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me by the railroad commissioners of the State of New Hampshire, in conjunction with the selectmen of Wentworth, on account of the laying out of the said Boston, Concord, & Montreal Railroad through and over my land ; and I do hereby release and discharge the said corporation from said damages.”

Aiken, on November 7, 1849, gave the defendants a warranty deed of that part of his farm on which the road is located. Said deed contains 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 release, and that executed by Eaton, 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 twentyfive feet or more in height, extending from the high lands on the east westerly to said river, completely protecting said meadows from the effect of floods and freshets in said 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 their road, made a deep cut, through which the waters of said river in floods and freshets sometimes flowed ; and the damages sued for were occasioned by the waters flowing through said cut, and 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 prudence. The defendants say that they are not so liable. The defendants 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 they 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 care and prudence, and that 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 party may have a trial by jury if desired, without prejudice from anything herein contained.

Upon the foregoing facts appearing, and the parties having stated their positions and claims, the court, pro forma, ruled that the plaintiffs 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 run throngh this cut and damage the plaintiffs' land; to which ruling the defendants excepted.

Carpenter and Flanders, for the plaintiffs. H. Bingham, Burrows, and Page, 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 plaintiff 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 respect, might be a reasonably expected occasionally to occur.” The defendants removed the natural barrier which theretofore had completely protected the plaintiff's meadow from the effect of these freshets; and, for the damages caused to the plaintiff in consequence of such removal, the defendants are confessedly liable, unless their case can be distinguished from that of the private land-owner above supposed. Such a distinction is attempted upon two grounds, -- first, that the plaintiff, has already been compensated for this damage, it being alleged that the defendants have, by negotiation, or by compulsory proceedings, purchased of the plaintiff the right to inflict it ; second, that the defendants are acting under legislative authority, by virtue of which they are entitled to inflict this damage on the plaintiff without any liability to compensate him therefor.

In support of the first ground, the defendants rely upon the plaintiff's release, and upon the appraisal of damages under the statute.

The release does not support the defendants' claim. The plaintiff released the defendants from damages on account of the laying out of the railroad through and over his land. The damages which the court 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 by the construction of the road over the land of other persons. See Delaware & Raritan Canal Co. v. Lee, 2 Zabriskie, 243. The ruling was, that the plaintiff could recover such damages as have been caused him in consequence of the defendants' cutting away the ridge north of the plaintiff's farm. . .

The defendants' first position is, that the plaintiff has already received compensation for this damage. This position the court have now overruled. The defendants' next position is, that the plaintiff is not legally entitled to receive any compensation, but is bound to submit to the infliction of this damage without any right of redress. The argument is not put in the precise words we have just used, but that is what we understand them to mean. The defendants say that the legislative charter authorized them to build the road, if they did it in a prudent and careful manner; that they constructed the road at the cut 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 involves two propositions: first, that the legislature have attempted to authorize the defendants to inflict this injury upon the plaintiff without making compensation; and second, that the legislature have power to

confer such authority. There are decisions which tend to show that, the charter should not be construed as evincing any legislative intention to authorize this injury, or to shield the defendants from liability in a common-law action. T'insman v. Belvidere Delaware R. R. Co., 2 Dutcher N. J. 148; Sinnickson v. Johnson, 2 Harr. N. J. 129; Hooker v. Nero Haven & Northampton Co., 14 Conn. 146; Fletcher v. Auburn & Syracuse R. R. Co., 25 Wendell, 462; Brown v. Cayuga & Susquehanna R. R. Co., 12 N. Y. (2 Kernan), 486, p. 491. See, also, Eastman v. Company, 44 N. H. 143, p. 160; Hooksett v. 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, p. 488. But we propose to waive inquiry on this point, and to consider only the correctness of the second proposition, or, in other words, the question of legislative power.

The defendants cannot claim protection under an implied power,' where an express power would be invalid : the legislature cannot do indirectly what they cannot do directly. Unless an express provision in the charter, authorizing the infliction of this injury without making compensation, would be a valid exercise of legislative power, the defendants cannot successfully set up the plea that the injury was necessarily consequent upon the exercise of their chartered powers, and therefore impliedly authorized. The defence, then, really presents this question: Have the legislature power to authorize the railroad corporation 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, without making any provision for his compensation?

Although the Constitution of this State does not contain, in any one clause, an express provision requiring compensation to be made when private property is taken for public uses, yet it has been construed by the courts, in view of the spirit and tenor of the whole instrument, as prohibiting such taking without compensation; and it is understood to be the settled law of the State, that the legislature cannot constitutionally authorize such a taking without compensation. Piscataqua Bridge v. N. H. Bridge,' 7 N. H. 35, pp. 66, 70; Perley, C. J., in

1 The language here referred to is as follows: "That franchise, as we have said, is property “No part of a man's property shall be taken from him or applied to public 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 in case his property is taken without his consent, due compensation must be provided. i Black. Com. 139; 2 Johns. C. R. 166; Gardner v. Village of Newburgh, and author. ilies 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 highways, bridges, ferries, and other works of internal improvement, without the assent of the owner, and without any indemnity provided by law. Such a power 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. H. Bridge et al., ubi supra. — Ed.

Petition of Mount Washington Road Co., 35 N. H. 134, pp. 141, 142; Sargent, J., in Eastman v. Amoskeag Manuf. Co., 44 N. H. 143, p. 160 ; State v. 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.

The vital issue then is, whether the injuries complained of amount to a taking of the plaintiff's property, within the constitutional meaning 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 conflict of opinion. The constitutional prohibition (which exists in most, or all, of the States) has received, in some quarters, a construction which renders it of comparatively little worth, being interpreted much as if it read: “No person shall be divested of the formal title to property without compensation, but he may without compensation be deprived of all that makes the title valuable.” To constitute a “taking of property,” it seems to have sometimes been held necessary that there should be " an exclusive appropriation," "a total assumption of possession,” “ a complete ouster," an absolute or total conversion 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 “ property,” as used in the various State constitutions.

In a strict legal sense, land is not "property,” but the subject of property. The term “property," although in common parlance frequently 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 Wynehamer 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 physical interference with the land substantially subverts one of those rights, such interference

takes," pro tanto, the owner's “ property.” The right of indefinite user (or of using indefinitely) is an essential quality or attribute of absolute property, without wbich 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. 0. C. W. R. R., 103 Mass. 10, p. 14. From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner's “property.” If the right of indefinite user is an essential element of absolute property or complete ownership, whatever physical interference 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.

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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 prohibition cannot be ignored in its interpretation. The framers of the Constitution 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 “property,” 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. 6. To deprive 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 ?” Sutherland, J., in People v. Kerr, 37 Barb. 357, p. 399 ; Co. Litt. 4b. The private injury is thereby as completely effected as if the land itself were “physically taken away.”

The principle must be the same whether the owner is wholly 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 differ. 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 they have not taken the whole farm. So a partial, but substantial, restriction of the right of user may not annihilate all the owner's rights of property in the land, but it is none the less 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 vary, but the principle is the same.” See 6 Am. Law Review, 197–198; Lawrence, J., in Nevins 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 instrument. “No part of a man's property shall be taken. ... 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, they can, by successive takings 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


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