, and the legislature having in fact 
gra nted it such power, the use of the street was, therefore, legal, and the defenda nt 
was not resi)onsii)le for the incidental damage resulting to one whose property was 
not in fact taken within the meaning of the constitutional provision, and tlie defend ant 
did him, tlierefore, no actionable injury. The otlier dissenting judges were of the 
same opinion. 

"A majority of the court, however, saw in the facts existing in tliat case what was 
regarded as a plain, palpable, and permanent misappropriation of the street, or some 
portion of it, to the exclusive use of tlie defendant corporation, and as resulting from 
it the court held that there was a taking of property belonging to the plaintiff with- 
out compensation, which no legislature could authorize or legalize. But this taking , 
i t cannot be too frequently or strongly asserted, resulted from the absolute, exclus ive, 
an d permanent character of tiie appropriation of the street by the structure of th e I 
defendant. There is no hint in either of the prevailing opinions in the Story case of I 
any intention to interfere with or overrule the prior adjudications in this State upon 
the subject now under discussion, as to the steam surface railroads. I n the Story cas e 
it , was argued that no real distinction in principle existed between a steam surface and 
a n eleyateil railroad resting on such a structure as was proved in that case. Th is 
c ourt, liowevcr. made tlie distinction, and the two prevailing opinions are largely taken 
u p with arguments going to show the distinction was obvious, material, and important , 
and was so re;i,l an d tangible in fact as to call for a different judgmont tliaii w ould 
have hRPii proper a nd appropriate in tlie case of the ordinary steam surface railroad 
s uch as tlie Drake case wa s. 

"Judge Tracy, in the Story case, said that the conclusion therein reached was 
b ased upon the character of the structur e, and that the language of Judge AVright in 
the Kerr case (.s"/'(V(), where he as.-ierted that the abutting owners had no property or 
estate in the land forming the bed of the street in front of their premises, must be 
construed with reference to the point then considered. In another portion of his opin- 
ion Judge Tracy said that no structure npon the street can be authorized which is 
inconsistent with the continued use of the street as a public street He also added 
that, whatever force the argument may have as applied to railroads built upon the 
surface of the street, without change of grade, and where the road is so constructed 
that the public is not excluded from any part of the street, it has no force when applied 
to a structure like that authorized in the present case.( This, he says, is an attemjit to 
appropriate the street to a use essentially inconsistent with that of a public street, and 
hence illegal. y He does not pretend that the ordinary steam railroail, laid on the sam e 
gr ade as the street, and not excluding others from its use, appropriates the street to a 
us e essentially or at all inconsistent with that of a public street. The use may be an 
additional burden laid upon the street, but nevertheless it is such a use as is entirely 
consistent with its continued use as a public street. 

"Judge Danforth in his opinion, views the structure in much the same light. He 
cites the case of Corning v. Loiverre. (6 Johns. Ch. 4.39), where Chancellor Kent re- 
strained the defendant by injunction from obstructing Vesey Street in New York city 
by building a house thereon, and lie says that the railroad .structure designed by the 



1118 



STORY V. NEW YOrxK ELEVAT[:D RAILItOAD CO. [CHAP. VI. 






defemlant for the street opposite the plaintiff's premises is liable to the .same objec- 
tion, that is, it is as permanent in its character and exclusive in its possession of 
that portion of the street, as was the defendant's building in the case cited. He 
further says that the street railway cases are in uo respect in conflict with the doctrine 
announced in his opinion. Other citations might be made from both opinions of those 
most learned and able judges, but enougli has been shown to enable us to say with 
entire correctness that tliere was uo intention in deciding the Storv case to reverse or 
overrule the cases in regard to steam surface railroads wiiich have heen alreadv cited. 
Those cases include just such a case as is the one at bar. 

" Following the Story comes the Lahr case (10+ N. Y. 2G8), and the ]n-inciples decided 
in the former were reiterated in the latter case. It is difficult to see tiiat any enlarged 
rule as to awarding damages in that class of cases has been definitely announced in 
the Lahr case. The general rule to be ad()])ted was agreed upon iiy the parties and 
involved an award once for all. The particular damage which the defendant was lialjle 
for, growing out of the existence of tiie defendant's structure, was held by three of 
the five members of the court then voting to eml)race such an injury or inconvenience 
as was incidental to the use thereof. Two of the five memliers were in favor of a 
more restricted rule, and they agreed simply in the result which aiRrmed the judgment 
of the court below. 

"Then came the Drucker case (106 N. Y 157), and in it the principle was announced, 
as stated in the head note, that in awarding damages it was proper to prove and take 
into consideration as elements of damages the impairment of plaintiff's easement of 
light caused by the road itself, and passage of trains, and the interference with the 
convenience of access caused by the drippings of oil and water. This was held as a fair 
result from a holding that the structure was an illegal one, and to tlie extent above 
described the court held the plaintiff entitled to an award of damages. But the fo uii 
dation for the recovery in all the cases above rit ed of any damages whatever, lies in 
the fact of the illegality of the structure. 

" Looking caretully over the cases involving tlie elevated railroads and their rights 
and liabilities, we cannot see that any new rule was adopted in any of those cases 
which would hold tlie defendant herein lialde under the facts proved, for the taking of 
any property or any portion of an easement belonging to the plaintiff. On the con- 
trary we think the plaintiff's case is still governed by the case of Drake and the other 
cases in this court which have already been cited, and in which the priiicijde decided 
in the Drake case has been assented to and aflfirtned. Upon such facts it has bee n 
held that there was no taking of any property or easement of an ailjoiiiiug own er 
who li;i(l no titlo to any portion of the land upon which the street was laid out, wher e 
the company was authorized by law and licensed b}" the city to use the stree t." 

In Povd V The Metrnp. EJev. Ri/ Co. 112 N Y. 186 (1889) the cotirt (Axdrews, J ) 
said " The Story c.ise ^90 N. Y. 122) established t he principle that an abutting own er 
on streets in the city of New Y"ork, possesses, as incident to such ownerslii)!, easeme nts 
01 light, air, and access in and from the adjacent streets, for the benefit of his abu tting 
lands , and that the appurtenant easements and outlviiig riglits constitute pr ivate 
property of whicli he cannot be deprived without compensation . That was an equity 
action and the court having reached the conclusion tliat tlie defendant's structure was. 
an unlawful invasion of the plaintiff's easements, granted an injunction, postponing 
its actual issuance, however, until after such reasonable time as would enable the 
defendant to acquire the plaintiff's right by voluntary agreement or compulsory pro- 
ceedings. The Story case did not determine any rule of damag es. But in Uli)ie v . 
N. Y. C. if- H. R /?■ R. Co. n oi N. Y. 98), t he general question as to the scope of the , 
re medy in an ordinary legal action f or damages sustained by an abutting owner from 
the construction of a railway in the street fronting his premises, without his consent , 
and in violation of his rights, was elaborately considered, and it was determined that in 
such an ac tion the plaintiff could recover temporary damages only ; that is, such dam- 
ages as had been sustained up to the commencement of the action, and the judgment 
below which allowed damages measured by the permanent depreciation in the value 
of the plaintiff's lots upon the assumption that the trespass and wrong would tie con- 



CHAi'. tit] EEINING V. NEW YOKK, LACKAWANNA, ETC. UY. 1110 






iVMJ^ 



(JL-G..~fyux/u (^ 



In Reining \. The New York, Lackatcanna^ and Western Ity. Co., t^ ~Cctu \ 

128 N. Y. 157 (1891), the court (Andrews, J.) said: "T he princip al -L^jc to ck. 

q uestion in this case respects the ri<j:hts of the plaintiff's as ahuttii i^ //fv> ac n/iA\ 

o wners, to recover damages occasioned by the construction of the o . 

d efendant's road in Water Street in the city oTBuffalo. T he plaintiffs' <^ "^^.(P 

premises are situated on the northerly side of Water Street, and Jii'c - ^a.;^^ ^ ^ 

tinned, was reversed. The case of Lahr v. 3Iet. El. R. Co. (104 N. Y. 270), was an - aLk^olS Chm 

action like t!ie present one, brought by an abutting owner for damages in wliicb the ^ 

plaintiff recovered the permanent depreciation in value of his premises by reason of -iA. aAJ~C\\. 

the construction and operation of the defendant's road, on the theory that the appro. ~p^ (KaaajIA 

priation and invasion of the plaintiff's easement was final and complete. This court c C -9- 

affirmed th" judgment, stating in its opinion that the case was taken out of the opera- ^j AJnA- 

tion of the Uline case (s'iprn), for tlie reason that the record disclosed that the parties ^xJmZ^tui.^ 

hail agreed upon the rule of damages. The plain inference is. tliat exceut for this . ^ 

the doctri ne o;' tlie [Tline case would have controlled and the objection to the measur e ll^AT^JL. /MAj, 

o f damages would have prevailed. The case of New York Nationtil Bank v. Metro- } / 9 \ IX. 

polifnn Elevated Railwa>i Compa/i'/ (108 N. Y. 660), is a still mure explicit recognition 

by this court of the application of the doctrine of thA TTIi^p p.isso to actions like this. /^ dx/A- '^ 

T hat was an equitable action, brought by an abutting owner, and was sustaine d _ 

The plai ntiff was awarded juilgmcnt fur past loss of rentals, and an iniunction w as (^ . _^k.aj^ n^ 

gr anted restraining the further operation and maintenance of the ruail, unless th e I' 

d efendants paid a certain sum equal to the amount of depreciation in the value of ~0*^^<x.t.AAA. * 

th e property, as for a permanent appropriatio n. There was no ground for maintain- \_ . " ^^ 

ing the action for equitable relief upon any circumstances disclosed in the complaint, f 

provided the plaintiff could have recovered permanent and complete damages, as for ^T^ ' v 

an actual taking of his easement, in a legal action. We think these cases have settled 

t he rule tb.at permanent depreciation cannot be recovered in an action like this . It is X->-^v\a. tAM 

understood that this has been the interpretation of our decisions upon which the courts 

below have acted in many cases. It might be productive of less inconvenience, on the *2--^rv\A . CMM. 

whole, if an opposite rule could be adopted. But the rule established is consistent -f Vv/i/}. 

with legal principles. A recoverv of judgment for damages for a trespass or the i n- I 

vasion of an easement does not operate to transfer the title of the property to the <(julo(x.A. P 

d e fendant, either before or after satisfaction, nor docs it extinguish the easement. I 

th e ordinary rule i t is an indemnity for a past wrong, leaving unaffected the plaint iff's 



JXOjiJiUL 



\i 



right to his property . W hen he comes to the court for equitable relief, the court m .ay p JtCv\ 
mo uld it to suit the circumstances, as was do'.i e in Henderson v. A'. 5"^ C. R. R. Co. 

(78 N. Y. 423). The present case was an action for damages simph'. The plaintiff t_/ q^ poA. 

neither in his complaint nor on the trial asked for equitable relief. ^/.^z i a 

" We think the judgment should be reversed and a new trial granted. All concur, ^-f utu> ^^ 

Judgment reversed." ^' i ■ 

" The law of the S tate of New Y^o rk as declared by the Co urt of A jipeals, aj)pears jlJ ^. 

to be as follows : An elevated railroad erected in and over a street pursuant to the _ /O-'M/t^ ^ 

statutes of t he vState, a nd with due compensation to the owners of pri)]ierty taken f(ir ^7 hM.'^ 

the purpose, is a la~wf al structure. The owners of lands abutting on a .street in the h / - p 



gix 



purpose, IS a lawiai structure , i ne owners or lanns aiuuiuig un a .surt-L-i, in h ik ii f ,; 

of New York have an easement of way, and of light and air, over it ; and throug h jljy\ , (JVj 



a liill in ciiuitv for an injunction, may recover of the elevated railroad company f ull . ^ 

c ompensatiun for the permanent injury to this easement; b u t, in an action at la^v, ca n ^tA>«^*Ar^^'*^ 

n ut, without the defendant's acquiescence, re cover perma nent damages, measured by /y^J^J^^^ \A/* 

t he diminution in value of their proper ty, but can recover such temporary damag es 

only as they have su.stained to the time of commencing the actiu n. [Citing cases. | j2 ^/ ^' UjU 

This rule of damages at law has not prevailed in analogous cases decided in other ^^j ^ ^ 

jurisdictions, and collected in the briefs of counsel ; and in the case last above cited 

the court observed that ' it might bo productive of less inconvenience on the whole, /d . Ca^ ^ 

if an opposite rule could be adopted.' 112 N. Y. 190." Grav, J. for the court, in j i^ 

iV. Y. Elev. R. R. v. F,fth Nat. Bk., 135 U. S. 432, 440 (1889). —Ed. ^"^^ () I 

^^i^^&A.xXsLy'^ pX<ivAx., xt\./--«t£w c^Ga./^^ ilu^\\ AA^iVA. (X. r>j^^L.<^ F '^ '^ / ' 






1120 



KEINING V. NEW YORK, LACKAWANNA, ETC. RY. [CIIAP. VI. 






bounded easterly by Coinmercial Street, westerl}- by Maiden Lane, and 
sontherly by Water Street, and occupying the whole lot is a four-stor}- 
brick building used as a store and residence, constructed before the rail- 
road was placed in Water Street. Waaler Street runs easterly and 
westerly, and has existed for more than forty years. Up to 1875, the 
p laint iffs owned the fe e to the centre of the street opposite their prem- 
I ' "' ■ ises, subject to the public easement . In that year Droceedlngs were 

\^^\M'AaAM^ t aken by the city of IkifFalo to accj^uire the title to a large number 
J • '*T of streets in Buffalo, 4"^'biding Water Street, b}- co ndemnation, and 
, r esulted in t he ci ty acqu iri ng the title, upon payment of a uni form Tnd 



M''^'^^^^ nominal award of five cents damage s to each of several hundred owners 
of lots on the streets taken incluc 



of lots on the streets taken including the plain tiffs . 

"In 1882, the Common Council of the city of Buffalo by ordinance 
granted to the defendant the right to construtt and maintain two rail- 
road tracks ' along Prince Street to a point midwaj- between Hanover 
Street and Lloyd Street, thence across Lloyd Street at such grade as 
X^f^^ti/lA/atll will permit said company with a practical construction to cross Com- 



I 



X^A, 



^fui 









raercial Street at the height fixed by the State engineer; thence to and 
along the centre of Water Street to the docks of the Delaware, Lacka- 
IfU^'fT wanna, and Western Railroad Company at the foot of Erie Street.' 

ull^ ■L^(^i*<- Commercial Slip is a part of the Erie Canal and separates Prince Street 
^^' - and Water Street, and together they form a continuous street except as 

it is interrupted by Commercial Slip. The defend ant, in pursuance of 
the per mission of the Common Council, and in accordance with the map 
[ a nd profile approved by the council, and under the direction of the c ity 

fUA /i^AlU^*- engineer, pro ceeded to raise the grade on Prince Street so as to enable 
./ the company to cross Commercial SlipJ-iy a brid ge fourteen feet abov e 

^ the water line, th e height fixed by the State engineer, and to meet this 
grade of the bridge co nstructed an embankment in the centre of Wa ter 
Str eet from the bridge easterly for the distance of 300 fee t, p assin g the 
plaintiffs' premis es. Water Street is sixty-six feet wide. The side- 
\a/F- '{(^'^ walk on the Water Street side of the plaintiffs' lot occupies fourteen 
feet. T he embankment of the defendant is twenty-four feet wide, and 
a t the junction of W^ater and Commercial streets (at the corner of 
which is the plaintiffs' lot), it is five feet nine inches hig h, and from 
that point descends westerly by a gradual descent passing the plain- 
tiffs' lot and across Maiden Lane and reaches the origmal level of the 
street nearly 300 feet west of the corner of Commercial and Water 
^ aZ/l^^. streets. The embankment is supported laterally by solid, perpendic ular 
stone walls, which extend along W^ater Street in front of the plaint i fis ' 
l ot and across the entran ce o f Maiden Lane. B etween the perpendic u- 
l ar stone wall on the northerly side of the embankment and the si de- 
walk in front of the |)laintiffs' building is a space eight to nine feet 
• wide, w^hich is the onl^• carriage-w^ay left on the Water Street sid e of 
t he i)laintiffs' premi ses. Commercial Street extends northerly and 
southerly from j\Iain Street to Buffalo harbor. The raising of th e 
embankment in Water Street rendered it necessaiy to make an embank- 






■, /'i/.AjlA 




i CA. tO-^- 



LaaA. (%/i/vc.^rviA/v <^ 



^ \j ft 






^-XLt-O^A/ 






CHAP. VI.] REINING V. NEW YORK, LACKAWANNA, ETC. RY. 1121 




ment in Commercial S treet to mee t the grade of the r aih-oad, a nd this 

was done by the defendant. The defendant paved the surface of the 

twenty-four feet strip in Water Street occupied by its embanliment, ' ^ 

and laid thereon part of the way one track, and part of the wa}' two to^ c/'<.^x.^^<? 

tracks for the accommodation of its business. Carriages or teams can- . '^ 

not cross Water Street in front of plaintiffs' pr emises. This is p re- /y *'' ', 

v ented by the embankm ent Access to their premises on the Water -hu.^'<>'^^^ 

Street side from Commercial Street south of Water Street is also pre- L «i-(^^ 

vented except by first crossing Water Street, and then passing along 

the embankment on Commercial Street 130 feet, and then turning into // . "~ C*. 

the roadway on Commercial Street between the embankment in that l, -f~' o 

street and the sidewalk, and thence into Water Street, or else, when ' 

reaching the junction of Commercial and Water streets b}^ turning west i^^lJlM, ^L^-t^ 

and driving down the embankment along the railroad tracks about 300 

feet to the end of the grade, and then turning and going easterly along 

the narrow roadwaj' eight or nine feet wide on the northerl3' side of the ^n '^ A<i-^ 

embankment. Thiss])ace is not sufficient to allow wagons to pass yi^(j-^^ Cc 

e ach oth er, nor can a single wagon with horses be turned around in this / 

sp ace except with dimcult3\ 

*^ It was conceded that the plaintiffs, up to the time of the trial, h ad jCaaS^ '^nT 
s ustained damages in the diminished rental value of their premises b y . ^^ < 
r eason of the embankment in the sum of $525, f or which sum a verdi ct ^- 'tTuxAt^ 
was rendered, and no question now arises as to the rule of damages or <jrw/<,AxAAy'\9> 
the amount, provided, upon the facts, damages are legally recoverable. / 
. . . [Here follows a statement of the defendant's position and of ~^^^'^ aaa^ 
Fobesx. R. W. & 0. R. E. Co., 121 N. Y. 505 {ante, p. 1115).] ka^ h^AX 

" It is no longer open to debate in this State that owners of lots abut - ^ Jf rd' 
ting on a city street, the fee of which is in the municipality for str eet \) 
uses, although they have no title to the soil, are nevertheless entitled to -^^ - r^.^AjLy' 
t he benefit of the street in front of their premises for access and othe r . , 

purposes, of which they cannot be deprived except upon compensatio n. ' ^^^'^'^ '^^ 
T he right of abutting owners in the streets is not, however, of tha t ^^^v^ ynoM* 
absolute character that they can resist or prevent any and all interfcr- / 

e nce with the street to their detriment, or which can be asse rted to '^^"'^'/ 
stay t he hand of the municipality in the control, regulation, or imp rove- -j/i^ ■4'^^ ^ 
ment of the streets in the public interest , alth ough it may be made to • 

a ppear that the privileges which they had thex-etofore enjoyed, and the "'^■'''y^^^'^ 
/ be nefits they had derived from the street in its existing condition, ^ yta^Jv^JLi' 
would be curtailed or impaired to their injury by the changes i^roposc d. . 

"The cases of change of grade furnish apposite illustrations. They Li ' Jr^ /^ 
proceed on tiie ground that indiv idual interests in streets are subordi - ' 
nate to public interest s, and that a lot owner, although he may haxe -4 ^ /\ J\ 'A 
b uilt upon and im proved hi s pro perty with a view to the existing and y' , 

e stablished grade of the stree t, and relying upon its continuance, has r^ iMyfU'fu 
n o legal red ress for anj' injury tu his property, however serious, caused • ' .. 

by a change of grade, provid ed onl} - that the change is made under la_wful ^ nAA/^ ct/r^ 
authorit y. This, it is held, is not a taking of the abutting owner's prop- 

Xov-tU ciK«tW^ ^.tf/^trx^ ^-^ -t^-^ "-^ i^ 8? / • 



I 7 r^. 6/^/^ 



'J 



Ca 



^7 3 






^M 



1122 REINING V. NEW YORK, LACKAWANNA, ETC. RY. [CHAP. VL 

ertj, and the injur}' requires no compensation. The hardships arising 
from the appUcatiou of this rule of law has led to constitutional amend- 
ments in man}' of the States, providing for compensation for property 
damaged as well as taken in the prosecution of public improvements. 
The general rule in this State is unchanged, but the Act, chai), 113 of 
the Laws of 1883, and provisions in some city charters, afford similar 
relief in certain cases. But that there is a limitation to public powers 
over the streets of a city, which cannot be transgressed without invad- 
ing the constitutional rights of abutting owners, was a principle 
announced in the Story case (90 N. Y. 122), and confirmed and broad- 
ened so as to apply to other circumstances in the subsequent cases. 
The elevated railroad structure, the subject of complaint in the Story 
case, occupied with its supports and stairwaj's portions of the street, 
and such occupation was necessarily exclusive, and this fact was prom- 
inently brought into view in the opinions delivered. The parts of the 
street so occupied could not be used for general street purposes. This 
fact, it is claimed, distinguishes the present case from that, and it is in- 
sisted, that this case is more nearly- allied to the Fobes case than to that 
of Stor}'. It is true that the part of the street occu[)ied by the embank- 
ment of the defendant is still a part of Water Street. It is also true that 
the occupation of the embankment b}' the tracks of the defendant was 
not necessarily exclusive, that is to sa}', it is possible for ordinary' vehi- 
cles to traverse the embankment longitudinally, but such travel would 
subject the traveller to the risk of meeting railway trains on the narrow 
causewa}', and he would have no opportunity to turn off the embank- 
ment, except b\' driving over the perpendicular wall which supports it. 
The plaintifFs are practically excluded from the use of that portion o f 
t he street by the presence of the railroad there. They and their cus- 
to mers cannot drive across it , a nd if they had the temerity to driv e 
a long it , n evertheless they would be compelled to make a long circ uit 
t » reach the plaintiffs' premises from the streets south of the emb ank- 
ment . T he only iiracticable roadway in front on Water Street is b ut 
a few feet in width, q ui te insuflficient for a safe and convenient way to 
a nd from their lo t. 

" We think the public cannot justjy demand such a sacrifice of private 
interests, or justify such an appropriation of a street by a nn micipalt ty 
in aid of a railroad en terpr ise. The Fobes case gives no countenance 
to the defendant's contention. The limitations upon legislative and 
municipal authorit}-, so carefully stated in the passages quoted from 
the opinion, are distinctly opposed to such an assumption. That case, 
and those of Kerr and Kellinger, were cases of railroad tracks laid 
upon the general grade of city streets, as such grade existed when the 
tracks were authorized. There was no exclusive appropriation in fact 
of any portion of the surface by the companies, except that the rails 
were embedded in the soil. The whole street in each of these cases 
remained opened and unobstructed, except that the existence of the 
tracks and the operation of the respective roads thereon rendered 



1 



CHAP. VI.] REINING V. NEW YORK, LACKAWANNA, ETC. RY. 1123 

access to the lots of the abutting owners somewhat less safe and con- 
venient than before. Here, as the evidence tends to show, the city of 
Buffalo, for the convenienc e and presumab ly up on the application o f 
the defen dant , devoted the centre of Water Street to what is prac ti- 
cally the exclusive use of the defenda nt, leaving for the use of th e 
plaintiffs a narrow and inco nvenient roadway, se parated from the cen- 
ti'e of the street by a barrier therein , i mpassable for carriages from 
north to south , opposite the plaintiffs' lot on Water Street, and only 
t heoretically open from east to west, and then only by a circ uitous 
route. I t is quite probable tluit the general interests of Buffalo and of 
the larger public are promoted by this appropriation of the street, but it 
by n o means follows that a lot-osvner whose property is injured shou ld 
b ear the loss for the public benefit . We think the case falls within th e 
pri nciple of the Stor}' cas e, and that while the law now is that it is 
competent for the legislature to authorize railroad tracks, either for 
steam or horse railroads, to be laid on the ordinar}^ grade of streets, 
the fee of which is in the State or municipality, without making com- 
pensation to abutting owners for consequential injuries to their prop- 
erty', t he legislature cannot legally authorize structures for railro ad 
purposes to be erected therein for the use and convenience of railroad s, 
which practically exclude the abutting owners from the part of the 
street so occupied , w ithout compensating them for the injury suffered , 
and that it is not necessary that there should be an actual physic al 
exclusion of the lot-owners from the use of that part of the street occ u- 
pied by such structures in order to entitle them to a legal reme dy. It is 
enough if s uch part of the street is practicall}" and substantia lly closed 
against them for ordinary street uses. 

" The power conferred by the charter of Buffalo upon the Common 
Council to ' permit the track of a railroad to be laid in, along or across 
any street or public ground' (Laws 1870, chap. 519, tit. 3, § 19), 
must be construed as subject to the qualification that no property rights 
of abutting owners are thereby invaded. The present controversy 
could not have arisen prior to 1875, when the plaintiffs were owners of 
the fee to the centre of Water Street. They would then, under the 
settled law, have been entitled to compensation. The city of Buffalo 
having in that year acquired, for a nominal consideration, the technical 
fee in the street, proceeded afterwards to authorize the laying of the 
tracks in question, and it is now claimed that this change in the title 
defeats the plaintiffs' right to compensation. This is probably true, if 
what has been done by the defendant under license of the city was sim- 
ply the laying of its tracks on the surface of the street at its ordinary 
grade, but this was not the character of the change effected. 

" The second proposition of the counsel of the defendant that the 

««^building of the embankment was a mere change of grade of AVater 

^ Street, made under the authority of the cit}', is, we tliink, untenable. 

^ ^ The charter of Buffalo gives plenary power to the city to fix and change 

the grade of streets by formal proceedings, and provides that when a 



1124 KEININ^G V. NEW YORK, LACKAWANNA, ETC. RY. [CHAP. VI. 

grade is established or altered, a description of such grade shall be 
made and recorded by the city clerk. (Charter 1870, tit. 9, §§ 1, 2, 
6.) T he action of the Common C ouncil granting permis sion t o the 
defendant to occ upy Water Street, while it inv olved, as a consequencej_ 
th e construction of an embankment in ^Yatcr Street, did not purport to 
b e an exercise of the power to change the grade of the street under t he 
charter . It does not appear that any description was made or i-ccorded 
as is required when a new grade is established. It would be a straine d 
co nstruction to regard the action of the council as a change of grad e 
of Water Street under the charter provisio ns. The defendant desired 
to lay its tracks in Water Street and the other streets- mentioned in 
the grant, and to enable it to do this and cross Commercial Slip an 
embankment in the street was authorized. The grade of Water Street 
was not altered, but the defendant was permitted to build an embank- 
ment in the street for its railway. Th e fact that what was done di d effe ct 
a change in the grade of that part of the street occupied by the embank - 
m ent does not prove that what w^as done was in the execution o f the 
p ower to alter the grad e o f streets conferred on the council. The 
pri mary object of this power contained in municipal charters, is to 
en able the mu nicipal authorities to render a street more sa fe and con- 
ve nient for public trave l, to affor d drainage, in short, to adapt it mor e 
per fectly for the purposes of a i ^ublic w ay. It is claimed that the city 
under this power could lawfully authorize an embankment in part of 
the street, leaving the other part on a lower level. We are not called 
upon to say whether there is any limit to the exercise of municipal 
authoritj' or that the city cannot in exercising the power to establish 
and alter the grade of streets, raise an embankment in a part of a 
street if, in its judgment, this will promote the public convenience and 
the purposes of the street as a highway. But we think it cannot, unde r 
t he guise of exercising this power , appropriate a part of a street to the 
e xclusive, or practically to the exclusive use of a railroad compan y , or 
so as to cut off abutting; owners from the use of any part of the street 
in the accustomed way , w ithout making compensation for the injury 
s ustained. We have held that the authority conferred by the general 
railroad law upon railroad companies to cross highways in the construc- 
tion of their lines, authorizes their construction on, over, or below the 
grade of the highway crossed, and that incidental changes of the grade 
of the street rendered necessary to accommodate railroad crossings, 
gives no right of action to abutting owners who may sustain injury. 
( Conkling v. N. Y. 0.& W. R. R. Co., 102 N. Y. 107.) The practice 
of permitting railroads to cross highways is coeval with the introduc- 
tion of the railroad system in the State, and the decision comports with 
the general understanding of the bench and the bar. In case of rail- 
road crossings the highway is left as before. No part of it is taken or 
exclusively appropriated by the railroad company. In these cases 
there is no use of the highway for railroad purposes. Railroads of 
necessity intersect highways, and it is held tbat the State may permit 



I 




CHAP. VI.] NEWMAN V. METROPOLITAN ELEVATED RAILWAY CO. 1125 

them to be crossed by a railroad company and that this involves an 
invasion of no substantial right of the owner of the fee. We ought not 
to extend the doctrine of the crossing cases to unreasonable limits, and 
we think that it cannot be applied to justify the exercise of the public 
powers attempted in the present case." . . . 

Gkay, J. 1 concur with Judge Axdrews. . . . 

<' Here the object was to subserve the railroad use, and the appropria- 
ti on by the defendant of this embankment is p ractically^ exclusive. The 
s treet was sub je cted to a new use, with consequ ences as direct, in t he 
p ermanent deprivation of the abutting property owners' appurtena nt 
easement, as though the railroad was operated in front of his premise s 
u pon a structure physically incapable of other u ses. I think we have, 
i n the present case, the element of an appropriation by the defend ant 
o f the street by a pe rmanent structure and obs truction, and, hence, i t 
m ust fall within the spirit, if not the letter, of our decision in the Stor y 
case ." 

All concur, except Earl and Finch, JJ., dissenting. 

Judgment affirmed. 

NEWMAN V. THE METROPOLITAN ELEVATED RAILWAY ^<^^^' ^ "^ 

COMPANY. ^.Jjsjud ^ 1^ 

New York Court of Appeals. Second Division. 1890. (hL U y ^^y^^ 

[118 N. Y. 618.J WUM AHA^' 

Appeal from judgment of the General Term of the Supreme Court Hy'^'^ • f^ 
in the first judicial department, entered upon an order made June 18, (j^iy:iJUAA^ 
1887, which affirmed a judgment in favor of plaintiff entered upon a ^ t>nMjiA.(k 
verdict, and affirmed an order denying a motion for a new trial. ,. ^ ^^ 

At the commencement of this action the plaintiff held a lease of p rop- ■4^'^^^^ 
erty situated upon the northwes t corner of Church and Rector streets ^c^^ J/-CU^ 
i n the city of New York. The lease bore date May 1, 1877, and was jy^jj^({ trv 
f or the term of fifteen year s, with a right of renewal for an additiona l jl t H 

t erm of ten years. Upo n the property there was a brick building fi ve '^ ^^* , 
st ories in height,Jhe first floor of which was used as a restaurant, and oa^Xj ' ( 
the other floors for dwellings. / "/^ jAo, 

The Metro politan Elevated Railway was constructed through Churc h ^lA'^^ r^ 
S treet in front of said premise s, an d in Rector Street there had bee n j^^ ^ O/ 
e rected by the defendants a station from which a covered platform ran ' ^ 

t o Greenwich Street and there connected with the Ninth Ave nue XAa>t/yt^ ^ 

elevated road. am^X/U^'^'^ 

The plaintiff claimed in his complaint thnt the defendants' structure , ^ 

in terfered with the ingress and egress to and from his premises, and> <^<<^ ^ , 
a lso impaired the circulation of light and air from the street to his ^^^^/j//j^ \ 

^Jjb\JLAA d) ci^^ 4>-fVM ^-^jC^ JsAX^L^U^o^^ o^AciM/i yUuM(M.x^^ ^l^Ui 



Ok.^^.^'uf^ 



tiy yuLcO^futtuM "iLt^ 'xra^tLAjL^ o-/ tUe. 



/p/LMAAA^^^-^ 



1126 NEWMAN V. METROPOLITAN ELEVATED RAILWAY CO. [CHAr. VI. 

build ing, and depr ived him of it s customary and lawful use, and greatly 
r educed its value to him as lesse e. 

It was admitted that the . action was brought and tried as one to re - 
c over in one sum the whole damage sustained and to be sustain ed from 
th e depreciation of the plaintiff's -estate , o n the assum|)tion that the 
d efendants' structu re caused a perma nent impairment of the easements 



daiyU^ - 

^^^/ J i n the street for light, air, and acces s. , 

X A ^^^^^^^~ The court, having charged the jury that('*the damage s to plaintiflTs 
P£^ D-^;tu:i^ leasehold was to be measured b}- the depreciation of rents caused_by 
-i ' defeuclants' structure, iaji^priving the prtnnise.s of the accustomed liglit^ 
^'^^ , It air, and egress which it had before said st ructure was i)lac ed thereon ," 
V\aA«^^^ fwi' jjQj-j t hat in consideri ng the question of dam ages " the fact that rea l 
/yi/,^<.^i^ A e state had risen gen erall y in that distr ic t of the city did not reliev e 
/ »_ t he railroad company from the element of damag e," was requested b y 

the defendants t o charg e as follows : " Tliat in estimating tlie damages 
to the leasehold interest in this jjlaintiff caused by the interfere nce by 
-the defendants with the light, air, and access appurtenant to the prem- \v 






id i^"^ 



i 



ises, the jur}" m ay take into consideration any licncfits peculiar to his 
l^ousc w hich have arisen by the const ruction of the. road us shown "by 
tUe_i Lvidenc e." To this the court replied: " Tliat I refuse to charge. 
On the contrary, t he jury have no right to take any such fact int o 
consideratio n." <=:°> c^.^\JujdX^ filun.iuA L^. 



1^ 



i?h' 



T he defendants gave evidence tending to show, and from whidh the 
j ury might have foun d, that while the upper parts of the building had 
b een made less desirable for dwellings by reason of the erec tio n of the 
defendants' structur e, an d in consequence thereof the rents had fa llen, 
th e location of the station in Rector Street had, from the greater nu m- 
ber of people resorting th ere, c aused the first or store floor of the bu ild- 
ing to become more desirable for business purposes, and greatly cn- 



hanced in 



rental val ue, 
and 



James 



Julien T. Davies and W. Bourke Cockra n, for appellant. 
J/. Smith and Inglis Stuart, for respondent. 

Broavn, J. T he basis of the court's refusal to charge as requested 
is to be found in the Rapid Transit A ct (chap. 606, Laws 1875, § 20) 
and in the General Railroad Law (chap. 140, Laws 1850, § 16) which, 
by section 3, chapter 885, Laws of 1872, was made apphcable to the 
Gilbert Elevated Railroad Company to whose rights the Metropolitan 
Railroad Company succeeded. These laws provide that commission ers 
of a ppraisal shall not, in determining the amount of compen sation to 
b e made to p a rties owning or interested in property acquired for t he 
c onstruction and operation of railways formed thereun der, " make any 
allowance or deduction on account of an y real or sup posed benefi ts 
which the party in interest may derive from the construction of t he 
proposed i'ailroa d. ' ' 

What is the true meaning of this provision and how far it is appli- 
cable to a case of the character we are considering, is a question we 
are to determine upon this appeal. 



/H.-^ 






J : 4-^ 



^ ^ 



>U-inr ^cxj'~^c{. k/JU^ "tfcvj*^ T^.f?, tjjJ/^-'B'^ cka^A ■fcoxx-^r iJir (XJS. qr^LxXAX 

-fifJU 
CHAP. VI.] NEWMAN V. METROPOLITAN ELEVATED RAILWAY CO. 1127 '-'"^T^ 



The principle upon which compensation is to be made to the owner 
of lauds takeu by proceedings under the General Railroad Law has 
been frequently considered by the courts of this State, and the rule i s 
now established that such owner is to receive, first, the full value of the 
l and taken, a nd , second, whe re a part only of land is tak en, a fair and 
a dequate compe nsation for all injury to the residue sustained or to be 
sustai ned by the construction and operation of the railroad . T. & B. 
H. JR. Co. V. Zee, 13 Barb. 169; Lt re C. & S. V. R. B. Co., 56 
Barb. 456 ; In re P. P. &C.I. B. B. Co., IS Hun, 345 ; In re JV. K ,^ ^tir^ 
a & H. B. B. B. Co., 15 Hun, 63; In re N. Y. L. & W. B. ^ ^ ^ 
Co., 29 Hun, I ; In re N. Y. L. & W. B. Co., 49 Hun, 539 ; Hender- 
son V. N. Y. C. B. B. Co., 78 N. Y. 423. 

Th e first element in the award represents the compensation for l and 
wh ich the railroad takes, and to which it r equires title^ The secon d 



ihf\^JUJ<^^->~ 






e leTiient represents damages which are the result or consequences of 
t he construction of the road upon property not taken, and which t he 
owner still retains . Such damages are wholly consequential, and to 
ascertain them necessarily involves an inquiry into the effect of the 
road upon the property, and a consideration of all the advantages and 
disadvantages resulting and to result therefrom. The rule is well 
stated in Lewis on Eminent Domain, section 471, as follows: '■'• When 
p art of a tract is take n, j ust compensation would theref ore consist of 
t he value of the part taken, a nd damages to the remainder, less an y 
s pecial benefits to such remaind er by reason of the taking and use of 
t he par t for the p urpose p roposed." 

In this rule thus settled in this State, and which controls all awards 
for taking of land under the General Railroad Act, is to be found the 
true application of the statutory provision which forbids deductions and 
allowances to be made by commissioners for any real or supposed 
benefits, which the parties interested may derive from the construction 
of the railroad. W hate ver land is taken must b e paid for by t he rail- 
road compan}' at its full ma rket val ue, and from such value no deduc- 



tion can be ma de, although the remainder of the land-owners' prope rty 
may be largely enhanced in value as a result of the operation of the 
railroa d. But in considering the question of damages to the remainder 
o f the land not taken, the commissioners must consider the effect o f 
t he road upon the whole of that remainder, its advantages and disad 



vantages, benefits and injuries , a nd if the result is beneficial, there i s 
no damage and nothing can be awarded. 



\J0JL (TW-^ 



The rule established under tlie General Railroad Law must govern 
and control awards made under the Rapid Transit Act. The last- 

named Act confers upon corporations formed thereunder, the power to /^//^xaa :' 

acquire property for railroad purposes, and the statutory proceedings . j i ^ 

prescribed are substantially' the same as those under the General Rail- "^J^fj'^ 

road Act and no reason is apparent wh}' the same rule should not apply ^^ yure^ 

to proceedings under both Acts. /u/x-m UH 

This court has decided that owners of land abutting upon pub lic / 



T 



l.Vy'-ffA AjlA 



r 



y^ 



JUVL L<^o-^ 1128 NEWMAN •?;. METROPOLITAN ELEVATED RAILWAY CO. [CIIAP. VL 

'C^ streets have enscmcnts therein for ingress and egress to and from tbci r 
K.^^ HcxAjl - pr emises, and for the free circulation of light and air to their prop erty, 
I ^ w hich eascn^ents arc interests in real estate, and constitute propert} ' 
within the meaning of th at term as used in the Constitution . 
U. \A/-»-^ The easement is the property taken by the railroad compan y. But in 
^^^^^^^.^ e stimating its value it is impossibl e to consider it as a piece of pro p- 
erty, separate and distinct from the land t o which it is appurten ant, 
''^'^"^^'^ ' and the right of the property owner to compensation is measured, no t 
J»S Jti^cMutiL b y the val ue of the easement in the s treet separate from his abutting 
CXi /l4. pi'P-iierty, but by the dama ges which the abutting property sustains as a 
,'' result or consequence of the loss of the easeme nt. 
"- ^ t^^^-^- j^ follows that i n making a n award to a party si tuated as the plai n- 
tif f was with reference to the defendants' railroad, there \>ould be no 
c ompensation for property taken beyond a nominal sum, and that h is 
<^ £?A/i^ n ght to recover would rest chiefly upon proof of consequential damages . 
^^^h<AJui^ An estimate of such damages as I have alread}' shown, involves an 

7^ /^on^ inquiry into the effect of the railroad upon the whole property, and a 
y,^^ consideration of all its advantages and disadvantages. If the rental 
pfw. /jAft^ v ahie of the whole building was shown to have been diminished, the re 
w as injury for which plaintiff was entitled to recover, but if the di- 
minished rental value of the upper floors was equal or overcome b y 
{o>^v^ increased rental value in the store then there was no miury and no basi s 
1 V 4 f or a recovery of substantial damages against the defendants. 
-^^^■^'^ While the precise question presented by the exception in this case 

-Ai ^j-^^-'-'^ lias not heretofore been decided in this court, it is covered by the de- 
^^ X^txvuA" cisions under the General Railroad Law which have been cited, and the 
1^ I'ule established by those decisions has recently been applied in the 

1+ ^^ second judicial department to the case of an elevated railroad. In re 
^^ , Brooklyn Elevated R. Co. v. Philli2^s, 28 State Reporter, 627. That 
^<r-<:>-^^-^^ case was an appeal b}- property owners from an award of nominal dam- 
-i^v'ttiLt ages in proceedings by an elevated railroad company to condemn an 
easement in a street. The court said : " The inquiry necessarily takes 
'^'"■^^"^tr^' in the advantages from the railroad when the extent of the injury is to 
leJ^ dcK^^- be based upon the diminution of value by reason of its construction. 
The basis of appraisement must then be the difference in value between 
the abutting house before the construction of the railroad and after- 
ward." 
^,fJJj.jJlM In Brucker v. Manhattan R. Co., 106 N. Y. 157, this court held ad- 
. ^ missible evidence offered by the property owner that trade and business 

^^^^^-^^ ^ had fallen off in the street since the erection of the railroad, and that 
<-Ar^^ property was for that reason diminished in value. If such evidence is 

iA~*»-tL*^\. competent to sustain a recovery it is difflcult to see why it is not com- 
Q ^,j^^^ petent for the railroad company to show that the effect of the road has 
been to cause an increase in business, and hence an enhancement of 
^cAJ-^^-^l the value in abutting property. 

TCo. /..^AAAA^ The question whether, in awarding damages flowing from the con- 
j^ 1^ VC^ struction of a railroad, its injurious effect upon a part of a residue of a 



r 



Y^A" 



%1^ 



CHAP. VI.] NEWMAN V. METROPOLITAN ELEVATED RAILWAY CO. 1129 

tract of land could alone be considered, has been expressly decided 
in Illinois. Page v. Chicaf/o Ji. E. Co., 70 111. 324. That case was 
an assessment of damages for a right ot way across a tract of forty 
acres of land. Compensation was awarded for the part taken, but the 
evidence showing that the residue of the tract would be enhanced in 
value by the construction and operation of the road, no consequential 
damages were allowed to the land-owner. The owner cla imed that a 
st rip of land ne xt to the railroad was lessened in valu e b y the proximity 
of the road. The c onstitutional provision in Illinois relutmg to tli e 
ta king of pro])e rtv for public_use_is the same as our o\vn],*iind the stat - 
ute under which the assessment was made provid^cTthat benefits shoul d 
n ot be set off against or deducted from compensatio n. The award was 
sustained on appeal, the c ourt holding that it was not the damages to 
a .strip lying within a limited number o f feet of the road-bed that th e 
i ury were required to assess , but the damages, if any, to tlie enti re 
tract. That the effect of the road upon a part of the tract was not to 
be considered, but upon the whole tract. "This," the court said, "is 
not deducting benefits from damages, but it is ascertaining whether 
there be damages or not." To the same effect is the case of Orego7i 
Central R. B. Co. v. Wait, 3 Oreg. 91. - \%^\ 

The statutes we have considered are founded upon the provision of 
the Constitution forbidding the taking of private property for public 
purposes without just compensation. Their purpose is to do exact and 
equal justice among all citizens of the State, and to award to every one 
full and fair compensation for all property taken for public use or 
injured by the erection of public improvements. 

The rule established by the courts and prevailing under the General 
Railroad Law accomplishes in a broad and liberal manner that object. 

T he meaning of the expression "just compensation" has not bee n 
l imited to the value of property actually taken, but has been h eld to 
i nclude all consequential injuries which the land-owner may sustain by 
r eason of depreciation of value in the residue of th e prope rty, by reaso n 
of the taking ot a part and tlie construction thereon of the public im - 
provement . T his rule affords fu ll indemnity to the property owner, 
a nd leaves him in as good condition as he was before the constructio n 
of the road . And this is all that any citizen has a right to ask. If 
the rule wliich the court held in this case is to govern awards made 
against railroad companies whose structures are erected in the public 
streets under public authority, when no land is taken, and the compen- 
sation is confined to injuries sustained b}" abutting property, the com- 
panies will be compelled in many instances to pay where no injury has 
been done, and parties will recover who have sustained no loss. Such 
a rule has not 3'et received judicial sanction. 

