damage, no matter how serious or how clearly and unquestionably resulting from the exercise of the power of eminent domain. This rule has been repeatedly declared in many of the States of 14 Md. 444, that laying an aqueduct over a person's land is a "taking." See particularly the recent case of Eaton v. Boston &c. R. R. 51 N. H. 504, for a most exhaustive discussion and analysis of the authorities. A railroad removed a natural ridge which rose between Eaton's farm and a river, and protected the farm from overflow during freshets. In consequence of this removal, the farm was sometimes overflowed during freshets, and sand, gravel, and stones were brought on to it. This was held to be a "taking." The whole opinion is a grateful and refreshing recognition of the rights of private owners of property. Imposing Additional Easements.—If the soil of a proprietor which is already burdened with some public easement, is subjected by authority of the State to an additional and different public easement, there is a taking for public use, and he is entitled to compensation. This general doctrine is universally admitted. The difficulty in applying it has arisen not from any doubt as to the rule itself, but from a difference in opinion as to what constitutes an additional public easement and burden. Thus, if a person's soil is subject to the easement of a public highway, does this include every other and new means of transit, or is every such new method an additional burden not embraced within the legal public right and use of a highway? Courts have not been unanimous in answering this particular question. We shall arrange the cases into classes. A public market cannot be authorized in a street without compensation to the abuttors who own the fee. State v. Laverack, 5 Vroom (N. J.) 201. Turnpikes, etc.-Changing an ordinary highway into a plank-road or turnpike imposes no additional easement, and does not entitle the abuttors to compensation when they own the fee. Wright v. Carter, 3 Dutcher, 76; Douglas v. Boonsboro' Turnp. Co. 22 Md. 219; Benedict v. Goit, 3 Barb. 459; Commonwealth v. Wilkenson, 16 Pick. 175; Chagrin Falls &c. Plank R. Co. v. Cane, 2 Ohio, N. S. 419; but contra, Williams v. Natural Bridge Plank R. Co. 21 Mo. 580. Steam Railroads in Streets.-Steam railroads laid in streets and highways are an additional public burden and easement, and abuttors who own the tee of the way are entitled to compensation. Williams v. N. Y. Cent. R. R. 16 N. Y. 97; Carpenter v. Oswego &c. R. R. 24 N. Y. 655; Mahon v. N. Y. Cent. R. R. 24 N. Y. 658; Wager v. Troy &c. R. R. 25 N. Y. 526; Pres. Soc. v. Auburn &c. R. R. 3 Hill, 567; Ford v. Chicago &c. R. R. 14 Wisc. 609; Pomeroy v. Chicago &c. R. R. 16 Wisc. 640; Schurmeier v. St. Paul &c. R. R. 10 Minn. 82; Gray v. First Division &c. 13 Minn. 315; Imlay v. Union Branch R. R. 26 Conn. 249; Jersey City &c. R. R. v. Jersey City &c. R. R. 20 N. J. Ch. 62, 67. Contra, such railroad is not an additional burden. Morris & Essex R. R. v. Newark, 2 Stockt. 352; Snyder v. Penn. R. R. 55 Penn. St. 340; Commonwealth v. Erie &c. R. R. 27 Penn. St. 339; Matter of Philadelphia &c. R. R. 6 Whart. 25; Wolfe v. Covington &c. R. R. 15 B. Mon. 404. Horse Railroads in Streets.-Horse railroads laid in streets and highways are an additional public burden and easement, and abuttors who own the fee are entitled to compensation. Craig v. Rochester &c. R. K. 39 N. Y. 404. Contra, such horse railroads are not a new use or additional public burden. Elliott v. Fairhaven &c. R. R. 32 Conn. 579; Brooklyn &c. R. R. v. Brooklyn &c. R. R. 33 Barb. 420; Brooklyn &c. the Union. So, in New York, the consequential damages re sulting from the raising of the grade of a city street sustained by adjacent proprietors gives no action against the railroad corporation, acting under the authority of the Legislature and with the consent of the city government.* So, in the same State, in taking land for railroad purposes, the only right of the party whose property is entered on is to be paid for the land taken, and that without any reference to the fact that the land of which he is deprived is taken for the construction of a railroad, and that its use by the railroad company may be seri * Radcliff's Ex'rs v. Mayor &c. of Brooklyn, 4 Comstock, 195; Chapman v. Albany and Schenectady R. R. Co. 10 Barb. 360; see also, First Baptist Church v. Utica Sche LIBRARY UNIVERSITY R. R. v. Coney Island R. R. 35 Barb. 364. These New York cases, however, were overruled by Craig v. Rochester &c. R. R. Where a city or other municipality owns the fee of the streets