of the Morris and Essex Railroad Company, and that the plaintiffs' premises are a part of the tract so set forth. Then follows an averment that by another provision of the statute referred to it is enacted, "that it shall not be lawful to make any opening through the cause-way or roadbed of the Boonton branch of the Morris and Essex Railroad Company, whereby any overflow or tide-water from the meadows lying beyond the same shall be discharged upon" the tract of land just mentioned.

The tort laid to the defendant is, that it "unlawfully made an open-ing through the causeway or roadbed of the Boonton branch, and thereby caused the plaintiffs' lands to be overflowed by the tide-water."

These statements can have but a single meaning. They denote that the plaintiffs' lands are protected from the incoming of tide-water bythe artificial structure described as the causeway of the railroad, and the wrong done is, that the defendant has, in part, removed that dam.

It is, consequently, plain, that the plaintiffs, in order to show a suable wrong, must make it evident that they have a legal right to insist on the maintenance of the railroad structure in question. It is not sufficient for them to show that they will sustain a detriment by its removal; the ground of their action is, and must be, a deprivation of a right that the law secures to them; and, therefore, if they cannot require the keeping up of this embankment, they cannot complain, in a court of law, of its destruction or its impairment, whether such act be Jone by its owner or by a stranger as an act of trespass.

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 relianceof the plaintiffs, if the Act itself be sustainable.

And this seems to me to be the flaw in the plaintiffs' case; the statute appears to be destitute of all semblance of legality. It is a private Act, and it is not shown that it has even been accepted by the corporate body for whose benefit it was designed. It arbitrarily forbids the Boonton branch railroad to make use of its roadway in a particular manner that is, to remove it at its pleasure, in whole or in part. This is not within the competency of legislation. It is not perceived how the law-maker can direct this corporate body to forever refrain from removing a roadbed constructed by it on its own property. The legis lature, by its edict, cannot burden the land of the railroad for the benefit of other property.

Inasmuch, therefore, as this statute cannot be sustained, the plaintiffs' supposed cause of action has no basis.

The defendant is entitled to judgment on the demurrer.

IN Transportation Co. v. Chicago, 99 U. S. 635 (1878), on error to the Circuit Court of the United States for the Northern District of Illinois, STRONG, J., for the court said: "We are of opinion that no error has been shown in this record, though the assignments are very numerous. The action was case to recover damages for injuries alleged to have been sustained by the plaintiffs in consequence of the action of the city authorities in constructing a tunnel or passageway along the line of La Salle Street and under the Chicago River, where it crosses that street. The plaintiffs were the lessees of a lot bounded on the east by the street, and on the south by the river, and the principal injury of which they complain is, that by the operations of the city they were deprived of access to their premises, both on the side of the river and on that of the street, during the prosecution of the work. It is not claimed that the obstruction > was a permanent one, or that it was continued during a longer time than was necessary to complete the improvement. Nor is it contended that there was unreasonable delay in pushing the work to completion, or that the coffer-dam constructed in the river, extending some twentyfive or thirty feet in front of the plaintiff's lot, was not necessary, indeed indispensable, for the construction of the tunnel.

"The case has been argued on the assumption that the erection of the coffer-dam, and the necessary excavations in the street, constituted a public nuisance, causing special damage to the plaintiffs, beyond those incident to the public at large, and hence, it is inferred, the city is responsible to them for the injurious consequences resulting therefrom. The answer to this is that the assumption is unwarranted. That cannot be a nuisance, such as to give a common-law right of action, which the law authorizes. We refer to an action at common law such as this is. A legislature may and often does authorize and even direct acts to be done which are harmful to individuals, and which without the authority would be nuisances; but in such a case, if the statute be such as the legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by the authorized erections may be given to those who suffer, but then the right is a creature of the statute. It has no existence without it. If this were not so, the suffering party would be entitled to repeated actions until an abatement of the erections would be enforced, or perhaps he might restrain them by injunction. . . .

"It is immaterial whether the fee of the street was in the State or in the city or in the adjoining lot-holders. If in the latter, the State had an easement to repair and improve the street over its entire length and breadth, to adapt it to easy and safe passage.

"It is undeniable that in making the improvement of which the plaintiffs complain the city was the agent of the State, and performing a public duty imposed upon it by the legislature; and that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdic

tion and with care and skill, is a doctrine almost universally accepted alike in England and in this country. It was asserted unqualifiedly in The Governor and Company of the British Cast-Plate Manufacturers v. Meredith, 4 Durnf. & E. 794; in Sutton v. Clarke, 6 Taun. 28; and in Boulton v. Crowther, 2 Barn. & Cres. 703. It was asserted in Green v. The Borough of Reading, 9 Watts (Pa.), 382; O'Connor v. Pittsburgh, 18 Pa. St. 187; in Callender v. Marsh, 1 Pick. (Mass.) 418; as well as by the courts of numerous other States. It was asserted in Smith v. The Corporation of Washington (20 How. 135), in this court; and it has been held by the Supreme Court of Illinois. The decisions in Ohio, so far as we know, are the solitary exceptions. The doctrine, however it may at times appear to be at variance with natural justice, rests upon the soundest legal reason. The State holds its highways in trust for the public. Improvements made by its direction or by its authority are its acts, and the ultimate responsibility, of course, should rest upon it. But it is the prerogative of the State to be exempt from coercion by suit, except by its own consent. This prerogative would amount to nothing if it does not protect the agents for improving highways which the State is compelled to employ. The remedy, therefore, for a consequential injury resulting from the State's> action through its agents, if there be any, must be that, and that only, which the legislature shall give. It does not exist at common law. The decisions to which we have referred 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 compensation being made. But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. 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. Those who are curious to see the decisions will find them collected in Cooley on Constitutional Limitations, page 542 and notes. The extremest qualification of the doctrine is to be found, perhaps, in Pumpelly v. Green Bay Company, 13 Wall. 166, and in Eaton v. Boston, Concord, & Montreal Railroad Co., 51 N. H. 504. In those cases it was held that permanent flooding of private property may be regarded as a "taking." In those cases there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the plaintiffs' lot. All that was done was to render for a time its use more inconvenient.