The increase of value resulting from the growth of public improv e- 
ments, the constr u ction of railro ads, and improved means of tra nsit 
accrues to the public bene fit generall}', and the general appreciation of 
property consequent upon such improvements belongs to the property 



.^ 1/ 




1130 BOHM V. METROPOLITAN ELEVATED RAILWAY CO. [CHAP. VL 

owner, and the railroad company are not entitled to the consideration 
of that element in the ascertainment of the compensation it must pay 
to the abutting proprietor. But the special and peculiar advantages 
which property receives from the construction and operation of the 
road, and the location of the stations, arc elements which enter largely 
into the inquiry whether there is injury or not, and the jury must con- 
sider them and give to them due weight in their verdict. 

Between this rule and the statutory provision quoted there is no 
conflict. The property owner will in every instance receive the "just 
compensation " which the Constitution secures to him for his property 
which is taken or injured by the railroad, and the corporation will be 
compelled to pay whatever damages result from the erection of their 
structures and the construction of the road. Our conclusion is that 
the defend ant was entitled to the instruction req uested, and the_ ex- 
ce ption to its refusal was well taken. The judg ment should be_re- 
ver sed and a new trial granted, with costs to abide the event. All 
concur; Follett, Ch. J., in result. Judgment reversed} 

1 And so Bookman v. N. Y. El. R. R. Co., 137 N. Y. 302 (1893). In Bokm v. The 
Metrop. Elec'd Rij. Co., 129 N. Y. 576 (1892), the plaintiff alleged that the defendants had 
unlawfully interfered with, trespassed upon, and illegally taken his easements (or 
some portion thereof) of light, air, and access to his property bj^ the illegal erection 
and operation of their elevated railway in such avenue. He demanded judgment re- 
straining defendants from further maintaining their structure in front of his premises 
and compelling them to remove the same. He also asked to recover the amount of 
his damage already sustained by reason of the maintenance and operation of the road 
past his premises, and that if defendants were permitted to maintain and operate the 
road in the future it should only be upon the condition that they should pay plaintiff the 
amount of the permanent loss he would suffer by reason of such maintenance and opera- 
tion. In giving judgment for the plaintiff, the court (Peckham, J.) said : " Altliough 
these are sui ts in equ ity, commence d to obtain equitable relie f and to prevent th e de- 
fendants from operating their road unless they pay the plaintiffs the^damages they 
will sustain fr om t he permanent interference by the railroad with their easements of 
lig ht, air, and access, yet t he rules upon which such damages are to be awarded ar e so 
far well settled as to enable us to say that those damages are only such a s would b e 
gi^en in a proceeding for the condemnation of lands for a railroad use, regard being 
had to th e different characteristics of the property to be taken in these case s! " 

" The rule was last announced in this court in the recent case of American Bank Note 
Companif v. New York Elevated R. R. Co. [129 N." Y. 252], not yet reported. What rule 
obtains in this State in proceedings to condemn the kind of property which has been 
taken by the defendants in these cases is now made the subject of inquiry. Generall y % 
in takin g land th e rule may be said to be to pay the full value of the land taken at its j 
market price, and no deductions can be made from that value for any purpo se wliat- 
ever . || Then as to tEeTaTid rernaining, the question has beeuto some"extent moofe d, 
whether the company should pav for the injury caused to su cl i land by th e mere taki n g 
of the other property, or whether, in case the proposed use of the property taken woul d 
ti epreciate the v^lue of tha^ which was not taken, such proposed use could be rega rded 
a nd the depreciation arising therefrom be awarded as pa rt of the consequential dam- 
ages suffered from the taking. I think the latter is the true r ule! Henderson v. C. 
R. K. 7g"N. Y. 423, 433 ; Nejimnn v. R. R. 118 Id. 618 ; In re Petition Brooklyn R. R. 
55 Hun, 165, 167. The case of In re Petition N. Y. Elevated R. R. etc., 36 Hun, 427, 
is cited for the other rule. The question might be of great importance where there 
was an injury to the remaining laud, but if there have been no injury, the inquiry as 
to the scope of the liability for damages is not material. There is no question made 



i 



I 



CHAP. YI.] BOHM V. METROPOLITAN ELEVATED RAILWAY CO. 1131 

but that t he Je feudaiits are li able to pay the full value of auy property taken by them 
sub ject to no (lediictiou whatev er. How th e val ue of the particular kiud of pr operty 
which, is here tnl-en shall be arrived at is the maiu, aud indeed the only, question in 
t. hesft cnses . Included in this inquiry and growiug out of it arises the question, shaU 
only .spe<ial b enefits to the remaining property be regarded, or ma y what is temied 
ge neral i)enRfits [)e also taken into consideration ? Before entering on a discussion of 
these matters I think it proper to say that I should hesitate to admit the correctness 
of the claim made by defendants, that where private property is taken by a mere busi- 
ness corporation, as for a public use under the granted power of eminent domain, the 
-V legislature could provide that such property could be paid for by benefits accruing 
/ to the land-owner's adjacent property consequent upon the taking.^ This is the case 
in regard to municipal corporations where laud is taken for' a pul)lic street, or other 
public aud munici])al purpose, and where the benefits arising to the adjacent lands of 
the owner whose jn-operty is taken, may be set off against the value of tiie laud taken. 
So in the case of property taken by the State for caualor other public purposes, where 
the owner of the land taken was frequently paid its value by the benefits received to 
his adjacent land not taken. T he principle under lyin g these c ases is, however, J;he 
right of the muuicipality or State to tax the owners of the land left, in order to pay 
for the laud taken, on the ground t hat they are specia lly benefited by the taking, and 
hence sh ould be speeially taxed for the payment of the land. The case of Genet y. 
City of Brooklyn, 99 N. Y. 296, is no authority for a contrary view, for I think it 
supports that which I have suggested. A mere trading or business corporation ha s no 
p ower of taxation, and the State could not delegate such power to it. if sucji comply 
d_esire another's property, i t must pay a 'just compensation for it, a nd that just coi^ 
peusatio n would not consist in its doing the owner some benefit up on "his remaiuing 
proper ty. . . . 

" T he plaintiffs own no land in the s treet. Their ownershi p of t he land is bounded 
by th e exterio r lines of the street itsel f . Hence w hen, under legislative aud muni cipal 
authority, the railroa d structure was built, it was supposed by many there was no 
liability to abutting owners, because no land of theirs was taken, and any damage 
the y sustain ed was indirect only, and, therefore, damnu m absque injuria . When the 
J^ courts acquired possession of the question, and it was seen that abutting land, which 
before the erection of the road was worth, for instauce, ten thousand dollars, might 
be reduced to a half or a quarter of that sum in value, or even rendered practically 
worthless by reason of the building of the road, it became necessary to ascertain Jf 
^ t here were not some princ ip le of law which could be re s orted to in or der^laj:£nder 
those who wrought such damage liable_for_tlicir ^vork.'7 It has now been decided that, 
nl tbough the land itself was not taken, yet the abutting owner, by reaso n of his situa tion, 
h ad a kind of property in the public street for the purpose of giving to such land 
fa cilities of light, of air, and of access from such street. These rights of obtaming 
for the adjacent lands facilities of light, etc., were called easements, and were held to be 
appurtenant to the laud which fronted on the public street. T hese easements w ere 
deci ded to be property, a nd protected by the Constitution from being taken without 
just compensation. It was held that tlie defendants, by the erection of their structure 
and the operation of their trains, interfered with the beneficial enjoyment of these 
easements by the adjacent land-owner, and in law took a portion of them. By this . . ^ 

mode of reasoning, the difficulty of regarding the whole damage done to the adj.acent ^jUx /VA <\J IM- 
owner as consequential only (because none of his property was taken), and, therefore, <>i <« >-v.-(/f>(i 
not collectible from the defendants, was overcome. The interference with these ease- , J 

ments became a taking of them pro tanio, and their value was to be paid for, and in- g ^ \M \M^ 
addition the damage done the remaining and adjoining land by reason of the taking ^ ayxtyi- ^ 
was also to be paid for, a nd Ithis damage was in reality the one great injury which 
owners sustained from the buTTding and operation of the"defendants' road. For the -fpfxX. /Cl^•^^"■ 
purpose of permitting such a recovery, the taking of property had to be shown. The n 
cases of Story, Lahr, Drucker, Abendroth, and Kane (the last of which is reported in H '^ AM-fU; 
125 N. Y. 164, and in which the others are referred to) finally and completely settled ^■[^^^ Ji^ P 
these matters ^ • ^ i 

" It seems to me plain, from this review of the law, that the real injury (if any) suf- ytX a^iX.AxU< 

yUari /(r^Ju^ -UM^- V^AAJv*^ c^^^a^ikr^ ■ 



f 



i^4uA^ 



1132 BOHM V. METROPOLITAN ELEVATED RAILWAY CO. [CHAP. VL 

fered by the land-owner in any particular case, lies in the effect produced upon his 
aljutting land by the wrongful interference of defendants with these easements of litr ht. 
air, and access to such land. And where they are interfered with, and in Ic^'al effec t 
taken to any extent, it is not possible to think of them as of any value in and of them - 
selves separ ated from the adjoining land, but their v alue is to be measured by the 
inj ury which such taking inflicts upon the land which is left, and to winch they were 
appurtenant. 

" This is a consequential dama ge. It is not the light or the air that is valuable sepa- 
rated from the land adjoining. With regard to the subject under discussion there is 
and can be no value in a given quantity of air, or space, or light in the public street 
except as it may be used in connection witli and as appurtenant to the abutting land. 
When a person interferes with such light, air, or access and takes it. he takes nothing 
w h ich is alone and intrinsically valuable, but o nly as its loss affects tlie adjoining lau d . 
This loss wlule jjurely con sequential is, never thele.ss, a liability which the person pr o- 
posing to take the iirdjicr ty is bound to discharge. . . . 

" The re;d iiLitstiun to be considered is in truth one of damage to the abutting lan d. 
Newman v. Eievatea K. Co., lis j\. i. 618. U iiat facts may be regarded Upoii Such 
an inquiry has not been finally decided. 

" In the case of Newman (supra) a portion of the subject, was involved and discussed, 
and we must recognize the authority of that case upon the question actually therein 
decided. A reference to the report is necessary in order to learn that fact. . . . 

" The so-called Rapid Transit Acts, under which the defendants were organized, 
provided that the commissioners of appraisal should not in determining the amount of 
compensation make any allowance or deduction on account of any real or supposed 
benefits which the party in interest may derive from the construction of the proposed 
railroad. The case of Newman decides that this provision does not mean that in ex- 
amining the question whether injury has resulted t o the abutting owner's remaining 
laud b y reason of the taking of a portion of the easenients spo ken of, the court cannot 
r egard the fact that so far from injury the land remaining had beciis]iocially enlianced 
i n value by reason of the taki ng On the contrary, it decides that .^iich fact, ol specia l 
enhanceme nt in value, is material anil may and must be consiilercd iipdii the <iuest ion 
of damage . It is not offsetting injury agains"t~beiif'tits. i t is (li.-'ru\ering wlictlier m 
re ality there has been any injury to the reiiiaining lan d. To prove that the land ha s 
b een specially benefited may be proof that it has not been diminished in val ue. If it 
w ould have increased still more in value but for this taking by the road, that diffe r- 
e nce it must pay because to that extent there would be damage . The Newman case is 
aut horitv for the proposition that the easomciits are only of nominal value in and o f 
the mselves, and that the result of taking Ihrm must lie looked for in the effect up on 
t he adipjning land. If instead of lo.ss or injury that land has boon specially benefite d 
by the taking by the railroad company, then no damage has bicii siistaino(l by the lan d- 
owne r. Although adding nothing to the weight of the autliuiit\ ot the Newman case, 
I must say that as far as it goes tl>e decision receives my unqualified approval. The 
remarks of the learned judge in the latter part of the opinion as to general benefits 
from the growth of the city, etc., were no part of the decision itself and were merely 
suggestions as to matters not really involved in the case. They raise the question as 
to how far general benefits to the land may be regarded and also whether assuming 
them to exist they must have been caused by the railroad company in order to be 
noticed. I shall add a word or two later on upon that subject. At any rate the ca se 
d ecides that it is a defence to the action to recover damages, if it be proved that in fact 
th e owner's remaining land has lieoii specially bonofited by the taking. 

"In these cases there is no claim that ])laintiffs have receivod Ijcncfits from the tak- 
ing, which were special and peculiar to their lots and not shared in by the owners of 
lots generally in the avenue. I confess I have been and am wholly unable to see the 
least materiality in the distinction between what are termed special and general bene- 
fits to the property left, or whether such benefits have been caused by the defendants. 
Strictly speaking, it is not a question of benefits at all, except that proof of benefi ts 
m ay be one way of showing there has been no injury . The value of the easemen ts 
taken, we have seen, was merely nominal, and the sole question which remains is, 



,(i 



CHAP. VI.] 



PIERCE ET AL. V. DREW ET AL. 



1133 



PIERCE ET AL, V. DREW et al. 
Supreme Judicial Court of Massachusetts. 1883. 

[136 Mass. 75.] 

Bill in equity against the selectmen of Brookline and the American 
Rapid Telegraph Company of Massachusetts, to restrain the selectmen 
from granting to the telegraph company a location for its posts and 
wires in Brookline. The defendants demurred to the bill for want of 
equity. At the hearing, before Endicott, J., a decree was entered 
sustaining the demurrer and dismissing the bill ; and the plaintiffs 
appealed to the full court. The allegations of the bill appear in the 
opinion. 

A. D. Chandler, for the plaintiffs. F. Morison, for the defendants. 

therefore, has the owner suffered any damage or iDJury whatever which has bee n 
c aused by this takiug, for if there liave Ijeeu no damage there can be uo recovery. To 
ascertain the fact whether there lias been damage, an excursion into the reafiu ^ of 
pos sibilities as to what miglit have happened but did not, is not permitted . The in- 
quiry whether the land would have been injured if certain circumstances had not 
occurred which not only prevented such injury, but enhanced its value, is wholly im- 
material. The question is, what in fact has been the actual result upon the laud re- 
maining "? Has its actual market value been decreased by the taking, or has the 
taking prevented an enhancement in yalue greater than has actually occurred, and if 
so, to what extent ? ^ Th e amount of such decrease in the value of the remai ning 
lan d, or the amount of the difference between its actual market value and wha t it 
wo uld have been worth if the railroad had not taken the other property, is tlie amou nt 
o f tlie damage which the defendants should pay ."^ If on the contrary tliere' has_bcen 
neit her decrease in value caused by the railroad, nor any prevention of an increas e 



4<, 



fr om the same cause, how can it be truly said that the lot-owner has been injure d to 
t he extent of a farthing ? The absence of injury may have been the result of th e / 
g eneral growth of the city by reason of which the particular property has grown in\ /j 
va lue with tlie rest of the city . It i s the fact, not the cause, which is m.ateria l. J 
AVhere it appears that the property left hasactually advanced in value, unless it can ( 
' be shown that but for the act of defendants in tak ing these easements it woul d \ 
ih ave grown st ill more in value , the fact is ])laj n that it has njFbeejijlarnagetL^ 

"It is said the lot-owner himself is entitled to the benefits accruing to him from the 
general rise of property caused by a general growth of the city in that vicinity, and 
that the causes of such growth are too indefinite, and uncertain, and problematical to 
permit the railroad to take advantage of it upon the question of damages. Of course, 
the lot-owner is entitled to the benefits arising from these sources. I propose to take 
no course which shall rob him of them. None other ought to or in fact can have them. 
It is not a question of permitting the lot-owner to have these benefits. How is he 
despoiled of them when upon an inquiry whether he has sustained damage from the 
conduct of the defendants it clearly appears that he has not ? If it appear that he 
would have sustained damage but for the fact that the general growth of the city in 
that direction prevented it and caused an increase in value, what materiality lies in 
the fact that this growth was not caused by the railroad "* As I have already re- 
marked, the fact that there has been no damage, is the material fact, and not the rea- 
sons which in truth prevented the injury from occurring. If it did not occur, then 
clearly the lot-owner has suffered nothing. He receives all the benefits attaching to 
the general growth of the city which causes the enhancement in value of his own lots, 
but he is not permitted to recover from defendants alleged damages which, in fact, he 
has never sustained." — Ed. 



1134 PIERCE ET AL. V. DKHW ET AL. [jHAP. VI. 

Devens, J. The facts admitted by the demurrer may be thus stated : 
The phxiutiffs own laud ou a certain street or public highway in Brook- 
line ; they also own a fee in the half of the street which is next to 
their abutting land. 

The defendants are the selectmen of Brookline, and, on the applica- 
tion of the American Rapid Telegraph Company, a cori)oration organ- 
ized under the St. of 1874, c. 165 ^ (Pub. Sts. o. 106, § 14), for the 
transmission of intelligence b}' electricity, are about to grant to that 
compau}^, under the Pub. Sts. c. 109, a location along said highway 
for their posts, wires, &c. The bill seeks to restrain the defendants, 
upon the ground that the last-named statute is unconstitutional. . . . 
[Here follows a recital of the substance of the statute and a deter- 
mination that the business in question is one of a public nature.] 

But as, even if the legislature has the right to authorize the erec- 
tion of telegraph poles along a highway, as a public use thereof, 
appropriate safeguards must be provided for any rights of property 
belonging to individual owners which may be taken or invaded, there 
remain these inquiries for our consideration : first, whether the statute 
does provide any compensation to the owner of the fee for this new 
use of the highway ; second, whether he is entitled to such compensa- 
tion ; third, whether the owner of property near to, or abutting upon, 
the highwa}', is entitled to any compensation therefor other than such 
as the Act provides. . . . 

As the chapter does not, in our opinion, provide for damages to the 
owner of the fee in the highway by reason of the erection of the tele- 
graphic posts and apparatus, it is to be determined whether such d,' use 
of the highway creates a separate and additional burden, requiring an 
independent assessment of damages, for which the owner of the land 
was not compensated when the highway was laid out, and thus whether 
the omission of the Act to provide for this compensation renders it 
unconstitutional . 

It is to be observed that, for more than thirty years, the right to 
appropriate highways to this public use, without any compensation to 
the owners of the fee therein, has been asserted ; that the statutes in 
regard to it have more than once been expounded by this court, without 
any apparent doubt of their validity ; and that, up to the present time, 
no suggestion has ever been made that the rights of such owners were 
in any way invaded. If the argument that these owners are entitled 
to compensation be correct, the estates of thousands have been wrong- 
fully used while they were either ignorant of their rights or submis- 
sive to injustice ; and in the mean time costly telegraphic structures 
have been erected, and the whole business of the State has accommo- 
dated itself to this system of the transmission of intelligence. After 
so long a practical construction by the legislature and the courts, and 

1 This statute authorizes any number of persons, not less than three, to form a cor- 
poration " for the purpose of carrying on any lawful business," excepting certain kinds 
of business, not material to be stated. 



CHAP. VI.] riEECE ET AL. V. DREW ET AL. 1135 

after so widely extended an acquiescence by parties whose estates or 
interests tlierein are directly affected, it would require a clear case to 
justify us in setting aside such a statute as unconstitutional, even if it 
b3 true, as it certainly is, that no usage for any course of years, nor 
any number of legislative or judicial decisions, will sanction a viola- 
tion of the fundamental law, clearly expressed or necessarily under- 
stood. Packard v. Richardson, 17 Mass. 122, 144 ; Commoyiwealth 
V. Parker, 2 Pick. 549, 557 ; Holmes v. Hunt, 122 Mass. 505. No 
right to take the private property of the owner of the fee in the high- 
way is conferred by this Act ; all that is given is the right to use land, 
by permission of the municipal authorities, the whole beneficial use of 
which had been previously taken from the owner and appropriated to 
the public. It is a temporary privilege only which is conferred ; no 
right is acquired as against the owner of the fee by its enjoyment, nor 
is any legal right acquired to the continued enjoyment of the privilege, 
or any presumption of a grant raised thereby. Pub. Sts. c. 109, § 15. 
The discontinuance of a highway would annul any permit granted 
under the statute, and no encumbrance would remain upon the land. 

In Chase v. Sutton Manuf. Co., 4 Cush. 152, 167, it is said by Chief 
Justice Shaw, " that where, under the authority of the Legislature, in 
virtue of the sovereign power of eminent domain, private property has 
been taken for a public use, aud a full compensation for a perpetual 
easement in land has been paid to the owner therefor, aud afterwards 
the land is appropriated to a public use of a like kind, as where a turn- 
pike has by law been converted into a common highway, no new claim 
for compensation can be sustained by the owner of the land over which 
it passes." The case itself goes further than the illustration used by 
the Chief Justice. It related to a claim made by an owner in fee of 
land which had been taken by a canal company by statutory authority, 
for the purpose of a navigable waterway, which company had been 
permitted by statute to sell its property to a railway company ; but, 
although the two modes of transportation were entirely different, the 
validity of the Act was sustained, aud the claim of the land-owner for 
further compensation disallowed. 

" It is well settled," says Mr. Justice Gray, in Boston v. Richardson, 
13 Allen, 146, 160, "that when land, once duly appropriated to a 
public use which requires the occupation of its w^iole surface, is 
applied by authority of the legislature to another similar public use, 
no new claim for compensation, unless expressly provided for, can be 
sustained by the owner of the fee." 

When land has been taken or granted for highway's, it is so taken or 
granted for the passing aud repassing of travellers thereon, whether on 
foot or horseback, or with carriages and teams for the transportation 
and conveyance of passengers and property, and for the transmission 
of intelligence between the points connected thereby. As every such 
grant has for its object the procurement of an easement for the public, 
the incidental powers granted must be so construed as most effectually 



1136 



PIERCE ET AL. V. DREW ET AL. 



[chap. VI. 



DUjl 



to secure to the public the full enjoyment of such easement. Com- 
monivealth v. Temple., 14 Gray, 69, 77. 

It has never been doubted that, by authority of the legislature, 
highways might be used for gas or water pipes, intended for the con- 
venience of the citizens, although the gas or water was conducted there- 
under by companies formed for the purpose ; or for sewers, whose 
jLj lobject was not merely the incidental one of cleansing the streets, but 

f"^^^"^^ also the drainage of private estates , the righ ts of which to enter therein 
■were subject to publi c regulatio_ns. Commonwealth v. .Lowell Gas 
Light Co., 12 Allen, 75 ; Attorney-General v. Metropolitan Railroad, 
125 Mass. 515, 517 ; Boston v. Richardson, ubi supra. 

iAx:t <>^''itvv^\ Nor can we perceive that these are to be treated as incidental uses, 
as suggested by the plaintiff, because the pipes are conducted under 
the surface of the travelled way, rather than above it. The rights of 
the owner of the fee must be the same in either case, and the use of 
the land under the way for gas-pipes or sewers would effectually pre- 
vent his own use of it for cellarage or similar purposes. 

When the land was taken for a highway, that which was taken was 
not merely the privilege of travelling over it in the then known vehi- 
cles, or of using it in the then known methods, for either the convey- 
ance of property or transmission of intelligence. Although the horse 
railroad was deemed a new invention, it was held that a portion of the 
road might be set aside for it, and the rights of other travellers, to some 
extent, limited by those privileges necessary for its use. Common- 
ivealth V. Temple, id)i supra; Attorney-General v. Metropolitan Rail- 
road, ubi supra. The discovery of the telegraph developed a new and 
valuable mode of communicating intelligence. Its use is certainly simi- 
lar to, if not identical with, that public use of transmitting information 
for which the highway was originally taken, even if the means adopted 
are quite different from the post-boy or the mail-coach. It is a newly 












»<J^~n^A\A\r^-^ 



YV (V ru^^^\ discovered method of exercising the old public easement, and all 






appropriate methods must have been deemed to have been paid for 
when the road was laid out. Under the clause to regulate commerce 
among the States, conferred on Congress by the Constitution of the 
United States, although telegraphic communication was unknown when 
it was adopted, it has been held that it is the riglitof Congress to pre- 
vent the obstruction of telegraphic communication by hostile State 
legislation, as it has become an indispensable means of intercommuni- 
cation. Pensacola Telegraph v. Western Union Telegraph [96 U. S. 1]. 
No question arises as to any interference with the old methods of 
communication, as the statute we are considering, by § 8, guards care- 
fully against this by providing that the telegraphic structures are not 
to be permitted to incommode the public use of highways or public 
roads. We are therefore of opinion that the use of a portion of a 
highway for the public use of companies organized under the laws of 
the State for the transmission of intelligence by electricity, and sub- 
ject to the supervision of the local municipal authorities, which has 









A. / 



C I I \ U (~^ O^^-^-A^^ 



n^ c^ ,Xvw ^^^ -U^ ^Aj>-^ 



CHAP. VI.] ADAMS V. CHICAGO, BURLINGTON, ETC. RAILPxOAD. 1137 

been permitted by the legislature, is a public use similar to that for 
which the highway was originally taken, or to which it was originally 
devoted, and that the owner of the fee is entitled to no further 
compensation. 

There remains the inquiry, whether there is any objection to the 
statute because it does not provide a sufficient remedy for the owners 
of property near to or adjoining the way, who may be incidentally in- 
jured by the structures which the telegraph companies may have been 
permitted to erect along the line of the highway and within its limits. 
Such remedy is given by § 4 as the legislature deemed sufficient. 
We should not be willing to believe that the land-owner thus injured 
would be without remedy, if the company failed to pay the damages 
lawfully assessed under this section, while it still endeavored to main- 
tain its structures ; but the only compensation to which such owner is 
entitled is that which the legislature deems just, when it permits the 
erection of these structures. The legislature may provide for com- 
pensation to the adjoining owners, but without such provision there 
can be no legal claim to it, as the use of the highway is a lawful one. 
Attorneij- General v. 3fetropoUtan Railroad, uhi supra. 

The clause in the Declaration of Rights which provides that, •' when- 
ever the public exigencies require that the property of any individual 
should be appropriated to public uses, he shall receive a reasonable 
compensation therefor," is confined in its application to property 
actually taken and appropriated by the government. No construction 
can be given to it which can extend the benefit of it to the case of one 
who suffers an indirect or consequential damage or expense by means 
of the rightful use of property already belonging to the public. Cal- 
lender v. Marsh, 1 Pick. 418, 430. 

The majority of the court is therefore satisfied that the demurrer to 
this bill was properly sustained, and the entry will be. 

Decree affirmed. 

[Charles Allen, J., for himself and William Allen, J., gave a 
dissenting opinion.] ^ 



.Q..(jL^^-—AH 



ADAMS V. CHICAGO, BURLINGTON, AND NORTHERN 



^A/t t^ /^^^ 



RAILROAD COMPANY. -j^,^Ji^ . 

Supreme Court of Minnesota. 1888. ^Ju y~j€X/\^*^^ "l 

[39 Minn. 286] ^ ^X ^J ' 

Appeal by defendant from an order of the District Court for Winona j^JU-at^^^'^ 
County, refusing a new trial after a trial by Start, J., a jury being 
waived. <C 't a^ ^ 

1 Compare Am. Teleph. Sf Teleg. Co . v. Pearce, 71 Md. 535 (1889). — Ed. X^ ti^cijL<^ 
VOL. I. — 72 



1138 ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. [CHAP. VI. 

Wm. Gale, J. W. Losey, and Young and Lightner, for appellant. 
Tawney and Randall, for respondent. 

GiLFiLLAN, C. J. Second Street, in the cit}- of Winona, is, and for 
30 years has been, a public street, 70 feet wide, running nearh- east 
and west through the cit}'. Plaintiff is tlie owner of and occupies as 
his residence a lot abutting on the south side of said street. The 
defendant, under authorits' of the Common Council, which authority 
the city charter empowered the council to give, has constructed and is 
operating the main line of its railroad, an ordinary- commercial railroad, 
running to and througli Winona, upon and along the noi'th half of 
Second Street, passing in front of plaintiff's lot, no part of the track 
being laid south of the centre line of the street. Safe and convenient 
ingress and egress to and from plaintiff's lot are not materially im- 
paired. The injurious consequences to the lot are not due to any improper 
construction or operation of the road, but are such as result from con- 
structing and operating a railroad along a street in an ordinary and 
prudent manner. These injurious consequences arise from the engines 
and trains passing da}' and night, and throwing steam, smoke, dust, 
and cinders upon the plaintiff's premises, and into his house, polluting 
the air with offensive smells, and interfering with the free circulation of 
light and pure air into and upon his premises, and jarring the ground 
so as to cause the house and furniture to vibrate ; causing physical dis- 
comforts and annoj'ances to plaintiff and his famil}', and whereby the 
rental value of his premises is diminished. The court below ordered 
judgment for the plaintiff for the damage to the rental value up to the 
commencement of the action, and the defendant appeals. 

The principal question involved has never been directly before this 
court. There have been, however, cases in which the decisions bore 
incidentallj' upon it. It is well settled that where there is no taking 
of, or encroachment on, one's property or property rights by the con- 
struction and operating of a railroad, any inconveniences caused by it, 
as from noises, smoke, cinders, etc., not due to improper construction, 
or negligence in operating it, furnish no ground of action ; as when the 
railroad is laid wlioUy on land whicli the company has acquired b}- pur- 
chase or condemnation, or in which the part}' has no interest, so that 
it does no wrong to him in constructing and operating the road, though 
there may be some inconvenience or damage to him arising from it, if 
it be such as the general public suffer, he has no legal cause to com- 
plain. Railroads are a necessity, and the public, which enjoys the 
general incidental benefits from them, must endure any general incon- 
veniences necessarily incident to their construction and operation. And 
if a railroad corapan}- even wrongfully obstructs a street abutting on 
one's pi'emises, not at the part of the street where it so abuts, unless 
access to his premises is thereb}' cut off or materially interfered with, 
any inconvenience that he may suffer therefrom furnishes no ground 
for a pi'ivate action, because the wrong done is a public wrong for 
which the public authorities are the proper parties to seek redress. 



CHAP. VI.] ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. 1139 

See Shcmhutw St. Paul & Sioux City R. Co.^ 21 Minn. 502 ; Rochette 
V. Chicago, Mil <b St. Paul Ry. Co., 32 Minn. 201 (20 N. W. Rep. 
140) ; Barnum v. Minnesota Transfer Ry. Co.., 33 Minn. 3G5 (23 
N. W. Rep. 538). But if a railroad, not touching one's premises, ob- 
structs a street abutting on or leading to them, so as to cut off or 
materially interfere with his only access to them, the inconvenience is 
deemed to be special, and not one common to the public, and an action 
lies. BraMen v. Minn. & St. Louis Ry. Co., 29 Minn. 41 (11 N. W. 
Rep. 124). It is the same where one owns land abutting on a naviga- 
ble river or lake, and a railroad is laid along between the land and the 
navigable water. Brishine v. St. Paul & Sioux City R. Co., 23 Minn. 
114; Union Depot, etc. Co. v. Brunsivick, 31 Minn. 297 (17 N. W. 
Rep. 626). And also where a strip between the lots and the river has 
been dedicated to public use as a levee or landing, and a railroad is 
laid upon it. Shurmeier v. St. Paul & Pac. R. Co., 10 Minn. 59 (82) 
(88 Am. Dec. 59). Where, however, there is a taking of a part of a 
tract or lot of land, the diminution in value of the part not taken, 
caused b}' the noise of passing trains, and inconvenience and interrup- 
tion to the use of the part not taken, resulting from the ordinar}' opera- 
tion of the road {County of Blue Earth v. St. Paul & Sioux City R. 
Co., 28 Minn. 503, UN. W. Rep. 73) ; and from increased exposure 
of buildings already erected to danger of fire from passing trains (Col- 
vill V. St. Paul & Chicago Ry. Co., 19 Minn. 240 (283) ; Johnson v. 
Chicago, B. d iV: R. Co., 37 Minn. 519, 35 N. W. Rep. 438) ; and 
from increased danger of injury to or destruction of tlie household of 
the owner, unless the propertj' not taken is equally valuable for sorne 
other purpose,— Curtis v. St. Paul, S. & T. F. R. Co., 20 Minn. 19 
(28),, — are proper elements of the damages to be allowed for the 
taking. 

From these decisions the propositions ma^^ be stated : That the right 
of recovery against a railroad compan}^ when there is no improper 
construction of or negligence in operating the railroad, for inconven- 
iences caused by noises, smoke, dust, and cinders, does not depend 
on the fact that such inconveniences exist, if they be such as are com- 
mon to the public at large, but on the fact that there has been a taking 
of the parties' property for the purpose of the railroad, accompanied 
with such inconveniences, or to which they are incident; and, if neces- 
sarily caused by the company's proper use of its own property, there 
can be no recovery because of them. And that, where there is a tak- 
ing, such inconveniences as are necessaril}^ incident to it, and to the 
use for which the property is taken, are proper elements of the damages 
to the part}'. And this further proposition (full}' established and more 
clearly set forth in many other decisions of this court) that the rule or 
damage is applied onl}' to a case where part of a distinct tract or lot 
is taken, in which case the damages onlj' to the part not taken are to 
be estimated. As to that only are the damages deemed special. As 
to other distinct tracts or lots of the same owner the inconveniences 
are generally such as the public suffer. 



1140 ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. [CIIAP. VI. 

As the plaintiff does not claim to own the land in the street which 
the compau}' has taken for its road, but claims only a right or interest 
in the nature of an easement in it appurtenant to his lot, the question 
has been raised and discussed, at considerable length, whether, conceding 
tlie right or interest he claims, the acts of the defendant constitute a tak- 
ing, within the constitutional provision prohibiting the taking of private 
property for public use without just compensation. As that provision 
is inserted for the protection of the citizen, it ought to have a liberal 
interpretation, so as to effect its genei'al purpose. All property, what- 
ever its character, comes within its protection. It is hardly necessary 
to sa}' that any right or interest in land in the nature of an easement 
is property, as much so as a lien upon it b}' mortgage, judgment, or 
under mechanic's lien laws. If a man is deprived of his propert}' for 
the purpose of any enterprise of public use, it must be a taking, even 
though the right of which he is deprived is not and cannot be emploj-ed 
in the public use. In the case of a lien on land taken for railroad pur- 
poses, the company cannot make any use of the lien. It does not 
succeed to the ownership of it. It merely displaces it, — destro^'s it. 
So, in case of an easement. If A. has, as appurtenant to his lot, an 
easement for right of way over the adjoining land, and such adjoining 
land is taken for railroad purposes, the company does not and cannot 
succeed to the easement. But it may destro}- or materially impair it 
b}' rendering it impossible for the owner of it to enjoy it to the full 
extent that he is entitled to. Such destruction or impairment is within 
the meaning of the word " taken," as used in the Constitution, as fully 
as is the depriving the owner of the possession and use of his corporeal 
property. 

The main question in the case is, has the owner of a lot abutting 
on a public street a right or interest in the street opposite his lot, 
appurtenant to his lot, and independent of his ownership of the soil 
of the street, and, if so, what is that right or interest? If he has, 
and the acts of the defendant in constructing and operating its rail- 
road along that part of the street opposite plaintiff's lot prevent or 
impair his enjoyment of such right or interest, then he has a right to 
recover. 

We find a great many cases in which is stated, in general terms, the 
proposition that, although the fee of the street be in the State or muni- 
cipality, the owner of an abutting lot has, as appurtenant to his lot, 
an interest or easement in the street in front of it, which is entirely 
distinct from the interest of the public. Grand Rapids & Ind. R. Co. v. 
Heisel^ 38 Mich. 62 ; Lexington & OJiio R. Co. v. Applegate, 8 Dana, 
289 (33 Am. Dec. 497) ; Elizabethtown, etc. R. Co. v. Combs, 10 Bush, 
382 ; Haynes v. Tliomas, 7 Ind. 38 ; Protzman v. Indianapolis, etc. 
R. Co., 9 Ind. 467 (68 Am. Dec. 650) ; Stone v. Fairhurij, etc. R. 
Co., 68 111. 394 ; Tate v. Ohio & Mississippi R. Co., 7 Ind. 479 ; 
Lackland v. North Missouri R. Co., 31 Mo. 180; Street Railway v. 
Cumminsville, 14 Ohio St. 523 ; Eaihvay Co. v. Lawrence, 38 Ohio 



CHAP. VI.] ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. 1141 

St. 41 ; Craioforcl v. Village of Delmoare, 7 Ohio St. 459 ; City of 
Denver v. Bayer, 7 Col. 113 (2 Pac. Rep. 6) ; Town of Rensselaer v. 
Leopold, 106 Ind. 29 (5 N. E. Rep. 761). In 38 Mich. 62, 71, the 
Supreme Court states it thus : " Every lot-owner has a peculiar interest 
in the adjacent street whicih neither the local nor the general public can 
pretend to claim ; a private right in the nature of an incorporeal here- 
ditament, legall}' attached to his contiguous ground ; an incidental title 
to certain facilities and franchises, which is in the nature of propert}', 
and which can no more be appropriated against his will than an}' tangi- 
ble propert}^ of which he may be owner." Although the proposition 
was apparentl}' stated with care and upon deliberation, it seems to us 
(and we say it with diffidence, because of the eminent character of that 
court) that the decision of the case was a departure from the doctrine 
thus laid down (and the same may be said of several of the cases re- 
ferred to). For where the railroad was laid upon a part of the street 
opposite the party's lot, of which part he did not own the fee, it denied 
his right to recover for damages caused to his lot incidental to a proper 
operating of the railroad, and limited it to cases where the acts of the 
compan}', of omission or commission, amounted to a nuisance. As the 
lot-owner can recover for a private nuisance, committed by the im- 
proper operation of a railroad, even on the company's own land, in which 
he has no interest {Baltimore & Potomac R. Co. v. First Baptist 
Church, 108 U. S. 317, 2 Sup. Ct. Rep. 719), it would seem as though, 
if he is in no better plight in respect to the company's acts in the street, 
his " peculiar interest," distinct from that of the public, in the street, 
is of ver}' little value. His title to his interest in the street is precari- 
ous, if authorit}' from the State or municipality may justify what would 
without such authority be a private wrong as to him. 

None of the cases we have referred to, nor an}' till we come to what 
are known as the " Elevated Railway Cases," attempt to define the 
limits and extent of the right of an abutting lot-owner in the street 
opposite his lot, where he does not own the fee. That it extends to 
purposes of ingress and egress to and from his lot is conceded by all. 
And for this purpose it ma}' extend beyond the part of the street 
directly in front ; for, as we have seen, an action by him will lie for 
obstructing the street, away from his lot, so as to cut off or materially 
mterfere with his only access to it. 

The questions are asked, how does the lot-owner get an easement in the 
street? ... It is, however, hardly necessary to inquire how the lot-owner 
gets his private right in the street ; for it is established law that he has a 
private right, which, as we have stated, all the cases concede extends 
to the necessity of access. Access to the lot is only one of the direct 
advantages which the street affords to it. In a city densely peopled 
and built up, the admission of light and air into buildings is about as 
important to their proper use and enjoyment as access to them. Light 
and air are largely got from the open space which the streets afford. 
What reason can be given for excluding a right to the street for admit- 



11-42 ADAMS V. CHICAGO, BURLINGTON, ETC. KAILKOAD. [CIIAP. VI. 

ting light and air, when the right to it for access is conceded ? For 
mere purposes of access to the lots, a strip 10 or 15 feet wide might be 
sufficient. Yet everybod}' knows that a lot fronting on a street GO or 
70 feet wide is more valuable, because of the uses that can be made of 
it, than though it front on such a narrow strip. Take a case in one of 
the States where the fee of the streets is in the State or municipalit}-, 
and of a street 60 feet wide. The abutting lot-owners have paid for 
the advantages of the street on the basis of that width, either in the 
enhanced price paid for their lots, or, if the street was established by 
condemnation, in the taxes the}^ have paid for the land taken. In such 
a case, if the State or municipality should attempt to cut the street 
down to a width of 10 or 15 feet, would it be an answer to objections 
by lot-owners that the diminished width would be sufficient for mere 
purposes of access to their lots? It would seem as though the question 
suggests the answer. 

The cases known as the " Elevated Railway Cases" {Story v. iV. Y. 
Elevated R. Co., 90 N. Y. 122, and Lahr v. Jletropolitan Elevated 
R. Co., 104 N. Y. 268, 10 N. E. Rep. 528) are notable in several re- 
spects : first, because they were the first cases (and it seems strange 
that the}' should have been) in which was squarel}- presented, so as to 
demand a direct decision, the claim of abutting lots to an easement in 
the street in their front, for purposes of light and air ; second, for the 
number and ability of the counsel on each side, and the thoroughness 
with which they discussed every point involved, and presented every 
argument ^ro and con that could be suggested; and, lastly and espe- 
cially, for the exhaustive character of both the prevailing and dissent- 
ing opinions by the members of the court. The latter case was really 
a re-argument of the questions decided in the earlier, and in its opinion 
the court not onl^' adhered to, but took pains to define, its earlier deci- 
sion, and in some respects to go beyond it, and give to the principles 
determined a wider application than appears to have been given to 
them in the first case. We think that in those cases the doctrine is 
unquaUfiedly established that no matter how the abutting owner ac- 
quires title to his land, and no matter how the street was established, 
so that the only right of the public is to hold it for public use as a 
street forever (and the public gets no greater right under a dedication), 
and no matter who may own the fee, " an abutting owner necessarily 
enjoys certain advantages from the existence of an open street adjoin- 
ing his property, which belong to him by reason of its location, and 
are not enjoyed by the general public, such as the right of free access 
to his premises, and the free admission and circulation of light and air 
to and through his property." The doctrine was followed and applied 
by the Circuit Court of the United States for the Southern District of 
New York, in Fifth Nat. Bank v. N. Y. Elevated R. Co., 24 Fed. Rep. 
114. The general doctrine, we think, stands on sound reason and 
considerations of practical justice. 

The private right in a street is of course subordinate to the public 



CHAP. VI.] ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. 1143 

right. The latter right is for use as a public street, and the incidental 
right to put and keep it in condition for such use, and for no other pur- 
pose. Whatever limitation or abridgment of the advantages which 
the abutting lot is entitled to from the street may be caused by the 
exercise of the public right, the owner of the lot must submit to. If 
putting it to proper street uses causes annoying noises to be made in 
front of his lot, or the air to be filled with dust and smoke, so as to 
darken his premises, or pollute the air that passes from the street upon 
them, he has no legal cause of complaint. His right to complain arises 
when such interruptions to the enjoyment of his private right are caused 
by a perversion of the street to uses for which it was not intended ; by 
employing it for uses which the public right does not justify. That 
constructing and operating an ordinary commercial railroad on a street 
is a perversion of the street to a use for which it was not intended, one 
not justified by the public right, and which the State or municipality, 
as representing such right, cannot, as against private rights, authorize, 
— the decisions of this court are full and explicit. It has always been 
held here, contrary' to the decisions in many of the States, that laying 
such a railroad upon a public street or highway is the imposition of an 
additional servitude upon it, — an appropriation of it to a use for which 
it was not intended. Carli v. Stillwater Street Ey.^ etc. Co., 28 Minn. 
373 (10 N. W. Rep. 205), and cases cited. Many of the decisions cited 
to show that upon a state of facts such as exists in this case the lot- 
owner can have no right of action, were by courts which hold that the 
use of a street for an ordinary railroad is a legitimate street use, ^-one 
that comes within the uses and purposes for which streets are estab- 
lished. Where that is the rule, inasmuch as the right or interest of 
the abutting lot-owner is subordinate and subject to the right to devote 
the street to use for a railroad, as well as for any other proper mode of 
street travel, of course no cause of action in favor of the lot-owner, 
whether he owns the fee of the street or not could grow out of the 
proper construction and operating of a railroad in the street. For that 
reason the decisions of such courts can be of no authorit}' here, where 
a diliferent rule upon the rightfulness of using the street for such a 
purpose prevails. 

The conclusions arrived at are that the owner of a lot abutting on a 
public street has, independent of the fee in the street, as appurtenant 
to his lot, an easement in the street in front of his lot to the full width 
of the street, for admission of light and air to his lot, which easement 
is subordinate onlj' to the public right. That depriving him of or inter- 
fering with his enjoyment of the easement for any public use not a 
proper street use is a taking of his property within the meaning of the 
Constitution. That api)ropriating a public street to the construction and 
operation of an ordinary commercial railroad upon it is not a proper 
street use. That where, without his consent and without compensation 
to him, such a railroad is laid and operated along the portion of the 
street in front of his lot, so as upon that part of the street to cause 



1144 ADAMS V. CHICAGO, BURLINGTON, ETC. RAILROAD. [cHAP. VL 



_c^' 



smoke, dust, cinders, etc., which darken or polhite the air coming from 
that part of the street upon his lot, he may reco\'er whatever damages 
to his lot are caused by so laying and operating such railroad on that 
part of the street. 