and highways, the Legislature may authorize horse or steam railroads to be laid therein without compensation to the abuttors or to the municipality. Carson v. Central R. R. 35 Cal. 325; People v. Kerr, 37 Barb. 357; s. c. 27 N. Y. 188 (horse railroads); Clinton v. Cedar Rapids R. R. 24 Iowa 455 (steam railroad); Millburn v. Cedar Rapids, 12 Iowa, 246; Moses v. Pittsburg &c. R. R. 21 Ill. 516 (steam railroad). In Indiana the same rule prevails, the fee of the streets being in the public, but the abuttor may maintain action for damages if his access to the street is cut off or interrupted. See cases cited supra in this note under head “Consequential Injuries.” When a canal company sells its location to a railroad, this will not be an abandonment of its easement entitling the original owner to new compensation from the railroad company. Hatch v. Cincinnati &c. R. R. 18 Ohio, N. S. 92. When land is donated for a particular purpose, an appropriation of it for a different public purpose would be a "taking." Price v. Thompson, 48 Mo. 361 (land dedicated for a park); Warren v. Lyons City, 22 Iowa, 351 (for a public square). Laws establishing a presumption of donation from long user are not laws for taking property. Bumpus v. Miller, 4 Mich. 159. When the right is reserved to alter or repeal the charter of a corporation, part of its land may be taken for a street without compensation. Boston & Albany R. R. v. Greenbush, 5 Lans. 461. And a highway may be laid across the track of a railroad corporation under such circumstances without compensation, and it may be required to make the necessary embankments at its own expense. Albany &c. R. R. v. Brownell, 24 N. Y. 345; but per contra, see Old Colony R. R. v. Plymouth, 14 Gray, 155. When persons have been permitted by the State to occupy and make valuable improvements on public lands, their rights are protected by the Constitution. Gillan v. Hutchinson, 16 Cal. 153. A statute authorizing a corporation to widen a navigable stream and to charge tolls thereon, is constitutional. Bennett's Branch Co.'s Appeal, 65 Penn. St. 245. Whether abuttors on a private way thrown open to the public travel, can be compelled to grade it if unsafe, see Morse v. Stocker, 1 Allen, 150. ously injurious to the rest of his adjacent property.* So, again, the damage likely to result from a road to a mill on the proprietor's adjacent land, is not a subject of inquiry. † So, again, in New York, a franchise may be said to be "taken within the meaning of the constitutional guarantee of private property, when the owner is deprived of the power or means of exercising it;" but it is not "taken" when its emoluments are merely diminished by an improvement which does not destroy or impair such power or means. This is on the ground that, when the public good calls for new grants, it is right they should be made, although they may become rivals to pre-existing estab lishments made under legislative authority. And thus it has been held, that where a public avenue was opened across a stream, and nearly alongside of a toll-bridge, the apprehended diminution of the tolls on the bridge is not a grievance for which the bridge proprietors are entitled to redress, the statute granting their franchise not having conferred an exclusive right; and it was also held that, as the proposed avenue did not occupy any part of the site of the bridge, but merely passed over one end thereof, and occupied a portion of the causeway leading to it, the proprietors were not entitled to compensation, it not appearing that the appropriation of the part of the causeway required for the avenue would, of itself, diminish the travel over the bridge or throw any physical obstacles in the way of crossing it. So, in Pennsylvania, in regard to taking private property for railroads, it has been decided, in making compensation, that consequential damages are not to be estimated unless provided for in the act of incorporation; and acts of incorporation are constitutional, though no provision be made for such damage. | So, in the same State, it has been held that, under the constitutional provision declaring that "private property shall not be taken or applied to public use without just compensation being made" no remedy is provided for damages done by * Albany Northern Railroad Company v. Lansing, 16 Barb. 68. + Canandaigua and Niagara Falls R. R. Co. v. Payne, 16 Barb. 273. 