"The present Constitution of Illinois took effect on the 8th of August, 1870, after the work of constructing the tunnel had been substantially completed. It ordains that private property shall not be taken or damaged' for public use without just compensation. This is an exten

sion of the common provision for the protection of private property. But it has no application to this case, as was decided by the Supreme Court of the State in Chicago v. Rumsey, recently decided, and reported in Chicago Legal News, vol. x. p. 333, 87 Ill. 348. That case also decides that the city is not liable for consequential damages resulting from an improvement made in the street, the fee of which is in the city, provided the improvement had the sanction of the legislature. It also decides that La Salle Street is such a street, and declares that a recovery 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 Constitution. There would appear, therefore, to be little left in this case for controversy."

1

CHICAGO v. TAYLOR.

SUPREME COURT OF THE UNITED STATES. 1887.

TRESPASS ON THE CASE.

[125 U. S. 161.]

}

Judgment for plaintiffs. Defendant sued out this writ of error [to the Circuit Court of the United States for the Northern District of Illinois.] The case is stated in the opinion of the court.

Mr. Frederick S. Winston and Mr. John W. Green, for plaintiff in error. Mr. George A. Follansbee and Mr. Thomas M. Hoyne, for defendants in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This action was brought by Moses Taylor, as owner of an undivided interest in a lot in Chicago, having sixty feet front on Lumber Street, one hundred and fifty feet on Eighteenth Street, and three hundred feet on the South Branch of Chicago River, to recover the damages sustained by reason of the construction, by that city, of a viaduct on Eighteenth Street, in the immediate vicinity of said lot. The city did this work under the power conferred by its charter" to lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds, and vacate the same," and "to construct and keep in repair bridges, viaducts, and tunnels, and to regulate the use thereof." It appears that the construction of the viaduct was directed by special ordinances of the city council.

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- chinery, engines, boilers, tracks, and other contrivances required in the business of buying, storing, and selling coal. The premises were long so used, and they were peculiarly well adapted for such business. There was evidence before the jury tending to show that, by reason of

1 See City Council v. Maddox, 89 Ala. 181 (1890). — Ed.

the construction of the viaduct, the actual market value of the lot, for the purposes for which it was specially adapted, or for any other purpose for which it was likely to be used, was materially diminished, access to it from Eighteenth Street being greatly obstructed, and at some points practically cut off; and that, as a necessary result of this work, the use of Lumber Street, as a way of approach to the coal-yard by its occupants. and buyers, and as a way of exit for teams carrying coal from the yard to customers, was seriously impaired. There was also evidence tending to show that one of the results of the construction of the viaduct, and the approaches on either side of it to the bridge over Chicago River, was, that the coal-yard was often flooded with water running on to it from said approaches, whereby the use of the premises as a place for handling and storing coal was greatly interfered with, and often became wholly impracticable.

On behalf of the city there was evidence tending to show that the plaintiff did not sustain any real damage, and that the inconveniences to occupants of the premises, resulting from the construction and maintenance of the viaduct, were common to all other persons in the vicinity, and could not be the basis of an individual claim for damages against the city.

There was a verdict and judgment against the city. The court below having refused to set aside the judgment and grant a new trial, the case has been brought here for review in respect to errors of law which, it is contended, were committed in the admission of incompetent evidence, in the refusal of instructions asked by the city, and in the charge of the court to the jury.

Before noticing the assignments of error it will be well to ascertain what principles have been announced by this court or by the Supreme Court of Illinois in respect to the liability of municipal or other corporations in that State, for damages resulting to owners of private property from the alteration or improvement, under legislative authority, of streets and other public highways.

By the Constitution of Illinois, adopted in 1848, it was provided that no man's property shall "be taken or applied to public use without just compensation being made to him." Art. XIII. § 11. Art. XIII. § 11. While this Constitution was in force Chicago commenced, and substantially completed, a tunnel under Chicago River, along the line of La Salle Street, in that city. It was sued for damages by the Northern Transportation Company, owning a line of steamers running between Ogdensburg, New York, and Chicago, and also a lot in the latter city, with dock and wharfage privileges, the principal injury of which it complained being that, during the prosecution of the work by the city, it was deprived of access to its premises, both on the side of the river and on that of the street. This court in Transportation Co. v. Chicago, 99 U. S. 635, 641- held that in making the improvement of which the plaintiff complained the city was the agent of the State, performing a public duty imposed by the legislature; and that "persons appointed or authorized by law to