That the recovery should be limited to the damages caused \)\ operat- 
ing the railroad in front of plaintiff's lot, and ouglit not to include any 
that might have accrued from operating it on other parts of the street, 
was undoubtedly the opinion of the court below when it came to make 
its findings of fact; for it finds as a fact no other damage than the 
depreciation in the rental value of the lot caused b}' operating the rail- 
road on the street in front of it. The proof of depreciation in rental 
value, however, was made in part by admitting proof (against defend- 
ant's objection) of the rental value "with the road constructed on that 
street, and operated there as roads usually are." There was no other 
evidence of depreciation. The evidence takes into account not merely 
the consequences to the lot from operating the railroad in front of it, 
but also from operating the road on the whole or any part of it, 
however remote from the lot. This would allow plaintiff to recover for 
such consequences of operating the road as he suffered in common with 
the public geneiall^', and not merel}- such as were peculiar to himself. 
The evidence was erroneousl}' admitted, and, as there was no compe- 
tent evidence to sustain the finding of the amount of damage, the find- 
ing must be set aside. A new trial is therefore ordered of the issue as 
to the amount of damage (but of no other issue), unless the plaintiff 
will consent in the court below to take judgment for nominal damages 
merely.^ 

Vanderburgh, J. (dissenting). If a street or highway is so occu- 
pied or encumbered as to occasion special and peculiar injury to an 
abutting land-owner, an action for damages or an injunction raa}^ be 
sustained. But I do not assent to the proposition that such owner has 
property interests in the street, beyond the boundary of his land therein 
(presumptively the centre line thereof), which arc the proper subject of 
condemnation proceedings. The opposite rule, I think, has always 
been accepted and acted on in this State, and is supported by the great 
weight of authority. . . . 

1 And so Lamm v. Chic. Sfc. Ry. Co., 45 Minn. 71, 78 (1890) ; Williams v. City 
Electric St. Ry. Co., 41 Fed. Rep. ."556 (U. S. C. C. E. D. Ark. 1890). Compare 
Nichols V. Ann Arbor, Sfc. Ry. Co., 87 Mich. 361. 

In Garrett v. Lake Roland El. Ry. Co., 29 AtL Rep. 830 (June, 1894), the Maryland 
Court of Appeals (McSherrt, J), in sustaining a decree dismissing the plaintiff's 
hill, said: "By Section 5 of Ordinance No. 23, approved April 8, 1891, the North Avenue 
Railway Company (one of the several roads by the consolidation of which the Lake 
Roland Elevated Railway Company was formed) was authorized to bridge the North- 
ern Central Railway Company's tracks on North Street, by means of an elevated 
structure, extending, including the necessary approaches thereto, along North Street 
from the corner of that and Eager streets to the corner of North and Saratoga streets. 
A stone abutment, forming an inclined plane, to carry on its perpendicular or highest 
side the iron superstructure, and to serve, on its surface, as the northern approach to 
the elevated road, has been erected nearly in the centre of North Street between Chase 






CHAP. VI.] WESTERN UNION TELEGRAPH CO. V. WILLIAxMS. 1145 

WESTERN UNION TELEGRAPH COMPANY v. WILLIAMS. 

Virginia Supreme Court of Appeals. 1890. 

[86 Va. 696.] 

Error to judgment of Circuit Court of New Kent County, rendered 
October 30, 1888, in an action of trespass on tlie case wherein James 
K. Williams was plaintiff, and the plaintiff in error, the Western Union 
Telegraph Company, was defendant. Opinion states the case. 

Staples and Munford and Robert Stiles, for the plaintiff in error. 
Pollard and Sands, E. T. Lacy, and W. W. Gordon, for the defendant 
in error. 

Lacy, J., delivered the opinion of the court. . . . However, it is 
claimed hy the plaintiff in error that, granting that the rights of the 

and Eager, directly in front of part of the first-named lots of Mr. Garrett. It is 83 
feet and 2\ inches in length, and 15^*5 feet in width, and starts at the street grade, and 
gradually rises to a height of 9 feet, and leaving a distance or driveway between its 
western face and the curb line, contiguous to Mr. Garrett's property, of 9 feet and 
8^ inches. . . . The proposition distinctly presented by the record, and earnestly 
contended for by the appellant's distinguished counsel, is that the erection by the 
appellee of this abutment on property not owned by the appellant, but in the bed of a 
public city thoroughfare, upon which his lots abut, destroys the access to his land, 
interferes with light and air, imposes a new and additional servitude upon his prop- 
erty, and deprives him of the benefit of the use of the same, and amounts in law to a 
taking of his property that is in fact not trespassed upon or touched, — is illegal, until 
compensation shall have been first made therefor. Though there has been no physical 
invasion of the appellant's property, still, if the act complained of constitutes, by rea- 
son of its consequences, a taking of the appellant's private property for a public use, 
within the meaning of section 40 of article 3 of the Constitution of Maryland, which 
prohibits the taking of private property for public use, except upon just compensation 
being first paid or tendered, then the injunction should have been granted. . . . There 
is some conflict among adjudged cases as to what amounts to such a taking, but the 
overwhelming weight of authority accords with the conclusions which this court 
announced in two cases that will be fully referred to later on. Apart from the 
decisions of the Supreme Court of Ohio (see Crawford v. Delaware, 7 Ohio St. 460), 
which rest upon a doctrine peculiar to that State, and the recent New York decisions 
in the Elevated Railway Cases (Storij v. Railroad Co., 90 N. Y. 122; Lahr v. Railway 
Co., 104 N. Y. 268), which are hopelessly in conflict with the principles announced in 
other cases in the same State (Radclijfv. Mayor, etc., 4 N. Y. 195; Fobes v. Railroad 
Co , 121 N. Y. 505), and the deci.sions in Minnesota (Adams v. Railroad Co., 39 Minn. 
286, 39 N. W. 629; Lamm v. Railroad Co., 47 N. W. 455), and a few cases in Missis- 
sippi (Theobald v. Railway Co., 66 Miss. 279), and possibly one or two other States, — 
all substantially following the New York Elevated Railway Cases, — there is prac- 
tically an unbroken current of adjudged cases broadly and clearly marking and defin- 
ing the difference between an incidental injury to, and an actual taking of, private 
property. . . . We must either adhere to these two decisions in 50 Md. and 74 Md. 
[Mayor v. Wdlison, 50 Md. 148, and O'Brien v. R. R Co., 74 Md. 363], strictly in 
accord, as we have shown them to be, with the decided weight of judicial opinion on 
this subject, — or else, receding from them, adopt the Ohio or the New York doctrine 
We see no reason for departing from, or for modifying, our former deliberate judg- 
ments. The Ohio doctrine is peculiar to that State alone (O'Connor v. Pittsburgh [18 
Pa. St. 187], Northern Transp. Co. v. Chicago [99 U. S. 635]), and is so admitted to 
be in Crawford \. Delaiuare, supra. The New Yo rk do ctr ine involves t his inextric able 
dile mma, viz. : If the grading of a street by a municipal corporation cuts off all access 



1146 WESTERN UNION TELEGRAPH CO. V. WILLIAMS. [CHAP. VL 

plaintiff are what we have stated, and the Commonwealth has only the 
right to use by going over, still his ease is good, because his works 
are only a use of the easement, and constitute no new taking, — no 
additional servitude. We will now briefly consider this argument. 

The right_i n the Co mmonwealth is to use by going along ove r ; this 
is the extent of the right . If the right was granted to the defendanTto^ 
go over simply to carry its messages, then the right granted was in ex- 
istence before the grant, and the right to go over is not only not dis- 
puted, but distinctly admitted. This is the servitude over the land 
fixed upon it by law, and the whole extent of itj> If anything more is 
taken it is an additional servitude, and is a taking of the property 
within the meaning of the Constitution.^ To take the whole subject, the 
land in fee, is a taking. This, however,- is the meaning of the term 
only in a limited sense, and in the narrowest sense of the word. The 
constitutional provision, which declares that property shall not be taken 
for public use without just compensation, was intended to establish this 
principle beyond legislative control, and it is not necessary that prop- 
erty should be absolutely taken, in the sense of completely taking, to 
bring a case within the protection of the Constitution. As was said by 
a learned justice of the Supreme Court of the United States : " It would 
be a curious and unsatisfactory result." [Here follows the rest of a 
paragraph from the opinion of the court (Miller, J.) in Pionpelli/ 
V. Grten Bay Co., ante, p. 1062. j 

It is obvious, and it is so held in many cases, that the construction 
of a railroad upon a highway is an additional servitude upon the land, 
for which the owner is entitled to additional compensation. Cooley's 
Constitutional Limitations, 548 ; Ford v. Chicago and Northwestern 
R. R. Co., 14 Wis. 616 ; Pomeroy v. Chicago & M. R. R. Co., 10 Wis. 
640. And the power of the legislature to authorize a railroad to be 
constructed on a common highway is denied, upon the ground that the 
original appropriation permitted the taking for the purposes of a com- 
mon highwa}', and no other. The principle is the same when the land 
is taken for any other purpose distinct from the original purpose, and 
the reasoning in the two cases is applicable to each. In the case of 
Imlay v. Unio7i Branch R. R. Co., 26 Conn. 255, it is said : " When land 
is condemned for a special purpose, on the score of public utilit}', the 
sequestration is limited to that particular use. Land taken for a high- 
wa}' is not thereb}' converted into a common. As the property is not 

to a_£erson^ house, albeit his property is thereby destroyed and rendered valueless, 
it i s not taken, in the constitutional sense ; but if a r ailroad company, in lawfully con- 
structing its road, does precisely the sam.e thing that the city^did in grading the street, 
then th e ab utter's property is takeji, though_jiot physica lly entered upon at alLT". . 
The structure is therefore a lawful one. It does not destroy the street, as a street, 
though it may cause the plaintiff greater inconvenience in gaining access to his lots 
than he encountered before it was built. But this and the other injuries complained 
of are purely incidental and consequential, though the appellant [under the statutes 
and the ordinance] is not without a remedy therefor." . . . [Bkyan, J gave a dis- 
senting opinion.] — Ed. 



CHAP. VI.] WESTERN UNION TELEGRAPH CO. V. WILLIAMS. 1147 

taken, but the use onl}', 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." Nicholson v. N. T. & N. H. R. R. Co.^ 
22 Conn. 85 ; South Carolina R. R. Co. v. Steiner, 44 Ga. 546. In 
the case of a telephone compan}', the Chancellor, in the case of Broome 
V. New York & New Jersey Telephone Co. (5th Central Rep. 814), held 
that, in order to justify a telephone company in setting up poles in the 
highway, it must show that it has acquired the right to do so, either by 
consent or condemnation from the owner of the soil, saying : " The 
complainant seeks relief against an invasion of his proprietary right to 
his land. The defendant, a telephone company, without any leave or 
license from, or consent by him, but, on the other hand, against his 
protest and remonstrance, and in disregard of his warning and express 
prohibition, and without condemnation or any steps to that end, set up 
its poles upon his land." What has .been said is sufficient of itself to 
establish the right of the complainants to relief: for in order to justify 
the defendant in setting up the poles, it is necessary for it to show that 
it has acquired the right to do so, either by consent or condemnation 
from the owner of the soil. As to these rights of the owner of the soil 
see American and English Encyclopsedia of Law, vol. 9, title " High- 
ways," vii. sec. 2 ; Board of Trade Tel. Co. v. Barnett, 107 111. 508 ; 
Southivestern R. R. Co. v. Southern & A. Tel. Co., 46 Ga. 43 ; West- 
ern Union Tel. Co. v. Rich, 19 Kansas, 517; IVillis v. Erie Tel. &c. 
Co., 34 N. W. Rep. 337. 

T hat the erection of a telegraph line upon a highway is an additio n al 
ser vitude is clear from the authorities . That it is such is equally cle ar 
up on principle in the light of the Virginia cases cited abov e. If the 
right acquired bj- the Commonwealth in the condemnation of a highway 
is only the right to pass along over the highway for the public, then, if 
the untaken parts of the land are his private property, to dig up the 
soil is to dig up his soil ; to cut down the trees is to cut down his 
trees ; to desti'oy the fences is to destro}' his fences ; to erect any 
structure, to affix anj^ pole or post in and upon his land, is to take pos- 
session of his land ; and all these interfere with his free and unrestricted 
use of his property. If the Commonwealth took this without just com- 
pensation it would be a violation of the Constitution. Tlie Common- 
wealth cannot constitutionally grant it to another. . . . We think 
the instructions of the Circuit Court were clearly right, and there is 
no error therein. . . . 

Lewis, P., d issentin g, said : I take a very different view of the case 
from that taken in the opinion of the court just read, and as the case ' ''^^'^^ 
is an important one, I will state the reasons for my dissent. I agree /T) 
that the Act of February 10, 1880, does not provide for additional ^ 
compensation to the owners of lands abutting on highways along which aaaMk \m*^ 
telegraph lines may be constructed, and therefore that the question in / ' ' ^fyr/ 
the case is, whether, on that account, the Act is unconstitutional? ... "" 



1148 WESTERN UNION TELEGRAPH CO. V. WILLIAMS. [CHAP. VL 

"What, then, is the nature and extent of the public easement in land 
condemned for a highway? The plaintiff contends that it is merely' a 
right of passage, and nothing more ; Boiling v. The Mayor of Peters- 
burg, 3 Hand. 563, is referred to in support of this position. 

That case, which adopts the language of the ancient authorities on 
the subject, docs, indeed, so hold, and when it was decided, the language 
used was suflicientl}' comprehensive to cover every then known mode of 
enjoying the public right. But since that time civilization has ad- 
vanced ; new modes of using the public highways have been discovered, 
and as the common law adapts itself to the constantly-changing wants 
and conditions of society, the courts have held, and rightly, I think, 
that the view contended for by the plaintiff is altogether too narrow 
and restricted ; so that the principle, as now established, is that the 
higliways of a State are not only open and free for travel and traffic, 
but that, with the assent of the legislature, they may be devoted, 
under the original appropriation, to such other public uses as are con- 
sistent with their use as public thoroughfares. , . . 

Much of the confusion in the decisions on the subject of the consti- 
tutional power of the legislature over highways is owing, it seems to 
me, to a failure to discriminate between the use for which a highway 
is appropriated and the modes of using it. Hence, in passing upon such 
questions, a clear idea of what a highwa}' is ought always to be kept in 
view. An d what is a hig hway ? Per haps no better definition of it, in 
the l ight of re ason and the modern decisions, can be given than to sa y 
th at it is a road or thoroughfare for the use of the general i^ublic fo r 
th e purpose of inte^'-communication^ which embraces the right to use t he 
li jghway, not only for passag e, but for the transmission of intellige nce. 
Formerly, as before remarked, t he only mode by which intellig ence 
co uld be transmitted over a highway was by passing over it . But it is 
not so now. Th e discovery of the telegraph and the telephone h as 
rev olutionized the methods of intcr-communication ; and I am una ble 
to perceive why, when a message is sent over a tclograi)h or telepho ne 
wire e rected on the public highway, the same, or substantially the sam e, 
u se is not made o f the highw a y as wh en a mess age is sent ov er it by. a 
messenger on foot or on horseback. In the one case, as was well said 
in the argument at the bar, the message goes with the messenger ; in 
the other, it goes without a messenger, — the only difference being in 
the mode of sending it. And it hardly seems in keeping with the pro- 
gressive spirit of the common law, in eulog}' of which so much has been 
justl}^ written, to say that the new method is not admissible, though with 
the assent of the legislature, because it was not known to Bracton or 
Blackstone. Said the court, in Dicker son v. Colgrove, 100 U. S. 578: 
" The common law is reason dealing by the light of experience with 
human affairs." And what experience had our fathers with electricit}', 
as an element of inter-communication, in 1825, when Bollmg v. Mayor 
of Petersburg was decided ? None whatever. 

That the new method is not inconsistent with the ordinarj' use of a 



I 



CHAP. VI.] WESTERN UNION TELEGRAPH CO. V. WILLIAMS. 1149 

highway is, to my mind, obvious. Indeed, it is in aid of it ; for it not 
onl}' furnishes vastly increased facilities of inter-communication, but it 
tends to the relief of the highwa}' by lessening travel over it, — which 
in populous cities, and even in the country, is no small consideration. 
And here it ma}' be remarlved that the statute expressly provides that 
in no case shall a telegraph or telephone erected along a highway ob- 
struct the ordinary use of the highway. Acts 1879-1880, p. 53 ; Code, 
sees. 1287-1290. ... In the argument, a number of authorities were 
cited to show that it is not competent for the legislature to authorize a 
telegraph company to construct its line over the right of wa}- of a rail- 
road company, witliout making just compensation therefor ; and this, I 
take it, no one will deny. The road-bed and right of wa}- of a railroad 
company — at least in this State — is as much its property as is its 
rolling-stock, or the mone}' in its treasury, and the one can no more be 
lawfully taken without just compensation than the other. But that is a 
ver}' different case from this ; for here I have endeavored to show that 
the plaintiff's property has not been taken ; that nothing has been 
granted but the right to use a public easement, which right, under no 
circumstances, can last longer than the easement itself. 

Fortunately, direct authorit}- is not wanting in support of these 
views. The precise question has been adjudicated in two well-consid- 
ered opinions, — one by the Supreme Judicial Court of Massachusetts, 
in the case of Pierce v. Drew, 136 Mass. 75 ; the other by the Supreme 
Court of Missouri, in the case of The Julia Building Ass'n v. The Bell 
Telephone Co., 88 Mo. 258, — in both of which cases it was distinctly 
held that an additional servitude is not imposed by the erection on a 
public highway of a telegraph or telephone line, under a statute of the 
State, and that such statute is not unconstitutional, because it makes no 
provision for additional compensation to the owners of the fee in the high- 
way. In the first mentioned case, the court, in an able and learned 
opinion by Mr. Justice Devens, said : " The discovery of the telegraph 
developed a new and valuable mode of communicating intelligence. Its 
use is certainly similar to, if not identical with, that public use of 
transmitting information for which the highway was originally taken, 
even if the means adopted are quite different from the post-boy or the 
mail-coach. It is a newlj'-discovered method of exercising the old pub- 
lic easement, and all appropriate methods must have been deemed to 
have been paid for when the road was laid out." And he added that, 
" under the clause to regulate commerce among the States, conferred on 
Congress by the Constitution of the United States, although telegraphic 
communication was unknown when it was adopted, it had been held it 
is the right of Congress to prevent the obstruction of telegraphic com- 
munication by hostile State legislation, as it has become an indispen- 
sable means of inter-communication." Citing Bensacola Telegraph v. 
Western Union Telegraph, 96 U. S. 1. See also Telegraph Co. v. 
Texas, 105 U. S. 460; Western Union Tel. Co. v. Alabama, 132 U.S. 
472, and cases cited. 



1150 WESTERN UNION TELEGRAPH CO. V. WILLIAMS. [CHAP. VI. 

In the telephone case, it was said : " If a thousand messages were 
daily transmitted by means of telephone poles, wires, and other appli- 
ances used in telephoning, the street through these means would serve 
the same purpose, which would otherwise require its use either b}' foot- 
men, horsemen, or carriages to effectuate the same purpose. In this 
view of it, the erection of telephone poles and wires for transmission of 
oral messages, so far from imposing a new and additional servitude, 
would, to the extent of each message transmitted, relieve the street of 
a servitude or use b}- a footman, horseman, or carriage." 

In opposition to these views, the case of Board of Trade Tel. Co. 
V. Barnett^ 107 111. 507, has been cited. That case was disapproved of 
b}' both the Massachusetts and Missouri courts, and, I think, with 
good reason. The case decides that there is no difference in principle 
between a telegraph and a steam railway in a country highway, so far 
as the abstract question of servitude Is concerned, and that as the rail- 
way is an additional servitude, so also is the telegraph. But this 
reasoning, to my mind, is fallacious. In the nature of things, the use 
of a highway for operating a stcam-rallwaj' more or less excludes the 
ordinary methods of travel, and is attended with other inconveniences 
besides. But can this be said of the telegraph ? In what way does a 
telegraph erected on the side of a highway in the country interfere with 
the rights of the abutting owner, or with its use as a public thox'ough- 
fare? Does it exclude or obstruct travel? On the contrary, it is 
obviously much less of an obstruction than travellers on horseback or 
in vehicles over the road usually are to one another ; and as to any In- 
creased dangers or annoyances resulting from the use of streets in a 
city for the stringing of numerous wires, of which much has been said, 
that is not a direct but an Incidental injury, which is a matter for the 
legislature, and not for the courts, to consider; for nobody doubts 
that in such cases the legislature ma}-, if it sees fit, require additional 
compensation to the owners of the fee to be made. 

It has never been questioned, so far as I am informed, that the 
legislature may authorize telegraph wires to be laid lieneath the surface 
of a street, without additional compensation therefor ; and if this can be 
lawfully done, the power to authorize the wires to be put above the sur- 
face would seem to be equally clear, the difference being a mere matter 
of regulation, as to which, as we have seen, the power of the legislature 
is unqualified. . . . My opinion, therefore, is that the Act in question 
is constitutional and valid, and that the judgment of the Circuit Court 
should be reversed. 

Richardson, J., concurred with Lewis, P. Judgment affirmed.^ 

' 1 And so Stowers v. Postal Tel. Co., 68 Miss. 559 (1891). —Ed. 



i 



CHAP. VI.] HALSEY V. RAPID TRANSIT STREET RAILWAY CO. 1151 ^__ 

HALSEY V. THE RAPID TRANSIT STREET RAILWAY ^a^lufa4 

COMPANY. -^^^^^ ^ 

New Jersey Court of Chancery. 1890. // yAjjJh ' 

[47 N. J. Eg. 380.] S-^^t^^ (rf 

3fr. John R. Winery and Mr. Frederic W. Stevens^ for the com- . p •. <S\ 
plainant. Mr. Chandler W. Hiker and 31 r. Theodore Ilioiyon, for the h'^f^' /j^ 
defendant. x-i-^ ^Xf^<^ 

Van Fleet, V. C. The complainant owns land s abutting on Kin- f^^j^XxA h*^ 
nej' Street and Belmont Avenue, in the city of Newark. His lands iy. 

have a frontage on Kinney Street of two hundred and thirty-six feet, ^ /Oxa.^o^'^ 
and on Belmont Avenue of about one hundred and thirty-three feet. ^ jUlu^AMX 
His title extends to the middle of the street. The defen dant is_a .^^Tajjl t^ 
s treet railway corporation . It was organized under a oeneral st at- %» -f 

ute appro ved" April 6th, 1886, entitled ''An Act to provide for the V^^^f^ ' 
Incorporation of Street Railway Companies and to regulate the same." jQ^'Urj^iMM^ 
Rep. Sup. p. 363. The defendant has laid two railroad track s in ,f^,^/y<X hnr 
Kinney Stree t, and intends to lay two others in Belmon t Avenue. _y 
One of those laid in Kinney Street is on that part of the stree^ in iPvX y 

w hich the complainant owns the fee of the lan d. No claim is made C^j^Aji. (ri ^ 
that these tracks were put down without authority of law, or hi , Jf 'H 

violation of the complainant's rights. They are unquestionably law- lA '■^^^ . 

f ul structures . They were put down by permission of the city au- l-Da/i^ H. ^ 
thorities and under their supervision. The defendant intends to 'i /, * /tA/(/\j 
u se electricity as the propelling power of its ca rs, a nd for the pu r- ' / i 
p ose of api)lying this furce to the motors on its cars, it has, w ith M T^ (yj^ 
t he permission of the city authorities, erected three iron poles in (^ /toe /< 
t he centre of Kinney Street and strung wires there on. The poles ^^ , ^ 
stand parth' on the complainant's land. The erection of these pole s 
an d the use to which the defendant intends to apply tliem constitu tes h-U, . 
th e only ground on which the complainant rests his right to the relief rj ^ -y^ q_/xj 
h e ask s. The bill describes these three poles as standing one hundred i" j i 

and eleven feet distant from each other, about twent}' feet in height, <^i|VVAM^'^^'^ 
ten inches by six in diameter at the base, set in a guard or frame, m -U 4 ,^yjj>j^ 
the form of an inverted cup, which at its base is twentj'-two inches by ^ yVi' 

eighteen in diameter. . . . The poles were erected without the consent '^^^^'^^ ^^ 
of the complainant and without compensation to him. ^No compens a-^ J ^^ Ot^A.f 
, tion is intended to be made.^ The c ompl ainant insists that the erection 

otM^he poles imposed a new and additional servitude on his land in the iXuC< \Ar<i^^ 
street ; in other words, that his land, b}' the erection of the pplcs, has ji^^Xoh^f^^ ^ 
been approp riated to a purpose for which the public have no right to ^ / y 
use it . . . . ^'^ 2f^^ 

The question on which the decision of the case must turn is this : J^ 'ViA -^^^ 
Has tlie complainant's land in the street been appropriated to a jQur- _ < J ^^ 
p ose for which the public have no right to use it? It is of the first ^''^■-'''^ j 



O i^/n. 



■^i 



/ — r / 

Cv^ A-JH-y:^ r-v^-^-'^ tfc^..^ yC:^ ct..-«_>«--M r^»_^t>'--"0-^=LX<ax/<-^cXV^ 

1152 HALSEY V. EAPID TRANSIT STREET RAILWAY CO. [ciIAP. VI. 

cc^CC Ctcc importance in discussing this question to keep constantly before the 
^y.r< ■ mind the fact that the locus in quo is a pubUe highway , where th e 
I J p ublic rig ht of free passage, comnion to all the people, is the primary 

'j[Aj^/tJti^ i^i id superior ri.^ht. The coun)hunant has a right in the same land. 
." ; [ He holds tlie fee subject to the public easeme nt. But his right i s sub- 
^f^t^*^ or Jitutte to that of the ijublic, and so insignificant, when contrasted 

I wi th that of the public, that it ha s been declared to be practically wi th- 

( ^it the least beneficial intere st. Mr. Justice Depue, in pronouncing the 
^^vc tA-My^ judgment of the Court of Errors and Appeals in Hohoken Land and 
Jmprocement Co. \, Jloboken, 7 Vr. 540,581, said: "With respect 
vT uAArec ^^ land, over which streets have been laid, the ownership for all sub- 
•pfl-fh stantial purposes is in the public. Nothing remains in the original 
// proprietor but the naked fee, which on the assertion of the public right 

n/yFTc/V^ is divested of all beneficial interest." This view was subsequently en- 
. ^ forced by the same court in SuUioan v. JVorth Hicdson JR. li. Co., 22 

i/LA-4A-^''*^f Vr. 518, 543. Both the nature and extent of the public right are well 
f-Tt/fix^,^ defined. Lands taken for streets are taken for all time, and if taken 
. u pon compensation, compensation is made to the owner once for all . 

-/V,! uX^y\.^y^ His compensation is awarded on the basis that he is to be depiived 
J perpetually of his lau d. The lands are acquired for the purpose of pro- 

MaAamA^^ viding a means of free passage, common to all the people, and conse - 
,/ j-xA-^fi/i, Q u.^"tly may be rightfully used in an}' way that will subserve that 
^^^ purpose . B y the taking the public acquire a right of free passage ove r 

rtAJL ^ e very part of the land, n ot only by the means in use when the la nds 

, \ ^ere taken, b ut by such other means as the improvements of the a ge, 

and new wants, ainsing out of an increase in population or an enlarge - 
^\- /hyji/iJxTLi^ ment of business, may render necessary . It is perfectly consistent 
t S / ^ with the purposes for which streets are acquired that the public au - 
aA^ UA^i^ th orities should adai^t them, in their use, to the improvements an d 
J] - / c onveniences of the ag e. 31orris and Essex R. M. Co. v. Newark, 2 

//^^'^ Stock. 352, 357. This is the principle on which it has been held that 
/Xj^ ^ M^ a street railwa}', operated b}' animal power, does not impose a new ser- 
' ^ vitude on the land in the street, but is, on the contrary, a legitimate 

/i^if^lAP^^ exercise of the right of pubhc passage. Such use, though it maybe a 
^iPiiAd. A'/'^' "^^ ^""-^ improved use, still is just such a use as comes precisely within 
Q the purposes for which the public acquired the land. Cha ncellor W il- 
^ 'Xmkxa, liamson, speaking on this subject in the case last cited, said in sub- 

r^^ • stance (p. 558), t he authority to use a public highway for the purp ose 
o f a railroad, retaining the use of such highway for all ordinary p ur- 
p oses, subject only to the inconvenience of the railroad, is not such a 
/g^ ^ taking of private property from the owner of the fee of the adjacen t 
land as is prohibited by the Constitutio n. The easement of th e 
<^%JU - hi ghway is in the public, although the fee is technically in the adjace nt 
^^^^ owner. It is the easement only which is appropriated, and no right o f 
t he owner is interfered with . "W hile the street is preserved as a co m- 
/vouo^o^W-^- mon public highway, th e use of it does not belong to the owner of t he 
l and abutting on it any more than it does to any other individual of the 



'^ 



oAvlv 








CHAP. VI.] HALSEY V. RAPID TRANSIT STREET RAILWAY CO. 

community. The legislature, therefore, does not, by permitting a rail- 
road company to use the highwa}' in common with the public, take 
awaj' from the land-owner anything that belongs to him. It is not a /w^JU\JJ<J^ 
misappropriation o f the way. It is used, in addition to the ordinary ^ . aAxJL 
m ode, in an improved mode for the people to pass and repass. This ' ^ (( 
e xposition of the law, so far as it concerns horse railroads , h as been ,/-m^v>6'W ^^ 
ap proved as correct in all subsequent cases . As I understand the ad- 
judications of this State, thi s principle must be considered authorita - 
t ively establish ed, i| th at any use of a street whil^h is limited to an ^^x^ <■ ^ 
e xercise of the riylit of 'public passage, and which is confined to a 
m ere use of the public easement, w hether it be by old methods or n ew, 
a nd which does not tend , in any substantial respect, to destroy the 
st reet n.s a means of free passage, common to all the people, is ])e r- A^AjtAA '^t/^ 
fectly legitimat e. S uch use invades no right of the abutting owners , 
it takes nothing from them which the law reserved to the original p r o - 
p rietor when his land was taken ; i t is simply a user of a right alread y 
fully vested in the public , an d conseque ntly, bjy its_exercise, no thing is 
t aken from the abutting owners which c an be ma,de the basis of ad di- 
tio nal compensatio n. 

It is not denied that the railway tracks which the defendant has laid rt\ • / 'i 
on the complainant's land were placed there by authority of law, nor oU '^-^fyiT' 
that the defendant has a legal right to use them in the transportation ^^j::^ ,-\\.juiy^ 
of passengers, but the complainant's claim is this : that by the erection 
of the three poles, his land in the street has been appropriated to a use (p^i-^TNAj-tA W 
entirel}' outside of the public easement, and that it follows, as a neces- 
sary legal consequence, that such use constitutes a wrongful taking of 
his propert}'. Stated more briefly, his claim is, that the ere c tion of th e CaT • '^ ^'^'^ 
pole s puts an additional servitude on his land, and attempts to g ive ^^ -^ ocA 
the publi c a right i n his land w h ich, as yet, has not been acquired, nor , 

paid for. That the poles will, to a trifling extent, obstruct public t ravel '^^^ '^ 

and prevent infinitesimal parts of the street from being- used n.s n. menns ^.^ ti^ 
o f free passage, is a fact which cannot be denied, but there is nothing i n > ^ 

t his situation of affairs which entitles the complainant to the aid of a . / 

c ourt of equity, unless it is made to appear that t he nuisance thus ere- /'i-irv-~tCU i^' 
ated re sults in some substantial injury to him, different from that Wjnt'a;!tc^ 
Ks uffered by the public at large, and that the da mage which helvilF/ . , ^^^ 
'^sustain in consequence of the nuisa nce is irreparable in its ch aract er. ^1 /^ 
The rule on this subject is settled. ^ An individual has no right of ,^^,.,y^,,^j(xZ<. ,i 
Y . K action, in cases of nuisance created b}- obstructing a highway, unless ' " 

VK he suffers some private, direct, and material damage beyond the public ;'-yt<^jir\M d 
y^t at large, as well as damage otherwise irreparable./ Mere diminution a/h^ '^''^ 

Jf ^of the value of the property of the party complaining, b}' the nuisance, / ', , ^#>. 

\ fvr "without irreparable mischief, will not furnish any foundation for equit- ^^'^^-ytr^^^ 

^y able relief^/ Morris and Essex H. It. Co. v. Prudden., 5 C. E. Gr. 
530, 537. . . . 

The court might verj' properlj-, I think, at this point den}' the com- 
plainant's application, on the ground that he has shown no such injury 

^ t/\AU XIXaX-o^c^ -^^w^^ QldAA^^ rAu^^ 

'y-^v^ , Art l^.a^ cvL <K r:U^uZt I V^^^ ^a^ ^ 



1154 HALSEY V. RAPID TRANSIT STREET RAILWAY CO. [CIIAP. VI. 

as entitles hira to relief b}' injunction, but as this course would leave 
the principal question of the case undecided, it should not, in my judg- 
ment, be adopted. H^hn litio-nnts. T think, .iro entitled to a decision on 
th e question, whether or not the complainant's laud in the street h as 
been appropriated, by the erection of the i)olcs, to a use not within the 
public easement . That is the question which received the principal at- 
tention of counsel on the argument, and which has occupied the greater 
part of the time devoted to the consideration of the case. 

The right of the defendant to use electricity as its motive-power is 
clear. The defendant was organized under a general statute, author- 
izing seven or more persons to associate themselves together, by articles 
in writing, for the purpose of forming a corporation to construct, main- 
tain, and operate a street railway for the transportation of passengers. 
Rev. Sup. p. 363. The motive-power to be used by corporations formed 
under this statute is in no way limited or defined ; the statute does not 
say that they shall use animal, mechanical, or chemical power ; it saj's 
nothing at all on the subject of power ; hence, under the general grant 
of power to maintain and operate a street railwa}', it would seem to be 
clear that a corporation formed under this statute takes, by necessary 
and unavoidable implication, a right to use any force, in the propulsion 
of its cars, that may be fit and appropriate to that end, and which does 
not prevent that part of the public which desires to use the street, 
according to other customary methods, from having the free and safe 
use thereof While the rule is elementarj- that public grants are to be 
strictly construed, still it is also well established, that where a corpo- 
ration is authorized, b}- a general grant, to exercise a franchise or to 
carry on a business, and the grant contains no words either defining 
or limiting the powers which the corporation may exercise, it will take, 
by implication, all such powers as are reasonably necessarj' to enable 
it to accomplish the purposes of its creation. I am, therefore, of 
opinion, that if there was no other legislation on this subject than that 
just mentioned, and that it was made to appear that electricit}' could 
be used for the propulsion of street cars without preventing the free 
and safe use of the street by other means of transportation, the defend- 
ant would, by force of the statute under which it was organized, have 
a right to use electricit}' as its motive-power. But there is otlier legis- 
lation on this subject. Just a month prior, to the approval of the statute 
under which the defendant was organized, another statute was passed, 
which declares that an}' street railway compau}' in this State may use 
electric motors as the propelhng power of its cars instead of horses ; 
provided, it shall first obtain the consent of the proper municipal au- 
thority to use such motors. Rev. Sup. p. 369, § 30. . . . 

By the terms of the statute just construed, no street railway cor- 
poration can use electricit}' as its motive-power until it has obtained 
the consent of the proper municipal authority. The defendant has 
such consent. It was given by resolution adopted by the common 
council and approved by the mayor. The complainant contends that 



CHAP. VI.] HALSEY V. RAPID TRANSIT STREET RAILWAY CO. 1155 

consent cannot be given b}' resolution, and insists tliat the munici- 
pality, in such a matter, can only act by ordinance. But the rule, accord- 
ing to the adjudged cases, is firmly settled the other way, and may be 
stated as follows : Where a statute commits the decisio n of a matter 
t o the common council or other legislative body of a city, and is silen t 
as t o the method in which the decision shall be made, it may be made 
e ither by resolution or ordinance . Or — to state the rule in another 
form — w here no method is prescribed in which a municipality sh all 
e xercise its pow er, but it is left free to determine the method for itse lf, 
it may act either by resolution or ordinanc e. One meth od is just as 
ef fectual in point of law as the ot her. State v. Jersey City, 3 Dutch. 
493 ; City of Burlington v. Dennison, 13 Vr. 165 ; Butler v. Bassaic, 
15 Vr. 171. 

In view of the legislation and the action of the city authorities just 
discussed, it would seem to be clear, that the right of the defendant 
to use electricity as its motive-power stands, at least so far as the 
public are concerned, on a sure foundation. The poles and wires are 
to be used to apply electricity to the motors on the cars. They form a 
part of what is called the overhead system. In the present state of the 
art, they constitute a part of the best, if not the only means, by which 
electricity can be successfully used for street-car propulsion. The 
proof on this point is decisive. Thomas A. Edison is perhaps the 
highest authorit}' on this subject in this country. He saj's, in an affi- 
davit annexed to the defendant's answer, that the onl}' method of ap- 
plying electricit}' for street-car propulsion which, up to the present 
time, has proved successful, electrically and commercially, is what is 
known in the art as the OA'erhead system, whereby electricity is supplied 
to the motors on the cars from wires suspended above the cars. Other 
electricians sa}' the same thing. The proofs also show, that there 
are over two hundred electric street railways in the United States 
either in operation or in course of construction, and that of those in 
operation nearlj' all use the overhead system. That, according to the 
proofs, is the best system, and the one in general use, and the onl}- one 
which, as 3'et, has proved successful. The facts just stated are in no 
way controverted, so, as the proofs now stand, the cou rt is bound jto 
declare, as an established fact, that the pole s and wires m-p. in^^. 
p resent state of the electric art, necessaiy to the successful opera^B_ 
o f the defendant's railway by electricit y. The poles and wires are to 
be used as helps to the public in exercising their right of passage* ove r 
the street . They form part of the means by which a new power, to be 
used in the place of animal power, is to be supplied for the propulsion 
of street cars, and they have been placed in the street to facilitate its 
use as a public way and thus add to its utilit}' and convenience. 
The whole matter may be summed up in a single sentence : the poles 
an d wires have been placed in the street to aid the pubUc in exercis ing 
thei r" right of fre e passage o ver the stre et. That being so, it seems 
t o me to be clear beyond question, t hat the poles and wires do not im - 



1156 HALSEY V. RAPID TRANSIT STREET RAILWAY CO. [CHAP. VI. 

pose a new burden on the l and, but must, on th e contraiT, be r egai-ded, 
bot h in hiw and reason, as legitimate accessories to the use of the land 
for the very purposes for wh ich it was acquirech The.v are to be use d 
fo r the propulsion of street cars, and the rii^ht of the i)ubUc t o use the 
st reets by means of street ca rs, witho ut making compensation to th e 
ow ners of the naked fee in the stree t, is n ow so thoroughly settled a s 
t o be no longer open to deba te. ]t would seem then to be entirel}' 
certain, that tlic occupation of the street by the pole s and wires takes 
nothing from the complainant which the law reserved to the original 
pr oprietor when the public easement was acquired . Tliis view is in 
strict accord with the uniform current of judicial opinion on this sub- 
ject. The question presented here for judgment has alread}- been 
considered by the Supreme Court of Rhode Island in Taggart v. N'eio- 
j)ort Street Railway Co., 19 Atl. Rep. 326, and by the Circuit Court of 
the United States for the eastern district of Arkansas in Williams v. 
Citt/ Electric Street Railway Co., 41 Fed. Rep. 556, and h\ local 
coiui,s in Kentucky, Ohio, and Indiana, and in each instance the de- 
cision has been that the placing of the poles and wires in the street, 
for the purpose of propelling street cars b}' electricit}', did not impose 
a new servitude on the land, nor appropriate the land to a use not 
within the public easement. The decision in these cases was placed 
upon this manifestly just principle : that the question, whether a 
new method of using a street for public travel results in the impos i tion 
of an ad ditional burden on the land or not, must be determined b}' 
the use whi ch the new method makes of the street , and not by the 
motive-power w hich it emploj's in such use. The use is tlie test and 
no t the motive-pow er. And this principle exhibits, in a very clear 
light, the reason why it has been held that the p lacing of telegrap h and 
telephone poles in th e street imposes an additiona l servitude on the 
l and . The y are not placed in the street to aid the public in exercisin g 
t heir right of free passage, nor to facilitate the use of the street a s a 
public way, but to aid in the transmission of intelligence . Although 
our public highways have always been used for carrying the mails and 
for the promotion of other like means of communication, yet the use of 
th em for a like purpo se, by means of the teleg raph and telephone, 
differs so essentially, in every material respect, from th eir general ajid 
or dinarv uses, that the general current of judicial authority ha s declared a ij'' 
t hat it was not within the public easem ent. Massachusetts has, how- ^ , 
ever, by a divided court, held otherwise. Pierce v. Drew, 136 Mass. 
75. . . . 

T he poles and wires . . . are designed to facilitate the use of the stre ets 
as me ans of public passage, and thus increase their utility a nd coin-eni- 
en ce to the public. But I do not believe it is possible to imagine an}' 
condition of facts which would make it lawful to erect a building, to be 
used as a dwell ing, in a public way. Such use of the land would un- 
doubtedly be entirely foreign to the purposes for which it was acquired. 
T here can, however, be no doubt, I think, that erections ma^- be I a w- 



CHAP. VI.] HALSEY V. RAPID TRANSIT STREET RAILWAY CO, 1157 

fuUxmade in the stre ets of a city for the purpose of lighting them. 
T hey must be lighted tit night to make their use safe and co nvenient , 
and to prevent lawlessness and crime^ By the charter of Newark, power 
is o-iveu to its governing body, by express words, to light the streets, 
parks, and other public places. I have no doubt that m virtue of this 
power t he city has the r i ght to e rect poles in the street just wherethe 
poles in question a re. The poles i n question are in fact to be used for 
t he purpose of liahting the stree t. One of the conditions on w hich the 
cit y gave its consent to the erection of the p oles is, that the defendant 
shal l [)lace on everv other pole a group of five incandescent lights, of six - 
teen c n.ndle-power each, and furnish such light every nigh t. Thi s use 
of the p oles and wires would, in my judgment, legalize their erec^tioii, 
b iif, this is not their prim ary use. _ They were erected _[:)rimaril3:_and 
principall y to facilitate the use o f the street and add to its convenience 
as a publ ic way, an d it is upon this ground that I think iL should be 
declared that their presence in t he street invades no right of the 
complain ant . 

The averment that the use of electricity by the defendant, as its pro- 
pelling power, will render the street so extremely dangerous as practi- 
cally to desti'oy it as a public way for any other use than that which 
the defendant may make of it, is not supported by the proofs ; on the 
contrary, I think it is very clearly shown, that an electric current of the 
volume the defendant will use, may be used with entire safety to 
everybody. 