405. Matter of Hamilton Avenue, 14 Barb. Monongahela Navigation Co. v. Coons, 6 W. & Serg. 114; Henry v. Pittsburgh and 21 Penn. 100. cutting down the grade of a street, although such cutting down destroy a building on adjacent property. The Supreme Court, Gibson, C. J., delivering this opinion, said that they grieved to say there was no redress; "the constitutional provision for the case of private property taken for public use extends not to the case of property injured or destroyed."* So, in the same State, it has been held the Legislature has the power to vacate or close a public street without the consent of those whose private interests may be affected by it, and without providing compensation for the injury. The value of property may be taken away by closing the avenues which lead to it; but it is a consequential loss, and must be borne by those who suffer it. † So, in Connecticut, it has been decided that, to entitle a person to the assessment of damages in his favor sanctioned by the laying out of highways, the damages must be direct and immediate, producing a legal injury, and not remote and consequential. Thus the loss of the use of a creek, crossed by the highway, for the transportation of merchandise in common with the public, is not a damage for which the claimant is entitled to be indemnified. † In Massachusetts it has been held that a mere entry of commissioners, under an act of the Legislature, authorizing certain boundaries to be ascertained, is not unconstitutional though no compensation is provided for the entry. No property is appropriated. || In Maine the compensation provided by statute for damages occasioned by the location and construction of railroads, has been said to extend only to real estate or materials taken; and it has been held that for damages indirectly resulting from the legal acts of a chartered corporation, the law affords no remedy. The true construction of the provision has been elaborately examined in the State; and the Supreme Court has there decided, that by the taking of property within the scope of this clause, is meant such an appropriation of it as * O'Connor v. Pittsburgh, 6 Harr. Penn. R. 187. Paul v. Carver, 26 Penn. 223. Winslow v. Gifford, 6 Cushing, 327. Rogers v. Kennebec and Portland Railroad Co. 35 Maine, 319. deprives the owner of his title or a part of his title, and that it does not prevent the Legislature from authorizing acts operating injuriously to private property and without compensation, unless such property is taken and appropriated or attempted to be taken and appropriated, for the owner. * In Vermont too, the course is to limit the compensation to damages sustained by the actual taking of property; all other loss sustained by individuals comes under the head of damnum absque injuria, or under the head of sacrifices which individuals must bear for the common benefit. + To differ from the voice of so many learned and sagacious magistrates, may almost wear the aspect of presumption; but I cannot refrain from the expression of the opinion, that this limitation of the term taking to the actual physical appropria tion of property or a divesting of the title is, it seems to me, far too narrow a construction to answer the purposes of justice, or to meet the demands of an equal administration of the great powers of government. The tendency under our system is too often to sacrifice the *Cushman v. Smith, 34 Maine, 247. See Hatch v. Vt. Central R. R. Co. 25 Vermont, 49, where the subject is discussed in an able opinion of Redfield, J. For other cases where private property is injured by the construction and grading of highways and railways, when it is not taken within the clause, see Day et al. v. Stetson, 8 Greenl. 365; Callender v. Marsh, 1 Pick. 418; Canal Appraisers v. The People, 17 Wend. 571; Susquehanna Canal Co. v. Wright, 9 Watts & Serg. 9. In England, the disposition seems to be to extend the protection of private property so as to reach every thing that injuriously affects it, as where high embankments are made in front of adjacent premises, or where annoyance and injury is caused by the close proximity of a railroad, or by the noise of its engines, and in many other cases. Queen v. Eastern Counties R. Co. 10 Ad. and El. 531; Glover v. North Staff. R. Co. 5 Eng. Law and Eq. R. 335. The act of the 6 and 7 Will. iv, c. 109, gives remuneration to proprietors for lands taken, used, damaged, or injuriously affected, in the construction of the Sheffield and Rotherham Railway Company; Turner et al. v. The Sheffield and Rotherham Railroad Co. 10 Mees. & Wels. 425, where held that the company was liable to make compensation for dust and drifting from the railway station and embankment into the An plaintiff's house. The statute 8 and 9 |