the obligation to make him compensation any stronger upon a future legislature than it was on that one by whose authority his property has been taken;" and if they have "failed to make a constitutional provision for his compensation," "what assurance can he have" that any future legislature will do so? "It was, however, to place the rights of property 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. R. Co. v. Ferris, 26 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, 4th ed., 58. The same principle applies to the exercise by the legislature of the power delegated to them by, the Constitution. No sound argument can be founded upon the hardship to the grantees of not receiving all that the legislature undertook 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 unfortunate persons who have purchased property of an irresponsible party who had no right to sell? Is the fact that the purchaser paid a full consideration to the wrongful vendor allowed to divest the title of the true owner? Yet, upon what other theory can it be said (1 Amer. Law Magazine, 75) that "we cannot look beyond the charter itself to determine 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 "consequential damage" "prolongs the dispute," and " introduces an equivocation 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 Erle, C. J., aptly terms "consequential damage to the actionable degree." Brand v. H. & C. R. 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 remedy to recover it. The terms "remote damages" and " consequential damages" are not necessarily synonymous, 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 damage which would

99.66

not have been actionable at common law if done by a private individual, the proposition is correct. The constitutional restriction was designed "not to give new rights, but to protect those already existing." Pierce on Am. R. R. Law, 173; and see Rickett v. Directors, &c., of Metropolitan Railway Co., Law Reports, 2 House of Lords, 175, pp. 188, 189, 196. But this does not concern the present case, where it is virtually conceded that the injury would have been actionable if done by a private individual not acting under statutory authority. If, upon the other hand, the phrase is used to describe damage, which, though not following immediately in point of time upon the doing of the act complained of, is nevertheless actionable, there seems no good reason for establishing an arbitrary rule that such damage can in no event amount to a "taking of property."

The severity of the injury ultimately resulting from 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 recovered in case as well as in trespass. The question whether the injury 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 damage to him any less because the submerging was only the "consequential" result of another's act? It has been said "that a nuisance by flooding a man's land was originally considered so far a species of ouster, that he might have had a remedy for it by assize of novel disseisin; " 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 remedy must be sought 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 by which the common-law 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; criticisms of Miller, J., in Pumpelly v. Green Bay Company, 13 Wallace U. S. 166, p. 180; Paine, J., in Alexander v. City of Milwaukee, 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.

see the

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

have sustained no substantial damage. But this affords no ground for denying redress to this plaintiff, who has clearly sustained a substantial injury. Nor will the present decision be a precedent in future cases differing in their nature from the one before us. The answers given

by other courts to similar objections are quite decisive. Ld. Denman, C. J., in Regina v. Eastern Counties Railway Co., 2 Queen's Bench, 347, pp. 362, 363; Montague Smith, J., in Brand v. H. & C. Railway Co., Law Reports, 2 Queen's Bench, 223, p. 245; Parker, C. J., in Boston & Roxbury Mill Corp. v. Gardner, 2 Pick. 33, pp. 38, 39. [Here follows, at considerable length, a learned 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 maintained would not have necessitated the rendition of a different judgment from that which 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 present 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 north of the plaintiffs' farms." If any damage was caused to Aiken by the defendants' 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 ruling 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 by jury, the order must be, Case discharged.1

1 Of this strong and closely reasoned judgment, it has been said that, "The leading case upon the subject, and the one which has contributed more than any other toward bringing about the change referred to in the last section is Eaton v. B. C. & 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 his 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 compensation, is a proposition which seems to me so self-evident as hardly to admit of illustration by any example which can be made clearer; and which therefore can hardly

need the support of authorities. But see Hooker v. New Haven and Northampton Co., 14 Conn. 146; Rowe v. Granite Bridge Corp., 21 Pick. 344; Nevins v. City of Peoria, 41 Ill. 502, 510; Pettigrew v. Village of Evansville, 25 Wis. 223, 231, 236; Pumpelly v. Green Bay Co., 13 Wallace, 166. But the most satisfactory and best considered case which 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. H. 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); Janesville v. Carpenter, 77 Wis. 288 (1890); Anderson v. Henderson, 124 Ill. 164; Randolph, Em. Dom. s. 429; Atty.-Gen. v. Tomline, 14 Ch. Div 58 (1880); Head v. Amosk. Co., supra, pp. 767-768; Turner v. Nye, supra, p. 893; Wilhams 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 Story v. El. Ry. Co., infra, p. 1105. It will be observed that the judgment in the principal case may rest upon other grounds than those on which the court puts it.