The complainant's application must be denied, with costs. ^ 



1 And so Patterson Ry. Co. v. Grundi/, 26 Atl. Rep. 788 (N. J. Ch. 1893 ) ; Taggart 
et al.v. Newp. St. R//. Co., 16 R. I. 668 (1890) ; Dean v. An?i Arbor St. Rij. Co., 93 
Mich. 330 (1892) 
Harv. Law Rev. 245 



; aff 'g Del. Ry. v. Mills, 85 Mich. 634 (1891 ). See Poles and Wires, 4 1 fin " -^ 
245; Keasbey, Electric Wires in Streets, cc. vi-xi. ; Randolph, Ein.\(Xf-^f^^^^ 
Dom. s. 403. ^ rCuQ/^^ 

In West Jersey Ri/. Co. v. Camden, cf-c. Ry. Co., 29 Atl. Rep. 423,424 (K .J., June, T^ 
1894), the court (McGill, Chancellor;, in dissolving an injunction, said : " The com- .J^AXAA'^^' ^ 
plainant seeks to sustain the injunction it has obtained as a protection against the j . ' AjtCff^ 
invasion of its property rights which, under the Constitution, cannot be appropriated by -^-'vvi''^ 
the street railway without authority of law, and upon compensation. The rights which ^/^Z , J{/\ a/^^ 
it deems to be threatened arise from its status, — first, as the owner of the fee of land ^ d A 

occupied by Cooper Street; and, second, as the owner of a steam railroad authorized (JjA <haxax. 
to cross that street. The ownership of the fee in the soil in the public street is sub- d^/^/2A/l(A^j 
ordinate to the public use thereof for the purposes of a highway. That use is an /"^ '. 

easement of passage by every one over the highway, and every part of it, by any^y^ aa^^^ \. 
means which will not substantially and permanently exclude any one from the '- . i 
enjoyment of that common right. The means by which such use is to be law- -^^/AA/UAM^^i^ 
fullv had cannot be particularly defined, because, as suggested by Vice-Chan- . Q n 

cellor Van Fleet, in Hahey v. Railioay Co., 47 N. J. Eq. 380, "20 Atl. 859, AA 0-^ ^^ 
they will be as numerous as the improvements of the age and new wants, arising , ^^ / 

out of an increase in population or an enlargement of business, may render neces- LAA^ /Mn*-'^ 
sary. It has been repeatedly decla red by the courts of this Sta te that th e use of ^ >»/ _j^^^ 
th e public easement of a highway by a horse railway is a la wful servitude, and (j -^ ' 
the refore is not a new burden of the soil for which compensation must be made ^ Lcctyt 
t o the ow ner, th e reason being that it is a convenient and beneficial means of p as- ' iT"^ U 
sage^ to the public which does not prevent the accustomed use of the highway by -pj^ VP-v^ 

IP > - ■ , . . . .1 n ^ ^ k . . /,K . . ..±-s 




IIALSEY V. RAPID TRANSIT STREET RAILWAY CO. [CIIAP. VI. 

other s. On the contrary, it so accoiiiinoilates and faoilitatcs that use that it more tha n 
co nipeusa t es for t lie sli,ixht inconvenit'iu H' that its ra ils and the necessity of permitt ing 
it to ha ve the riglit of way over orcl inury veliick's occasioit. It is a means of use whic h 
st ands iu marked distinction from the stoam railway (t hough the d ifference is only in 
degree), whose rai sed rails, noise, speed, and accompaujinjj danger lia\c li d tli(_o.iirts 
to dechire it to be incompalilile with the common use of tlie hi ghway, aji^l tlnn |..nan 
additional servitude, for which the owner of the soil must he comiJensated . Citizens' 
Coach Co. y. Camden Horse Jl. Co., 33 N. J. Eq. 2()7. The elect ric .stre et railway, as 
now ordinarily iu use, by cars patterned iu st3le and si/e after the horse railway car, 
stands, as a means of using the highway, iu degree, between the horse^^nd the stea m 
railways As in case of the horse railway, i ts rails do not mater ially i nterfere with 
t he ordinary use of the. highway . While its motiye-T)ower. as nsnallv'applied. exceeds 
in capacity that of the horse railway, a nd the noise and danger attending its operati oD 
are greater, the y do not e xtend to the power, noise, and danger of the steam locom o- 
tive, with its attendant train of ca rs. Its capacity for speed is great, hut that is sub ject 
t o municipal control . I do not now deal with the future possibilities of the elec- 
tric railway. It may readily be conceived that the greater motive-power it possesses 
may some time induce an attempt to use the highways by trains of cars, or by rails and 
cars of such character and size as to practically work all evils of the steam railway, 
and that there will be inaugurated systems of through cars, in furtherance of rapid tran- 
sit between distant points, which will crowd and burden the street to the inconvenience 
and obstruction of its other uses, without any accommodation to the ordinary local use 
of the street, and thus the degre e of incompatibility with the common use may be so 
r aised that the courts will be obliged to distinguish between methods of use , aud d e- 
clare agrainst some as creating an additional servitude of the land occupied by the 
high way, the crucial test for that dis tinction l)ein^ whether the use contem p lated is 
comp atible with the purpose for which the co m nion highw^ay \vas o rigin ally designed. 
But such use is not at present the normal operation of the electric .street railway, aud it 
is not claimed that any such abnormal conditions exist in the case under consideration. 
" Easing- their conclusions upon the contempla tion of the customary use of th e elec; 
t rie street railway, the courts have regarded that, as operated by the trolley system, i t 
i s not an additional burden upon the soil in the com mon hig hway . Ilulsey v. Railway 
Co., supra; Taggurt v. Railway Co., 16 R. I. 668, 19 Atl. 326 ; Railway Co. v. Mills, 85 
Mich. 634, 48 N. W. 1007; Lockltartv-. -Rmlway Co., 139 Pa. St. 419, 21 Atl. 26; 
Hudson River Tel. Co. v. Watervliet Turnpike and Ry. Co., 135 N. Y. 393, 407, 32 N. 
E. 148; Railway Co. v. Winslow, 3 0\\\o Cir. Ct. R. 425. The first cited of these 
cases is the utterance of this court. But it is a \vork of supererogation at this time 
to treat this question as more than an unset'tled and doubtful one. It is at least that. 
The p resent application is to dissolve a preliminary injunction which will n ot be Su L 
fered to stand in the protection of the complainant from a use of the street by t he 
d efendant which may or may not invade its pr operty rights. Unless the invasion be 
clear, the injunction must be dissolved. Citizens' Coach Co. v. Camden Horse R. Co., 
supra .• Hagerty v. Lee. 45 N. J. Eq. 255, 17 Atl. 826. 

" But it is nr.cred th at tbf> poh^s, planted within the curb lines of the sidewalk to 
support the overhead wires, are at least an invasion of private p ropert y. The side- 
walks are parts of the highway, subiect to the public easem_ent. They are set apart 
princip ally for use by pe destria ns. They are defined by the curb lines beyond which 
vehicles may not go, and at which, experience has taught, lamp, hitching, and awning 
jiosts, shade trees, and the like, may be planted without inconvenience either to pedes- 
trians or vehicles. At that place the lamp-post, which provides a means to light j;he 
hi ghway and thus facilitate its use, has not been rega rded as an additi onal burden 
upon the s oil, and , upon simil.ir consideration, it becomes difficult to perceive why t he 
poles.which accommodate a convenient use of the highway by a street railway are to 
be r egard ed differently. It is to be rememliered, however, that the abutting land-owner 
ordinarily has something more of property than the ownership of the mere fee of the 
soil in the sidewalk. By the laws and usages of the State the sidewalk has in a de- 
gree been regarded as an appendage to and a part of the premises abutting upon it, 
and as so essential to the beneficial use of such premises that its improvement is prop- 



CHAP. VI.] STREET RAILWAY CO. V. DOYLE. 1159 



JiAM cU<=d 



a_ 



STREET RAILWAY COMPANY v. DOYLE/ d , . 

Supreme Court of Tennessee. 1890. \ ^ /? ' ' 

\ XJA XM ck cAJUaaaa 
[88 re«n. 747.] \ _^ 

Appeal in error from Circuit Court of Shelb}' Count}', L. H. Estes, J. ' Q 

Tarley & Wright and Myers & Sneecl, for Street Railway Company. (Za^ cK aa-^l^^i 
JF. P. Edmonson and J. P. Houston, for Doyle. ^^PrVir h»ax2^ 

Caldwell, J. Action o f Doyle, an abuttin g lot-owner, to recov er ' i 

da mages from t he East End Street Railway Company f or the alleg ed ^^^-^^^ 
wrongfu l and unlaw ful construction and operation of its railway line ^ aJApi^^ 
along and upon the highway in front of his property. Verdict and • . 

judgment for plaintiff, and appeal in error by defendant. ^ /H^WliM 

On the trial below the defendant requested the trial judge to instruct , W^ U^ 
the jury as follows: "If the jur}' find that the defendant constructed ^ J 
its road through a part of the city to a point five miles into the country ,~-'^^^^ /C^vUx- 
in accordance with its contract with the city and county, road [its (/> yCtAmi x 
cars] being propelled by a steam motor, and used only for carrying , CI ^J 

passengers, stopping at street crossings to take on passengers, then ''^""^ 
the court charges you that its construction is not an additional servi- t^/ifw t^ ^ 
ttide upon the streets or public roads from that contemplated in the r~Aj/L 

dedication." OvViax'*^^ 

The court refused to give this instruction, and his action in that -t<-ii a^On ' 
behalf is assigned as error. ^jrw ^^^^^e^J 

This presents the question reserved in the Smith case (3 Pickle, /J , , 

633), namel}' : Whether a railway, whose cars are propelled by "a (/^c^^^'^ 
d ummv steam-engine," and used for passengers only, is a burden or ^ piu(A^ 
se rvitud e on th e public stree t or highw a}' in addition t o that contem - 0, // " 
p lated in t he original dedication of the land to public use . The reser- Vf) r^^iAA^<^ 

erly imposed upon the owner of the abutting land. Halsey v. Railwai/ Co., supra ; '^^ 
State V. Mayor, <f-c., 37 N. J. Law, 415 ; Weller v. McCormkk, 47 N. J. Law, 397, 1 CyiPiMA^^^^^' 
AtL 516. I t follows that if such improvem ent of the sidewalk, or constructions under ' 

it, which the land-o wner shall lawfully make in pursuance of h is duty to the pul)Hc,^-/,^,,j^ i^yiMJ^ 
or for his own private convenience, be expensive in character, so that subs tantial dam - 
age will result to him from th e planting of the trolley poles, a serious question will Ar^ ^^lAA-^^^ 
ar ise whe ther there will not be a taking of his property f or which he must be coin- ^// / 

p ensated, and a thre atened invasion sufficiently serious to induce this court's interfer- X/0 f^/U '^^^ 
ence. But that question is not presented in this case. It does not aj)pcar that th e ^ - 

c omplainant has improved the siilcw:ilk in front of its propertv so that tlie planting of 3XAjiAAA/^ 

riyi t he poles will substautially or se ridusly damage such improvement , or, indee d, that it , -«-> . 

, has improved them at all. ^\nother consideration borne in mind is that th e abutting vwwf^ 

pr opertv owner has the right of ingress to and egress from his property by means o f _£pt a-f (/Ui 
th e street in a maiiiur wbicli will accurd witli the lawful jnirjioscs to wliic li he dev otes ^ \) 

his propert v. and also t^ a roasnnaMy a\ailali]e wav thrnugli tlic liiglnvay Jo_tlie seve- nAAjjJ^ 

"^ 'tj r al stories of his building in case s of emergencies, like fire. H e also has the right t o 

l ight and air from the highway . And he cannot be deprived of either of the.se right Sf^^_^^^ ICwi 

^ «^ by the placing of poles or erection of wires without compensation b eing ma de to him. 
Railwai/ Co. v. Grundy, 51 N. J. Eq. 213, 223, 26 Atl. 788. No question touching 

it^ these rights is presented at this time." -Ed. ^^^^^ OV XXA^^V-^-1^ f^^Ji/U^ A ^i-^^^ 



QvX-AT \yik,^^i^ 



Aa>^ 



1160 STREET RAILWAY CO. V. DOYLE. 



[chap. VL 






vation was made in that case because t.hp pl nintiff Mi o rpin rlid not nwn 
t he ult imate fee in the street, and was not, therefore, in an attitude t o 
be affected by a decision of the questi on. For reasons stated in that 
case and in the Bingham case, to be liereafter cited, an abuttinsr la nd- 
t7(xcv\AA'v\>\ ow ner, whos e line is the side and not the centr e of the public highway, 









is not entitled to compensation for the imposition of an additional bur - 
de n on the ultimate fee. N ot ownintr the fee, he can justly claim no 
compensation f or its impairment by a new burden imposed upon it. 
T liat is a matter for the owner of the estate, out of which the publi c 
e asement was originally carved, and not for the abutting owner, w hose 
title-papers t ake him only to the side of the highway, as was tru e in 
the B ingham and Smith cas es. 

In the present case the p laintiff's lin e i s in the centre of the highway , 
and to that line he owns the ultimate fee ; that is, he has such owner- 
ship of the soil that he may resume absolute possession and dominion 
of it to the centre of the highway whenever the original use for which 
the highway was set apart shall be finally abandoned. 

The appropriation vested the public with onl}- such part of his fee- 
simple estate as was necessary' to the full enjo3ment of the use then 
in contemplation. C onsequently anything which dive rts the hi ghw ay 
^^^^y^itAr^ from th at use, or applies it to another or different use, is the impos ition 
of an a dditional burden on the reserved estate of the owner, and_con- 
s titutes a taking of his property', f o r which he may demand and recov er 
j ust compensati o n . 

So, then, the proposition contained in the request for special instruc- 
tion is a material one in this case, and should have been given or 
refused, as it may be sound or unsound in law. 

I t is well settled that an o rdinary steam or com mercial r ailway js. 
and that an o~rdinaryl^treet railway, operated with horses, is not a n 
a dditional servitude on the ultimate fee in the p jiM c street or h igliwav, 
th e form"er being a" new and different use, while the latter is but_an 
i mproved'and consistent mode of enjoying the original or ordinary use. 
Bingham. \. Railroad, 3 Pickle, 522; Smith v. Street BaUroad, lb., 
633, and authorities cited. 

The distinction between the use by the commercial railway and that 
by the horse railway is so wide and plain that it needs no further com- 
ment or illustration. 

Confessedly, t he railway involved in this case is on the line betwe en 
t he tw o — the equivalent of neither, but partakin g largely of the natu re 
of both. Like those upon the commercial railway, its cars are pro - 
|)e lled by a steam-engine, with its unavoidable smoke, noise, and vibra- 
liojij though in a less degre e ; and, like the horse -car line, it trans ports 
p assengers only , stopping at short intervals upon the highway to take 
th em on and let them off ^ whil e the commercial railway carries bo th 
passengers and other freight, receiving and discharging them at regul ar 
d epots farther ap art . 

The size, weight, and speed of appellant's trains (consisting usually 



[Vt^i-<. 






/UkA/cA, 



CHAP. VI.] 



STREET RAILWAY CO. V. DOYLE. 



1161 



of a small " boxed" engine and two coaches) are much less than those 
of the commercial railway trains ; but, at the sam e time, its trains are 
m uch larger, heavier, and more ra])id in transit than the ordinary horse- 
c ar. Alike, the commercial rail way and that opera ted by the appellant 
ai'e obvious hin drances to other modes of travel a nd traffic rightfully 
enjoyed upon th e public highway'; alike, they e ndanger the lives an d 
p roperty of individuals, for whom, in the aggregate, the original d edi- 
cation or condemna tion was made . There is a difference, it is true ; 
but the difference is in the degree and not in the kind of interruption 
and peril. 

From t.hft very nature of the case it is perfectly manifest to our min ds 
th at the presence of appellant's track and trains is(entirely inconsis tent 
wit hj_aiid a perpetual embarrassment to, the ordinary use of the p ublic 
highway. 

It is utterly impossible to operate such a railw a y with such trains 
wit hout greatly ob s tructing and rendering more dangerous ot her busi- 
ness, a nd travel usually seen and always allowable on a pub lic h ighwa}'.^ 

To the extent of this obstruction and this increase of danger by its 
appropriation of the highway for its own purposes, there is necessar ily 
a diversion from and inconsistency w ith the original use ; and to that 
extent the construction and operation of appellant's road is the impo - 
sition of a n additional servitude upon the ultimate fee of the owners o f 
th e soil in the public highw ay. 

This does not mean that the trains of appellant are to be banished 
as unauthorized by law, but simply that their presence and operation 
in th e public highway is an additional burden on th e ultimate fee, fo r 
w hich the owner is entitled to compensatio n. 

The charter from the State and conti*act with the city and county 
authorize the proper construction and use of this railway, but thej' do 
not purport to warrant the appropriation of the owner's property with- 
out paying him therefor. Even if such were their purport and intent, 
that could not alter the case, and would afford no sufficient answer to 
the plaintiff's demand, because the Constitution forbids the taking of 
private property for public use without just compensation. Constitu- 
tion, Art. I., Sec. 21. 

The instruction requested was properly refused. 

Counsel for appellant have called our attention to the case of Newell 
V. Minn. L. & M. Ry. Co., 35 Minn. 112 (s. c. 27 N. W. R. 839), 
which we find to be an authority for the proposition requested, and in 
conflict with the conclusion reached in this opinion. Not agreeing to 
the reasoning of that case, and the decision of a sister State being at 
most only persuasive authority, we prefer not to follow it. 

We have carefully considered the several other assignments of error. 
None of them are well taken. 

Let the judgment be affirmed.^ 



c^3a vv ^'«^- 

lAX^A [AM. 



1 Compare McQuaid v. Port!., ^-c. Rj/. Co., 18 Oreg. 237 (1889). —Ed. 



u^ /zA c /"^ . 



1162 sterling's appeal. [chap, vl 



\ 



^ ^In SterUn'/s Appeal, 111 Pa. 35, 40 (1885), where a Na tur al G as 

iXA LUX. C ompa ny was pro posing to lay i ts ])ip e3 under a countr y highway in 

aMiaA'^ o/ front of the appellant's land , the court (Sterrett, J.) said: " As own er 

(j /^ of the land traversed by the public road, he has a right to use it a nd 

/lo jo/yV^'^ t he land on which it is located for any purpose that will not impede o r 

J.. . in terfere with the public trave l. By appropriating land for the specific 

purpose of a common highwa}', the public acquires a mere right of pas- 

fp\/\AAM^M sage with the powers and privileges incident to such right. The fee 

' f A ^^^ remains in the land-owner notwithstanding the public have acquired 

^oAMA/'^ a right to the free and uninterrupted use of the road for the purpose of 

(jfjIjA .jr^ . passing and re-passing ; and he may use the land for his own purposes 

in an}' way that is not inconsistent with the public easement. He may , 

.^^ijM-^ for example, c onstruct underneath the surface passage-ways for wate r . 

^J.Jhj^ a nd other purposes, or appropriate the subjacent soil and minerals i f 

'^■^^'^ any, to any ' use he pleases, provided he does not interfere with the 

y\f\^J^^(^P^ r ights of the pub lic. In other words, the only servitude imposed on 

_u u th e land is the right of the public to construct and maintain thereon a 

- '^ Kc^^^^<\ s afe and co nvenient roadway, wh i ch shall at all times be free and ope n 

ft^ Cni'^-^^ - for pubUc use as a highway . It is in view of this servitude that dam- 

, ^ ages may be awarded to the land-owner. Laving and maintaining a 

i_(iAAK iMA^^ p ipe line, at the ordinary depth under the surface, necessarily impose s 

"btu AXA4i/l a n additional burden on the land, not contemplated either b}' the own er 

or by the public authorities, when the land was appropriated for t he 

Xt*t fr^n\ p urpose of a public roa d. I t is a burden, moreover, which to some 

e xtent, at least, abridges the rights of the land-owner in the soil tra- 

l f\Aj~(^ <y versed bv the road, and hence it is a taking within the meaning of the 

I 4/, )riMh-- constitutional provision requiring just c ompensation t o be made f or 

r (i property taken, injured, or destroyed . (Const. Art. XVI., sect. 8.) In 

V /XU./f^^/l' ^ome cases it is possible the injui'y ma}- be consequential as well as 

direct. The constitutional provision embraces both. 

^u/4 ~ {MMA " In Bloomfield & Rochester Natural Gas Light Co. v. Calkhis, 62 

{ J N. Y. 386, it was held that a corporation organized under an Act, sirai- 

, / lar to ours, authorizing the formation of gas-light companies, has no 

/ft/3 nJyp^ ' authority to lay its pipes in a country highway without the consent of 

' -f-j Z-r ^^ without the appraisal and paj-ment of compensation to the owner of 

\<HAX.(^ (T the land. There is no reason why this should not be the ru le with re- 

jL \iMA/p^f^ s pect to p ubl ic roads in the rural districts. As to streets and alleys 

, (j , » i n cities and boroughs, there are reasons why a dif ferent rule to som e 

V(\pMApU^ e xtent should prevail ; b ut that question is not now before u s.'^ 

>^^ /VM^ ^<>^ Hf ^ CL(pUi/W^^^^^f icK^A AATVU/A -Xc AtL ^tUA^^ 



CHAP. VI.] McDEVITT V. PEOPLE'S NATURAL GAS CO. 1163 



McDEVlTT V. PEOPLE'S NATURAL GAS COMPANY. 
Supreme Court of Pennsylvania. 1894. 



[2SAU.Rep.9.S.^ (,;f . bk ^ 

Appeal from Court of Common Pleas, Alleghany County. ... ^ ^z yfitp^ 

/S. Schoyer, Jr.^ and W. S. Miller^ for ajDpellauts. Geo. C. Wilson 
and F. M. Magee, for the appellee. ^{a. od "oJU 

Williams, J. The People's Natural Gas Company was incorporated , c 

under the Act of 1885 (P. L. 29), known as the " Natural Gas Act," -^-^^^"^ 
for the purpose of supplying natural gas to the citizens of Pittsburgh ^ aaxa>c>- 
for use as fuel. The city had given its permission to the company to a^'^-'^-j? •■'^^^ 
occupy the streets with its mains and service pipes, and had undertaken \J(,^ r^t>N^M^ 
to impose certain modes and restrictions upon it, in the manner of con- , 

ducting its business, that have since been held to be unauthorized by 
law, and therefore without force or effect. Pittsburgh's Appeal^ 115 -v< ^a.^^^ tl 
Pa. St. 4, 7 Atl. 778. Pending the litigation over this subject the com- j^/jrj. 
pany began laying its mains into the citj-, and in July, 1886, entered <j" 

upon Forbes Street, in the cit}', for that purpose. The appellees, who 
are the owners of lots on said street, then began proceedings by bill in 
equity to restrain the company from laying its gas main under the side- 
walk in front of their premises on Forbes Street. Relief was asked on 
two grounds : First, because the ordinances of the city of Pittsburgh 
had not been complied with by the compan}^ ; second, because the side- 
walks along the sides of the cartways were not within the meaning of 
the Act of 1885, and were no part of the highwa3's, but were private 
property', except for the purposes of passage by pedestrians. A pre- 
liminary injunction was granted, which was afterwards dissolved on 
condition that the company should execute a bond to indemnifj' the 
plaintiffs in that case for any loss they might sustain by reason of the 
laying of said main under the sidewalk in front of their premises. 
The bond was given, and the gas main laid. The plaintiffs then made 
application for the appointment of viewers to appraise the damages 
done to their propert}- by the laying of the main under the sidewalk. 
Viewers were appointed, and an appraisement of the damages was made 
by them, which was appealed from. On a trial before a jury a A-^erdict 
has been rendered against the company for a few cents less than $5,500, 
and the judgment entered thereon is now before us for review. . . . 

We are in a position, therefore, to enter unembarrassed upon a con- 
sideration of the subject brought to our attention by the first assign- 
ment of error. The Act of 1885 confers the right of eminent domain 
on companies formed for the transportation of natural gas. In the 
exercise of this right, they may enter upon private property, or upon 
public streets or highways. If the entry is upon private property, the 
company must try " to agree with the owner as to the damage properly 



1164 McDEVITT V. people's NATURAL GAS CO. [CHAP. VL 

payable for an easement in his or her propert}-, if such owner can be 
found and is sui juris." Failing to agree with the owner, the corpora- 
tion must tender him a bond to secure the payment of damages, and, 
if this is refused, must apply to the Court of Common Pleas of the 
proper county to approve the sufficienc}' of the bond. After this has 
been done, viewers may be appointed by the court to assess the dam- 
ages proper to be paid to the propert3-owner " for the easement appro- 
priated by the company." If the entr3' is upon a public street in a 
borough or citj', the corporation must first procure the consent of the 
municipality, expressed " by ordinance duly passed and approved." 
So long as the gas main follows the street, the entr}' upon and occupa- 
tion of the street is under the authority of the municipality. When- 
ever it leaves the street, and enters the private property of an individual, 
then the dut}' to negotiate with the owner arises, since entr}- upon and 
occupation of private property must be under authority derived from 
the owner. Forbes Street was a cit}' highwa}', and subject, like all 
other streets in a city, to urban servitudes ^ for the benefit of the public. 
In land taken for a highway in the countr}', the easement acquired by 
the public is onl}- for the purposes of a wa}' over the surface. For all 
other purposes the land ma}' be occupied by the owner, so long as the 
public easement is not disturbed. We accordingly held in Sterling^ 
Appeal., Ill Fa. St. 35, 2 Atl. 106, that the maintenance of a pipe line 
under such a highwa}' imposed an additional servitude upon the land. 
It ma}' be a verj' slight one, but to some extent it abridges the rights 
of the land-owner in the soil. Our Brother Stehrett said in that case : 
" As to streets and alleys in cities and boroughs, there are reasons why 
a different rule, to some extent, should prevail." These reasons are 
obvious. The necessity for drainage, for a water supply, for gas for 
purposes of lighting, for natural or fuel gas for heat, for subways for 
telegraph and other wires, and for other urban necessities or conveni- 
ences, gives to the municipalit}' a control over the subsurface that the 
township has not. Property in a cit}' is no less sacred than property in 
the country. The title of the owner is neither better nor worse because 
of the location of his land. But its situation may subject it to a greater 
servitude in favor of the public in a large, compactly built city than 
would be imposed upon it in the open countr}'. The city has the right 
to use the streets and allejs, to whatever depth below the surface it may 
be desirable to go, for sewers, gas and water mains, and an}' other urban 
uses. In taking the streets for these necessary or desirable purposes, 
it is acting, not for its own profit, but for the public good. It is the 

1 This phrase suggests, but has no real relation to the like expression in the Roman 
law. " The leading division of prredial servitudes in the civil law, but which appears to 
afford no practically useful distinction in the Enoflish law, is into urban and rustic 
servitudes, — the former including all servitudes relating to buildings wherever situ- 
ated ; the latter, all those relating to land uncovered by buildings, whether situated 
in town or country." — Gale on Easements {6th ed.), 22. Hunter, Roman Law (2d ed.), 
415, 419, gives the right of aquoe ductus as a rural servitude, and the right of passing 
a sewer through or below another's ground, as an urban servitude. — Ed. 



CHAP. VI.] McDEVITT V. PEOPLE'S NATURAL GAS CO. 1165 

representative of the inhabitants of the city, considering their health, 
their family comfort, and their business needs ; and every lot-owner 
shares in the benefits which such an appropriation of the streets and 
alleys confers. If the city abridges his control over the soil in and under 
the streets, it compensates him by making him a sharer in the public 
advantages that result from proper drainage, from an abundant water 
supply, from the general distribution of gas, and the like. The dis- 
turbance of the owner's control over the subsurface of the streets is, 
in a legal sense, an invasion of his rights, but it is damnum absque 
injuria. He has no right of action against the municipality therefor. 
Dill. Mun. Corp. §§ 691, 699 ; Ang. Highw. §§ 25, 312 ; p:iliott, Roads 
& S. 299 ; Lockhart v. Raihomj Co., 139 Pa. St. 123, 21 Atl. 26 ; 
Sterling's Appeal, supra. The use of the surface is not restricted to 
the modes of travel in common use when the street is opened, but such 
improved methods of travel as the public interest requires may be 
adopted, with the consent of municipality. In Mufferty v. Traction 
Co., 147 Pa. St. 579, 23 Atl. 884, we held that the operation of a street 
railway on a public street, when authorized by law, does not impose an 
additional servitude on the land, whether the railway compan}'^ employs 
horses as motive power, or a cable, or electricity. It is a legitimate 
use of the surface in aid of the public right of passage over the streets. 
The Act of 1885 declares the transportation and supply of natural gas 
to be a public use, confers upon the corporations organized under its 
provisions the right of eminent domain, and requires them to furnish 
natural gas to consumers along their lines, or within the districts sup- 
plied by them, respectively. The appellant was organized under the 
Act of 1885. It came to tlie city of Pittsburgh proposing to furnish 
its citizens with natural gas as a fuel. The city was then to judge 
whether such fuel was desirable, and whether its introduction would 
be a convenience to its citizens so great as to justify the occupancy of 
the public streets by its mains and service pipes. This question was 
decided in favor of the company, and permission was given to use the 
streets of the city as a means of reaching customers. Under this per- 
mission, it might lawfully enter upon the streets, as we have alread}' 
seen, to lay its pipes, without liability to lot-owners therefor. 

But it is contended that the sidewalks are not a part of the street, 
and that, in laying its pipes under the sidewalk, the gas company has 
entered private property by virtue of its power of eminent domain, and 
must treat with the owner for the damages it may have done. This con- 
tention cannot be sustained. The Act of 1847 gives to cities the power 
"to cause to be graded, paved or macadamized any public street, lane 
or alley or parts thereof which is now or may hereafter be laid out and 
opened in any of the said cities . . . and to regulate, grade, pave and 
re-pave, curb and re-curb, the said footways and sidewalks," and to 
make regulations concerning the deposit of lumber, building material, 
or other articles " on any of the said footways, sidewalks or other por- 
tions of the said streets or alleys." The street includes the whole of 



1166 McDEVITT V. TEOrLE'S NATL'IIAL GAS CO. [CIIAr. VI. 

the laud laid out for public use as a highwa}-. The city determines 
how much of it shall be devoted to a cartway, and how much to a foot- 
way, and regulates the grading and paving of both. The separation 
of one from the other by a line of curbing is for the security of that 
part of the public that passes along the streets on foot, and for no 
other purpose. The municipality has the same control over the side- 
walks that it has over the carriageways. lAvingston v. Wolf, 136 Pa. 
St. 533, 20 Atl. 551. The learned judge of the court below took the 
same view of this question, and affirmed the defendant's first point, 
which asked an instruction tliat the " defendants have the same right 
in the sidewalks as they would have in that portion of the street lying 
between the curbstones." The situation of the defendant under this 
ruling was precisely the same as it would have been had the gas main 
been laid under the cartwa}'. 

The defendant's second point asked the court to say that the lot- 
owners on Forbes Street had no rights in the street except such as 
were subservient to the public use, under the direction or sanction of 
the city, and that as the defendant's gas-main was laid for a public 
use, under the authoritj' of the Act of 1885, and with the consent of 
the municipal government, the lot-owners along Forbes Street were not 
entitled to recover damages for the use of the street. This point the 
learned judge refused. The logical result of this ruling is to put the 
rights of the lot-owner in the street in front of his premises above 
the rights of the public represented b}' the municipality. In other 
words, it puts the urban servitudes in a subservient position, and 
makes the imposition of each of them upon a cit}- street an additional 
servitude upon the land of the adjoining lot-owner, for which he has a 
right of action. This is not the law in this State, as is shown b}- the 
authorities already cited. As applicable to a country highway, it 
would be quite right, for under the general road laws the public ease- 
ment in such a highway is for passage over the surface onl}-. \ Land j 
taken for a street in a city is subjected to a very different easement, 
because of the sanitary and business needs of a city ; and the extent 
of the easement depends upon the municipal judgment as to the extent 
of occupancy necessary to subserve the health, the comfort, and con- 
venience of the citizens. E levated st ructures that interfere with the 
passage of light and air stand on different ground^ Jones v. Railroad 
Co., 151 Pa. St. 30, 25 Atl. 134. In this case no entry was made upon 
the close of the plaintiffs. The pipe is buried in the street, at a depth 
of four feet under the surface. Access to the plaintiff's property has 0-^ ■ 
not been affected. There is no physical change made in it, or in the , ^jt/^ 
street on which it fronts. If the lots are afl'ected in value, it is as a con- 
sequence of the pi-oximity of the gas line, and not because of an^'thing 
done to or upon them. Their remed}', under such circumstances, is by 
action, or upon the bond given to secure them against loss by reason 
of the dissolution of the injunction. It is not by the appointment of view- 
ers, and the proceeding provided by the Act of 1885 for the assessment 



'^ 



CHAP. VI.] MARCHANT V. PENNSYLVANIA EAILROAD CO. 1167 

of damages clone b}- an entry upon private property under the right of 
eminent domain. The 1st assignment of error is sustained ; also, the 
4th, 5th, 7th, 8th, and 9th assignments. 

The Judgment is reversed, and the order appointing viewers is 
set aside.^ 






MARCHANT v. PENNSYLVANIA RAILROAD CO. 
Supreme Court of Pennsylvania. 1894. 

[14 Sup. Court Rep. 894.] 

M. Hampton Todd, for plaintiff in error. A. H. Wintersteen, and 
Wayne 3IacVeagh, for defendant in error, 

Mr. Justice Shiras, after stating the facts in the foregoing lan- 
guage,^ delivered the opinion of the court. 

The Pennsylvania Railroad Company, a corporation under the laws 
of the State of Pennsylvania, and invested with the privilege of taking 
private property for its corporate use, erected in May, 1881, and has 
since maintained, a viaduct or elevated roadway and railroad thereon 
along the south side of Filbert Street in the city of Philadelphia. On 
the opposite or north side of Filbert Street the plaintiff below was the 
owner of a lot or parcel of land, whereon was erected a large four- 
story building, at that time occupied as a dwelling and business house. 
The elevated railway did not occupy any portion of the plaintiff's 
land, nor did it trench upon Filbert Street where it extends in front of 
the plaintiff's property, which is situated on Filbert between Seven- 
teenth and Eighteenth Streets ; but where the elevated road, in its 
course westward, reaches Twentieth Street, it trends to the north, and 
is supported over the cartway of Filbert Street by iron pillars having 
their foundations in that street inside the curb line, and thus extends 
westwardly to the Schuylkill River. Opposite the plaintiff's lot the 
railroad structure occupies land owned by the company. 

The plaintiff, by his action in the Court of Common Pleas, sought 
to recover for injuries caused to his property by the smoke, dust, noise, 
and vibration arising from the use of the engines and cars, the neces- 
sary consequence and incidents of the operations of a steam railway. 

The trial court refused the defendant's prayer that " the jury should 

1 Compare Kincaid v. Indiana Nat. Gas Co. et al., 124 Ind. 577, 579 (1890), in 
which it was held that, subject to the right of the public to pass and repasp, " the 
owner of the fee of a rural road retains all right and interest in it." The court 
(Elliott, J.) said: "There is an essential distinction between urban and suburban 
highways, and the rights of abutters are much more limited in the case of urban 
streets than they are in the case of suburban ways." See Randt)]ph, Em. Dom., ss. 401, 
413. —Ed. 

2 The statement of facts is omitted; they sufficiently appear in the opinion. — Ed. 



1168 MARCIIANT V. PENNSYLVANIA RAILROAD CO. [CHAP. VI. 

be instructed that the clefendaut, under its charter and supplements in 
evidence, liad full lawful authority to create and operate the Filbert 
Street extension or branch described in the declaration without incur- 
ring any liability by reason thereof for consequential damages to the 
property of the plaintiff, the uncontradicted evidence being that none 
of the said property was taken by the defendant, but that the entire 
width of Filbert Street intervenes between the railroad of the defend- 
ant and the nearest point thereto of the property of the plaintiff ; " 
and instructed the jury that the only question for them to determine 
was the amount of depreciation in value of the plaintiff's property 
caused by the operation of the railroad, and that in estimating the 
damages they should consider the value of the property before and its 
value after the injury was inflicted, and allow the difference. The 
plaintiff recovered a verdict and judgment. The judgment was re- 
versed by the Supreme Court of Penns3^1vania (13 Atl. 690), because 
of the action of the trial court in refusing to grant the defendant's 
prayer for instruction, and, in effect, because the plaintiff had no cause 
of action. By the specifications of error contained in this record we 
are asked to reverse the judgment of the Supreme Court of Pennsyl- 
vania because the plaintiff in error was thereby deprived of her prop- 
erty without compensation, because she was thereby deprived of the 
equal protection of the laws, and because she was thereby deprived of 
her property without due process of law. . . . 

The first proposition asserted by the plaintiff, that her private prop- 
erty has been taken from her without just compensation having been 
first made or secured, involves certain questions of fact. Was the 
plaintiff the owner of private property, and was such property taken, 
injured, or destroyed by a corporation invested with the privilege of 
taking private property for public use? The title of the plaintiff to the 
property affected was not disputed, nor that the railro:id company was 
a corporation invested with the privilege of taking private property 
for public use. But it was adjudged by the Supreme Court of Penn- 
sylvania that the acts of the defendant which were complained of did 
not, under the laws and Constitution of that State, constitute a taking, 
an injury, or a destruction of the plaintiffs property. 

We are not authorized to inquire into the grounds and reasons upon 
which the Supreme Court of Pennsylvania proceeded in its construc- 
tion of the statutes and Constitution of that State, and, if this record 
presented no other question except errors alleged to have been com- 
mitted by that court in its construction of its domestic laws, we should 
be obliged to hold, as has been often held in like cases, that we have 
no jurisdiction to review the judgment of the State Court, and we 
should have to dismiss this writ of error for that reason. 

But we are urged to sustain and exercise our jurisdiction in this 
case, because it is said that the plaintiff's propert}' was taken " with- 
out due process of law," and because the plaintitf was denied "the 
equal protection of the laws," and these propositions are said to pre- 



CHAP. VI.] MARCHANT V. PENNSYLVANIA RAILROAD CO. 1169 

sent Federal questious arising under the Fourteenth Amendment of 
the Constitution of the United States, to which our jurisdiction extends. 

It is sutficient for us in the present case to say that, even if the 
plaintiff could be regarded as having been deprived of her property, 
the proceedings that so resulted were in " due process of law." 

The plaintiff below had the benefit of a full and fair trial in the 
several courts of her own State, whose jurisdiction was invoked by her- 
self. In those courts her rights were measured, not by laws made to 
aff'ect her individually, but by general provisions of law applicable to 
all those in like condition. . . . 

The plaintiff in error further contends that by the proceedings in 
the courts of Pennsylvania slie was denied the equal protection of the 
laws. We understand this proposition to be based on the allegation 
that those suitors whose property abutted on Filbert Street between the 
Schuylkill River and Twentieth Street, where the elevated road actually 
occupies the territory of Filbert Street, were allowed by the Pennsyl- 
vania courts to recover damages for the injury thus occasioned to their 
property, while the plaintiff, and those in like case, whose property 
abutted on Filbert Street where it was not occupied by the railroad 
structure, which was erected on the opposite side of the street, on 
land belonging to the railroad company, were not permitted to recover. 
The diversity' of result in the two classes of cases is supposed to show 
that equal protection of the laws was not afforded to the unsuccessful 
litigants. It is not clear that the facts are so presented as to author- 
ize us to consider this question. Neither in the plaintiff's declaration, 
in the instructions prayed for, nor in the charge of the trial court, do 
we perceive any finding or admission that there were suitors, holding 
property abutting on Filbert Street, who were held entitled to recover 
for damages occasioned by the elevated railroad. However, the third 
assignment of error is as follows : " The Supreme Court of Pennsyl- 
vania erred in deciding that the present cause was different in principle 
from the case of liailroad Co. v. Duncan, 111 Pa. St. 352, 5 Atl. 742, 
and Railroad Co. v. Miller, 132 U. S. 75, 10 Sup. Ct. 34. The effect 
of said decision is that, under the same constitutional guaranties, it gives 
to one person a right to compensation for property damaged by the 
defendant in the exercise of its power of eminent domain, and denies 
it to another ; and as, in this instance, the decision is against the 
plaintiff's right to compensation for the injury to her property by the 
defendant, she is thereby deprived of the equal protection of the laws." 
The counsel of defendant in error, in their printed brief, make no 
point that the facts are not shown by this record, but discuss the 
question on its merits. We are referred in the printed briefs to our 
own case of Railroad Co. v. Miller, 132 U. S. 76, 10 Sup. Ct. 34, in 
the report of which it appears that one Duncan, whose property abut- 
ted on Filbert Street, where that street was occupied by the elevated 
railroad in question, was permitted by the State courts to recover for 
VOL. I. —74 



1170 NEWBY V. PLATTE COUNTY. [CHAP, VI. 

damages suffered by having been deprived of access to, and the free 
use of, Filbert Street. 

Conceding, for the sake of the argument, that the facts are as 
alleged by the plaintiff in error, we are unable to see any merit in the 
contention that the Supreme Court of Pennsylvania, in distinguishing 
between the case of those who, like Duncan, were shut off from access 
to and use of the street by the construction thereon of the elevated 
railroad, and the case of those who suffered, not from the construction 
of the railroad on the street on which their property abutted, but 
from the injuries consequential on the operation of the railroad, as 
situated on defendant's own property, thereby deprived the plaintiff of 
the equal protection of the laws. The two classes of complainants 
differed in the critical particular that one class suffered direct and im- 
mediate damage from the construction of the railroad in such a way as 
to exclude them from the use of their accustomed highway, and the 
other class suffered damages which were consequential on the use by 
the defendant company of their franchise on their own property. . . . 

It should also be observed that the plaintiff does not complain that, 
by any legislative enactment, she has been denied rights granted to 
others, but she attributes error to the judgment of the Supreme Court 
of Pennsylvania in construing that provision of the Constitution of the 
State which gives a remedy for property injured by the construction of 
a railroad, as not extending the remedy to embrace property injured 
by the lawful operation of the railroad. It is not pretended that by 
such a construction of the law the plaintiff has been deprived of any 
right previously enjoyed. The scope of the remedy added by the Con- 
stitution of 1874 to those previously possessed by persons whose prop- 
erty is affected by the erection of a public work is declared by the 
court not to embrace the case of damages purely consequential. 

In so holding it does not appear to us that the Supreme Court of 
Pennsylvania has either deprived the plaintiff of property without due ■ 
process of law, or denied her the equal protection of the law, and its ,, ^>^ 
judgment is accordingly affirmed. ' '^ 







^jCiaJ^-^^"] ^^ '^^"^ NEWBY v. PLATTE COUNTY. /' <^\ 
'tldi/KreL^ juAuy^/^^ Supreme Court of Missouri. 1857. ^ 

JidLoAJi that tuA ^^ .AA/^O- [25 Mo. 258.1] 

^j(jjtJU.d k^ P. Ji. Hayden, for appellant. 

txJjudi ^ ^^ ^' Newby was entitled in damages to the full value of his land appro- 

1^ r priated and taken for the road, and the Ci>urt in the assessment thereof 

x^^A'AAW^A ^^^ ^^ ^.^j^^ ^^ ^^^^ .^^^ consideration the probable or incidental 

I --- .,/) 1 This case contains nowhere any statement of facts. — Ed. 



CHAP. VI.] NEWBY V. PLATTE COUNTY. 1171 Icicii ^f^ 

advantages which might or should accrue to Newby from the road in its ^ ' f •*. 

enhancement of the value of his adjacent lands. (See Constitution of ""^^ ^Iv^ 
Missouri, article 13, section 7 ; 5 Dana, 32 ; 7 Dana, 87 ; 9 Dana, 114.) fi-f Hu^^a^^xm. 
Leonard, J., delivered the opinion of the court. . . . The 17th section T ^^^^.cxjU^ 
of the 2d article of the general road law of 1845 (R. C. 1846, p. 974) ' ^v^ 

provides that, in assessing the land-owner's damages, tlie commis - ^Z'-^-^'*'^' 
sioners '■'• shall take into consideration the advantage s as well as th e ~A^^i:^ ^a^la^ 
dis.idvantage s of the road to such persons." The present road was _j/ /— J&^ ^ 
authorized to be established as a State road b}' the special Act of the ^^ - 

7th Februar}^ 1849, and the proceedings for this purpose are directed ^j'^-^MnA. l^ 
to be according to the general road law of 1845, and the amendatory CK AA--^'-^-*^^ 
Act of the 25th of January, 1847. On an appeal from the County Court, / , ^^^^, 
the plaintiff's damages as a land-owner were assessed in the Cn-cuit Court , 

by the court in lieu of a jury, on an agreed statement of the facts, and ~t^ XJ./vcTTit^ 
the Cir cuit Court, when applied to for that purpose, refused to declare - ^^jf-j "h t^ 
t hat the plaintiff " was entitled to the value of the land taken for_the -f- it-P a/ 

r oad, and that t he advanta ges o f the road to him could not be set off ■'^^^^'^ [) . 
a gainst his claim for the value of the land," and decided that the plain- y,^^ /h'^/r 
t iff was not entitled to any money compensation for the land taken fo r / JJ -l- -^ 
the public use ; and thus the validit}^ of the statute provision to which ' ''^■'^^ ^ 
we have referred is submitted to our judgment by the present proceed- y(j-€M-*y^r^ ^ 
ings. If the State government possessed no authorit}' over private Cc^^^t^^^ ■'^^^ 
property except that of taking it for the public use upon rendering the t - Lyi 
owner a just compensation, it would seem that, under this provision, '^ 

the owner would be entitled to the full monej' value of his property "t^M. /W~^ 
without any deduction. The rule of constitutional law being that jfj' /^-^u^) 
private property cannot be taken for public use, bj' the authority of the ^ ^ . , 
legislature, without a just compensation, it follows that w hat is to be KT^X (M^ 
c onsidered as compensation within the meaning of the clause is a ques- :;(^^ /ttT^^ 
ti nn of law for the courts, and not a matter for the legislature ; an d, XriJUX^ 

u nder such a constitution as we have supposed, with no ot h er powe r ^ L ' 

o ver private property than that of taking it for the public use up on -^^^M fi^^ 
making the owner a lust compensation , it would be quite beyond th e ,. Ayt^t^ 

s cope of the legislative authority to declare that the benefit derived b y A 

uoe lan d-owner from the road is the just compensation secured by th e /{, OA^d (Ti^ 
Constituti on. If the provision were that the owner should be indemnified ^y,, [/(Xi 
against the act complained of, it might be insisted, that, in ascertaining . - w oy 
the extent of the damages sustained, the advantages as well as the dis- caAA^^^-^ ^ 
advantages resulting from the act must be taken into consideration ; j^ ^e/t-^t^e^' 
and this seems to be the view taken of the subject by the Supreme If,_f^^i/Af{/t^ 
Court of Ohio, in Simonds and others against Cincinnati (14 Ohio, y ^ ^^ 
174), ander the Constitution of tliat State, which expressly requires the -''^^^^^ ' ^ 

compensation to be made in " money." But that is not the language ytt/l'^'^'^^ 
nor the scope of the provision. The declaration of the Constitution is, vf^j^AA. -^'^'^ 
tuat no private propertj' ought to be taken or applied to public use i i/t- H 
without a just compensation ; and this would seem to imply that the / . _^ 

party should receive the value of his property in money. The transac- ^^'^-'^'^^ 



I 






r 



n/L 






^ h^-^TiAjt^ -,4^ 



1172 



NEWBY V. PLATTE COUNTY. 



