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 injury complained of in this case is not a mere personal inconvenience or annoyance to the occupant. Two marked characteristics distinguish this injury from that described in many 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 plaintiff's possession. Second, it would clearly be actionable if done by a private person without 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 Erle calls "consequential damage to the actionable degree." See Brand v. H. & C. R. Co., Law Reports, 2 Queen's Bench, 223, p. 249. These occasional inundations may produce the same effect in preventing the plaintiff 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 dwellinghouse may soon follow "); and that, even if the soil remains, the plaintiff 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 may 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 otherwise 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 allowing this excavation to remain, notwithstanding the injury thereby visibly caused to the plaintiff. Rather than raise the grade of their track, they insist upon keeping open a canal to conduct the flood-waters of the river directly on to the plaintiff's land. If it be said that the water came naturally from the southerly end of the cut on to the plaintiff's 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 plaintiff's 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

through where the ridge once was on to the plaintiff's land. "Could the defendants say they were not liable because they did not cause the rain to fall," which resulted in the freshet; or because the water "came there by the attraction of gravitation?" See Bramwell, Baron, in Smith 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 gravitation 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 defendants 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 Pettigrew v. Vil lage of Evansville, 25 Wisconsin, 223, pp. 231, 236. The defendants may, perhaps, regret that they cannot maintain their track at its present level without thereby occasionally pouring flood-water on to the land of the plaintiff. Indeed, the passage of this water through the cut may cause some injury to the defendants' road bed. But the advantages 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 condition 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 effect, they thus 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 by their nature intermittent- that is, usable or used only at times." See Goddard'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 by means of flash-boards thereon had occasionally 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 flowage, 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, they 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 Leconfield v. Lonsdale, Law Reports, 5 Com. Pleas, 657, p. 696); and the weight of that burden

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 the plaintiff's land "which does not flow naturally 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 by 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 prohibition now under 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 they 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 Brinkerhoff, J., ubi sup. ; Selden, J., in Williams v. N. Y. 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. Rich, 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 Hatch v. Vt. Central R. R., 25 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; Walworth, Chan., in Canal Com'rs & Canal Appraisers v. The People, 5 Wendell, 423, p. 452.

If it should be held that the legislature had conferred a valid authority upon the defendants to make this cut, if necessary to the construction 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 by a jury. See Johnson v. Atlantic & St. L. R. Co., 35 N. H. 569; Estabrooks v. P. & S. R. Co., 12 Cush. 224; Mellen v. Western R. R., 4 Gray, 301; Curtis v. Eastern R. R., 14 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 unnecessary, 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 been a taking of the plaintiff's property; ⁄ that, as the statutes under which the defendants acted make no provision for the plaintiff's compensation, they afford no justification; that the defendants are liable in this action as wrong-doers; and that the

ruling of the court was correct. These conclusions, which are supported by authorities to which reference will soon be made, seem to us so clear, that, if there were no adverse authorities, it would be unnecessary to prolong the discussion of this case. But, as there are respectable authorities which are in direct conflict with these conclusions, it has been thought desirable to examine some arguments which have, at various times, been advanced in support of the opposite view.

1

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 complaint 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 legislative 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. De Tocqueville's Democracy in America, Reeves's Translation, 2d Am. ed., 80. Parliament can "do everything that is not naturally impossible;" and what it does "no authority on earth can undo." 1 Blackstone'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., 45, 46. In England, whenever it appears that the act complained of was authorized by a parliamentary statute, the court are perfectly justified in dismissing 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 justification afforded by statutory enactments, has repeatedly been exposed. Swan, J., in Crawford v. The Village of Delaware, 7 Ohio St. 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 Goodall v. 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

Sutherland, J., in People v. Kerr, 37 Barb. 357, pp. 412, 415; 1 Redf. on Railways, 4th ed., 232.

The error in the argument just commented upon, may, perhaps, be summed up in the statement, that it confounds the legislature with the constitutional convention. Closely allied to this is the error of confounding the legislature with the Supreme Court. It seems to have been contended that the legislature is competent to determine whether a franchise will be injurious to other interests, and that it is to be presumed, after a legislative grant, "that there is no just claim for resulting damages which has not been provided for." See American Law Magazine, vol. 1, No. 1, April, 1843, 58-60. 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 only, not legally binding...." Speech on the Independence of the Judiciary, quoted in Cooley's Const. Lim., 1st ed. 46, note 1. It is now universally conceded to be the province and duty of the judiciary to pass upon the constitutionality of statutes; but it is to be regretted that some courts have manifested excessive reluctance to pronounce statutes unconstitutional. "Whatever respect may be due to the legislature, that due to the Constitution is still greater." Lawrence, J., in Bunn v. The 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 protection afforded by the English government to property is much more complete in this respect than under our system, although Parliament claims to be despotically supreme, and although we boast our submission 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 indemnity 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 Amer. Law Magazine, April, 1843, 57. Leave to apply to a future legislature for an act of indemnity 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