The question of whether 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 that it should make no difference under what head of legislative power it is sought to justify an act, e. g., under the so-called police power or taxation,-if there be, in reality, and upon a large and just consideration of the matter, a taking, divesting, or destruction of property by the State for public purposes, compensation must be made. Such a doctrine, however, is to be applied with a recognition of well-known exceptions and qualifications, in full view of that historical conception of the meaning of a taking of property for public purposes, as contrasted with the usual operations of public authority, not thought of as requiring compensation, which may be gathered from the established practices of all civilized governments, and particularly of our own ancestors, 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 Miller v. Horton, 152 Mass. 540. A comparison, in the last case, of the dissenting opinion with that of the court will illustrate 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 constitutions used language in the definite and exact sense reached by modern analysis. It is moreover never to be forgotten that much in our constitutions is addressed to legislatures and not at all to courts; that much injustice, in the way among other ways, of not making compensation where it should be given, for injuries suffered from acts of the executive and the legislature is beyond the reach of courts. See supra, pp. 151-154.

Compare what is said in "Origin and Scope of the American Doctrine of Constitutional 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 modus 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 permissible view of its constitutional power. The ultimate arbiter of what is rational and permissible 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 imperil 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 centuries ago, quoted lately from Mr. Justice Holmes:'Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver, to all intents and purposes, and not the person who first wrote 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

KOCH v. DELAWARE, &c. RAILROAD COMPANY.

SUPREME COURT OF NEW JERSEY. 1891.

[53 N. J. Law, 256.]

ON demurrer to declaration. Argued at November Term, 1890, before BEASLEY, CHIEF JUSTICE, and JUSTICES DIXON and MAGIE.

For the plaintiff, McDermit and Maher. For the demurrants, Bedle, Muirheid, and McGee.

The opinion of the court was delivered by

BEASLEY, CHIEF JUSTICE. The declaration complains of damages, arising from the flooding of her lands by an act of the defendant alleged to be illegal.

The lands so injured are described as adjoining a certain stream of water called Ned's Creek, which empties into a contiguous creek, known as Kingsland's Creek, and that the premises in question were drained. and kept dry, until the grievance complained of, by means of a sluice at the mouth of the last-named stream.

These allegations do not appear to have any relation to the case, except to show, with unnecessary particularity, that antecedently to the tort complained of, the plaintiffs' premises had not been subject to any watery influx. No complaint is made of any interference with the sluice or creeks thus in a measure described.

The declaration then proceeds to the gravamen of the supposed cause of action. Briefly it is thus stated: That by a certain Act of the Legislature, the same being a supplement to "An Act to incorporate the Kingsland and Saw Mill Company," a certain tract of land is described, the northerly side of which abuts upon the line of the Boonton branch often remarked that private rights are more respected by the legislatures of some countries which have no written constitution than by ours. No doubt our doctrine of constitutional law has had a tendency to drive out questions of justice and right, and to fill the mind of legislators with thoughts of mere legality, of what the Constitution allows. And moreover, even in the matter of legality, they have felt little responsibility; if we are wrong, they say, the courts will correct it. Meantime they and the people whom they represent, not being thrown back on themselves, on the responsible exercise of their own prudence, moral sense, and honor, lose much of what is best in the political experience of any nation, and they are belittled as well as demoralized. If what I have been saying is true, the safe and permanent road towards 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 to the legislatures, and of the clear limits of judicial power; so that responsibility may be brought sharply home where it belongs. The checking and cutting down of legislative power by numerous detailed prohibitions in the Constitution, cannot be accomplished without making the government petty and incompetent. This process has already been carried much too far in some of our States. Under no system can the power of courts go far to save a people from ruin; our chief protection lies elsewhere If this be true, it is of the greatest public importance to put the matter in its true light."- ED.