[chap. VI. 






tion is a forced sale to the public, and the Constitution in this provision 
secures to the owner the just price of his property as the only condition 
upon which he can be lawfully deprived of it. 

Tli e government, however ^ possesses other i)Ow ers over priva te 

pr oper ty beside the rjojit o f eminent doma in ; a nd if in the exercise of 

tliP tnving pnyvpi-j t he government may lawfall}' require the adjacent 

l and-owners to contribute towards paying; for the right of way in p ro- 

u c<.4A^^ p ortion to the benefit each will derive from the road, the present enac t- 

>_ p-(i ~t ment, so far as it directs the advantages of the road to be deducted 

^ f rom the price of the land, mu st perhaps be considered as an exerc ise 

-clAA^ of the taxing power. This law is, indeed, n othing more in effect tha n 

M/"^^^ th e exercise of both powers of government in the same breath — that of 

rOCi^^ ta king the land by the right of eminent domain, and of requiring, under 

Q/ 1-h^ t he taxing power, th e adjacent land-owners to contribute to the cost of 

^^^^*^ i t in proportion to the benefit each will derive from the ro ad. We have 

j yDyiA*^- ^" instance of express legislation of tliis character in the St. Louis 






^A. 



Charter Amendment Act of the 23d of February, 1853, where it is pro- 
vided that when it shall become necessar}', in order to improve any 
street, &c., to take private property, the jury shall first ascertain the 
value of all the ground proposed to be taken, and then assess against 
,^0-^'^ the city, for the payment of this debt, a sum equal to the value of the 
improvement to the general public ; and the balance of the mone}' 
necessar\' to pay for the ground the}' shall assess against the owners of 
the lots fronting on the streets according to the value of their lots, and 
in the proportion that they will be respectively benefited by the improve- 
ment. Under this Act, and the ordinance passed to carry it into execu- 
tion, when the whole lot is taken, the owner receives the whole value of 
it in money ; but when part only is taken, the value of the part taken 
V^aAXi^^-^^" ^"^^ ^'^^ amount of benefit the owner will derive from the improvement 
I , of the street in respect to the residue of his lot are assessed separatel}', 

T_ -pXA^i-^vc . ^^^ ^^^^ being set off against the other, the owner receives or pa3-s the 
balance as it turns out to be for or against him.( Under the St. Louis 
Act, the city pays toward the cost of the ground a sum equal to 
;(r!cA>J^'*-^ the value of the improvement to the city generally, and the residue of 
,, the cost is apportioned among the adjacent lot-owners in proportion to 

>-»-^-'\5^^^ I the benefit derived respectively from the improvement.N Under the pro - 
. v isions of the general road law, the adjacent land-owners i)ay toward s 
th e cost of the right of way the value of the improvement to themselve s 

— not exceeding, however, the value of the lan d t aken from th em 

r espectively , — l eaving the balance of the cost to be paid by the count y. 
Under the St. Louis Act, the sums to be paid b}- and to the adjacent 
_. I L iot-owners are assessed separate!}-, and when part onl}' of a proprietor's 

vA'^y^^^^^ lot is taken, one amount is set off against the other, and the balance 
lAj/c- only is settled in money. Under the road law, the benefit is in ever}- 
case deducted from the value of the land taken, and the balance only is 
y^^<^^~\ formally ascertained and declared ; thus what is formally gone through 

o-^- "with under tlie St. Louis Act, step by step, is done substantially at one 







■r 



v«JV:iX/^^ 



(v_ *-«^^_e. 



U. 









CK. 



Apf^ 







HaXm , 



CHAP. VI.] NEWBY V. PLATTE COUNTY. 1173 t' 

/2ur A^'Ui: 

blow under the road law. In both cases the legislature exef-cises the yx^ct-^ ^^ 
same power over private property-, and no other ; and although in one J? ^ ^>yvt 
case the language employed has a more direct reference to the taxing , _. 

power than in the other, we are not at liberty, we think, on that account " f^^^*-'^'^ 
to treat the provision in one act as a prohibited invasion of private /(^-<. SL^ 
propertj', and to give effect to it in the other as an exercise of a lawful ^ Lz/vui 
power. If the legislature may, undei^the taxing power, lawfully require ^-'^^ j5~^ 
the co ntribution, and if this provision in the road law be substantiall y i-^^ Ar^^^^^ 
fj uch a cftquisition, as we think it is, we are not at liberty to treat it as a 
nullity, but must give effect to it accordingl y. In a case now before us 
at St. Louis (Garrett v. St. Louis), under the St. Louis Act before 
referred to, part of the plaintiff's lot was taken for the improvement of 
Main Street, and he insists upon being paid the whole assessed value of 
the part taken, without any deduction on account of the assessment 
against him for benefits in respect to the residue of his ground ; and the 
question there is as to the validity of what is in that case express taxa- 
tion for a local object, — while in the present case it is as to the validity 
of what is, in effect, though not in words, a like assessment for a like 
purpose. 

In_both ca ses the only que stion, as it appears to us, is as to the com- 
p etency of the legislature to require the adjacent lan d-owners to contri- 
b ute towards the cost of the ground for a road or street, in proporti on 
to the benefit ; or, Jo sta te the proposition in more general t erms, it is as 
t o the constitutional validity of taxes imposed by a subordinate authority 
in t he State upon an arbitrary dis trict of country, in proportion, not tolhe 
v alue of the proper ty, b ut to the benefit to be derivecr by the owner^'om 
the improveme nt. 

Upon this question we begin by remarking that the power of taxation, 
as the more subordinate power of taking private property for the use of 
the public, without an}' reference to the owner's duty to contribute to a 
common burden, exist and are exercised of necessity in every nation as 
legitimate powers of civil government, and appertain to our State gov- 
ernment as part of the legislative power, without any express grant for 
that purpose. The right of eminent domain is, in its nature, capable of 
being limited and regulated in some degree b}' general rules, and has 
accordingly, as we have already remarked, been confined in all civilized 
States by the practice of government, and in our American republics by 
express constitutional provision, to cases of public necessity and con- 
venience, on the payment to the owner of a just compensation. Bqt 
t he power of taxation is more indefinite in its character, and less cai)ab le 
of limitation by general rules of law , — the a mount of money to be 
r aised, a n d to what purpose it shall be applied, and the persons an d 
th ings that shall contribute to it and according to what rule o f appo r- 
t ionment, are all matters left almost of necessity t o the d is cretion of 
the legislative department , — the only express limitations in our Con - 
s titution upon the taxing power being that ''all property subje ct to 
ta xation shall be taxed in proportion to its value," and the pro hi- 



1174 NEWBY V. TLATTE COUNTY. [CIIAP. VI. 

bitioii against taxing the lands of non-residents liigber than residents' 
lands. 

The validity of the enactment now under consideration, c onsidered 
as _an ex ercise of the taxing power, is not questioned ui)on the ground 
of its bein g a local tax. There are everywhere, in all civilized States, 
two sorts of public expenditure, — those that concern the whole State in 
general, and tliose that are confined to its civil subdivisions and lesser 
localities, and both justice and convenience require, and have accord- 
ingly introduced into the practice of all governments, corresponding 
general and local taxation. (Domat, Pub. Law Book, I., tit. 5, sees. 1 
and 5.) Our own [)ractice , corresponding with the general practice of 
the other States, has been to meet the general burdens by genera l 
t axation, and to m ake it the dut y of t he local authorities to raise and 
e xpend within their respective limits, under such restriction s as the 
l egislature should deem i3roper, the taxes applicable to the local j)ublic 
service . The manifest equit}' and convenience of these local assess- 
ments, for the accomplishment of local purposes, has brought them 
more and more into general use, confining them, in verj- many instances, 
to very small localities ; and no one now questions their validity, 
although at an early day the constitutional validity of taxation levied 
by subordinate tribunals was questioned, on the ground that it was 
levied without the consent of the people or their representatives ; or, in 
other words, that it was an exercise of the legislative power of taxation 
which it was not competent for the legislature to delegate to others. 
(County Levj' Case, 5 Call, 139.) That objection, however, was over- 
ruled in the case in which it was made, and has never been regarded in 
American legislation. 

The objections_that have sin ce been relied upon to these localassess- 
m ents for local improvements are that it is not ^ legitimate taxation, " 
an d th a t in this State, under our Constitution , they are not valid as 
t axes , becau se they are apportioned according to the ben efit an d not 
acc ording to the value of the property as required by the Constitution . 
The position assumed is that 'legitimate taxation is limited to th e 
imposing of burdens or charges for a public purpose equally upon th e 
p ersons or property within a district known and recognized by law a s 
p ossessing a local sovereign ty, for certain purposes, as a State, county , 
cit y, town, villag-e. & c. ; " and consequently road and street and other 
similar assessments for local improvements are no other than the taking 
of private property, under color of the taxing power, without providing 
the compensation required by the Constitution. This idea, it is believed, 
was first formally announced in New York, in the case of The Peoplex. 
Mayor of Brooklyn, 6 Barb. 216, and is said to have originated in 
the Court of Appeals of Kentucky, in the case of Sutton's Heirs v. City 
of Louisville (5 Dana, 28). The New York case was an assessment 
on a lot-owner in proportion to the benefit for the purpose of build- 
ing a sewer, and the Kentuck}' case was a similar assessment for the 
extension of a street, and both assessments were decided to be uncon- 



1 



/ 



>^- 



CHAP. VI.] NEWBY V. PLATTE COUNTY. 1175 

stitutioual, as not being legitimate exercises of the taxing power. Tlie 
New York case, liowever, was reversed ou appeal, in the Court of 
Appeals (4 Comst. 428), and the doctrine itself seems to have been 
subsequently abandoned in effect in Kentucky, in the case of the Cit}/ of 
Lexington v. McMillauCs Heirs ^ 9 Dana, 513, by the same court, com- 
posed of the same judges, in which it originated. In the latter case, 
Lexington was authorized by its charter to cause the streets to be 
paved at the expense of the lot-owners in each square, either upon the 
application of the greater part of them, or without such application by 
the unanimous consent of the mayor and council; and one question 
being as to the validit}' of an assessment that had been made pursuant 
to an ordinance passed with the required unanimity, the court held it 
valid, suggesting that each square might be considered an independent 
A^raunicipality for this purpose. Upon principle, there is nothing, we 
^ think, in the objection. 

I n distinouisliing taxation fro m the taking of private property und er 
t he right of eminent domai n, it has been well observed that t axation 
% exacts p roperty fi'om individual s as th eir respective shares of contribu- 
t ion to a public burden . Private property taken by the right of eminent 
do main is not taken as the owner'8 share of such a contribution, but as 
so mu ch beyond it. Taxation operates upon a class of persons o r 
t hings, and by some rule of apport ionment. The exercise of the righ t 
o ^ eminent domain operates upon individual persons or things, an d 
without any reference to what is exacted from othe rs. The present tax . 
if we may consider it as one, o perates upon a class o f persons, — the 
ow ners of^the seyerajjtracts of land over which the road passes, — is 
a ssesse d ji gainst . them in . proportion to the benefit eac h,derTves.froni_the 
i mprovement, and is exacted from them as their respec tive shares of 
c ontribution to the establishment of the road . We maj^ remark, too, 
that taxation of this character has prevailed too long and too exten- 
sively to be treated as illegitimate, or denounced as legislative spoliation 
under the guise of the taxing power. It prevailed in England several 
centuries ago ; and the assessments made there by the commissioners 
of sewers on the lands affected by their operations was taxation of this 
character. (28 Hen. VIII., chap. 5, sec. 5.) In Massachusetts, from 
an early period, meadows, swamps, and lowlands were required to 
be assessed among the proprietors to pay the expense of draining them 
(Rev. Stat, of Mass. p. 673), and in Connecticut the same power was 
given to commissioners for draining marshy lands (Conn. Stat. ed. 
1839, p. 544). It is said by the judge, who delivered the opinion of the 
Court of Appeals in the Brooklyn case before referred to, that the system 
of local taxation for local improvements, by assessing the burden 
according to the benefit, had prevailed for more than one hundred and 
fifty years, and that this power was given to the corporation of Xew 
York in 1691, and had since been conferred on nearly every cit}' and on 
many of the villages of the State. We are informed in the opinion of the 
Supreme Court of Kentuck}-, in the Lexington case before referred to, 



1176 NEWBY V. PLATTE COUNTY. [cHAP. VI. 

that the assessmen t of benefits for the improvement of st reets had been 
sanctione d as constitutional in Louisiana, Sojjth Car olina, a n d Penn- 
syhiania i h ad beeg virtually recognized by the courts in New Y_OLk 
a nd ]\r.assa(ihusetts . a nd had never been declared unconstitutiona l by 
agy^coartf so far as they had been able to asce rtain ; and we may our- 
selves remark tliat shnilar taxation is autho rized by law in New Jersey , 
Marj'land, Virginia, Ohio, and Indiana, and either acquiesced in by these 
communities or adju dged valid by th eir courts. Fi nallv, the validity o f 
l ocal assessments of this cha racter waji coiisidered and affirme d in this 
p.onrt nt our last St. Louis fall terra, in the case of Lockioood v. The 
City of St. Louis., 24 -Mo. 20 , where the assessme nt was to cons truct a \ ) v 
co mmon sewer, and was levied on all the lots in an arbitrar}- dis trict, — \ J^V 
l aid off by the corporation fo r the purpose of co nstructing the sew er, ""vi^ \j 
. . . But, although we concur with the Circuit Court in thinking this 
section of the road law constitutional, yet the judgment must be ^^ 
reversed upon another ground. The only facts agreed between the 



fVJ 



y J 



/. 



\^ 



_^ — ^ — — — ^ — „^ — . — 

parties, and upon which the decision was pronounced, were, that the v yf ^ 
road ran " through the plaintiff's land one hundred and twenty-two ^ d- 
poles, and occupied one and one-half acres ofground, worth fifteen r ^ 
dollars per acre ; " but it was not admitted that the road was any benefit ^ \, 
to the party, and the court, we think, could not infer this as a matter of '^. v}- 
law from the agreed facts, and pronounce against allowing the plaintiff vl^ ^ 
any compensation for the property of which he was deprived. 

As to the proper rule by which to compute the benefits in cases of iJ 
this character, it may not be improper, as the case is to be remanded 
for further proceedings, to remark that the Supreme Court of Massachu- 
setts, in the case of Meacham v. The Fitchburg Railroad Co., 4 Cush. 
392, declared that the ben efits to b e charged against the adjacent land - 
owne rs and deducted from the compensation to be paid to them were ^ j 
the direct and peculiar bene fits that would result to them i n pa,rticular,- ^ 
and not the general benefit th at they would derive in common with othe r ^, i 
l and-owners from the building of the road ; and this seems to be sub - ^ 
s tantially the principle adopted by our own legislature as just and eg[ui- '' 
t able in the St. Louis Street Improvement Act before referred to, ajid 
ou ght p erhaps t o be followed in the con struction of this provision of the 
road la w. In reference to the disadvantages, it is to be observed that 
t he Constitution only secures to the owner the price of his property , 
b ut it is competent for the legislature to go beyond this, and not onl y 
pa y him the value of his proper ty, bu t also indemnify him again st any 
d amage that will result to him from the use to which it is to be applied ; 
a nd this they have effected by requ iring the disadvant ages a s well as 
t he adva ntages to be taken into consideration in the assessment of the 
damages . Judge Ryland concurring, the judgment is reversed, and 
the cause remanded. 

Scott, J., dissenting. I dissent from so much of the opinion of the 
majority of the court as maintains that, in the computation of the dam- 
ages to be paid to the owner of the property taken for public use, regard 



CHAP. VI.] WAGNER V. GAGE COUNTY. 1177 

must be had to the advantages and disadvantages resulting to such 
owner Irom the use to which the property may be applied. 'rhe_ value 
in cash of the thing taken, considering its place and situation, is the 
c ompensation contemplated by the Constitution to which the owner, a s 
such, is entitled . The legislature may compensate disadvantages wi th 
advantages, but t he value of the property taken must be paid for i n 
money . ^ \~ 



In Waaner v. Gane County , 3 Neb. 237 (1874), on appeal from th e , . j, 
a ward of commissioners to assess damages fr o m the laying out o f a --a^^^>-^^ 
r oad. It appeared that the presiding judge below had instructed the Qj^ys/vJUx^P- 
jury as follows : — , ^ \j{f^ 

" In your consideration of the evidence, you will not take into con- IMA\ ^ ^^ 

sideration any consequential damages that might possibly occur by CKyy^jij.^ Vr* 

reason of the location of such road, nor what might be consequential d , l^J^ 

costs of erecting fences ; but the measure of damages is the differenc e ~tM I't^^'^-''^ 

b etween the market value of the premises immediately before the (/j^Xjju^/vA W 

road was located, and the market value thereof immediately after its 

■ — T- — YwMX. OuaaX 

locatio n. (^ 

The jury found a verdict for the defendant; whereupon the plaintiff c^a^v^ A-ex^A- 
filed a motion for a new trial, which being overruled by the court, i^+- 

judgment was rendered on the verdict. To reverse this judgment the yVo^AjJjj^^AA^ V 
cause was brought to this court by petition in error. , rt ^ 

N. K. Griggs and W. H. Asliby, for plaintiff in error. 8. C. B. ^^ ^AMAAA 
Deem and W. J. Galhraith, for defendant m error. il^ JUuvjsAA^ 

Maxwell, J. Section thirteen of the bill of rights in our Constitu- 
tion declares that ' ' the property of no person shall be taken for the a/<^ ^.^r^wv^ 
public use without just compensation thei'efor ; " and that section is j^^j.^)d^ wyij 
only declaratory of the common law. ... Jl \)c iLLc 

Our statutes (General Statutes, 955) provide the mode of locating '^ ^^ ^^ 
new roads, and section twenty-four of the chapter provides for Qoxix-^ jJ;:;^jjjo\^ H \ 
pensation to the owner of the land. . . • i 

The question arises, what is just compensatio n ? All the cases seem '\r<-''t>^^>-^^^^^ 
to concur in excluding mere general and public benefits, which th e //^.i^vw Xr^^^ 
owner of the land shares in common with the rest of the inhabitan ts ^ , 

of^ ^ tbc vicinity, from being taken into con sideration in estiraatmg com- -t<LAA'-«'^/vAAA 
pensation. W Inle this is the law m theory, in several of the States it (j r»>^iy^^ti^!X 
seems to be disregarded. ^^ 

In Massachusetts the court held, " the jury might and ought to have - oC/U-vw,, 
returned that the party sustained no damages, if such was their con- (^wj^^jUxk- .» 
viction ; the benefit the owner of the land derived from the laying out , S ii 

of a way over it may often exceed the value of the land covered by^^tA-HAA. [V^ 
the way." Commonwealth v. Sessions of Middlesex, 9 Mass. 388. /^^ z-v^ajj^A^ 
And the same doctrine has been held in Vermont. Livermore v. Ja^ ^ hLj- i" 

1 Affirmed in State v. City of Kansas, 89 Mo. 34 (1886). Compare ^enncf/^ v. ^ ^ 

Indianapolis, 103 U. S. 599 ; DIoomington v. Latham et al., 142 111. 462, and the cases on /vWftA/W-^ 
special assessments, infra, pp. 000 to 000. — Ed. 

y^JUou l^-tU IcK^k ,^L.<5W^JlJ^ -^W-^ J ^^AM.^ ^r^-W-^^ 




^'% 



CUjk ^^'^^ WAGNEll V. GAGE COUNTY. [CHAP. VI. 

maica, 23 Vt. 361. And i^l Pennsy lvania the court held, '''■ the m ore 

commoji mode of estimating land damages u nquestionably is. to give 

the company the specific benefit caused to land, a portion of w hich^is 

-^^^-^fxr^^^ -" taken, in the enhancing the value of the same , and_only Jo allow the 

f,^^^ tA>u. land-owner s uch a sum as will leave hi m as well off in regard to_the 

partic ular land, as if the w orks had not been built, or his land takeji. 

y<^\j-^yiA^ T his is done by giving the land-owner a sum equal to the dif ferenc e 

j^^^. {j^ between wh at the land would have sold for before the road was buili, 

(\ and what the remainder will sell for after the constru ction." J/arvey 

-^^\}^ ' ^" ^c-f^^^^^^'^^^f^ '^ Bloomshargh li. li., 47 Pa. St. 428 ; Troy & lias- 

ton R. R. V. Lee, 13 Barb. 1G9 ; Matter of Furnam Street, 17 Wend. 

649. 

va The Supreme Court of Ohio, since the adoption of the Constitution 

\N-^^^^-*~ of 1851, hold that in all cases compensation must be made for the land 

.y.^fjtA^'XiXufvx actually taken. The court says, in regard to the provisions of the Con- 

' stitution providing for compensation, " by the one, the compensation 

^^ is to be assessed without deduction for benefits, and by the other irre- 

\/\juu^ spective of benefits, and by each a full compensation is required. Now, 

ei r\r-^ when is a man fully compensated for his property? Most clearly and 

ill J unquestionably when he is paid its full value, and never before. The 

I t:4\AA/n^^ word ' irrespective ' relates to this full compensation, and binds the 

/X/A/t. <-»-A^ j*^''^ ^^ assess the amount without looking at or regarding any benefits 

^ . contemplated by the construction of the improvement. When this is 

^L/^ Xo'^'.'-K (lone, and this consideration wholly excluded, the jurj' have nothing to 

yY Cfc*-^ do but ascertain the fair market value of the property taken. . . . 

P "--^ /I Whether the property is appropriated directly by t.lio public, nr f.hrong li 

'"^''^vj V) th e intervention of a corporation, the owner is entitled to re ceive its 

CAaa.- fa ir market value at the ti me it is taken, as much as he might fairly 

• -J ex pect to be able to sell it to others, for if it was not taken, and this 

■^^"'*'^^''''(\ am ount is not to be increased from the necessity of the public or the 

Ay-C'W »AJ. c orporation to have it, on t he one hand, nor diminished fr om an y nece s- 

J{;sj^/\^ iLuiA. si ty of the owner to dispose of it, on the ot her. I t is to be value d 

precisel y as it would be appraised for sale upon execution, or by an 

X 3/yt'i}^^^ executor or guardi an, and without any regard to the e xternal causes 

^ ^^ th at may have contributed to make up its present va lue." Giesy v. C 

' ^^ ^-^ j> W.& Z.R. R. Co., 4 Ohio St. 330-332. 

-tf-<-«-^ A.<i-*^ Thi s seems to us to be the onl y just and equitable rule, requiring in ' ' 
^..^t^^i^cd-^ all cases that compjensation shaU be made for the fair market value of 
^^^^^f^^uil^ the ^land actually taken, while special beneff ts maybe set off agaiji^st ^ 
/J /fjf^yt^^^ any local or incidental injury to the residue of the tract . 
n /fj / > Section nineteen of~the bill of riglrts "of the Ohio Constitution pro- (^ ; 

<-^ c^-^^^-^^Jrxi^QS, that compensation for propert}' taken for public use shall be ^^ 
assessed by a jury " without deduction for benefits to any property of 
the owner." This provision seems to have been incorporated in the 
Constitution of 1851, in consequence of the decisions of the Supreme 
Court of that State in Symonds v. The City of Cincinnati^ 14 Ohio, 
147 ; and Broion v. The Same, 14 Id. 541, where the court held it was 



.^ 




CHAP. VI.] CONN. RIVER R. R. CO. V. COUNTY COM'RS. 1179 

competent for the defence to show the benefit conferred on the owner 
by the appropriation, such benefit to be considered by the jury in esti- 
mating the damages. We think the words "• without deduction for 
benefits " adds nothing to the term "just compensation," and that the 
same rule is as appUcable in our State as in Ohio. 

The jury in this case having found for the defendant, it was the duty 
of the court to set aside the verdict and grant a new trial. 

The judgment of the District Court is reversed, and cause remanded 
for a trial de novo. Reversed and remanded.^ 

Mr. Chief Justice Lake concurs. 

In Con?i. River E. B. Co. v. County ComWs of FranUin, 127 (^ (^(tAP^^ 
Mass. 50 (1879), a statute ha d required th e manager of a railroad §\ ^J/ftk^^-^ 
owned by the State, upon the direction of the G overnor and Council, k Xa.c^ ^ 
to tak e certain land for the purposes of the road, and pr ovidedtliat it ^-^^"^ 
shoul d be paid for out of the earnin gs of the road. It was admitted that -j^x r^c/K^cU^ 
these earnings would "probably be amply sufficient" to meet these (^(j^^^^oL \ 
payments. Th e manager, having been duly directed, entered upon the \} , ^ 

land, and petitioned the count y commissioners t o proceed in ascertairnhg -^^ /,MA.-vr-^^^ 



and awarding damag es. In granting a writ of prohibition against the .i'~f±. » 
commissioners, the court (Gray, C. J.) said : "T wo questions ar e ^"^ ^'^ -^ 
presented by the case, and have been argued by counsel: First, ^^a^. f^'^^l 
Whether the St. of 1878, c. 277, is unconstitutional, for want of a j^rij^j\^ [ao 
sufficient provis ion for the payment of compensation for the land taken ? %. 

S econd . Whethe r the writ of prohibition is a suitable remedy ? ^-" "' ia^^^^ 

" The Constitution of the Commonwealth declares that, ' whenever ^yi^^-Xt l/i^ 
the public exigencies require that the propert}^ of any individual should y • / /^ a. 
be appropriated to public uses, he shall receive a reasonable compensa- < '^^^ "^ 

^^l 1 And so Omaha v. Howell Lumber Co., 30 Neb. 633, 635 (1890). Compare Terry ; ^ 

^\^ V. Hartford, 39 Conn. 286, Randolph , Fm. Dnm. s. 27 3. In Omaha South. Ri/. Co. /V(/rt'A,. 
JV V. Todd, 58 N. W. Rep 289 (Neb. 1894), the court (Ragan, C), said : " T he damag es - 4. ^ 

to jvliich a land-owner is entitled by reason of the construction of a railway across his .> ^ jl\AAy^ ^ 
farm are Q) the actual value of the land taken, at the time of the taking, without dim- ., ' , 

v<V i nution on account of any benefit, advantage, or other set-off, whatsoev er ; (2) th e riAyt^^'^- 
}y. dep reciati on in the val ue of th e remainder of the tract o f land caused by the appro- _ ' 
j"^ p riation of a part thereof for railway purposes, and the constructi on and jjermanent aa^/i!V* i?t-" 
i J-' o peration and occupation of the railroad thereon, excluding genera .1 be nefi ts. Railroad ^ 
j^K. Co. V. McKinley, 64 111. 339 ; Railroad Co. v. Wt75e, 25 iNeb. 542, 41 J^. W. 297 ; Rob- ^^ d^^^^^^ 
bins V. Railroad Co., 6 Wis. 610; Railroad Co. v. Horn, 41 Ind. 479. In an inqui ry^^ . aaaM 

whether, a nd how much, the part of a farm not taken for railroad right of way is l/'^ ^~^ . 
depreciated in value by the appropriation of a part, evidence a s to the size of the farm : J^ ^g^l ^ /. 
t he purpose for wliich it is used ; t he improvements thereon, and how located : th e ' ( 

d irection of the road across the farm ; the cuts and fills made or to be made _ /-^ ;^\;^a t^ 
in t lie construction of the ro ad ; the width of the right of wav : the height of em - r ' 

ba nkments : the depth of ditches : th e inconvenience in cmssing; the track from one (X/^-^tOA^-^ 
part of the farm to anoth er ; the liability of stock being killed: and danger from fire , aa>-«- 

f rom passing trains. — are all facts competent for the jury's co nsideration in determin- ^ 

ing_the depreciation i n value of the remainder of the farm ._ Railway Co. v. Beeson, ^qa^^^ cv. <jiy^ 
36 Neb. 361, 54 N. W. 557." See Leroy ^ West. R. R. Co. v. Ross et al., 40 Kans. 598 ; ' 

Meacham v. Fitchb. R. R. Co., 4 Cush.' 291. — Ed. , , 






-J 



&. 






1180 



COKN. KlYER R. E. CO. V. COUNTY COM'KS. TcHAP. VI. 



tion therefor.' Declaration of Rights, art. 10. It has long been se t- 
tled b}- t he decisions of this court, that a statute which undertakes to 
late private property for a public highway of any kind, w ithout 



apiiropn 



4yOtA^^ 



adequate provision for the payment of compensation, is unco nstitu- 
tio nal and void, a nd does not just ify an entry on the land of the owne r 
without his co nsen t. Commonwealth v. Peters, 2 Mass. 125 ; Perry 
V. Wilson, 7 Mass. 393 ; Thacher v. Dartmouth Bridge, 18 Pick. 501. 
' Under our Constitution,' said Chief Justice Shaw, ' the Act conferring 
the power must be accompanied b}' just and constitutional provisions 
for full compensation to be made to the owner. If the governme nt 
a uthorizes the taking of property, for any use other than a public one , 
o r fails to make provision for a compensation, the Act is s imjjly void ; 
no right of takiug^ as 



against the owner is conferred ; and he has the 








same ri ghts and remedies against a party acting under such authorit}', 
a s if it had not existed. ' Boston & Lowell Railroad v. Salem, & 
Lowell Railroad,, 2 Gray, 1, 37. So in a case of laying out as a pub- 
lic highway a bridge owned by a private corporation, Mr. Justice Colt 
said : ' The duty of paying an adequate compensation, for private 
property taken, is inseparable from the exercise of the right of eminent 
domain. The Act granting the power must provide for compensation, 
and a ready means of ascertaining the amount. Paj'ment need not 
precede the seizure ; but the means for securing indemnity must be 
such that the owner will be put to no risk or unreasonable delay.' 
Haverhill Bridge v. County Commissioners, 103 Mass. 120, 124. 

" In Roge rs v. Bradshq io, 20 Johns. 735, 744, cited by the learned 
counsel for the respondents, the decision was that the statutes appli- 
cable to the case, construed together, expressly provided for the esti- 
mate and payment of the damages, and that such pa^-ment need not be ^ 
actually made before the entry upon the land ; and the dictum of \ '^'\ 
Chancellor^Kent, t hat an om ission of the legislature to provide for 
compensati on^ight not have made the entry a trespass, is opposed to 
the, course of decision s in this Commonwealth, and has not been fo l- 
lo wed in New York. In Bloodgood v. Mohawk & Hudson Railroad, 
18 Wend. 1,17, Chancellor Walworth, while admitting that the legis- 
lature might authorize the land of an individual to be entered upon for 
the purpose of examination or of making preliminary surveys, without 
compensation, said: 'But it certainly was not the intention of the 
framers of the Constitution to authorize the property of a citizen to be 
taken and actually appropriated to the use of the public, and thus to 
compel him to trust to the future justice of the legislature to provide 
him a compensation therefor. The compensation must be either ascer- 
tained and paid to him before his property is thus appropriated, or an 
appropriate remedy must be provided, and upon an adequate fund ; 
whereby he may obtain such compensation through the medium of the 
courts of justice, if those whose duty it is to make such compensation 
refuse to do so. In the ordinary case of lands taken for the making of 
public highways, or for the use of the State canal, such a remedy is pro- - 



C«^<i^ ^^,S_^,M^ 



yL-VA_Xo^ 



- ajU^<aa ^^A/ r-v^A^ ~Ct«-e/^ ->^.^,--:^ -A ^ /_^:x>uu-^(m cl 

CHAP. VI.] CONN. RIVEK R. R. CO. V. COUNTY COM'rS. 1181 ^R-^^^^'J^^-^^ 

vided ; and if the town, county, or State officers refuse to do tlieir dut}' ' 

in ascertaining, raising, or paying sucli compensation in tlie mode pre- /T^^"*" C^4AA^ 

scribed by law, the owner of the property has a remedy by mandamus Jr^tAju^aJ^ 

to compel them to perform their duty. The public purse, or the prop- ^ 

ert}' of the town or count}' upon which the assessment is to be made, '^^(^(C::^ VJ^/V* 

may justly be considered an adequate fund. He has no such remedy, 

however, against the legislature to compel the passage of the necessary vr-C. "^ \5^^*"^ 

laws to ascertain the amount of compensation he is to receive, or the -^aIx^^a jo-^ 

fund out of which he is to be paid.' And in People v. Hayden, G Hill, - - t, 

359, 361, Chief Justice Nelson said: ' Although it may not be neces- vA^"-~^ 

sary, within the constitutional provision, that the amount of compen- J-ry Ctu 

sation should be actually ascertained and paid before property is '^ , . 

thus taken, it is, I apprehend, the settled doctrine, even as it respects <2L.(rviA^*^- > 

the State itself, that, at least, certain and ample provision must be first 

made b}' law (except in cases of public emergency) , so that the owner -r 

can coerce payment through the judicial tribunals or otherwise, without Qt^^^ 

any unreasonable or unnecessary delay.' See also Mexford v. Knight, J rj^juJi/Jfi^'^ 

1 Kernan, 308, 314 ; Chapman v. Gates, 54 N. Y. 132, 146. , -^^-^^0 

" Statutes taking private property for a public highway, and provid- ^Lsu^-^iKA ^^^^ 
ing for the ascertaining of the damages, and for payment thereof out /rJhu^ 

of the treasury of the count}', town, or city, have often been held to be \1 

constitutional. Haverhill Bridge v. County Com,missio7iers, 103 -Vja!^^'"^* A*-^ 
Mass. 120 ; Chapman v. Gates, 54 N. Y. 132 ; Loweree v. Newark, . 
9 Vroom, 151 ; Yost's Report, 17 Penn. St. 524; Powers v. Bears, 12' ^"^ 
Wis. 213, 220; Commissiojiers v. Bowie, 34 Ala. 461. But, in the 
cases in which it has been so held, the liability to pay the damages 
rested upon the whole property of the inhabitants of the municipality, 
and might be enforced by writ of execution or warrant of distress, or 
by mandamus to compel the levy of a general tax. Hill v. Boston, 
122 Mass. 344, 350 ; Rose v. Taunton, 119 Mass. 99, 101 ; Bloodgood 
v. Mohawk & Hudson Railroad, and Rexford v. Knight, above 
cited ; Comnxonwealth v. Commissioners of Allegheny, 37 Penn. iSt. 
237, 277 ; Minhimiah v. Haines, 5 Butcher, 388 ; Brock v. Hishen, 
40 Wis. 674. The rule has not been extended to cases in which only 
a special fund was charged with the payment of the damages, and the 

li municipalit}' had no power to levy a general tax to pay them. Chapman 

r V. Gates, 54 N. Y. 146 ; Keene v. Bristol^ 26 Penn. St. 46. 

" In Ash V. Cummings, 50 N. H. 591, 621, it was said : 'In cases 
where the State, or a county, or a town, is to be made liable for the dam- 
ages which an individual may suffer by having his property taken for 
the public use, it is not so important that the compensation should be 
paid or secured in advance, provided the law provides a certain and 
expeditious way of ascertaining and recovering it, because there the 
presumption and the fact are that these municipalities are always 
responsible.' And the saying was quoted with approval by a majority 
of the court in Orr v. Quimhy, 54 N. H. 590, 594. But in each case 
it was obiter dictum. Ash v. Cionmings was the case of a mill-dam 



1182 CONN. RIVER R. R. CO. V. COUNTY COM'KS. [CHAP. VI. 

erected b}' one individual to the injury of anotlier. In Orr v. Quimby, 
it was admitted that tiie only question to be determined was whether 
the defendant had the right to enter and cut trees on the plaintiffs 
land, and that the question wliether the land could be permanently 
occupied without assessment and payment of damages did not arise ; 
54 N. H. 596 ; and the position assumed in the dictum above quoted 
was strongly controverted in an elaborate dissenting opinion of Mr- 
Justice Doe, as it had previously been in an able judgment of the 
Supreme Court of Maine, delivered by Chief Justice Sheple}'. Cushman 
V. Smith, 34 Maine, 247. 

" When private property is taken directly by tlie Commonwealth for 
the public use*, it is not necessary or usual that the Commonwealth 
should be made subject to compulsory process for the collection of the 
money to be paid by way of compensation. It is sufficient that the 
statute which authorizes the taking of the property should provide for 
the assessment of the damages in the ordinary' manner, and direct that 
the damages so assessed be paid out of the treasur}- of the Common- 
wealth, and authorize the Governor to draw his warrant therefor ; 
because, as observed by Chief Justice Bigelow, 'This is clearly an 
appropriation of so much money as may be necessary to pa}' tlie dam- 
ages which ma}' be assessed under the Act.' ' It is a pledge of the faith 
and credit of the Commonwealth, made in the most solemn and authen- 
tic manner, for the payment of the damages as soon as the}' are ascer- 
tained and liquidated by due process of law.' Talbot v. Hudson, 16 
Gray, 417, 431. 

' ' But in th e statute before _ u s there is no pledge of the faith a nd 
c redit of the Commonwealth, no a p propriatio n of the general funds in its 
t reasury, and no authority to tlie Governor to draw his warrant for the 
payment of the damages out of such fun ds. On the contrary, the very 
t erms of the statute preclude the inference of any such pledge, app ro- 
priation, or authority, by directing t hat t he land taken for the unio n 
p assenger station shall be paid for from the earnings of the Troy a nd 
Greenfield Railroad and Hoosac Tunnel, an d appropriating for the pur - 
p oses of the Act a sum not exceeding nine thousand dollars, to be ])a id 
out of those earnings . St. 1878, c. 277, §§ G, 8. The fact, admitted 
by the parties^ tha t those earninp-s will probably be sufficient to me et 
agd-j:^tingjii sh all cLiims for damages for lands so taken, falls short o f 
satisfying the requiremen t of the Constitution that the owner of pro p- 
erty taken for the use of the public shall h ave a prompt a n d certai n 
compLUisation, without being subject to any risk or unreasonable dela y. 

" The provisions of the St. of 1878, c. 277, specifying and appropri- 
ating a certain sum out of those earnings for the payment of damages 
assessed under this Act, are equally conclusive against the suggestion 
made, though not strongly pressed, at the argument, that the Common- 
wealth, or the manager acting in its behalf, may be required by the 
county commissioners, at the request of the land-owner, to give addi- 
tional security for the payment of the damages under the General Rail- 



I 



CHAP. VI.] BRICKETT V. HAVERHILL AQUEDUCT CO. 1183 

road Act of 1874, c. 372, § 65. Sections G9 and 72 of that Act, provid- 
ing that, if tlie railroad corporation shall not pay tlie amount of 
damages awarded by the jurj-, a warrant of distress or execution may 
issue to compel the payment thereof, and that, until such warrant or 
execution is satisfied, all right and authority to enter upon the land, 
except for making survej's, shall be suspended, and the exercise thereof 
ma}' be restrained by injunction, are also inapplicable, because in the 
present case no warrant of distress or execution can issue, either against 
the manager or against the Commonwealth ; not against the manager, 
because he takes no title himself in the land, but is a mere agent of the 
Commonwealth, acting under the direction of the Governor and Coun- 
cil, and removable at their pleasure; Sts. 1875, c. 77;' 1876, c. 150; 
1878, c. 191 ; not against the Commonwealth, because the Common- 
wealth is never liable to judicial suit or process, except so far as its 
own consent thereto has been clearl}' manifested by statute. Troij & 
Greenfield Railroad v. Commonioealth^ ante, 43. 

" The S t. of 1878, c. 277, therefore, so far as it purp orted to 
authorize the taking of land of the Connecticut River Railroad 
Co mpany for a union railroad station, was unconstitutional, and the 
taking under t hat Act w as yoid^for wa nt of any pro vision for adequate 
an d certain compensation to the owne r. 

" TkaL-taking, being unauthorized and void, d id not alter the 
r ights of th e owner of the land, vested no title in the Com- 
monwealth, and could not be the basis of a petition to the county 
commissioners fo r the a sses sment of dam ages as for land la,wfully 
appropriated to the public use. The invalidity of the taking and the 
consequent want of jurisdiction in the county commissioners are nt)t 
cured b}- the St. of 1879, c. 290, passed since this case was argued, and 
providing that the sums of money required -under the St. of 1878, c. 
277, shall be paid from the treasur}' of the Commonwealth, instead of 
from the earnings of the Troy and Greenfield Railroad and Hoosac 
Tunnel. The statement of Mr. Justice Baldwin, in Bonaparte v. 
Camden & Amboy Railroad, Bald. 205, 226, that it is not indispen- 
sable that a law permanently appropriating private property to the use 
of the public should contain a provision for compensation, or prescribe 
the mode of making it, but that such a law would be valid if the legisla- 
ture should by a subsequent law direct compensation to be made, appears 
to have been founded on the dictum of Chancellor Kent referred to in 
the early part of this opinion, and is inconsistent with the settled law 
of this Commonwealth, and with the weight of authorit}' elsewhere." ^ 



In Brickett v. Haverhill Aqueduct Company, 142 Mass. 394 (1886)1 ^-^^•^^"^'^^ <r 
the defendant, under a statute purporting to authorize the taking and yu.A>^(AyiA o^ 
use of the waters of certain ponds, took the wate rs of Kenoza lake ^ nd ^^J^^Jf^dbu ^ 

1 Compare United States v. Engerman, 46 Fed. Rep. 176, holding that under the AjMa ■ ^SP^^ 
Constitution of the United States a jury is not necessary. And so in other jurisdic- 
tions. See Rando lp h. Em. Pom, s. 31& — Ed. 



# 1184 BKICKETT V. HAVERHILL AQUEDUCT CO. [CHAP. VI. 

^y. 1^1 built a d am across a river which was the only outlet of the lake ; 

/ / whereby-, as the plaintiff alleg ed, the flow of the stream through his 

<.x^ [/, M ^<-' Land was prevente d. T he State p rovide d for paying '■'■ all damages 

• . su stained by entering upon and taking " these watei'S. The plaintiff 

X, iyi/*^<^ ■<. brought a common-law action of tort, and a verdi ct was ordered f or 

oaIM Caa^ the defenda nt. In setting aside this verdict on the ground that the 

i]^ f de fendant might, perhaps, have exceeded the statutory autho rity, the 

-''^'•^ '^ court (Morton, C. J.) said : " Without doubt, the defendant was liable 

Cjtft. ijfWX. to ttic plaintiff" in some form of proceeding for any damage sustained 

. ■■ by him by reason of taking the water and building the dam. Watuitpa 

rUtuX^ U^ Eeservoir Co. v. Fall Ricer, 134 Mass. 267. But it is settled that , 

j/t/unx^ when the legislature authorizes a municipal or other corijoration to ta ke 

y -V -dL pri vate proi^erty for public uses, and ])rovides in the statute a mod e 

f^t * i«-^. of ascertaining and recovering the damages, such statutory remedy is 

jt\ rittiL'- the only remedy to which the injured party can resort f or acts don e 

\f ' wi thin the authority of the statu te. 

,^^'j , n.A^ " It follows that the plaintiff cannot maintain an acti on of tort_ for 

KX^MJtfl^*^ — inj uries caused to him by any acts of the defendant which it was auth or- 
te iz ed to d o under the statute, but his only remedy is the one pointed out 

b y the statu te. 
l^j^tj^ A.a^'*^- "The plaintiff recognizes this principle; but contends that the 
ix 6iaJ~ St. of 1867 is unconstitutional and invalid, because it does not make 
adequate provision for the recover}' of damages caused by the defend- 
iQA^ c^i-tJ!/\. aQt's acts under it. 

jL,_^,^^ X^ ' ' The Constitution provides that, ' whenever the public exigencies 
^ require that the property of an}' individual should be appropriated to 

X^ public uses, he shall receive a reasonable compensation therefor.' 

vv //a. Declaration of Rights, art. 10. Undoubtedly, a statute which attempts 
^jjti5cjUji 1s to authorize the appropriation of private property for public uses, with- 
l out making adequate provision for compensation, is unconstitutional 
/j^ikA/\UKA^"^ and void. Connecticut River Railroad v. County Commissioners., 
rijiJjO^X^^ 127 Mass. 50, and cases cited. But the St. of 1867 does not undertake 
, to do this. It provides, in substance, that the corporation shall be 

C^Mtj^^ liable to pay all damages for injury to private property, and specifies a 
^ eyM^^/sjUjjJ^ sufficient remedy to enable the person injured to recover such damages. 
(T^ , - f We are not aware of any case in which it has been held that such pro- 
- /M^ /"-^ ^^ visions are not a sufficient compliance with the requirement of the Con- 
^ ^,^=LAjwtM. stitution. The instances are numerous in which aqueduct companies 
V M have been incorporated by statutes which contain the same provisions 
for securing compensation. The successive legislatures, in these 
hjUU^ '^ statutes, recognized the constitutional obligation to make adequate 
■■ jt^ compensation, and deemed that such provisions did, with practical cer- 

^-^^^^"k tainty, secure the rights of individuals whose property was taken or 

^.caAA injured. 

jL.«.>^>uuX^ "They undoubtedly took into consideration, not only the special 

remedy provided by each statute, but the other rights and remedies 
■which an individual would have under the general laws, if his damages 



f 






■^0^ ^> ry^^^^^^A;^^-^^^^^--^^ 







CHAP. VI.] 



BKICKETT V. 



HAVERHILL AQUEDUCT CO. 



1^ . 



X.^0 ^^ 



hnrA ^" 



(5^^X-A/^^ 



/Vl 



(JtuJ^ 






were not paid after they were ascertained. Take the case before us. 

If the plaintitf , or a ny person injured, h ad, upon proper application, 

hnd h is dainages ascertained, he would be entitled to a warrant of dis- 

tr£aa_l0 co mpel the payme nt of them ; Pub. Sts. c. 110, § 18 ; if 

this was ineffectual , and tlie defendant still refused to pa^', without 

do iiht this r-oiirt would, by proceedings in equity, restrain the defend- /2>L>cAn^-^ 

ant from a further use of the water, and, if necessary, order the rem oval t/hj/i^ ^/6 

of the dam. '^ 

" The question whether the provision for compensation furnished by 
the statute is an adequate one is a practical question. It seems to us 
that the remedy which the statute in question furnishes against the cor- 
p oration, supplemented by the remedies afforded by the general laws , 
if it refuses to pay tlie damages assessed, affords to any person who se 
property is taken or injured by the acts of the corporation a reasonable 
ce rtainty that he will recover and receive compensation therefor. W e 
a re not, therefore, prepared to hold that the statute is unconstitutio nal, 
be cause it does not make adequate provision for compe nsation. 

"The case of Connectic ut River Railroad v. County Comm isHJon- 
ers, uhi supra, is quite different from the case at bar. In that case, in 
t he statute which was held to be unconstitutional, no person or corpo- 
r ation, neither the State nor the manager of the railroad, was ma cle 
l iable for the damages, but the plaintitf was left to look solely to a 
fu ture uncertain fund , and , be was provided with no means of eutorc mg 
h is claim against the fund . 

" We do not deem it important that the land of the plaintiff which 
was injured was outside of the limits of this State. The language of the 
Act is general, and puts all water rights upon the same footing, and 
applies to a proprietor outside the State. Such proprietor certainly has 
no greater rights than the citizen whose lands or water rights within 
the State are injured by the acts of the defendant under the authority 
of the legislature. Whether the constitutional objection we have con- 
sidered would be open to a citizen of another State, whose lands or 
water rights in that State are injured, we need not discuss nor decide. 

" It follows th at the plain tiflf^can not maintain this acti on for damag es 
ca used by any acts of the defendant which are authorized by t he 
st atute ." ^ 

1 And so Cherokee Nation v. So. Knns. Rij. Co., 135 U. S. 641. See supra, pp. 979- 
990; Tuttle v. Knox Count;/, 89 Tenn. 157 (1890); Wallace v. R. R. Co., 138 Pa. 168 
(1890). 

" The fiindameptal rloctrin e. of coar.se, is th at private property cannot be take n for 
pu blic purpdsQs without jnst compensation , ]nit_this need not be given in all cases co n- 
curr euth- in point of time with the actual exercise of the right of eminent doma in. It 
is enough if an adequate and certa in remedy is provided wh ereby the owner oT su cF. 
p roperty may compel payment of his damag es. (Uloodr/ood v. J/. ^ U. li. H. Co., 
18 Wend. 9; Li/on v. Jerome, 26 Id. 585; People e.r rel. Utleij v. Haiiden,& Hill, 359; 
Rexford v. Knight, 11 N. Y. 308.) This means reasonable legal certain ty. {Chapman 
V. Gates, 54 N. Y. 146; Sage v. Citij of Brooklyn, 89 Id. 189 )"— Daxforth, J., foi' 
the court, in In the Matter of the Pet'n of the U. S., 96 N. Y. 227. 
vor,. I. — 7.5 



1186 BRICKETT V. IIAVEKHILL AQUEDUCT CO. [CHAP. VI. 

In The State v. Perth Amboi/, 52 N. J. Law, 132 (1889), the Supreme Court of Kew 
Jersey (Gakkison, J.) said .- " The ordiuance brought up by this writ is uugutory if the 
charter of tlie city of Perth Anihoy coutaius uo provision by which private lauds can 
be takeu for public use by the proceedings in (jucstion. 

" The sovereign power of compelling an owner to part with the title to his lands is 
coupled with the correlative duty of providing for the payment of the coin])ulsory pur- 
chase. Bv the Constitution of t his State a distinction is made between those cases n 
wiiich property is taken directly bv the State, as by a municiT)al corpo ration by State 
authority, and th ose cases in which a priv a te corporation, acting a s the State's agent, 
ap propriates private property for a public i)ur|)ose. I n the latter case actual ronipen - 
s :i.tii)ii to tlie owner must precede the takiug of his lauds, whereas in the former it is 
enou gh if provision be made by wiiich the owner can obtain compensation, and that 
an impartial tribunal is provided for assessing it. Loweree v. Newark, 9 Vroom, 151 ; 
[Vheelcr v. Essex Road Board, 10 Id. 291. 

" A law w hich lacks these reduisites will not authorize the exercise of this sover- 
e ign rig ht. Furthe rmore, the provision which thus enables the owner to ohtai n com- 
pe nsation for his lands must be in existence at the time the powej to compel him to 
pa rt with them is exert ed. Gaines v, Hudson Counti/ Commissioners, 8 Vroom, 12. 

" W hiii:a„iiXL.i.m h legislation exists, the o^ner may resist the initial_s.tcp t oward the 
d ivestment uf his title. The invasion of his own rights as well as his duties to t he 
re presentatives of tlie public requires him to challenge the improvement at its thres h- 
nifl, befni-R outlay a ud acouisscence shall have worked to his detriment and to th eirs. 
Gaines V. Hudson Counti/ Commissioners, supra. 

" The remedy, moreover, in cases when compensation is deferred, must be adequate, 
one to which the party can resort of his own motion ; it must not be burdened by 
unusual steps of procedure or other vexatious features. Butler v. Sewer Commissioners, 
10 Vroom, 667. Such a remedy can exist only where the owner, who is compelled to 
part with his property without being paid the price, has his damages legally ascer- 
tained under the law which authorized the taking. 

"The tribunal which is thus to assess the owner's damages may be determined Iiy 
the Constitution or by the statute under which the condemnation proceedings are had 
Wh ere the Constitution is silent as to the manner in which the assess ment ioj-_property_ 
ta ken shall be made, the power to take is dormant until the legislat ure supplies the 
plaiT H owever ordained, the proceeding is" judicial in character, an d t lie party i n] 
i nterest is entitled to have an impartial tribunal and the rights and privileges usual ly i 
deemed essential to a judicial investigation. And, in general, by whatever method 
the property of an individual is to be divested, under color of law, by proceedings 
against his will, the exi.stence of the proper machinery must be clear in the law, and a 
strict compliance with all those provisions which have been therein made for his pro- 
tection must be shown. Davis v Howell, 18 Vroom, 280 ; 2 Dill ]\Iun Corp. § 604. 

" We have seen that, in the absence of controlling constitutional provision, it is 
co mpetent for the State to authorize municipal cor]inrations to take private lands for 
pn l)l'ic use without first making payment therefor, n l tliougli s u ch a cour.se is charac ter- 
i zed b y Judge Dillon a s an unusual one — ' The almo-st invariable, and certainly the 
just, course being to require payment to precede or to accompany the act of appropria- 
tion.' 2 Dill. Mun. Corp. 61.5. 

"T he power delegated, moreover, being a stringent and extraordinary one, no pre- 
s umptions will be intended against the owne r. I n any event, if a legis lati ve purp ose 
to postpone appropriation to ])ayment be discovered, it will be ^iven strict effect. 

" A))plying these general principles to the case in hand, it is clear that the proceed- 
ings open to the defendant under its charter neither provide for the compensation of 
the prosecutrix in respect to her lands, nor do they give her that adequate remedy 
which the organic law guarantees." — Ed. 



CHAP. VI.] FORSTER V. SCOTT. 1187 

FORSTER V. SCOTT. \ jL ^-p woo^ '^'^ 

New York Court of Appeals. 1893. J^^Ijlc /v^'\^a. aZa-^^a-'-^^ 

Appeal from judgment of the General Term of the Superior Court OA • M-^ 

in the city of New York, entered upon an order made Jan. 15, 1892, 

which directed a judgment in favor of plaintiff, upon a case submitted, tft ^'^p~' 
under the Code of Civil Procedure (§ 1279). rp ix^^cK 

The questions involved and the facts, so far as material, are stated ^ j j 

in the opinion. ^^ (^ ^^^'^ 

Rollin II. lynch., for appellant. Henry A. Foster, for respondent. ^\ ""tAM, "-ij^ 

O'Brien, J. The question in this case is in respect to the plaintiff's ~ -i_' 

rights unde r a contract made by him with the defendant June 1 8, 1891, pMwiXA^ 
w hereb}' he agreed to sell and the defendant to pur chase a parcel of /j^C^ <^K . 
vacant l and in the city of New York, at a price specified, subject to /i . y. jy^j^t?^ t 
but w ithout assuming a mortgage thereon of $4,000. The plaintiff on \J^ v 

his part agreed to convey the premises to the defendant by a full cove- (kJi^^^Y^ ^ 
nant warranty deed, sufficient to vest the title in fee simple free from , \)^j^ awu 
an}- lien or encumbrance except the mortgage. At the time stipulated '^ 

in the contract the plaintiff tendered to the defendant a deed in the w^.^ tAMAA 
required form and containing the proper covenants, which the defendant (j^o<r> j>^ J<M 
declined to accept for the reason that upon searching the title he had ""vOtAAA*/ 

discovered that there was such an encumbrance upon the land that the ^^^ 
plaintiff was unable to convey a good title as required b}- the contract. -kfLc*-^^^*'^^-^ ^ 
The facts were agreed upon and submitted to the General Term u nder \^ CJ--Xc^ 
the provisions of § 1279 of the Code, where it was held that no lien or . ^~4- 

enciimbrance, aside from the mortgage, existed or attached to the land "Trt*^ (_ 

by I'cason of the facts so stated, and directe d judgm en t for the plai n- ^-f I j L 
tif f that the defendant accept the deed tend ered and pay the purchase J^'"'^ '^w^ 
price. Tiie facts so far as they are material to the point involved are /yv\Ay<^^ ''Ij' 
these : On the 18th of October, 1890, the department of parks o f the a ^^|^4_.- 
ci ty of New York, under the provisions of chapter 681 of the Laws of U ,. 

1888^ file d a may) of a proposed street or avemie^which entirely covers -^\ ^< ^ \yf~ 
t he plaintiff's l ot. The map so filed c omplies stri ctly, with respect to ck /via ^-* ^ 
form and substance, wit h all the provisions of law on the subje ct. "The i rW^ 

proposed street has not been opened and no proceedings have been ot /P^^^l^^ 
taken to open it or to acquire the title to plaintiff's land by condemna- ^-^t x/o4/ 
tion. Section 677 of the Consolidation Act provides as follows with jtjAiJM 
reference to damages for taking lands for such streets when the same C^ 

are finally opened : "No compensation shall be allowed for any build- ^^^'^ v/.-A p^ 
ing, erection, or construction which at any time, subsequent to the ^td^AT. 
fiUng of the maps, plans, or profiles mentioned in section six hundred c^iy^jtiT^'^^^ 
and seventy-two of the Act, may be built, erected, or placed in part f—t-Jh 

or in whole upon or through any street, avenue, I'oad, public square, or '^ fV\<vAAA^ 
place exhibited upon such maps, plans, or profiles." The plaintiff's ^/^.a.^ c^ ^^ 
v acant lot derives almost its entir e value from the fact that itjs po^si- J^JJlJtA^AMAt|^ 



/.-^^uJLcKj^^ r^i> . "If-*, c^■^'v^ ^^c(A ri^cx^U -<■ ^«tu.tx 




t. 



1188 FORSTER -y. SCOTT. [CHAP. VI. 

ble t o use it for building purposes. Th e facts, therefore, present tw o 
q uestion s. 

(1) A Vbetber, assuming the statute to be valid, a lien or encumbrance 
was cre ated and attached to the land in question by the filing of th e 
map b y the p ark dep artmen t. (2} Whether the legislature had powe r 
under the Cons titution to en act, as it virtually did, that w-hcnevcr lan d 
thus exhibited upon the map is taken for street purposes, at any time 
af ter the filing thereof, no compensation shall be made to the own er 
for any impro vements put upon the land durin g the time between th e 
fi ling of the map and the condemnation proceed! n g . 

A n encumbrance is said to import every right to or interest in the 
V ^,UA-c l and, which may subsist in another, to the diminution of the value o f 

-hf ' HUs th e land, but consistent with the power to pass the fee bv a convey - 
^"^ ' ance . (1 Bouvier's Law Diet. p. 6'J6 ; 2 Greenl. Ev. § 242 ; 3 Wash- 

,LoC^<^>\ burn on Real Property, G59, § 14.) 

T-tyjJjb A ny right existing in another to use the land or whereby the use by 
^ '^ "^ th e owner is restricted is an encumbrance within the legal meaning of 

■^^'i "^ the term. {Wetmorew. Bruce.' 118 N,. Y. 319.) 

J 'fr (\, It was conc eded by the General Term tliat the public authoritie s 

^ _ m ight or might not ai)i)ropriate the land ac cording to thei r jjleasure , 
"*^^ n otwithsta nding the filing of the map, a n d further that in case the 

^cv>^Urv-A>^-<^ o wner, after the map was filed, made improvements upon it, he did s o 
fi (ou^ at the peril of losing the enhanced value of the land resulting there- 
■. , from . These propositions seem to be correct, but we are constraine d 
ptu. p^^^^ to differ w ith tha t court i n the conclu sion that such_ a situation does 
/ r>*AA^ n ot impair the value of the propert}" and amoun t to an encumbrance 
' within the meaning of the contract . If the law was valid it virtually 
I tTvU ^^''^*' im posed a restriction ui)on the use of the pro pcity because it enjicted 
\l / ilA ' that it could not be used for building purposes, except at the risk to 
n * '^'^'^^^ / t he owneT of losing the cost of the building at some~tim e in the future. ^ ,\>^ 
- /x^L^of^^'A )"We are also constrained to dilTer w'ith the General Term in regard tolK V' 
' J j^ (the validity of the statute in so far as it enacts that the owner of land V^ j^^ 
■^^'■^'^ \exhibited upon the maps is not entitled to compensation for improve- ^ w- 

^"pux <AAA [ments subsequently made./* This statute is of somewhat ancient origin, ^^ 
l^vr|> • fvnd it was said in some of the cases that it was at first enacted at the li^' 
J /rz^wA solicitation of the land-owners in order to enhance the value of their -"^^ 
'^V v^ property. {In re Furman Street, 17 Wend. 658; In re Wall Street, "\J 
'^..^ 'X 17 Barb. 639 ; Seaman v. Hicks, 8 Paige, 660.) 

^L„^t^^^<^_ However that may be, in the aspect in whicli the question is now 

, * presented, we think it is in conflict witli the provisions of the Con sti- 

OVM M^ t ution for the protection and security of private pr operty. Th e con- 

^>^^>_/tV A/iX^ ~ stitutional guarantees against the appropriation of private propert}' 

^^^^^JCv for public use, except upon just compensation, as well as that against 

depriving the owner of its enjoyment and possession without due pro- 

yo Ua vvi<^-' pggg Qf irj^Yv^ have been the subject of much judicial discussion in the 

\AaK}(u. ' manifold aspects in which the questions have been presented in the 

'' numerous cases. These provisions have been so thoroughly- expounded, 






M— , i/\J C^-^ ""^^ 

CHAP. VI.J FOKSTER V. SCOTT. 1189 /_ 

and their application, meaning, and practical scope so minutely explained, "^-t/t^ ^ , 

r" ;<' that it would be very difficult to suggest now any views which could be ^ tA<oX 
^ ^ called new, and a restatement of propositions, so often before sanc- 

^ ^ tioned by courts and judicial writers, is quite needless. This case is /••;i/yM/iAC<^ 

j' governed by a few principles so well settled and understood that they ^^^^ XXm 

\ y are elementary, and nothing can be added to their force or application ^^l 

' c by illustration or extended discussion. The validity of. a law is to b e ^"l^^ 

^ , i d etermined by its purpose and its reasonable and practical effect and yx^'^^yUJ'^ 

\S \ o peration, though enacted u nder the guise of some gene ral power, whi ch /^i^Z^-/»/> 

. ^ t he legislature may lawfully exercise, bu t which may be and frequently / / C 

5^ ^ i s used in such a manner as to encroach, by design or otherwise, upon ^0 -\Xj,^^ 

the positi ve restraints of the Const itution. Q Vhat the legislature can- O^^' 
,, < not do directly, it cannot do indirectly ^ as the Constitution guards as /^^^ 
"^ effectually against insidious approaches as an open and direct attack. 

^ Whenever a law deprives the owner of the beneficial use and free en- y A,- j Y^ '*^ 

j5 jo yment of his property, or imposes restraints upon such use a nd tf)~3 t> 

r^ enioyment, that materially aff ect its value, witliout legal process o r J .^Jio v^ 

^ coiupensatiqii_j^ it deprives hi m of his p roperty within the meaning o f '^^^ 

>$ th e ConstiUitlo n. " AlHhat is benefi cial in Ijroperty arises from it8~use ^'»-^*-^-^^ 

^' aiKJ th e fruits of that use, and w hatever d eprives a personT'of them /Xiy^^-^-''-^^ i 
d eprives him of^alFth at is de'si ra ble~or""val uablo in the t ttte~and po s- 
session . It is not necessary, in order to render a statute obnoxious^ 
.0 the restraints of the Constitution, that it must in terms or in effect 
authorize an actual physical taking of the property or the thing itself, 
so long as it affects its free use and enjoyment, or the power of dispo-| -^^ /U^^-^ 

sition at the will of the owner. Though the police and other powers /3a_^vJL_ 
of government may sometimes incidentall}' affect property rights, ac- 

, cording to established usages and recognized principles familiar to ^'=o«-^H/t^ 

■^i.^ courts, yet even these powers are not without limitations, as they can __ /^^.^^ ,;t-^C^ 

be exercised only to promote the public good, and are always subject r, y(*jjh^ 

A to judicial scrutiny. (Wynehamer \. Peojyle, IS 'l^l.Y.Bl 8 ; People y. K / ^ 

d J3udd, 117 Id. 1; Gilman v. Tucker, 128 Id. 190; Peojjle ex rel v. jZu^^f^^^ 

^ Albertson, 55 Id. 50 ; In re Jacobs, 98 Id. 98 ; People ex rel. v. Otis^ 'j/ / 

. 90 Id. 48 ; People v. Gillson, 109 Id. 389 ; Mumi v. Illinois, 94 U. S. <J^ ^ 

tl41 ; Henderson v. Mayor, etc., 92 Id. 259 ; Id. p. 275 ; Brimmer v. kjAyi/XP-^^-^ 

Pehman, 138 Id. 78 ; Chicago, etc. v. Mifinesota, 134 Id. 418 ; Bohan '4 ^ ^^^^^jji^ 

v. Port Jervis G. L. Co., 122 N. Y. 18 ; Cooley on Con. Lim. [6th ed.] t^"^ 

207, 670.) /X-L.L>c-^ ^ 

As the plaintiff in the case at bar was virtually deprive d of the right jy^t/i aaa^^ 

to build upon his lot by the statute in question, and as this circumstan ce - ^ 

o bviously impaired its value and interfered with his p ower of _djsposi- -^^^ '^yv^rt^A. 

ti on, it was to that extent void as to him, and created no encumbran ce ff, t^Mi 

upon it. It follows that the judgment of the General Term was correct ic Jy[ 

< ^ in its result, though we have not been able to concur in the grounds y^-^^^ / 

\ i upon which it was made, and in affirming its action, we have preferred '^Ui^^ ^ 

i«(J ^ to place our reasons upon other grounds. The judgment should be fAT^tA 

affirmed. All concur. Judgment affirmed^ , / 2^^^ 

^ -IT- #— ' - . c-f y ■'/•/ 






1190 



TAXATION. 



[chap. VII. 






CHAPTER VII. 



TAXATION. 






" The i)ower to impose taxes is one so unlimited in force an d so 
searcliino; in extent , tli at tlie couits sca rce ly venture to declare tliat it is 
ff^^x^iA,^' S"Uiect to any restrictions whateve r, except such as rest in the discr e- 
, . ji t ion of the authority- which exercises it. It reaches to every trade or 

^^^ I ^n o ccupatio n ; t o every object of indust ry, use, or enjoyment ; to every 
rL*-^^-^*-^ l'^ s pecies of possessio n ; an d it imposes a burden w^hich, in case of failur e 
jj^JXam. to discharge it, m ay be followed by seizure and sale or confiscation of 

f ^ ' propert y. No attribute of sovereignty is more pervading, and at n o 
M^^^^^^^. point does the power of the government affect more constantly an d 

■U/i^'^^^'^ i ntimately all the relations of life than through the exactions ma de 
Uj. ,.ey j^jllpU^ under it. 

y^^^j^ ' ' '^^'^''P^'7 ^''' ^ defined to be burdens or charges imposed by the Icgisl a- 

^ tive power upon persons or property, to raise money for public p ur- 



- rty^ 



^V<^ poses. The power to tax rests upon necessity, and is inherent in e very 



^^^-f-iw- anvereiffnty . The legislature of every free State will possess it under 
the general grant of legislative power, whether particularly specified in 
the Constitution among the powers to be exercised b}' it or not. . . . 

" Having thus indicated the extent of the taxing power, it is ncces- 
sar\' to add that certain elements are essential in all taxation, and that 
i t will not follow as of course, because the power is so vast, that ever y- 
t hing which may be done under pretence of its exercise will leave the _ 
c itizen without redress, even though there be no conflict with expres s 
(J -^^.^jaXi^ constitutional inhibition s. Everything that may be done under t he 
''^^^ n ame of taxation is not necessari ly a tax ; and it may hai^pen that an 

o ppressive burden imposed by the government, when it comes to be care - 
full y scrutinized, will prove, instead of a tax, to be an unlaw ful confis- 
r ntion of property, unwarranted by any principle of constitutional 
g overnmep t." — Cooley, Const. Urn. 6 ed. 587 (1890).^ 









In People v. ComWs, 4 Wall. 244, 256 (1866), Nelson, J., for the 
court, said : " It is known as sound polic}' that, in ever^- well-regulated 



' / ^ ^ " Primarily, the (leterminatioD of what is a public purpose belongs to the legis la- 

V lA*-^ A^ ^j " ture. and its action is subject to no review or restraint so long as it is not maniicstT y 
colorable. A ll cases of doubt must be solved in favor of the validity of legislativ e 
aQtionSf for the obvious reason that the question is legislative, and only becomes judici al 
w hen there is a ydain excess of legislative authority. A court can only arrest the pro- 
ceedings, and declare a levy void, when the absence of public interest in the purpo se 
for which the funds are to be raised is so clear and_£al])able as to be perceptible to 
any mind at first blus h." — Cooley, Princ. Const. Law, 2d ed. 57 (1891). — Ed. 



cAjo A.Ar 



(fxAA.^ 



CHAP. VII.] WELLS V. HYATTSVILLE. 1191 "^^^"^^ ^ 

and enlightened State or government, certain descriptions of property , ^ (f\ _j(ouu^ i 
and also certain institutions — such as churches, hospitals, academies, U, ^ 
cemeteries, and the like — are exe mpt from taxation ; but these exem p- l/l*'^-^ ( 
tiQiia_ have never been rcjiarded as disturbing the rates of taxatio n, 
eveji wliere the fun damental law had ordained that it should be 



imiiiiim." 



WELLS V. HYATTSVILLE. (J-^ (P-^^i^ \^ 

Maryland Court op xVppeals. 1893. ^^Ic^aa^^ cU<x^ 

R. Ford Combs, M. W. Habercorn, and 3Iarion Duckett^ for the , 
appellants. Oscar Wolff, and A. S. Mies (with whom was M. B. "^y^^^^^^^^ 
Leverson, on the brief), for the appellee. -A^^^'*^^^^^ 

McSherry, J., delivered the opinion of the court. . . . The ad oj> Voa-^v-^^i-^ 
tion by the Board of Commissioners of Hy attsville of what is called tlie \^ } 
sin gle tax system — that is, a system under which the whole burden o f l/^MM^^-^ 
t axation is imi3osed upon the land, to the total exclusion of buildings , '& )Cjf\4jtAM 
improvements, and personal property — is the proceeding which caused r ^ 
the petitioning tax-payers to make this application to the courts. It is -^1'^^^^ n^/i^l 
obvious that the questions now brought before us are of more than-f,^^ J\ k^ 
ordinary interest, and are far from being of mere local importance, p v JXr^ 
Apart from the preliminary inquiry as to whether a correct interpreta- -A^^ » 



tion of the Act of 1892, ch. 285, warrants the exemption of all buildings /n/v-'tw. p^ 
and improvements in Hj-attsville from municipal taxation ; the broader . H fti tJi 
one, involving the power of the legislature under the Declaration of f \ 

Rights, to impose the whole burden of taxation on one single class of VCV^' '^^^^^ 
property, to the exclusion of all others, is distinctly presented. . . --Ax^k^ \)S^ 
The Declaration of Rights, Article fifteen, provides that, "every per- (^^ q 
son in the State, or person holding property therein, ought to contribute ^'-^^'^^^^'-^^ 
his proportion of public taxes for the support of the government, \yui/\K)^ ^ 
according to his actual worth in real or personal property ; yet fines, « ,^^^^ 

duties, or taxes may properly or justly be imposed or laid, with a politi- A^^-'"'^ 
cal view for the good government and benefit of the communitj'." This V'a-^/V'y*^^ 
provision has, with a slight but not material change of phraseology, jvM^ ; ■'^ 
been a part of the organic law of Maryland for considerably more than ', • / 

a centur}'. Jts predominant object is to provide by a fixed enactment 1^^""^^ j 
equality in taxation, and to prevent, as far as possible, the burden of pa/^ (A-"t>' 
supporting the government from falUng upon some individuals to the ^j^ fii/^o-^ 
exclusion or exemption of others. It prohibits unjust discriminations, , ^A-vz/vi/^ 

^ As to the effect of legislative provisions or contracts for future exemption, see — " '^-"^ ""^^ 
infra, Laws Impairing the OhJigation of Contracts. See also 1 Hare, Am. Const. Law, »,^ -^jiA .^ - 
604, 605 ; Picard v. East Tenn., ^-c, R. R. Co., 130 U. S. 637. —Ed. \^' 

"^ The statement of facts is omitted. — Ed. ' +jL An-At-Sj^^^J^-^-cxJ^ vnXA/* 



I- ^""-^j^^^ 11 92 WELLS U HYATTSVILLE. [CIIAP. VIL 

1 % A and whilst it remains in force the land-owner, be his possessions large 

J}jr' ■ /pi^M. or small, will have an absolute and complete guarantee that public 
^__- taxes cannot be imposed upon the soil alone. Buildings, improvements, 

'jtf^U^CM^. ^^^ personal property are, under its terms, as liable to assessment for 
~-\L<x taxation as land. Its theory' is that the distribution of the burden over 

every class of property alike will lessen the proportion of each Individ- 
^aJ^ ('Wwi'^^jal's contribution, whereby oppressive exactions from the owners of 
ik -f. any particular class of property will be impossible. As those who own 
^\(i buildings, improvements, and personal property in an}' of its various 

jx t/^ix forms — as well intangible as tangible — are equally protected in their 
J) jutAX possessions and in their natural rights, by the State and local govern- 
ments, with those who own the land, the support of those governments 
^xj/^ C/V/*< should place no heavier charge upon the one than on the other class of 
individuals. This has been the uniform and consistent principle always 
^ vTvLAAtA. followed in Maryland. Eminently just in itself as a sound and long- 
[au<t^ '^^ accepted axiom of political economy, it has been incorporated in her 
jKi-jj(jj^organic law since November the third, 177G ; it has been upheld by her 
■"^ ' courts, and steadilj' and tenaciously adhered to b}- her conservative 
. trct/lv'-*- people. 

J r f p. But the Act of 1892, not only under the construction placed upo n it 

i/a^*^*^/*^ by the appellee , but pa lpably by reason of its exemption o f all pers onal 

^/< \s>^^^ propert y, attempted to overthrow this salutary principle and to dis re- 

gard the fifteenth article of the Declaration of Rights, and to subst itute 

jf\ALiK kMA*- ^^ experi mental, if not a visionary scheme, which if suffered to obtai n 

L<_-u>tvC^ a footjiold will i nevitably lead to ruinous consequences . By making 

no provision for the assessment of personal property in the village of 

/'^^^^^^^^ . Hyattsville, and by confining the assessment to lands and improvements 

/ -f-^ only, the Act of 1892 undertook to exempt all personal property from 

'^^^^ A municipal taxation ; and if the appellee's interpretation of the Act be 

kaX^- (^\ conceded to be correct, it in like manner authorized the exemption of 

buildinffs and improvements. Thus the whole cost of conducting th e 

^c^MM^ municipal gov ernment in all its departments was attempted to be throw n 

^^^ ^ exclusively upon the land. If the legislature ma y lawfully do this in 

_A_- the parti cular instance of Hyattsville, it may do the same thing in t he 

^Y*^''^"^^ case of a larger and more p opulous municipality, and likewise with 

r-_i.J; vi - refer ence to a county ; and if as t o one county, t hen , too, as to every 

count y in the State . I f the assessed valuations upon buildings an d 

KA^^'^-''^ imp rovements and upon personal property be stricken fromTHe assess - 

Jijo^^^ ment books of the several counties, and t he taxes be levied only up on 

. -^^ _ the owners of the lan d, the burden would speedily become insuffera ble, 

i^^^"^^^^^"^^ and the land would cease to be worth o wning. Such a system wou ld 

^jcj^ , eventually destro y individual ownership in the soil, and under th e guise 

of taxa tion would result in ultimate confiscation. 
A^ VA^r-i .^ rpjjg wisdom of providing in the organic law against such abuses is 
• ^ (XjJC obvious, and the provision by which the people of the State are pro- 
tected against them, embodies a fundamental principle which underlies 



1^1^ \^' 



the American sj-stem of taxation. 



CHAP. VII.] WELLS i;. HYATTSVILLE. 1193 P^ q^-^^W- 



/LXLtx^ 



,A 



The nt.tftm pt made hv the Act of 1892 to disregard the fi fteenth arti- ^ 
cle of the Declaration of Rio:hts by exempting all personal prop erty pi-^n^ox^ 
from assessment m ust pr ove abortive, and as the Act undertakes to 
establish a scheme of taxation not warranted by the organic law, it 
must be stricken down as null and inoperative. tS^fiXA^tU 

We are not to be understood as denying to the legislature the power, i , . 
when State policy and considerations beneficial to the public justify it, M-^-^^*- 
to exempt, within reasonable limits, some species of property from tax- ./H^c^^^^yjoJ/^ 
ation. A long-continued practice, nearly contemporaneous in its origin ^^^^^^^ ^^ 

•with the adoption of the Constitution itself, and many adjudged and , 
carefully considered cases decided by this court, abundantly support -t:/^^j\^ H 
that power. Rut .i power to exempt for reasons and upon considera - /Lta/a-nA.ai 
tions whi ch are sufficient to uphold the exemption, is not a power to (f 
nulli fy tbe Constitution of the Stat e. Tinder the pretext of granting 
exemptions, different classes of property cannot be successively str icken 
fr om the tax lists, so as to destroy the e quality prescribed by the fun- ^ 
damental law, and eventually to reduce the taxable basis to one kind 
of property alon e. Reducing the taxable basis to land by firsr"excruding ^ ti^onA>j r^ 
personal property al together, and then excepting building s and improve- ^^^ ' ^^ 
ments, i s a pcrversion'and n ot a, legitimate exercise of ttie -conceded 0^ . 

a uthority to make valid exempti onl."^' If thIs~be"not so, then the^ery tcL^ 1?-^-^ 
power to exempt might be carried to the length contended for, and, if ^^ "tJU^A 
carried that far, it would effectually abrogate the fifteenth article of the 
Declaration of Rights. It is not necessary for the decision of this case, tAix VVi^ 
nor would it be appropriate in this proceeding, to determine how far CMrvvv/w\AA/ 
the legislature may lawfully go in granting exemptions from taxation ; ^. 
it is suflScient to observe, that the most latitudinarian construction ever vvAM 
heretofore contended for did not pretend to advance the position -(jc^^^ \^ 
assumed by the appellee. i j. 

Nor can the Act of 1892 be upheld as one imposing a tax " with a^^^ o , 
political view," m contradistinction to one levying a tax for the support ^ojyv^ ^ 
of the government. Whilst the Declaration of Rights prescribes the ^_ 
rule of equality in levying taxes for the support of the government, it '^^ t'V*- 
is careful to provide that the legislature shall not be confined to the /,,o,>^X a^ 
laying of such taxes alone. Hence it declares : " Yet fines, duties, or jy? -4 f-i \ 
taxes may properly and justly be imposed or laid with a political view for (/^ 
the good government and benefit of the community." I n other word s, ~t&^ /ukXA 
notwithstanding every ])erso n ou ght to contribute his just proporti^ of a^n i 
tbfi. public taxes for the support of the government according to his "^^^"^r 
actu al worth in real or personal property, still, other duties or tax es of '■\/\j(JjvJj>^ 
a di fferent kind may be imposed '•'• with a political view" for the good -^ .» 
gover nment of the community . Tyson et al v. State, 28 Md. 577.^ yM^^^-^ 

This is not a qualification of the antecedent clause of the fifteenth (7^A..^^y<-y^^ 
article. It is an enlargement of the power to tax. ThejLwQ. clauses of . ^ // ^ku^A 
the fifteent h article are not alternati ve, but are cu mulative provisions, (J v 

1 This case, in 1868, sustains the validity of statutes, running back to 1844, which -^"^c^l^ O^U 
tax " collateral inheritances, distributive shares, and legacies." — Ed. At- (I 







<-~^ 



1194 KornvicH v. county commissioners. [chap. vii. 

and f- onseqiiontly when public taxes are requir ed to be ra ised for the 
sup port o f the_governuient_j upon a taxable^ basis fixed b}^ an ascertain_- 
luent ofi)ropert^' va luati ons, they are imposed according to the standard 
of equality fixed in the first clause of the article ; and this standa rd 
cannot b e evaded by a m ere declarat ion that the ta xes are levied 1' with 
a p olitical view ," whgn it is perfectly manifest that they are designe d to 
be levied in the usual way for the support of a municipal government. 
/The assertion that they are taxes of the one sort, when they are^l- 
/ pably taxes of the other class, cannot make them what they are not, 
V nor cause them not to be what they essentially are./' Taxes collected 
for municip al purposes are taxes imp osed for the support of go vern- 
ment, and are sul)ject to the constitutional prohibition ag ainst inequality. 
Dull/ V. Morgan et al., 69 Md. 460. But the right to lay other taxes 
"with a political view" is not identical with a power to exempt all 
personal propert}' from taxation. The right to impose other taxes is 
in no sense a power to exempt at all ; and this broad exemption is not 
an exercise of the authorit}' to levy a tax with a political view. The 
power to exempt is not derived from the second clause of the fifteenth 
article, relating to the laying of taxes with a political view ; and the 
latter power can never be appealed to as a justification for the use of 
the former. 

In our opinion, then, the Act of 1892, ch. 285, is n ull and void^ 
l)ecause plainly unconstitutional in its unrestricted exemption of per- 
sonal pr operty from assessment and taxatio n. 

J ^ In Norioich v. Co. ComWs of Hampshire, 13 Pick. 60 (1832), there 

«^ iOCAT / ^^g ^ petition for a writ of mandamus requiring the defendants to re- 

^ t«^(A^" j build a bridge, according to the requirements of a statute : Shaw, C. J., 

1 drew up the opinion of the court. The ground of objection on the part 

^'^ // ^ ' of the commissioners is, t hat an Ac t of legislation, providing that, the 

AxXip tU^ expense of erecting a partic ular bridge shall be borne^bj;^ a county,_in 

^ whole or in part, when by the opera tion o f the ge neral laws of the Co m- 

. t^|xXAA.>-*- momvealth, without such legal provision, the expen se would be born e 

Ij^ju^Xaj^^ wh olly by a town , is beyond th e just scope of legislative power, and so 

I . ' is unconstitutional an d void. 

jpoA^X^-^^ If an Act, purporting to be a statute passed by the legislature, is not 

\. ry^^^ warranted l-y the powers vested in the legislature, it is clear that such 

It Act cannot have the force of law ; and that it is the duty of the court so 

. ArtHAA^ ^.Q declare it, whenever it is claimed to be enforced as such. But this is 

0^ ^jr^M*^ a high and important judicial power, not to be exercised lightly, nor in 

Pjj^ an}' case where it cannot be made to appear plainly that the legislature 

have exceeded their powers. It is always to be presumed, that any 

"""^^ ^'^^^ A.ct passed by the legislature is conformable to the Constitution and has 

r "^v^j the force of law, until the contrary is clearly shown. 

A. In the case before us this is the only question. The provisions of the 

O*-^"^^ Act are clear and explicit. I t in terms makes it the duty of the cou nty 

A/^j,j\. '>^{^ c ommissioners to cause the bridge in question to be built, provi ded the g 



CHAP. VII.l NORWICH V. COUNTY COMMISSIONERS. 1195 

3i)' 
expense does not exceed the sum of si x hundred dollars, and to 
charge one-half of the expense th ereof upon the county. - 

Upon consideration, the court are all of opinion that the Act was not 
n np.nnstitu tional. We think it was competent for the le<j:islaturc, h av- 
ino- re_gard to th e singular and peculiar circumstances of a particular i\y(r-tLv^-'^^ 
towin, to provide that a particular bridge should be built partly at the -p^u As^ 
exp ense of t he town , and partly at the expense of the c;ounty, wiUim 
wh ich it is situate d. It may happen that a wild, rapid stream, subject 
to great floods and torrents, passing through a poor, thinly settled town, 
may require for the public exigency several expensive bridges. It is 
not contended that the legislature might not, by a general law, provide 
for charging the expense of such bridges upon counties, or upon the 
whole State. But suppose the re were only one county, or even town , 
to which s uch Act of legislation could in its terms apply ; it seems diffi- 
cult to find a valid distinction, th at would war rant the legislature t o 
Ijass a n Act, which, though in terms general, could apply to on e town 
o r one bridge, and yet that should restrain them from doing the, same 
th ing, by naming the particular town or describing the particular bridg e. 
In a question of this description, we must look at the substance of 
legislative power, not at the mere forms in which it is exercised. 

Ifin any case th e legislature can exercise such a power, within the 
limits presc ribed to them by the Consti tution, it is to be presumed, in 
just deference to the authori ty of a co-ordinate branch of the govern- 
ment, that in any particular case it was done discreetly, and with a just 
reg ard to the relative rights and interests of differe nt portions of the 
c ommunity . 

It will not throw much light on a question like this, to put extreme 
cases of the abuse of such a power, to test the existence of the power it- 
self. It is said that the expense of erecting bridges in one section of 
the Commonwealth, may be charged upon the inhabitants of another ; 
that the inhabitants of Suffolk ma}' be taxed for a bridge in Berkshire. 
But we think the decision in this case will warrant no such extravagant 
conclusion. B ridges, though they are designed for public convenience, 
a nd for all the c itizens of the Common wealth, yet are mo re im mediately 
ben eficial to those whose local situation is such as to require the mor e 
f requent use of them. T he people of a town and co unty where a bridge 
is_situated, have anijiterest in it, and derive a benefit from it, greater 
i n degree, than the rest of the community, accord ing to their local posi- 
t ion, and may therefore, on general p rinciples of justice, be required to 
co ntribute a larger share towards its erection and support. The possi- 
bility that such a power may be abused, has but a slight tendenc}' to 
prove that it does not exist. There are a variety of other cases, in 
which it would be easy to suggest a possible gross abuse of legislative 
I powers, but in which there can be no possible question of the existence 

i of the power itself, under the express provisions of the Constitution. . . . 

And th ere is another circumstance which, w e thin k, rescues this A ct 
from the charge of violent innovation ; i t is, t hat it has been the prac- 



1196 PEOPLE V. FLAGG. [CHAP. VII. 

tice. from the earliest times, to charge the cost of certain larg e and 
expe nsive br idges, in whole or in part, upon counties ; a od it is impos- 
sible to deny the eq uit y of these pr ovisions. 

The court are of opinion, that the Act in ques tion was not unconsti- 
tutiona l ; that it is a valid and binding la w, whi ch the co mmissioner s 
are, h ound to carry into effe c t, according to its ter ms. 

A lorit of mandamus in the alternative ordered. 

7- 



l jilcuA^^-^^^ In Peoj)le v. Flaq^j, 46 N. Y. 401, 404 (1871), i n sustaining a law whi ch 
■ jr-^ authorized the building of certain roads by two towns, and required the 

^'^"^^ issuing and s ale of town bonds to pay th erefor, Church, C. J., for 

AAI(^-^^ the court, said : "The legislation i nvolved in this case is challenged 
[ctiAMf^^ upon the ground that it is not competent for the legislat ure to comj:)el 
y ^ the to wn of Yonkers to incur a debt for the improvements authorized 

^ t o be made. It is conceded that the legislature could direct the im- 

, ^ XM/VL- provements to be made, and could lawfully impose a tax upon the 
/XIaaIlA property of the citizens of the town to pay the necessai-y expenses, or 
-j^^ {^v^M that it might authorize a town debt to be created, with the consent of 
A i Lisa the people of the town, or some officer or officers representing the 
Jr^ municipality ; but that it cannot directly compel the creation of the 

iif A/vt^ - deM, with out the consent of the citizens or town authorities. 
fu^d c\ L^ " All legislative power is conferred upon the Senate and Assembly ; 
^ and if an Act is within the legitimate exercise of that power, it is valid, 

X'U- ^'^ unless some restriction or limitation can be found in the Constitution 
AM 1^ /^M itself. The distinction between the United States Constitution, and 
I ' " our State Constitution is, that the former confers upon Congress cer- 
_^h^wy^ tain specified powers only, while the latter confers upon the legislature 
i^aCU^V^ all legislative power. In the one case the powers specifically granted 
/ - can only be exercised. In the other, all legislative powers not pro- 

t<5(y>;iA^ hibited may be exercised. It cannot be denied, that the subject of the 
O.'lrrvi'^ laws in question is within legislative powers. The mn,king fl,nd im- 
4- "t/Avvf Proveme nt of public high ways, and the imposition a nd collection of 
^ taxes, a re among the ordinary subjects of legislation. The towns 

c^(aM^'^ oi the State possess such pow'ers^as the legislature confers upon 
^(L^ them. They are a part of the machinery of the State government, 
W\. and perform important municipal functions, which are regulated and 

^^^^-^^^"^ • controlled by the legislature. Private property cannot be taken for 
^ f^A^M'^ public use without compensation. But this principle does not inter- 
fere with the right of taxation for proper purposes. The legislature, 
in su bstance, directed certain highways to be m ade and constructed in 
the town of Yonke rs, and imposed a tax upon the town to_pay the 
expen ses of the work, but to i)revent too lar ge a tax at one time, it 
directed bonrls to be given, payable at differe nt periods, so, that no 
Te^t^x/iM- ™°^® t han a limited sum should become due at one time. 
^'^'^^ v/l " The bonds to be given are town bonds ; they are to be issued by 
{y cu^/U^^' iov!w officers, and the tax to pay them is imposed upon the property of 
li^ 't^ the town, /if the legislature may authorize the town to incur this debt, 




CHAr. VII.] KELLY V. PITTSBURGH. 1197 

why may it not direct it to be doue?/ As a question of iWwer. I am 
unable to fi nd any rest rictio n in the Consti tution. It i s not within the 
judicia l province to corr ect all legis lative abuses. 

"That local expenditures and improvements should, in general, bel 
left to the discretion of those immediately interested, is manifestly just, 
and is in accordance with the theory of our government. But wh eij 
power is conceded, we have no right to inquire into the m otives oil 
reason s for doing the particular act. 

" The legislati on in question is open to serious criticism. I t comp els 
a large , if not ext ravagant expenditure of money, and imposes oner- 
ous burde ns upon the people without thei r consent. If the object of 
the e xpenditure was private, or if the money to be raised was dire cted 
to be paid to a private corporation, who were authorized to use the 
imp rovements for private gain, t he question, in my judgment, would 
be quite d iffere nt ; and in this respect there is a limit, beyond which 
legislative power cannot legitimately be exercised. But the defend- 
ants cannot avail themselves of this principle. H ere the purijose i s 
confess edly public, and the taxing power for such purposes is re- 
straine d only by restrictive provisions, and whether a tax shall be 
imposed fo r the wh ole expenditure in one year, or spread over a series 
of years ; and i n the mea n tim e the obligations of the town, given on 
matters of detail a nd d iscr etion, which do not affect the power, and 
with which courts cannot interfere." 



KELLY .. PITTSBURGH. ^ ^^ (^JjU^ 

Supreme Coukt of the United States. 1881. ^^. CIax/vaX'va 

[104 i7. 5. 78.] ,,.:.^.eJU../^ l^ 

Error to the Supreme Court of the State of Pennsylvania. clXax/^- n>^ |j ''^'^ 
The facts are stated in the opinion of the court. aX^ )Lc3u«-^ '^ 

Mr. Daniel Ag?ieto and J/r. Albert JV. Sutton, for the plaintiff in /(^oXtA^.-V-^ 
error. Mr. George Shiras, Jr., contra. ~^\^\jiJL- 

Mr. Justice Miller delivered the opinion of the court. (J ^ 

The p laintiff i n error, James Kelly, is the owner of eighty acres of J^^j- -^-'^'^^ 
l and, w hich, prior to the year 1867, wa s a part of the township of Col- Lj^^u^uV^ 
hns, in the county of Alleghany and State o f Pennsylvan ia. In that year ' 
the le gislature passed an Act by virtue of which, and the subsequ ent pro; t^ *aAav^ 
c eedings under it, this t ownship became a part of the city of Pittsb urgfh. ,<iy:^/xjO:^^'^^ 
The aut horities of the city assessed the land for the taxes of the y ear "_^ ^ 
1874 at a su m which he asser ts is enormously beyond its valu e, and ^ 
almost destructive of his hiterest in the property. They are divisible 'Xh \ ^^J^*^ 
into two classes ; namely, those assessed for Sta t e and count}' pur- .,(^„,.,^^trwa.v«\ 



-^oUL 1198 KELLY V. PITTSBURGH. , [CHAP. VIL 

- po ses by the count}' o f Allegliau}-, within which Pittsburgh is situated, 
<^'^, ^^^ and those as sessed b}' the city for city ijurp oses. 

Jj^^ Kelly to ok an appeal, al lowed by the laws of Pennsylyania, f rom the 
Q' original asse ssment of t axes, toa board of rey i sion, bu t with what suc- 

lIaam^ *v c ess does not distinctly- appear. The result, however, was unsatisfac- 
^JOjVjfiu^ tory to him, and he brought suit in the Court of Com mon Pleas to 
^'^ restrain the city from collecting the ta x. That cour t dismissed the bill, 
/^ t/i. aahj^ and the. decree ha ving been affirmed on appeal by the Supr eme Court, 
(A/-cx>^/\ he sjied ou t this writ o f error._ 

<X The transcript of the record is accompanied by seven assignments of 

Xa^ ch-^^^ error. All of them except two have reference to matters of which this 

'v-v-cxij.^ 4 court has no jurisdiction. Those two, however, ass ail the decree on tlie 

ground that it violates rights guara nteed by the Con stitution of the 

f-^K Un ited Stat es. As the same points were relied on in the Supreme 

_-j_ ^ Court of the State, it becomes our duty to inquire whether the}* are 

r^ well founded. They are as follows : — 

ia^j^j^ Firs t, The Supreme Court of Pennsylvania erred in sustainin g the 

/ authori ty of the city of Pittsburgh to assess and collect taxe s from 

'■'•-*" '^ Vv com plainant's farm-lands for municipal or cit y p urpo ses, such exercise 

Jtu (tuAA- of-lhe taxing power beings a violation of rights guaranteed to him by 

^^ artkile 5 of ame ndments to the Constitutio n of the United States. 

^^"^■^^ Second, The Supreme Court of Pennsylvania erred in sustaining the 

v.cLv\ vz. authority of the citj' of Pittsburgh to assess and collect taxes from 
complainant's farm-lands for municipal or cit}' purposes, such exercise 
*^ of the taxing power being a violation of rights guaranteed to him by 

Ak*JL.)^ciAtr art. 14, sect. 1, of the amendments to the Constitution of the United 

As regards the effect of the Fifth A m endment of the Constitutio n, 

jt-,Oia. A^^ it has always been hel d to be a restriction upon the power s of the 

\AjxxjLKj-tM^ Federal g overnment, and to have no reference to the exer cise of such 

^ ^, powe rs by the State governme nts. See Withers v. Buckley^ 20 How. 

^ tu^ 0*.g4. j)avidson v. Neio Orleans, 96 U. S. 97. We need, therefore, 

.give the first assignment no further consideration. But this is not 

material, as the provision of sect. 1, art. 14, o f the amendments relied 

on in the second assignment contains a prohibition on the power of the 

/V4Jv(vA States in language almost identical with that of the Fifth Amendment. 

(i That language is that " no State shall . . . deprive any person of li fe, 

iZviXoTU^ liberty, or property wit hout due process of law. " 

JL lUA^ A ^^^ main argument for the plaintiff in er ror — the only one to which 
■Q ''^ we can listen — is. that the proceeding in regard to the taxes as sessed 
X^j^ij^^V^ on his l and dep rives him o f his property without due p rocessof law. 

, It is not asserted that in the methods b}- which the value of his land 

was ascertained for the purpose of this taxation there was any depar- 

■^^<:^^'-<J^^ ture from the usual modes of assessment, nor that tlie manner of ap- 

■Lx.. iici.<^(\ ■ portioning and collecting the tax was unusual or materially different 

from that in force in all communities where land is subject to taxation. 

ju v_A' In these respects there is no charge that the method pursued is n ot due 






rfvX 



CHAP. Vlf.] KELLY V. PITTSBURGH. 1199 (V^^^^^ ^ 

process of law. Tax es have no t, as a general rule, in this country . 

since its independence, nor in England before that time, been collected <-^-^*-^-^ ^ 
b^ regular judicial proceedings. T he necess ities of government, the ^-if- (Xci 
nature of the d ut y to be performed, and the custom ary usages of the J . , 

p eopl e, have established a different procedure, which, in regard to that 
ma tter, is. and always has been, due process of law. 

The tax in question was assessed, and the proper officers were pro- 
ceeding to collect it in this way. 

The di stinct gr ound on which this prov ision of the Constitution of 
the United States is i nvoked is, th at as the land in question is,~au d 
alw ays has been , used as farm-land, for agricultural use onlj', subject- 
in g it to t axation for o rdinary city purpose s deprives the plaintiff in 
er ror o f bis prop erty without due process of law. It is alleged, and 
probably with truth, that the estimate of the value of the land for 
taxation is very greatly in excess of its true value. Whether this be 
true or not we cannot here inquire. We ha ve so often decided that we 
can not review and correct the errors and mistakes of the State trib u- 
nals on that subject, th at it is o nly necessary to re fer to those decisi ons 
without a restatement of the argument on which they rest. State Rail- 
road fax Cases, 92 U. S. 575 ; Kennardv. Louisiana, Id. 480 ; David- 
son V. New Orleans, 96 Id. 97 ; Kirtland v. IlotchJdss, 100 Id. 491 ; 
»3Iissouri v. Lewis, 101 Id. 22; National Bank v. Kimball, 103 Id. 
732. 
Bu t, passing fr om the que stion of the ad min istration of the law of 
Pennsylvania by her authoriti es, the ar gument is, that in the matter 
alrea dy mentioned the law itself is in conflict with the Constitution. 

It is not denied that the legislature could rightfully enlarge the 
boundary- of the city of Pittsburgh so as to include the land. If this 
power were denied, we are unable to see how such denial could be 
sustained. What portion of a State shall be within the limits of a city 
an d be governed by its authorities and its laws has alwa ys been con- 
sic|ered_to^J)e a proper sul^ect of legislation. Ho w thickly or ho w 
sparsely t he territory within a city must be settled is one of the matt ers 
with in legislative discretion. Wh ether territory shall 1)e governed fo r 
local pu rposes by a county, a city, or a township organization, is one 

H of th e most usual and ordinary subjects o f State legislation. 

^ It is urged, howevei-, with much force, that land of this chai'acter, 

which its owner has not laid off into town lots, but insists on using for 
agricultural purposes, and through which no streets are run or used, 
cannot be, even by the legislature, subjected to the taxes of a city, — 
the water tax, the gas tax, the street tax, and othei-s of similar char- 
acter. The reason for this is said to be that such taxes are for the 
benefit of those in a city who own property within the limits of such 
improvements, and who use or might use them if they choose, while 
he reaps no such benefit. Cases are cited from the higher courts of 
^ Kentucky and Iowa where this principle is asserted, and where those 
courts have held that farm-lands in a city are not subject to the ordinar}' 



1200 KELLY V. PITTSBURGH. [CIIAP. VIL 

city taxes. It is no part of our duty to inquire into the grounds on 
which those courts have so decided. They are questions whicli arise 
between the citizens of those States and their own city authorities, 
and afford no rule for construing the Constitution of the United States. 

We are also referred to the case of Loan Association v. Topeha (20 
Wall. G5o), which asserts the doctrine that taxation, though sanctioned 
by State statutes, if it be [not] for a public use, is an unauthorized 
taking of private property. 

AVe are unable to see t hat the taxes levied on this p roperty were 
n ot for a public use . Taxca-fojLSchoolSjfor the suppo rt of the po or, 
for pr otection against fire, and for water-works, are the specific tax es 
fo und in the list complaine d of. We think it will not be denied by any 
one that t hese are pubUc purposes in which the whol e community have 
a n interest, and for which, by common consent, pro perty owners every- 
w here in this countr y are tax ed. 

There are items styled city tax and city building s, which, in the 
absence of any explanation, we must suppose to be for the good gov- 
ernment of the city, and for the construction of such buildings as are 
necessary for municipal purposes. Surely these are all public purpose s ; 
an d the money so to be raised is for public use. No item of the tax 
assessed against the plaintiff in error is pointed out as intended for 
any other than a public use. 

rt may be true that he does not receive the same amount o f benefit 
fr om some or any of these taxes as do citize ns living in the heart of 
th e city. I t probably is true, from the evidence found in th is record, 
th at his tax bears a very unjust relation to the ben efits received as 
compared with its amount. B ut who can adiust with precise accurac }' 
the amou nt which each indi vidual in an organized civil communitj- shall 
contri l)ute to sustain it, or can insure in thi s respect alisolute equality 
Qf burd ens, and fairness in their distribution among t hose who m ust 
bear them"? 



We cann o t say judicially that Kelly received no benefit from the ci ty 
o rganization . These streets, if the}- do not penetrate his farm, lead to 
it. The water-works will probably reach him some day, and may be 
near enough to him now to serve him on some occasion. The schools 
may receive his children, and in this regard he can be in no worse con- 
dition than those living in the city who have no children, and yet who 
pay for the support of the schools. Ever}^ man in a count}', a town, 
a city, or a State is deeply interested in the education of the children 
of the community, because his peace and quiet, his happiness and pros- 
perity, are largely dependent upon the intelligence and moral training 
which it is the object of public schools to supply to the children of his 
neighbors and associates, if he has none himself. 

T he officers whose duty it is to punish and prevent crime are p ai d 
out of the taxes. Has he no interest in maintaining them, because h e 
li ves further from the court-house and police-station than some other s ? 

Clearly, however, t hese are matters of detail within the discretion , 



CHAP. YII.] KELLY V. PITTSBURGH. 1201 "" 

and therefore the power, of the law-making body within whose juris- 
diction the parties live._ T his court cannot sa\' in such cases,, ho wever 
grfiat_the har dship or un equal the burden, that the tax collected for 
such purpos es is taking the propertyof the, tax-payer without due pj :o- 
ppss of laj r. 

These views have heretofore been announced by this court in the 
cases which we have cited, and in IIcMiUen v. Anderso7i, 95 U. S. 37. 

In Davidson v. New Orleans, supra, the whole of this subject was 
very fully considered, and we think it is decisive of the one before us. 

Judgment affirmed} 

1 Compare Erie v. Heed's Ex'rs, 113 Pa. 468. As to the summary procedure that 
is valid in taxation, see Murray v. Hoboken Land Co., 18 How. 272 ; s. c. supra, p. 600, 
and compare Davidson v. .V. 0., 96 U. S. 97 ; s. c. supra, p. 610; Auffmordt v. Hedden, 
137 U. S. 310, 323; State Railroad Tax Cases, 92 U. S. 575. T?)LA^ 

Compare, on a like question, ilorford v^JJoser^ 8 Iowa, 82 (1859). Stockton, J.,^-j — as — 
for the court ; " The only question to be considered iu this case is, whether the Acv 
of the Legislature of Iowa, approved July 14, 1856, entitled 'An Act to amend the 
Act to incorporate the city of Muscatine ' is constitutional. By this Act, it is con- 
ceded the limits of the city of Muscatine were extended about one mile on the east, 
and about two miles on the north and west, beyond its former boundary. The plain- 
tiff liYfid upo n the territory brought into the city by the Act aforesai d, upon laud_ 
used exclusively fo r farming purposes, about one mile from the old city limits, and 
about the same distance from any lands la id out into city or to wn l ots, or use d asjcity 
proper ty. His land, so us ed, was taxed by the city atj;he sum of one dollar per acre. 
This tax he refused to pay ; a nd his property being distrained for the payment th ereof, 
he brought t his actio n of replevin, to test the constitutionality of the Act extendi ng 
t he limits of th e city^ ... 

" The question where the proper line is to be drawn between the legitimate exercise 
of the taxing power and an arbitrary appropriation of the property of an individual 
under the mask of this power, is discussed at length by Marshall, C. J., in Chfaney 
V. Hooser, 9 B. Monroe, 330 ; and it is held by the court, that where there is no 
other constitutional restriction upon the power of taxation, securing equality an d 
u niformity in the distributio i i of taxation, either general or local, the provision o f 
the C onstitution w hich prohibits the taking of privat e property for public use without 
j ust compensation, furnishes tlie only available safe,<^nar(] ao-ainst lew'islation, which, i n 
i ts operation, may result in the appropriation of the property of one for the benef it 
o f man y. 

" Conceding to the General Assembly a wide range of discretion as to the objects of 
taxation, the kind of property to be made liable, and the extent of territory within 
which the local tax may operate, it is argued, in the opinion referred to, that there 
must be some limit to this legislative discretion ; which, in the absence of any other 
criterion, is held to consist in the discrimination to be made, between what may rea- 
sonably be deemed a tax, for which a just compensation is provided in the objects to 
which it is to be devoted, and tliat which is palpably not a tax, but which, under the 
form of a tax, is the taking of private property for public use, without just compen- 
sation. Tf there be such a flagrant and palpable departure from equity, in the burden 
imposed ; if it be imposed for the l^enefit of others, or for pnrposes in whi ch those 
nh jppt.ing have no interest, and are, there fore, no t bo und to contribute, it is no m atter 
i n what, form the power is exercise d — whether in the unequal lew of the tax, or in 
t he regulation of the boundarie s of the local government, wh ich results in subjecting 
the, party unjustly to local taxes, it must be regarded as coming within jhe prohU)i- 
tio n of the Constitution designed to protect private right s against aggress ion, howeve r 
made, and whether under the color of recognized p ower or not^ 

" It is urged by the plaintiff, that his farm, which is sought to be brought within 
VOL. I. — 76 



1202 KELLY V. PITTSBURGH. [CHAP. VII. 

"the jurisdiction of the city, is agricultural land ; that it is one mile from the old boun- 
dary of the city, and the same distance from any lauds laid out into city lots, or used 
or needed for city purposes ; t hat he can derive no benefit from the extension of th e 
municipal g overnment over him and his property ; and tiiat the Act s ubjecting hini.to 
taxation at the wi ll of the city council, and for its benetit, is an approp riation of_his 
private propert y for the use of the city, without any compensatiou or benefit accruing 
to him in return . 

" We have no doubt, as is held in Cheaney v. Ilooser, supra, that if the owner of 
land adjoining a city or town should lay tlie same off into lots, and invite purchasers 
and settlers to occupy it with dwellings or otherwise, he could not object to a law ex- 
tending the authority of the local government over him and his land so laid out and 
occupied. B ut if the case is that of vacant land, or a cultivated farm, occupied b y 
the owner for agricultural purposes, and not required for either streets or houses , or 
othe r purposes of a tow n, and solel y for the purpose of increasing its revenue, it i s 
l)roii ght wi thi n the taxing powe r, by an enl argement of the city limits, suc h au Act, 
tli ouijh on its face providing only for such extension of the city limits, is in rea lity 
not hi ng more than authority to the city to tax the land to a certain distance o ut s i d e 
of its limi ts ; and is . in effect, the taking of private property without compen sation. 
[The force and effect and obvious intent of the Act is, to subject such outside lands fo 
city taxation, without the pretext of extending the protection of the city over them, 
and when the power of the legislature over local regulations and government furnishes 
no legitimate basis for the Act. 

" In Wells v. Citi/ of Weston, 22 Missouri, 385, the Supreme Court of Missouri, 
while conceding to the legislature the uncontrolled power of taxation, subject only to 
the constitutional restriction, that ' all property subject to taxation shall be taxed in 
proportion to its value ; ' and conceding, also, the right to delegate to subordinate 
agencies, such as municipal corporations, the power of taxation, have denied to it the 
power to tax arbitrarily the property of one citizen and give it to another ; and on 
this ground have held, that the legislature cannot authorize a municipal corporation 
to tax, for its own local purposes, land lying be3-ond the corporation limits. 

" And so it is held by the Court of Appeals of Kentucky, in conformity with the 
principles laid down in Cheaneij v. Hooser, supra, that although the legi.slature has 
power to extend the limits of cities and towns, and include adjacent agricultural 
lands, without the consent of the owner, yet the corporation authorities cannot tax 
such property as town property, and subject it to the city burdens, without the consent 
of the owner, until it shall be laid off into lots and used as town property. The decision 
is made distinctly on the ground that the Act of the Legislature was an invasion of 
private property, contrary to the principles of our constitutional law, under color of 
the power of taxation. Citi/ of Covington v. Southgate, 15 B. Monroe, 491. . . . 

" The extension of the limits of a city or town, so as to include its actual enlarge- 
ment, as manifested by houses and population, is to be deemed a legitimate exercise 
of legislative power. An indefinite or unreasonable extension, so as to embrace 
l ands and farms at a distance from the local government, does not rest upon th e sam e 
authority . And although it may be a delicate, as well as a di fiicul t, duty for the ju di- 
ciary to interp ose, we have no doubt but strictly there are limits beyond which the 
legis lative discretion cannot go. It is not every case of injustice or oppression which 
may be reached ; and it is not every case which will authorize a judicial tribunal to 
inquire into the minute operation of laws imposing taxes, or defining the boundaries 
of local jurisdictions The extension of the limits of the local authority may in some 
cases be greater than is necessary to include the adjacent population, or territory laid 
out into city lots, without a case being presented, in which the courts would be called 
upon to apply a nice or exact scrutiny as to its practical operation. It mu .st be a ca se 
oi-fla ^r.int injustice andjaVpable ^ wrong. amounting to the taking of private property . 
without such compensation in return as the tax-payer is at liberty to consider a f air 
e quivalent for the t ax. 

" In the case of Ctti/ of Covington y. Southga te, 15 B. Monroe, 498, it was held by 
the court, that as Southgate had made no town upon his land, and desired none ; and 



CHAP. YII.] WEIMER V. BUNBURY. 1203 



WEIMER V. BUNBURY.i 
Supreme Court of Michigan. 1874. V"^^'^'^^ 

[30 Mich. 201.] A-^-^-^-^JUkJ^. V>5» 



[BuNBURT brought trespass for taking and carrying away bis goods. ^-, / 

Plea, the general issue ; giving notice of certain facts in justification, to 

the effect that the said plaintiff, being treasurer of a city, made default 'l^.j^c^^.^^t^t^^ 
in collecting and paying over taxes to Hess, the county treasurer ; that 

Hess, under color of a statute, issued a warrant to the defendant "w<»^c<- ■^ — ■'^« 

Weimer, reciting this default and the amount thereof, and directing c:pOJ^ o^.A^UiJ 

him to collect the said sum from the estate of the plaintiff; and that "Wr^yiA 
Weimer acted by virtue of this warrant. At the trial the plaintiff 

objected to the defendant's offer of proof, on the ground, among others, ]^ a..o~VU 

that the statute alleged as authorizing the warrant was unconstitu- -^^ij^ A^y^y^j. 

as there appeared no legitimate necessity to justify the extension of the city boundary, Q-<_ov ^ olef^ 
without his consent, it p resented a case of taxation for the benefit of others, and was 
iin( ier the color of taxation, an app ropriation of private property without compens a- jS^ '\X>^aJi. 
ti oi) . W e think the case made by the present plaintiff is quite as strong as the one oix^*. 

cited . Hi s land is situated too far from the city of Muscatine to be deemed, in a ny ^^'-^ V^ 

j ust sense, a part of it. He does not desire to lay it off into city lots, but desires y';2,>V/<^-Cjlxj;^ 

to use it as farming land . I t is idle to say that the protection afforded by the ci ty ' 



/Cc4-»-0 xX^»-<^ 



au thority, or the privilege of voting at the city elections, furnishes a just equivalent xa/<^'V< -vAx-'C-t' 
fnr t.hft hiirdpus impospd up on him in the shape of taxes, by the city ; an d the atte mpt ^^^ ayvt^ ^tt^ot 
to extend its jurisdiction over him and his property must be regarded as an attem pt ^ < 

t o take private property for public use, a nd w ithin the prohibitory clause of the C on- -f:^,^^ ii.^Mr*^ 
stitutio n. J . " > J 

"The restriction in the fifth section of the Act, 'that the lands lying within the (^T\ ^f*-*^*-'^-'^-^ 
territory brought into the city, not laid out into lots and out-lots, shall not be assessed / 

or taxed otherwise than by the acre, according to its value for agricultural, horticul- U-^'*-^ 
tural, mining, and other purposes,' does not relieve the Act of its objectionable fea- riA^.o-cx^a.^ »- 
tures, or strengthen, in any degree, the case of the defendant. It would seem to 
indicate, on the other hand, that the city was se eking to bring within its power, for 
the purpose of taxatio n, land u sed for farmin g purposes, and not needed iov city lots, 
w it.hont any expectation of rendering a iust etiuivalent for the burdens it design e d 
to impo^ ft. The difficulty is in no manner obviated bv the suggestion, tliat the city 
o nly pr oposes to tax the land of th e plainti ff by the acre, as agricultural lauds, ^ruT 
n ot as c fty lots. It can make little_diffexeiice_to..ihe. jplaintiff Jn what manner-His 
pr operty ls~i:ax ed. Wliether as city lots, or b y the acre, as agricultural land. _It is 
the power t o tax in an y shape to which he objec ts. It migh t as well be attempted t o 
c all the tax itself by some less objectionable nam e. Judgment reversed." 

In Fulton v. Davenport, 17 Iowa, 4 04 (1864), the court (Lowe, J.), upon a referee's 
detailed report as to the situation of the lot in c^uestion, and its relation to the city 
proper, undertakes to lay down a working ru le. Compare Bradshaw v. Omaha, 1 Neb. 
10, a case of the same sort, where the court make a similar attempt to lay down a 
rule. 

See Cooley, Const. Lim. 6th ed. 616, n. 3: " It would seem as if there must b e 
fr reat practical difficultie s — if not some of principle — in making this disposition of 
su cii a case ." — Ed. 

1 Spencer v. Merchant, supra, p. 647, may well be examined at this point. — Ed. 



1204 WEIMER V. BUNBURY. [CHAP. VII. 

tional, as depriving the defendant of his property without due process 
of law. A'eidict and judgment for the defendants.] 

Error to Berrien Circuit. JiJdtcard JJacon and C. J. IJ'alker, for 
plaintiff in error. .£". M. Plimptoyi and D. Darwin Hughes^ for 
defendant in error. 

Cooi.EY, J.-' . . . The position taken b}- the defendant in error is, 
that the words "due process of law," made use of in the section of 
the constitution last referred to, impl}', in the words of Judge Bronson, 
" a prosecution or suit, instituted and conducted according to the pre- 

1 The following passage of the opiuiou, from what is here omitted, may be inserted 
as a note : — 

" Under our revenue system, the supervi.sors of townships and cities make an annual 
assessment of persons and property for tiie purposes of taxation. The auditor-general 
apportions the State tax among the counties, and transmits notice of the apportion- 
ment to the clerks of the boards of supervisors respectively. Comp. L., § 996. The 
supervisors determine the amount of county taxes, and apportion State and county 
taxes among the townships. lb., § 997. The clerk of the board makes two certificates 
of the amount apportioned to each township and ward, one of which he delivers to the 
county treasurer, and the other to the proper supervisor. lb., § 998. The supervisor 
proceeds to levy the taxes specified in the certificate, lb., § 999; and on or before 
November 15, notifies the township or ward treasurer of the amount, who must, on or 
before the 25th of November, give bond to the county treasurer, and liis successors in 
office, with sureties, conditioned that he shall duly and faithfully perform the duties 
of his office. lb., § 1000. For this bond the county treasurer gives a receipt, lb., 
§ 1001 ; which is presented to the supervisor, who thereupon delivers to the township 
treasurer a copy of the assessment roll, with the taxes all extended thereon, including 
not only the State and county, but also all township, school, highway and sjjecial taxes, 
and with a warrant attached, which shall specify particularly the several amounts and 
purposes for which said taxes are to be paid into the county and township treasuries, 
respectively. lb., § 1002. This warrant is to be under the hand of tlie supervisor, 
commanding the treasurer to collect from the several persons named in the roll the 
sums assessed against them, and to retain in his hands the amount receivable by law 
into the township treasury for the purposes therein specified, and to account for and 
pa}- over to the county treasurer tlie amounts therein specified for State and county 
purposes, on or before the first day of February then next ; and it is to autliorize the 
treasurer, in case any person named in the assessment roll shall neglect or refuse to 
pay his tax, to levy the same by distress and sale of his goods and chattels. lb., 
§ 100-3. The township treasurer must, 'within one week after the time specified in 
his warrant for paying the money directed to be paid to the county treasurer, pay to 
such county treasurer the sum required in his warrant, either in delinquent taxes or in 
funds then receivable by law.' lb., § 1018. The provision under which the county 
treasurer issued the process now in question, is as follows . ' If any township treasurer, 
ward collector, or other collecting officer shall neglect or refuse to pay to the county 
treasurer the sums required by his warrant, or to account for the same as unpaid, as 
required by law, the county treasurer shall, within ten days after the time when such 
payment ought to have been made, issue a warrant under his hand, directed to the 
sheriff of the county, commanding him to levy such sum as shall remain unpaid 
and unaccounted for, together with his fees for collecting the same, of the goods and 
chattels, lands and tenements of such township treasurer, ward collector, or other 
collecting officer, and their sureties, and to pay the said sums to such county treasurer, 
and return such warrant within forty days from the date thereof.' lb., § 1029. 

" It is, perhaps, not necessary to notice statutes further, except to say that under the 
charter of the city of Niles there are no ward collectors or treasurers, but the duty of 
collecting for the whole city is devolved upon the treasurer of the city." — Ed. 



I 



CHAP. YII.] WEIMER V. BUNBURY. 1205 

scribed forms and solemnities for ascertaining guilt or determining the 
title of property." Taylor v. Porter, 4 Hill, 147. In this case there 
has been no prosecution or suit ; the count\- treasurer has adjudged the 
case without a hearing, and issued final process to seize property in 
enforcement of his conclusion. Such summary process, it is said, which 
gives the party whose property is seized no opportunity to contest the 
claim set up against him, cannot be due process of law. 

There is nothing in these words, however, that necessarily implies 
that due process of law must be judicial process. Much of the process 
by means of which the government is carried on and the order of 
societ}' maintained is purely executive or administrative. Temporary' 
deprivations of libert}- or property must often take place through the 
action of ministerial or executive officers or functionaries, or even of 
private parties, where it has never been supposed that the common law 
would afford redress. One in whose presence a felony is committed is 
in duty bound to restrain the offender of his liberty without waiting for 
the issue of a magistrate's warrant, — 4 Bl. Com. 292-3 ; and the trav- 
eller who finds the public way founderous crosses the adjacent field 
without fear of legal consequences. Holmes v. Seeley, 19 Wend. 507 ; 
Campbell v. Race, 7 Cush. 408. Our laws for the exercise of the right 
of eminent domain protect parties in going upon private grounds for 
the preliminar}' examinations and surveys. It may be said that in 
none of these cases is the deprivation final or permanent, but that is 
immaterial. The constitution is as clearh* violated when the citizen 
is unlawfully deprived of his liberty or propertj' for a single hour, as 
when it is taken away altogether. Estrays were at the common law 
taken up and disposed of without judicial proceedings, — 1 Bl. Com. 297 ; 
and our statutes have alwa3'S made provisions under which, if they were 
complied with, the owner of straj- beasts might be deprived of his 
ownership by ex parte proceedings not of a judicial character. Where 
an individual ci'eates with his property a public or private nuisance, the 
common law permits the citizen who suff"ers from it to become •• his own 
avenger, or to minister redress to himself," — 3 Bl. Com. 5, 6 ; and he 
ma}' even destroy the property if necessary to the removal of the nuis- 
ance. Rung v. Shoneherger, 2 Watts, 23 ; Inhahitants of Arundel v. 
McCulloch, 10 Mass. 70; Wetmorev. Tracy, 14 Wend., 250. The de- 
struction by the act of the party is as lawful as if it had been preceded by 
a judgment of a competent court, the only diff*erence being that the party 
when called upon to justify the act must in the one case prove the facts 
warranting it, wliile in the other he would be protected by the judgment. 
No one probably would dispute the levy of distress by a private indi- 
vidual being due process of law in the cases in which the law permits 
it. 3 Bl. Com. 6. It is true that the party whose property has been 
distrained may contest the proceedings by suit in the common-law 
courts, but he fails if the}' prove to have been regular. The military 
law affords abundant illustration on this point. The principles on which 
it is administered have but little in common with those which control 



1206 WEIMER V. BUNBURY. [CHAP. VH. 

judicial investigations, and the process under which men are restrained 
of their liberty under it is sometimes very summary and even arbitraiy. 
But this law is just as much subject to the constitutional inhibitions as 
is the code of civil remedies. See Ex parte 3Iilli(jan^ 4 Wall. 2. But 
the proceedings for the levy and collection of the public revenue afford 
still better illustration. Almost universally these are conducted with- 
out judicial forms, and without the intervention of the judicial authority- ; 
the few cases in which statutes have required the action of courts being 
exceptional. Where such action is not required, the proceedings are 
regarded as purely administrative, and any hearing allowed to parties 
in their progress has not been in the nature of a trial, but as a means 
of enlightening the revenue officers upon the facts which should govern 
their action. This has been so from time immemorial, and it has never 
been supposed that the taxpayer had a constitutional right to resist 
the tax because he had never had an}' judgment against him on a 
judicial hearing to fix its amount. 

There are, unquestionably, cases in which expressions have been 
used implying the necessity- for a common-law trial before, in an}- in- 
stance, a man can be deprived of his property ; but the}' will be found 
on investigation to be cases calling for no such sweeping statement. If 
any court has ever decided that judicial proceedings are of constitutional 
necessity in appropriating property under the power of taxation, the 
case has not been brought to our attention, and has been overlooked in 
our investigations. This would be most extraordinary if the necessity 
existed, for tax systems similar to our own have prevailed ever since 
our government was founded, and it cannot be said that tax laws are 
usually so popular as to disarm every person of any legal objections 
which he might suppose available to relieve him of their burdens. On 
the contrary, no laws are contested more vigorously, and with none are 
people more critical in looking after defects and infirmities. It may be 
safely asserted, without fear of contradiction, that if the collection of 
the revenue could only be made through legal proceedings, the true 
principle would not have been left to so late a discovery, but the wheels 
of government would long ago have been blocked by litigious parties 
until an entirely new system could be substituted. And it need hardly 
be said that any new system in which courts should be made the ad- 
ministrators of the revenue would necessarily be so cumbrous, and so 
subject to impediments and delays, as to make a constitutional provision 
requiring it a great public inconvenience. 

There is nothing technical, or, we think, obscure, in the requirement 
that process which divests property shall be due process of law. The 
constitution makes no attempt to define such process, but assumes that 
custom and law have already settled what it is. Even in judicial pro- 
ceedings we do not ascertain from the constitution what is lawful 
process, but we test their action by principles which were before the 
constitution, and the benefit of which we assume that the constitution 
was intended to perpetuate. If there existed, before that instrument 



CHAP. VII.] WEIMER V. BUNBURY. 1207 

was adopted, well-known administrative proceedings which, having their 
origin in a legislative conviction of their necessity", had been sanctioned 
by long and general acceptance, we are no more at liberty to infer an 
intent in the people to prohibit them by implication from any general 
language, than we should be to infer an intent to abridge the judicial 
authority by the use of similar words. The truth is, the bills of rights 
in the American constitutions have not been drafted for the introduc- 
tion of new law, but to secure old principles against abrogation or 
violation. They are conservatory instruments rather than reforma- 
tory ; and they assume that the existing principles of the common law 
are ample for the protection of individual rights, when once incor- 
porated in the fundamental law, and thus secured against violation. C <>^^^ ^ 

"We are, therefore, of necessity, driven to an examination of the pre- ,, 
vious condition of things, if we would understand the meaning of due mIt 
process of law, as the constitution employs the term. Nothing pre- j^j^^^^^^j^ 
viousl}' in use, regarded as necessary in government and sanctioned by ^ 
usage, can be looked upon as condemned by it. Administrative process ^'^'''^^ ^ 
of the customary sort is as much due process of law as judicial process. /xX^'^ 
We should meet a great many unexpected and very serious embarrass- r^^ ^^j^^ 
ments in government if this were otherwise. The words, it has ver}' 
justly been said, "were intended to secure the individual from the ^^^^^-^ ' 
arbitrary exercise of the powers of government, unrestrained by the 'U^l^^XL^J 
established principles of private rights and distributive justice." Per 
Johnson, J., in Bank of Columbia v. Okely, 4 Wheat. 235. It has 
been said, with special reference to process for the collection of taxes, 
that " any legal process which was originally founded in necessit}', has 
been consecrated by time, and approved and acquiesced in by universal 
consent, must be considered an exception to the right of trial b}' jury, 
and is embraced in the alternative ' law of the land.' " State v. Allen, 
2 McCord, 56. In High v. Shoemaker, 22 Cal. 363, the same doctrine 
was held in a revenue case. In Rockwell v. Nearing, 35 N. Y. 308, 
which is quoted for defendant in error as sustaining his position, the 
opposite view is very distincth' taken. "There are," says Porter, J., 
"many examples of summary proceedings which were recognized as 
due process of law at the date of the constitution, and to these the 
prohibition has 7io application^ Yet the same judge, in a previous 
portion of his opinion, had quoted with approval the general language 
of other cases, which might be understood as implying the necessi-ty 
of a judicial hearing to due process of law ; and the case is an illustra- 
tion of the danger of deducing general principles to govern one class 
of cases, from isolated expressions made use of in deciding another 
class. A day in court is a matter of right in judicial proceedings, but 
administrative proceedings rest upon different principles. The part}- 
atfected by them may always test their validity by a suit instituted for 
the purpose, and this is supposed to give him ample protection. To 
require that the action of the government, in every instance where it 
touches the right of the individual citizen, shall be preceded by a 



1208 



WEIMER V. BUNBURY. 



[chap. VIL 






judicial order or sentence after a hearing, would be to give to the 
judiciary a supremacy" in the State, and seriously to impair and impede 
the efficiency of executive action. 

But it may be argued that the warrant in question is not a necessary 
or usual process under revenue laws. It cannot be said, however, that 
summary process to enforce payment by a defaulting collector is very 
unusual. The Territorial Act of 1833 required the auditor to report 
such a defaulter to the governor, and unless he settled up and paid all 
arrearages within thirty days after the report, he was to be removed 
from office. Code of 1833, p. 169. In the Revised Statutes of 1838, 
p. 87, § 12, the provision was introduced for the issue, by the county 
treasurer, of a warrant to the sheriff in the nature of an execution 
against the collector. This provision had been in force for twelve jears 
before the present constitution was proposed, and we are not informed 
that its validity had ever been questioned. Similar statutes had existed 
in other States. In Massachusetts and New York, from which we 
derived the larger portion of our statutes, they had been in force for a 
period dating back of the organization of our State government ; and 
in neither State does it seem to have been disputed, that such summar}'' 
process was ''due process of law." The legislature of this State, by 
providing for it in repeated enactments, have shown their conviction of 
its necessitv ; and the constitutional convention, though they made 
several express provisions to insure justice and equality in matters of 
taxation, passed this legislation by in silence. We think, therefore, 
that summary process to enforce payment by a delinquent collector 
cannot be held forbidden. . . . 



j^^ ^j,,.^^ - fIjQ circuit judge held the statute constitutional, but that plaintiff in 
error was not justified by its provisions. If he was right in this, apy 
consideration of Jhe constitutional qu estion might have been waiyed, 
upon t he ground that a legislative act should not be declared unconsti- 
tutional ^imlfias-lhelp^nt is p resenTec[ ui"such form as to render its 
decision Imt ieiiatL^e- Ex parte Bandolph^ 2 Brock. 447 ; Erees v. 
Eord, 6 N. Y. 177; Hoover v. Wood, 9 Ind. 287; Mobile & Ohio 
R. R. Co. V. State, 29 Ala. 573. It is not imperative, so long as it 






A^^; 






appears that the case can be disposed of in only one way, whether the 
law is held valid or not. But as the general princii)le of this statute has 
always been deemed important in this State, we have thought it proper 
j),ju^ (iV- to express our opinion of its constitutional validity, pausing only when 
we reach a provision which seems defective in its protection of indi- 
vidual rights, and which, whether constitutional or not, it ma}' fairly be 
presumed the legislature might be inclined to modify on their attention 
being called to it. (^ Waiving, therefore, the question of the validit}' of 
this provision, we proceed to show why, in our opinion, the count}' 
treasurer's warrant was not justified by its terms. \ . . 

The judgment must be affirmed, with costs. 

The other Justices concurred. 



■^^ 



CHAP. VII.] HOOPER V. EMERY ET AL. 1209 



HOOPER V. EMERY et al. \ ^,^,,^,^,,^j^ .^iA 




Supreme Judicial Court of Maine. 1837. \ (^^ ^^^..^.j^ W^l-lr 
[14 3/6.375.] \ 4^. J^^ 

The case came before the court on a statement of facts, which suffi- • ^ . 
ciently appear in the opinion of the court. There was a brief argu-" ^ 
ment by Fairfield and Haines^ for the plaintiff, and by A. G. Goodwin^ i/irwA/v \ 
for the defendants. 

The opinion of the court was drawn up, and delivered the week 'w ^^-^-"^ 
following, at the adjourned term in Cumberland, by t^ i\^^^ 

Shepley, J. This is an action of assumpsit , brought to recover a ^ji^^ 
sum of mon ey alleged to be due from the defendants to the pla intiff. ^^^Y\^^^ 
The facts are agreed ; and from the agreement of the parties it ap- -fc^*-t^ i 
pears, that at a legal meeting of the inhabitants of the town of Bidde- 
ford, qualified to vote in town affairs, on the fourth day of April, 
1837, a v ote was passed to receive the money apportioned to the town 
under the Act of th e eighth of March, 1837, c. 265, e ntitled ^^ An Act n\^ y 
providi ng for the Disposition and Repayment of the Public M oney, (\ 
app ortioned to the State of Maine , ojq Deposit, by the Government ct^^jA .'^ 
qL the United States ." And the_ defendants were chosen trustees. ^ ^_^ 
to receive and '' appropriate it." At the same meeting, a vote was 
pasfsed, that the money s o rece ived should '.'„be divided among the in- ik.^ ^ 
habitants of the town according to famil ies." The defendants, before i^^,^^^^^^ 
the commencement of this suit, received the money app ortioned to the | 
to wo o f Biddeford ; and^on demand being made by the plaintiff, an L^ ^M 
inhabitant of said town and having a famil y, they refused to pay to , > . j^ 
him any portion thereof , assigning as a reason, " that the town could -4A<^vWi> 
iiot legally mak e such a dispos ition of it^" Jijj<Ajih 

If the plaintiff is entitled to recover anything, the amount to be 
recovered is agreed. The parties agree, also, to waive all objections to 
the form of the process and mode of proceeding ; and judgment is to ^^X^K xy^ 
be rendered according to the rights of the parties. . . . - 7X<xA^XA 

This State^had tlie rjght to prescribe the conditio ns upo n which the ' ^ 
municipal corporations should receive the money, and todefine and 1A^A^v^ 
limit their powers in r elation to the use and employment of^ it. This^ ^^j^ ^ 
has been done by the enactments before recited ; and these corpora- 
tions have no power over it, not derived from the provisions of the Act (^ 
of the eighth of March. 

" The inhabitants of every town in this State are declared to be a 
body politic and corporate " by the statute ; but these corporations de- 
rive none of their powers from, nor are any duties imposed upon them ^^^^^ ^^ 
by, the common law. They h ave been denominate d quasi corpora- 
tions, nndtlj^eir-whoLe capa cities, powers, an d duties -are_denved_from )M^ • a^ 
legislative enactments, 'rheycannpjjberefore appropriat e this mone y ^^^^J(^^ 
in_anj other ma nner than is pr ovided in the Act of th^8t,h_of March. 



-C\^i.,\.-^ 



^1^^ 



/T/A/i a-^^ 



aA. 



1 . 



tc 1210 HOOPER V. EMERY ET AL. [CHAP. VII. 

Th e man ner in wh ich it can be appro priated is clearly pointed out^in 
-^ the clause ^^ that any city, town, or organized plantation is here by! 

-H- aut horized to appropriat e its portion of the sur plus revenue, or any 

part thereof, for the same purposes, that they have a right to any j 
^ ""^ mon eys accruing from taxation ; also, to loan the same in such man-' 
^ nej^ as they de em expedient, on receiving safe and amp le security! 

therefor." . . . 

Wh ether the town could l ega lly divide it among the inhabitants 

" according to fami lies," is the dire ct question fqrj^onsideration. And 

/vU«< it is to be determined by ascertaining, whether they can so appropriate 

<. AiJ - " uioii^ys accruing in the treasury from taxation;" because it can 

only be appropriated according to the express terms of the Act " for 

^ ^ the same purposes." 

Towns can appr opriate moneys der iv ed from taxation only to the^ 
pu_ri)oses for which thej are authori zed by law t o assess and collect 
y^^r^t^^ them. The legislature has determined the purposes or uses for which 
^^^jtiXAM money may be granted, assessed, and collected ; and if it can be ap- 
propriated to dififerent purposes after it has been collected, then the 
Lj limitation upon the assessment and collection of it becomes ineffectual 
"^ , and void ; because the town has only to express one object in the 
L js-^^' grant of the mone^', assess and collect it for that, and then expend 
M ttu. it upon objects wholly different. The intention of the lim itation was 
^ to prevent money from being assessed ^ndcollected for other objects 
A^'^'^ t han those named in the laws ; and this i ntention cannot be def eated 
^A. Avi^ by_a misap plication of the money by way of appropriation . The limi- 
tations upon the appropriation, and upon the collection, being the 
same, when the money is derived from taxation, it becomes necessary 



-fi^^ 



^(lAX^AM ^Q examine the statute provisions respecting the grant, assessment, 
^"X^ and collection of money. In the sixth section of the Act of the 19th 
''^^^^ of June, 1821, Rev. Stat. c. 114, the purposes for which money may 
"^(S be granted are thus expressed: " the citizens of any town," " legally 
t ^ qualified to vote," ' ' may grant and vote such sum or sums of money 
9 J as they shall judge necessary for the settlement, maintenance, and 
support of the ministry, schools, the poor, and other necessary charges 
arising within the same town, to be assessed upon the polls and prop- 
erty within the same as by law provided." Towns have also the power 
to grant and assess money for making and repairing highways ; and 
they have been occasionally authorized to grant money for other pur- 
poses, by special enactments ; but those purposes have been defined 
m the Acts giving the power, and no authority can be derived from 
them to authorize any appropriation of the money referred to in this 
case. It c annot be contended, that the town of Eiddeford, by th e 
vote re cited, has applied the money to the support o f the ministry, 
schools, or the poo r. Nor is there a ny gqodreason for asserting, that 
it has been applied to any ^' necessary charges arising within the sa^e 
t own ; " b ecaus e no inti mation is afforded by the vote, or by the fa cts 
agreed, that the '-'• families" had charges or claims of any kind again st 




t:*.^^ \./^<x.L^ 'XLk.o^ -VA.-IK/01 o<. 0^ Jd.jLA-^tX^jj<xA ' 

CHAP. VII.J HOOPER V. EMERY ET AL. 1211 ^-^*^^ ^ 

t he town ; and such an extraordinary state of the affairs of any town '^ '^ 
cannot be presume d. 'tvCci-^^ 

The case presented by the vote can be regarded only as a donation ^ ^^ 
of the money to the '-'• inhabitants of the town according to families." /O 
By a division accordi ng to '■'• families" must be understood a divis ion- '^'p^'^ 
per cu'pita. or by numbers ; the word '■'■ families" being used in such a ,;to<i^ 
m anner as to indicate clearly, that the term is derived from those ^^-^^ 
parts of the s ame Act whic h provid e for ^' ascertaining the population ^^^_^ 
of the several cities, towns, and plantations" by taking the number 
" of the persons belonging to such family." If towns cannot legall y U^^^ 
grant, ^ss^ess, and collect money, and whe n it has been receiv ed, ^.^^v^/^ 
divide it by donation among the familfes according to num13ers ; Then ^ 

the money receixej,junder._the Act oriLe 8th ^o Marcrfcaunot be so '^'^-^^ 
divide(^l : because the approi)riation of it is restricted by tUc Act to " th e p\jAr^ 
sn.me purposes that they have a riglit to anymoney accriim^_m_^^ 6 ^ ^ 
treasury from taxatio n." To contend, that towns have the power to , 

assess and collect money for the purpose of distributing it aga in ^A^^^f^ 
according to numbers, is to ask for a construction, not only entirel y uw^t^ 
u nauthorized by the language of any statute, but in direct o pposition ^^ ^ 
t o the language of limitation employed in giving power to the towns to ^ 
grant mone y. It not only does this, but it asks the court to give a U<Lax 
construction to the statutes, which would authorize towns, if so dis- Jl^f^;^;;!(y^ 
posed, to violate "the principles of moral justice." For if the ijgh t n 
to assess and collect money is without lim^, it would _notJbe difficult to '^ ^ 
continue th^pipcess^oTcoTrection and^ ^'^'V'^ ■ 

hpid hy t,1ie ,f.iti/ens of the town, had passe d in to and out of the trea - 1 
snry; aruj until ,jm equalizat ion of proper ty had been effect ed^as ^^^ ^ 
nearly as it could b.e^xpected to be accomplished, by placing italjj n ^^^a^u.^*^ 
one common fund, and then dividing it by numbers or per ca~Qita^\\h.- ^ 
out distinction of sex or ag e. Such a construc tion would be destructiv e ' ''"^ 
of the sec urity and safe ty of individual property, an d sub versive of <^c0^s-^ 
in dividual industry and ex ertion. It would authorize a violation of r^i^.^^.*^ 
what is asserted in our " Declaration of Rights " to be one of the u^,,^ 
natural rights of men, that of " acquiring, possessing, and protecting ' 

property." S uch a con st ruction would authorize a violatio n also of ^'^'^^ 
t hat clause in the Constitution of this State which provide s that X,^X\^ 
" p rivate property shall not be taken for public uses without jus t com - "^ 

pensation; nor unle ss the public exigencies require it." No public '^C ' 
exigency can require , that o ne citiz en should plac e his estates in t he ^wi^v 
public treasury for no purpose, b ut to be distributed to those wh o ~i^^ ^^ 
have not contributed to accumulate them, a nd who are not depende nt 
u pon the public charity . ... (f j^^^ 

The plaintiff, having no legal right to the money claimed, cannot t^f^w^ 
maintain this action ; and there must be judgment for the defendants ^f-^^ 
according to the agreement of the parties.^ 

1 By the statute of 1838, c. 311, towns were authorized to distribute the money '^^ ^'^ 
ceived under the Act of 1837, c. 265, " ptr capita, among the inhabitants thereof." (J 



received 



--- vL^k 1 \~\A iiJ\^ Xm ii yxX A^^UruV^MKA ^5L.^.,_.v_>i/V/v_0\ tkcxy-^i^'*-^-^ ^^^ 



1212 ALLEN ET AL. V. INHABITANTS OF JAY. [CHAP. VIL 



ttAAM <^ H 



^ 




J>-t<a.x^<^-»-^ 1 



^C<rr^ ^ /ALLEN et al. v. INHABITANTS OF JAY. 
CAxJ^ ^ / Supreme Judicial Court of Maine. 1872. 

.U^ \ / [60 iJe. 124.1] 

7 tdji°^ Robert Goodenow, for the petitioners. S. Belcher, for the respond- 

ents. 

, , Appleton, C.J. A town meeting of the inhabitants of Jay was duly 

^ ^^ called to see if the town would loan its credit to Hutchins & Lane, on 

'Zt^M. certain terms, provided "said Hutchins & Lane shall move their new 

■ saw-mill and box factory from Livermore Falls to Jay Bridge, and also 

^ put in operation one run of stones for grinding meal, and establish their 

t / ^ <> manufacturing business as soon as the month of September, a. d. 1870, 

/ at or near Jay Bridge." 

At a legal meeting held upon this call on April 19, and by adjourn- 
ment on April 21, 1870, the town " voted to loan their credit to the 
amount of ten thousand dollars, at six per cent annually, to H. W. 
Hutchins and B. R. Lane, provided said Hutchins & Lane will invest 
the amount of from twelve to thirteen thousand dollars in building a 
•^/iiM^ steam saw-mill, box factory machinery and land ; also to put in one run 
%: e-C*^^ of stones for grinding meal, to be located at or" near Ja}' Bridge, and 
1 _| to keep the above-named property in good repair, and also keep it 
amply insured, and to cause said manufacturing business to be carried on 
^ _ for a term not less than ten years, said Hutchins &, Lane to pay all 

the interest, and ten per cent of the principal annually, after three 
3"ears," the town to be secured by a mortgage of the mill, machiner}'^, 
^KA^'tfu. and land, " at the rate of one dollar for every sevent3'-five cents thus 
-^^ ^^^(^ loaned bv said town, and the selectmen are hereby authorized to issue 
. *^^^town bonds for the above amount, payable in yearly instalments after 
three years, at six per cent interest annually', viz. : one thousand dol- 
^ lars the first year, and nine hundred dollars each 3'ear for the ten suc- 

^ . ceeding years, providing the whole amount shall be necessar}' to 
t'^Ah^^ establish said manufacturing business." 

The legislature passed an Act, c. 716, approved Feb. 25, 1871, in the 
-^^-^^^ following terms : 

xa/</m " Whereas, upon due investigation and consideration, we deem it for 
^ the benefit of the town of Jay, and of the people of this State, said 

ih-^i^ town is hereb}' authorized to loan the sum of ten thousand dollars to 
ytj^jiM- Hutchins & Lane, in accordance with a vote taken by said town on the 
, 21st day of April, eighteen hundred and seventy, for the encourage- 

'^^y^ ment of manufacturing in said town." 

.JjX ^ The complainants, ten taxable inhabitants of Jay, under R. S. c. 77, 
■ tVx ^ ^' ^y which this court has equity jurisdiction, " when counties, cities, 
"^ towns, or school districts, for a purpose not authorized by law, vote to 

f V ^ The statement of facts is omitted. — Ed. 

Jur^/Ctj. ^.-JJiAj^\A^ ' tAAJU ^-a-txAyVv-Cra-e_ f\~{JU^ ~\.'^-^ cCt'Ji^^ \^uv\*^t^ 



CHAP. VII.] ALLEN ET AL. V. INHABITANTS OF JAY. 1213 '^ -^^"^ 

pledge their credit or to raise mone}' by taxation, or to pay money . 
from their treasur}'," liave filed a bill in equity, praying that the de-Zyt, 
fendants and all their officers may be enjoined from issuing certain "^ ^t s^{r 
bonds, dul}' described in the bill, the issue thereof being for a purpose 
not authorized by law. 

The purpose is obvious, and the inquiry is, whether the purpose is aV *-^^ 
one autliorized by law ? '^^f^ ' 

Whether the loan be of town bonds or of money, as, if the loan be ^^p 
of bonds, the town must ultimately be liable for their payment, and as **^^ '^ 
the payment is to be raised by taxation, matters not. The question rvot-c^ 
proposed is whether the legislature can authorize towns to raise money -AX^-e/a-'* 
b}' taxation, for the purpose of loaning the money so raised to such ^.^^ 
borrowers as ma}' promise to engage in manufacturing or any other 
business the town maj' prefer, for their private gain and emolument, l-tv*-^^* 
I s the raising of money to loan to such persons as the town may de ter- "^Kafj^A^ 
mine upon as borrow ers, a legal exercise of the powe r of taxation? _ 
Uitimatehj it will be found that the question resolves jtself into an MHa,^^^ 
inquiry, whether the legislature can constitutio nally authoriz e the m a- . 

jorit}' of a town to loan their own and the mone y of a minorit}' raised 
b^taxa tion and against the will of such minorit3 % as such majority may IXMrvAj*^ 
detenmne. ^ j^,^ 

A^tax is a sum of money assessed under the authority of the State, p 

on^tlmperson or property of an individual for the use of the State. ^'^ c] 
Taxatio n, hy the very meaning of the term, implies the raising of nioney oSVLkm. 
f or pu blic uses, and excludes the raising if for private objects and pur- 
poses. " I concede," says Black, C. J., in Sharpless v. Ifai/ or, 21 "^ '^ 
Penn. 167, " that a law author izing taxation for any other t]iaB___pub- Jlj-e.<^xJ 
li e purpo ses, is void_/' "_A^ tax," remarks Green, C. J., in Camden 
V. Alien, 2 Dutch. 839, " is_an impost levied by autho rity of gove rn- ^ "" 
ment, upon its citizens or subjects for the support of the State." i:tct;v u 

" yp au thority, or even dictum, can be found," observes Dillon, 
C. J.,in Hanson v. Verno7i, 27 Iowa, 28, " whjchasserts thatjthere <^ ^"^ 
c an be a ny legitimate taxation when the money to be, raised does not -a:ij./[^ 
go into the pubUc treasury, or is not destined for the use oXthe.gov- 
eiinment or some of the governmental divisions of the State." . . ^ 

Capital naturally seeks the best investment, or its owners do. Those 
who by industry and economy have become capitalists are more likely 
to invest it well than those who, having gained none, have none to lose. 
The" sagacity shown in the acquisition of capital is best fitted to control 
its use and disposition. 

It is obvious, that, if the removal from Liverrcore Falls would be 
made without special inducement, in other words, if the prospect of_ 
profit at Jay Bridge were sufficient to induce Messrs. Hutchins & Lane 
to move their saw-mill, etc., without any special offer of the defendant Z^^-*'^"^^^ 
town, there would be no necessity for making such offer. It is not JU-U^ , 
readily perceived that raising money under such circumstances would - 
be of public benefit. If they should not so deem it, and it is not ad- ^^"^ ^ 




^ - _» '-X^OU 






\Jl 



VVi^C^/ n^tyV^nrtA tCLOLt f* ,'y'^XyT.^ Lry-^tA^ ^^^iAA/L>t ~^ 




1/1 {i/jAA 

J 1214 ALLEN ET AL. V. INHABITANTS OF JAY. [CHAP. VIL 

■jCaL^ vantageous on the whole for them to make the removal, then it is a 
premium offered for them to make a removal injurious to their interest, 

■^r^-^^*-^ and which the}' would not otherwise make, and of sufficient magnitude 

\ , to induce them to meet the probable loss. Still less can it be conceived 

^^^^^*"^^^ to be of "benefit" in such case to raise money to promote losing 
enterprises. 

^^'^^^' It is said that it induces enterprises which would not otherwise be 

undertaken. But whj' not undertaken ? Ever\- man is the best judge 
of his interest. There may be exceptions, but such is the general rule. 
Now why is not capital invested at Jay Brhclge? The answer is ob- 
vious. No one having capital to invest or loan, is willing, for any 
existing prospect of gain, to invest or to loan money to be thus in- 

T» {Mx^vested. The want of existent capital or sufficient iDrobability of profit, 
, is the reason why the proposed undertaking has not been carried into 

/-l A.^^ operation. 

jLcova.- The idea seems to be that thereby capital would be created. But 
^ such is not the case. C apital is t.he _saying.of past earnings read y for 

t\x. productiv e employment . The bonds of a town may enable the holder 

^ cvx- to_QbiaiQ_money:bv their transfer as he might do by that of any good 
noie. l iut no capital is thereby created I t is only a transfer~ of 

■^"-^^ capital fr om one kind of business to another. 

^ ~tXM^ N or is capit al created by: the raising gf_ money bj' taxa tion. If th e 
w ealth of the country were increased b}- taxation, the result would_be, 

-e^ . tli p higher the taxes the more rapicf the increase of its wealth. But the 
reverse is the case . T he wealth of the country is less e ned by the ti me 
s pent in assessing and collecting taxes , and bj' J-he taxes co lle cted, if 

L /C<j^ u nproductivelv expende d. 

J, I s the removal of the new saw-mill, etc., by Messrs. Hutchins & Lane, 

a public or private enterpr ise ? Hutchins & Lane are now at Livermore. 

.>^«JtM\A They propose to remove to Ja}- Bridge. It is their interest alone which 
.^- they will consider. But why remove? Jt is no more a public purpose 

'^^''■''^^ th an any other remo val of ma nufacture from one town to another. The 

t own of Jay is to have no share in the anticipated profits of Messr s. 

Hutchins & Lane . T he State is not to be a partaker of their gains. 

w Th e new mill, etc., being removed, the town of Jay stands in precis ely 

j^^^^j^ t he same relation to it as other towns to new or old mills within th eir 
l imits, so far as regards any public benefit to be derived therefrom . 
r^AriK T he timber of the inhabitants is sawed at the usual compensation . 
T heir grists are ground for the same customary toll as t h ose of other s. 

^-y^ , T he industry of each man and woman engaged in productive emplo y- 

m ent is of "benefit" to the town in which such industry is empl oyed. 
'^ This can be predicated of all useful labor — of all productive industry. 
B ut bec ause a]l usef ul labor, all productive industry, conduces to the 
^ ^ public benefit, does it follow that the peop le._are _to be taxed for th e 

'\^ b enefit of one man or of one special kin d of manufa ctu ring ? If so, 
then there is no kind of labor, no manufacturing for which the minority 
of a town may not be assessed for the benefit of an individual. There 



JL/V/V 



^In^^AS^i^ 



L./a- 



H^^' 









CHAP. VII.] ALLEN ET AL. V. INHABITANTS OF JAY. 1215 'P^"^''^^ 

is Dotbj pg of a public nature in the new saw-m ill of Hutchins & Lane, 

anj^more entit ling them t o special aid th an the own ers of any other (\/^v\ 

aaw-niill. The sailor, the fanner, the mechanic, the lumberman, are 

equally entitled to the aid of coerced loans to enable them to carry on ~tVx 'S 

their business with Messrs. Hutchins & Lane. Our government is 

based on equality of right. The S tate cannot discri minate among oc cu- ^ ' 

pations, for a discrimination in favor of one is a discrimination adverse /^^y^^^^Xh- 

to all oth ers. WhUe the State is bound to protect all, it ceases to giv^ 

t hat .just protection when ^t^ affords undue advantages, or gives special '^ A^^^ 

a nd exclusive preferences to particular individuals and particular and y^^a 

sp ecial industries at the cost and charge of th e res^ of the co mmunit} -. (|^'*''^'^Q 

Unless there is something peculiar and transcendental in the new 
saw-mill to be removed, and in the grist-mill to be erected, and in the 
labor of Messrs. Hutchins & Lane, it must stand in the same category 
with other saw-mills and grist-mills, which are and have been, and will 
be built, and other laborious industries, which are pursued for private 
gain and emolument. 

T he alleged justification for raising money to be loaned to priva te 
i ndividuals for their own profit, arises from the supposed public bene- 
fit to be made of the money so loaned. B ut the moment the loan is 
effected, th e bonds and money raised from their sale become the bon ds 
a nd money of the person borrowing, and subject to his control. T he 
town has lost all power over the use and disposition of their loa n. 
True, it may sue for any violation of the contract, if any is made, in 
reference to the manner of using the bonds or money loaned. T^h^ loan, 
w hen once made, becomes like all loan s. T he other borrower ha s it. 
I t_is his. The loan effected, there is the end of the m atter. 

The question recurs, pan the town raise m oney by taxa tion mer ely 
t o loan again to in dividual s for their own purpose s ; for it has been seen 
th at the loan eflfected, the town loaning ca nnot control the use of the 
lo an, and the loa n is mere]3'J'or the benefit of the indiv i dual borro wing. 
T he bonds to be loane d, or the money to be loaned are in th e hand s of 
th e loaning committe e. It is to be loaned for a longer or shorter time, 
upon security good, bad, indifferent ; fortunate, if only the latter. Is 
th e loaning of bonds or m oney by the town in any r espect diffe rent 
fr om the loaning: of money by individuals? Does the mere fact that 
th e town ma kes the loan irrespective of any other consideration make 
th e loan a p ublic ''heneiit" more than, o r different from, any other 
lo an by an individual or bank ing corporatio n ha ving , funds_ to_loan ? 
. . . [Here the case o^ Hooper v. Emery ^ 14 Me. 379, is stated.] 

But whether the monej- raised is to be distributed j)er capita or 
loaned, can make no difference in principle. If towns can ass e ss and 
c ollect mo ney to be again loaned to such persons as th e majorit\_may 
se lect for such purposes as it may favor, wit h such security or Tyithout 
se curity, as it may elect, proi^erty ceases to be protected in i ts acqui- 
sition or enjoymen t. W hether the estates of citizens are to be placed 
i n the public treasury for the purpose of dividing them, or of loan ing 



1216 ALLEN ET AL. V. INHABITANTS OF JAY. [CHAP. VIL 

t bem to those wbo have not accumulated tliem^ matter s not . Iil_ 
either cas e, the ow ner is despoiled of his estate, and h is sa vings are 
confiscate d. 

If the loan be made to one or more for a particular object, it is fav or- 
itism . It is a disc rimination in favor of the particular individual and 
a particular indus try , thereby aided, and is one adverse to and against 
all individuals, all industries, not thus aide d. 

I f it is to be loaned to all, then it is practically a division of prop erty ,. 
u nder the name o f a loan. It is communism inc ipient, if not pe rfected.^ ' J 

If it were proposed to pass an Act enabling the inhabitants of tbe 
several towns b}' vote to loan horses or oxen, or to lease houses to 
any individual for his private gain, w'hom the majorit}- ma}' select, the 
monstrous absurdity of such legislation would be transparent. But the 
mode b}' which property would be taken from one or more and loaned 
to others can make no difference. It is the taking to loan, or other- 
wise disposing of property for private purposes, against the consent of 
the owner, that constitutes the wrong, no matter how taken. Whether 
the horse be taken from the reluctant owner to be loaned to some 
favored livery-stable keeper, or the loan be of money raised by the col- 
lector on its sale or by the payment of the tax to avoid such sale, does 
not change the result. In either case the horse or the value thereof is 
loaned by others, without the owner's consent.^ If a part of one's es- 
tate may be taken from him and loaned to others, another and another 
portion may be taken and loaned until all is gone, f 

By the Constitution of this State, " certain natural inherent and un- 
alienable rights" are guaranteed to the citizens of this State, " among 
which are those of . . . acquiring, possessing, and protecting property, 
and of pursuing and obtaining safety and happiness." What motive is 
there for the acquisition of property, if the tenure of the acquisition is 
the will of others ?(^ How can our property be protected, if the legisla- 
ture can enable a majority to transfer by gift or loan, to certain favored 
and selected individuals through the medium of direct taxation, such 
portions of one's estate as they may deem expedient.) Men only earn 
when they are protected in the acquisition, possession, and enjoyment 
of their property. The barbarous nations of Asia have neither indus- 
try nor capital, the result of saving, for the reason tliat property is 
without protection. < Wiiere is the protection of property if one's 
money or his goods can be wrested from him and loaned to others?) 
Where is the difference between the coerced contribution of the tax- 
gatherer to be loaned to individuals for their benefit, and those of the 
conqueror from the inhabitants of the conquered territory? If one's 
money may be taken from him without and against his consent, to be 
loaned to an individual whom he would not trust, for a time which 
might be inconvenient, for a purpose which he might deem injudicious, 
what protection is afforded him ? What would be thought of a statute 
requiring individuals to give their notes to others to be discounted for 
their special benefit, or to raise money to be thus loaned ? What differs 




CHAP, VII.] ALLEN ET AL. V. INHABITANTS OF JAY. 1217 

it whether individuals are eompulsorily required to loan their notes on 
time to others, to be discounted for such others, or the bonds of the 
town are issued to be loaned, which the citizens may ultimately be 
compelled to pay ? All security of private rights, all protection of pri- 
vate property is at an end, when one is compelled to raise money to 
loan at the will of others, or to pay his contributory share of loans of 
mone}' or bonds made to others for their own use and benefit, when the 
power is given to a majority to lend or give • away the property of an 
unwilling minority. 

Further, by the Constitution, " private property shall not be taken 
for public uses without just compensation, and unless public exigencies 
require it." 

The right of eminent domain is an attribute of sovereignty. It is 
the right to seize and appropriate specific articles of property for pub- 
lic use when some public exigency requii'es it, and not otherwise. • • • y 

But even if the moving of a new saw mill from one town to another 
adjacent, or the building of a new grist-mill, the moving being for the 
benefit of the owners of the mill, and the building of the grist-mill for 
the benefit of the builders, or the giving or loaning money to produce 
such results for such purpose, were by some strange perversion of lan- 
guage from its ordinary acceptation to be deemed a public use, though 
the public have no more right to use it than they have any other prop- 
erty of individuals ; and if b}' strength of imagination a public exigenc}' 
could be perceived in making such change of location and such new . 
erection, or in giving or loaning for such purposes, and a just compen- 
sation could be found when there is or may be none whatever, and it 
were to be deemed a just protection of property' that a majorit}' might 
loan tiie property of a minorit}', or encumber it with debts for private 
objects against the will and protestations of such minorit}*, still the 
complainants are entitled to have the injunction heretofore granted made/' 
perpetual. The legislature have not said that the removal of the new 
saw-mill of Messrs. Hutchins & Lane, or their building a grist-mill with 
one run of stones is for the " public use," or is required by any public 
exigency, but many things may be for the " benefit" of Jay, and not 
for public use. Many things may be for the "benefit" of the people 
of the State, which are not required by an}- existing " public exigenc}'." 
All the legislature seem to have determined is that Jay affords a better 
site for the saw-mill and gvist-mill of Messrs. Hutchins & Lane than 
the one occupied by them in the town of Livermore. 

The Constitution of the State is its paramount and binding law. 
The acquisition, possession, and protection of propert}' are among the 
chief ends of government. To take directl}' or indirectly the propert}- 
of individuals to loan to others for purposes of private gain and specu- 1 
lation against the consent of those whose monej- is thus loaned, would 
be to withdraw it from the protection of the Constitution and submit it 
to the will of an irresponsible majorit}'. It would be the robbery and 
spoliation of those whose estates, in whole or in part, are thus confis- 
voL. I. — 77 



1218 BREWER BRICK CO. V. INHABITANTS OF BREWER. [CHAP. VIL 

cated. No surer or more eflfectual method could be devised to deter 
from accumulation — to dimiuisli capital, to render propert}^ insecure, 
and thus to paralyze industry. Injunction m<ule jyerjjetual. 

Walton, Bakuows, and Danfoktii, J J., concurred. Dickekson, J., 
concurred in tlie result upon the principles stated in his opinion in 
58 Maine, 6OO-6OG.1 






\A.^*~xAr\ 



BREWER BRICK COMPANY 



yKx/U\ 



INHABITANTS OF BREWER. 

Supreme Judicial Court of Maine. 1873. 

[62 Me. 62.2] 

Wilson and Woodward, for the plaintiffs. A. W. Paine, for the de- 






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fendants. 

Afpleton, C. J. This is an action of assiwipsit to recover three h un- 
drycd and nine dollars and seventy-five cents paid b}" th e plaintiffs for 
taxes. The proceedings on the part of the defendants are admitted 
to have been correct, and the only question pres ented is^ whethe r the 
p roperty of the plain tiff, upon which the tax in question was assessed, 
is l iable to assessment . 

The business of brick-making has been carried on in the defendant 
town for more than fift}' j-ears until the present time, by the old process 
of making bricks with horse-power. 

The plaintiff corporation was organized under the general law of the 
State, on the fourth day of June, 1870, for the purpose of manufactur- 
ing brick in the defendant town, and after its organization, proceeded 
at once to erect the necessaiy buildings and machiner}- for the manu- 
facture of brick by new processes, in which business it has been engaged 
to the present time. 

At the annual town meeting of the defendant town held March 14, 
1870, the following vote was passed, viz.: "Voted, that t he town 
will exempt from taxat ion, for a term of ten years, manufacturing and 
r efining establishmen ts hereafter erected in town , and the capital used 
for operating tlie same, together with such machinery hereafter put into 
Iniildings already erected, but not now used as such, and the capital 
used for operating the same, provided that the capital invested shall 
not be less than Si 0,000, and provided, further, that this vote shall not 
, be construed to apply to manufacturing or business now carried on in 
the town, and no distillery of intoxicating drinks or malt beer shall be 
entitled to the benefit of this vote." 

The estate of tlie plaintiffs was duly assessed for its iust and pr o- 
portional share upon the whole valuation of the property of the town 



y /I^caMa. ^ -^^^ ^° other advisory opinions of the Maine jnstices in 58 Me. 590 (1871). See 
note to the principal case, hy Jndpe TJedfield, in 12 Am. Law Reg. N. s. 49.3. — Ed. 
jT, , 2 The statement of facts is omitted. — Ed. 



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CHAP. VII.] BREWER BRICK CO. V. INHABITANTS OF BREWER. 1219 . ^ ^ 

l iable to assessmen t. The plainti ffs claim exemption from contrib ut- ^^^ '^'^^ 
ing toward the public expenses, under and by virtue of this v ote of -iP j^, 
t he tow n. - 

By an Act approved March 8, 1864, c. 234, § 1, it is enacted, that -C^^'-^ 
" all raauufacturing establishments, and all establishments for refin- /^ c\.\j<^ 
ing, purifying, or in any way enhancing the value of any article or cmkxjsXa 
articles already manufactured, hereafter erected by individuals or by 
incorporated companies, and all the machinery and capital used for -i^""-^ 
operating the same, together with all such machinery hereafter put cx^^^J^^ 
into buildings already erected, but not now occupied, and all the capi- -j — 
tal used for operating the same, are exempted from taxation for a term ^ 

not exceeding ten years, after the passage of this Act, where the 
amount of capital actually invested shall exceed the sum of two thou- -^o.'-^/v^ 
sand dollars ; provided, towns and cities in which such manufactur ing -(^^^ 
establish ments or refineries may be located, or in which it may be pro- 
pose d to establish the sam e, shall in a le gal manner give then- assen t R^^tA/^ 
t o such exemption, and s uch assent shall have the force of a contract, £^,-,5^,^^ 
and be binding for the full time specifi ed ; and provided further, that - • 
all property so exempted, shall be entered from year to year on the -^^t-^-^'^'*'^ 
assessment books, and returned with the valuations of the several - oMh H 
towns and cities, when required by the State for the purposes of making ^^.(/i/L/^. 
the State valuation." By an Act approved Feb. 8, 1867, c. 76, § 1, / . 

the exemption referred to in the Act of 1864, c. 234, § 1, takes effect hA^^^^ 
from the date of the contract authorized by that Act. By an Act jqaAaAo^ 
approved March 12, 1869, c. 6.5, § 1, the exemption referred to takes / 
effect " from the date of the assent given by the town to such exemp^^'^ .^ , 
tion." The preceding legislation on this subject is found condensed in y^ '^ (^ ^ ' 
R. S., 1871, c. 6, § 6, ninth clause. ^LAyfU^ 

Tax ation_exacts money from individuals as and for their contribut orv ^J^^ ^r^^ 
sh are of the public burdens . A ta x is generally understood to m ean '' 
the imp osition of a duty or impost for the support of governm ent. tLcA~t c 
Pray v. Northern Lib., 31 Penn. 69. " Taxes are burdens or charges ir-^j^jtM. 
imposed by the legislature upon persons or property," says Dillon, 
C. J., in Hanson v. Vernon, 27 Iowa, 28, "to raise money for public 
purposes or to accomplish some governmental end." Private property 
may be taken under the power of eminent domain for public purposes, 
if just compensation therefor be made. But for private purposes it 
cannot be wrested from its owner, even with compensation. 

It h as been settled by a series of decisions that the legislature canno t 
co nstitutionally authorize towns to raise money by taxation to give or '^^^^^^^^ ( 
loan to individuals or corporations for private pui'poscs . _A good ftX/^-^ - 
public house ma}- be very desirable, but in Weeks v. Milwavkee, 10 a^oc^ ^ 
Wis. 242, the Supreme Court of Wisconsin justly treated with little • / 

consideration the claim of a right to favor, under the power of taxa- ■^''^ 1 
tion, the construction of a public hotel, though the aid was to be ren- '^d/'^ /f^ 
dered expressly " in view of the great public benefit which the con- i_ /_' 
struction of the hotel would be to the city." It was there decided that '^^-^-^^'-^ 




1220 BKEWER BRICK CO. V. INHABITANTS OF BREWER. [CIIAI'. VII. 



V 



the public could not b e compelled to aid such an enterprise from a ny 

regard to the incide ntal benefits to be derived theref rom. It may be 

»^v-vp^' very desirable to have a saw-mill in a town, and those who wish it 

have full liberty to erect it ; but the inhabitants cannot legally be 

^ taxed to raise money to give or to loan to those, who propose, for 

SUu^ti their own benefit, to erect one, or to take down one already erected, 

t and to remove it from one town to another. Allen v. Jay, CO IMaine, 

124. A terrible conflagration sweei^s over a city destroying its weal th 

by million s. Its jicbuilding is ab solutely necessary for its commerc ial 

Ci^AAA., w niits. But each lot of land is private property ; each building to be 

xN erecte d thereon will be private property . Its erection is fur private 

^*^ ' use. Af ter full consideration, it was decided that the inhabitants of 

the cit}' c ould not be taxed to raise money to loan to the sufl'erers to 

''^^ e nable them to rebuild. L owell v. Bost on, 110 Mass. In the Com- 

(jJjJC'^ '>^^€i'cial Bank v. the City of lola, 2 Dillon, 353, it was held that the 

(] legislature of a State had no authority to authorize taxation in aid of 

1^ ow/AfA pi-jvate enterprises and objects ; and that municipal bonds issued under 

^ V- legislative authority to be paid by taxation, as a bonus or donation to 

"^ secure the location or aid in the erection of a manufactory or foundry, 

1j^j\^ owned by private individuals, are void even in the hands of owners 

for value. 
\s<xX^ Contingent and incidental benefits may arise from the introduction 

I -^ of manufacturing capital whenever the enterprise is successful. But 
^^ the reverse may equally ensue, and the enterprise become an injurious 

failure. The inhabitants of a town cannot legally be taxed to raise 
^^"^ money to give or to loan to individuals or corporations for private pur- 

poses on account of any supposed incidental advantages which may 
possibly accrue therefrom. The benefits are precisely those arising 
from the introduction of capital or labor, and none other. It matters 
not whether it be the building of the huge fac tory of the_Cjipitalist or 
th e cottflgc of the laborer, the benefits are the same in kind and d iffer 
. )in.ie^^. o nly in degree . There are benefits arising from the introduct ion of 
capital well inve sted and of labor well em ployed ; but t hey are of the 
y^-^"^^^^ same n ature asThose arising from the existent capital of the place in 
LXOt which the incoming capital is to be invested, and the incom ing labor 
e mployed . One is just as much entitled to protection as the other, and 
''^^ no more. But this benefit, whatever it may be, if any, arises from all 
capital and all labor ; and as all labor and all capital is equally en- 
titled to equal protection according to its extent, it follows that equal 
o^^^uL <^ protection to all leaves the matter as it found it. Hence, it is univer- 
sally held that the incidental benefits of capital afl!'ord no justification 
for partial taxation. 

It is conceded in the argument that towns and cities cannot consti- 
tutionally be authorized to raise by taxation money to be given away. 
The plaintiffs share of the expenses of the defendant town for all pub- 
lic purposes is conceded to be $309.75. If the town were empowered 
to raise that sum to give the plaintiffs, it is admitted that the Act so 




r-:i,A.A.^6AA_ 



CHAl'. VII.] BREWER BRICK CO. V. INHABITANTS OF BREWER. 1221 

empowering them would be unconstitutional, for if the town may raise 
money to give to A, they may do the same for B, and so on ; and the 
property of the minority would be subject to the will of the majority. 
B ut the remission of a tax by a vote of the town is in substance a nd 
effec t the same as a g ift. What matters it to the plaintiffs or the de-j, 
fendants whether the town votes to give $309.75 to the plaintiffs, or tol 
exempt their property from its just and proportional tax, and assess! 
the amount of such exemption upon the remaining estate liable to tax- 
ation ? I t is a gift. The money raised by the rest of the tax-payers is'l 
rai sed to give aw ay ; and if it may be done for these plaintiffs, itmay 
be done for any other inhabitan t as well. 

But there are other and grave objections to the constitutionality of 
the statute upon which the plaintiffs rely. 

By the Constitution, article 9, § 7 : " while the public expenses shall 
be assessed on polls and estates, a general valuation shall be taken at 
least once in ten years." The expenses for which assessments are to 
be made shall be public ; those appertaining to the public service. No 
authority is given, either expressly or by implication, to assess for 
merely private purposes ; as to give away, or to loan to individuals. 

By article 9, § 8 : "all taxes upon real estate, assessed by authority 
of this State, shall be apportioned and assessed equally, according to 
the just value thereof." Though this section applies specially to real 
estate, yet the very idea of taxation implies an equal apportionment and 
assessment upon all property, real and personal, "according to its just 
value." It cannot for a moment be admitted that the Constitution 
authorizes an unequal apportionment and assessment upon real and 
personal estate, without any reference to its "just value." 

The power to impose taxes is broad and liberal : — for roads, that 
there may be facilities for travel ; for schools, that the people ma}' be 
educated ; for libraries, that their means of improvement may be in- 
creased ; for the poor, lest they may suffer from want ; for the police 
of the State, for the safety of the public, that crime ma}- be detected ; 
for the courts of law, that individual rights may be protected and en- 
forced, and that crime, when proved, may receive its fitting punish- 
ment ; — in fine, for any and all purposes which, in the most liberal 
sense, can be deemed public. "Taxati on having for its only legit i- 
raate object the raising of mo n ey for public purp oses and the proper 
needs of government, the exaction of monej'S fr om the citizens_for 
other, purp oses is not a proper exercise of this power, and must 
t herefor e be unauthorized." Cooley's Const. Lim. 487. 

The legislature may determine the amount of taxation and select the 
objects. They may exempt by general and uniform laws certain de- 
scriptions of property from taxation, and lay the burden of supporting 
government elsewhere. But while there are no limits in the amount 
of taxation for public purposes, nor in the subject-matter upon which 
it may be imposed, the requirement that it shall be uniform and equal 
upon the valuations made is universal. 



1222 BREWER BRICK CO. V. INHABITANTS OF BREWER. [CHAP. VII. 

The general Tax Act is based upon the whole valuation of the State. 
The taxes are apportioned among the several towns in the ratio of their 
respective valuations. The manufacturing capital to be exempted by 
this statute is included in the valuation of the town in wliich the invest- 
ment is made. Whether there shall be an exemption or not de- 
pends upon the vote of the town. Now it is for the legislature to 
impose taxes and to exempt from taxation. But exe mption from tax - 
ation includes the im p osition of tax es. To the precise extent that one 
man' s estate is exempted from taxation, to that same extent is there 
an imposition of the amount exem pted upon the rest of the inhabitants. 
T he $309.75 of which the plaintiffs would escape the payme nt would 
be imposed upon the residu^ of the inhabitants of Brewe r. This impo- 
sition of, and this exemption from, taxation are by the tow n and not 
by the legislatu re. 

To have uniformity of taxation, the imposition of, and the e xemp- 
tion from taxation, must be b}' one and the same authority — tha t of 
the legislature. It is for the legislature to determine upon what subject- 
matter taxation shall be imposed ; upon land, upon loans, upon stock, 
&c., &c. ; but the subject-matter once fixed, the rule is general, and 
applies to all propertj' within its provisions. So it may relieve certain 
species of property* from taxation, as the tools of the laborer, the 
churches of religious societies, &c. ; but upon the non-exempted estate 
the taxation must be uniform, as the exemptions are uniform. It ca n- 
n ot be pretended that it would be constitutional to impose a tax on a 
chu rch in A, and to exempt one of the same character in B ; to say 
th at all or a part of the farms in the former shall be subject to a tax , 
w hile those in the latter shall be free from taxat ion. But if it be con - 
ceded that each town has the right to tax part and exempt pa rt of the 
pro perty located therein, whateve r its charac ter, uniformity in relati on 
to th e subject-matter, as well as to the ratio of taxati on, is at an end. 

If, of the innumerable varieties of manufacture, different towns ex- 
empt different, or the same species of manufacture, the utter want of 
uniformity is obvious. The cotton manufacturer in one town is ex- 
empt, while in the next the woollen manufacturer pays his proportional 
share of the public burden. Nor is this all : — if the same kind of 
manufacture has been heretofore carried on as is proi)Osed to be ex- 
empted from the payment of taxes, then in the same town in case of 
exemption, will be seen the remarkable spectacle of two manufac- 
turers, engaged in the same industrial pursuits, the one with his cap- 
ital freed from all public burdens, the other bearing his just and 
l)roportional share. The larger the investment of exempted capital, 
the heavier the burden upon the non-exempted capital. Of two com- 
peting capitalists, in the same branch of industry, one goes into the 
market with goods relieved from taxes, while the goods of the other 
bear the burden. One manufacturer is taxed for his own estate and 
for that which is exempted, to relieve his competing neighbor, and to 
enable the latter to undersell him in the common market, — and that 



CHAP. VII.] BKEWER BKICK CO. V. INHABITANTS OF BREWER. 1223 



is precisely tlie relation these plaintiffs bear to their competing brick- 
makers, — a grosser inequality is hardly conceivable ! 

Nor is there any conceivable benefit to any one from this injustice. 
The town voting the exemption will be one in which the proposed 
manufactures thereby to be exempted could, or could not, be advan- 
tageously carried on. If the former, the very principle of self-interest 
will induce such manufacturer to establish himself in the town so vot- 
ing, without the inducement of such vote. It wo uld, then, be the un- 
nece ssary giving of money to one whose interests would be promo ted 
by manufacturing in the place in question. It would be compelling" th e 
rest of t he inhabitants to add to the gains of a capitalist without par- 
ti oipation therein. If otherwise, and the town so voting is an Tnju- 
dicious place for the location of the manufactures to be exempted, it is 
an invitation to the manufacturer to engage in a losing business with a 
proffer to bear the loss to the extent of the exemption. Th e exemp - 
ti on is either unnecessary or unw ise. 

The plaintiffs have only paid their proportional share of the taxes in 
the defendant town according to its valuation. The plaintiffs are not 
en titled to recove r. To permit them to do so would be to approve 
u nconstitutional taxation for private purposes and to sanction a system 
wh ich would destroy all uniformity as to the property upon which ta xes 
are to be impose d, and all equality as to the ratio, so far as regar ds the 
v aluation. It c an never be admitted that the Constitution of this Sta te 
pe rmits or allows the taxation of a por tion of its citizens for the privat e 
benefit of a chosen few, and that the' taxes Taiiecl for such a purpose 
sha ll be assessed without reference to uniformity of taxable prop e rty , 
or equality of r atio. It becomes, therefore, entirely unnecessary to 
consider whether or not the plaintiffs are within the provisions of the 
statute or the terms of the vote under which they claim exemption from 
taxation. Plaintiffs nonsuit. 

Walton, Dickerson, Barrows, Danforth, and Virgin, JJ., con- 
curred. 

CuTTixG, J., concurred in the result. 

Peters, J., having been of counsel for plaintiffs, did not sit in this 
case, but he concurred in a similar opinion and result in Andreios v. 
Oxford, involving precisely the same question.^ 

1 Notwithstanding this decision, the people of some of the towns of Maine continue 
the practice here coudemned as unconst itutional. The following is a duly attested 
extract from the records of the town of Enfield, Maine, fifteen years after the fore- 
going decision, viz., May 10. 188 8 " Vot ed. That the town exempt from taxatio n, 
fo r the t erm of ten years, all of the plant to be erected of the Piscataquis Fall s Pulp 
and Paper Company, also if it is necessary for said manufac t uring compan y to have a 
hnard i n'^-house for their employees , and a house for the superintendent, that sa id 
l.i^nriliiig-huuse s be also exempt from taxation for ten years. But all dwelli ng-houses 
h nilt by company or others for private or public use to pay taxes in proportion with 
oth er taxable property in town. " 

The validity of such exemptions seems to he recognized in New Hamps hire. 
Franklin Needle Co. v. FranUin, 65 N. H. 177 (1889). —Ed. 



1224 LOWELL ET AL. V. BOSTON. [CHAP. VIL 

^-^^-^ 1^ LOWELL ET AL. V. CITY OF BOSTON. 

MX vA_A^ Supreme Judicial Court of Massachusetts. 1873. 

•tX-- .4.X<^^ '^ [111 Muss. 454.] 

t.x>«^\x/V' Bill in equity by John A. Lowell and nine others, taxable inhabi- 

' .;^tants of the city of Boston, praying that the defendants might be 

restrained from issuing bonds under the St. of 1872, c. 364,^ on the 

<.anA_y ground that the statute was unconstitutional. The defendants demurred 

^/toL for want of equity, and the case was heard and reserved by Gray, J., 

1 upon bill and demurrer, for the consideration of the full court. 

^ (j^ B. E. Curtis and J. G. Abbott, for the defendants. D. Foster, for 

\.A^/i_C<^':\ the petitioners. 

'', Wells, J. This is a proceeding under the provisions of the Gen. 

-^■A ^ Sts. c. 18, § 79, to restrain the city of Boston from issuing its bonds 

Lyjj4AA-for the purpose of raising a fund to be appropriated to the object of 

I <, rendering aid, by way of loans, in rebuilding upon that portion of the 

K \> '^ city which was burned over in November, 1872. T he issue of bonds f or 

j^ '■^ that purpose, to an amount not exceeding: $2 0,000,000, was expressl y 

. auth orized by t he St_Qf 187j^c^ 364. The question, therefore, is dis- 

<Am^j^ tinctly presented whether the authority thus conferred upon the city is 

1^ contrary to the provisions of the Constitution of the Commonwealth. 

X The issue of bonds by the city, whatever provision may be made for 

\ *v3 their redemption, involves the possible and not improbable consequence 

^^,^^ ,J^ of a necessity to provide for their payment by the city. The right to 

incur the obligation implies the right to raise money by taxation fo r 

AjJJ^^j::^ paym eiit of the boncls ; oi-, what is equivalent, the right to levy a ta x 

^ for the pu rposes for which the fund is to be raised by means of the 

bonds so au thorize d. 

Cl^, It is aqu estion, not of municipal authority, but of legislative power. 

jA . The point of difficulty is not as to the distribution of the burden by 

^^^^^*\| allowing it to be imposed upon a limited district within the State ; but 

/t<^ \\ as to the right of th e legislature to impo se or authorize any tax for th e 

, object contemplated by this statute . 

^^ • The power to levy taxes is founded on the right, duty, and responsi- 

. , bility to maintain and administer all the governmental functions of the 

^\, N.N^ State, and to provide for the public welfare. To justify any exercise of 

^'^^ 1 The statute purported to authorize the city to issue bonds to an amount not 

' -\iuL exceeding $20,000,000, and provided for the appointment of three commissioners, with 

v&x^->. VW- g^y^|jQj.i(.y jQ appl.y the proceeds of these bonds in loans to the owners of land burned 

. o over in the great fire of Nov. 9 and 10, 1872, upon notes or bonds secured by first 

mortgages of this land, conditioned upon rebuilding within one year from Jan. 1, 

J,, 1873. The commissioners were to apply the loans, and to make other conditions 

^ 1 and provisions as they should think best calculated to insure the employment of the 

^^^aA v***^ money in rebuilding on the land and repaying the loans. And they were authorized 

, to withhold payment of any loan agreed on when they should think it necessary " to 

^^xAmM. insure the speedy rebuilding on said land." — Ed. 




^ 



CHAP. VII.] 



1225 



LOWELL ET AL. V. 



BOSTON. 





>. ^^1^ 



the power requires that the expenditure which it is intended to meet 
shall be for some public service, or some object which concerns the pub- 
lic welfare, f The promotion of the interests of individ uals, ei ther in 
respect of property or business , a lthough it may resul t incide ntally in ^ 
tliejid vancement of th e public welfare, is^ ^ its essential char acter, a ^*^ ^~^ 
p rivate and not a publ ic object. However certain and great the result- .-c^^ . /t- 
ing good to the general public, it does not, by reason of its comparative w^_^_^,^,^ (yl 
importance, cease to be incideutal./f The incidental advantage to_the 
public , or to the State, which results from the promo tion of private 
i nterests , and the prosperity of private enterprises or business, dqes^not 
justify their aid by th e use of public money raised by taj:ation, or for 
w hich taxation may become ne cessary. It is the essential character of 
the direct object of the expenditure which mn.st determine its validity. 
as justifying a tax, and jK) t the mag nitud e of the interests to be af fected, 4-.^,,^^^ 
nor thejrlegree to which the gen er al adva nta ge of t he cojgimunity, and U 
thus the public welfare, mj. ^be ultimately ben e_fit!ed_by_their pro- 
motion. 

The principle of this distinction is fundamen