use by a corporation, is to receive the same construction; the word 'taking' being interpreted to mean taking the property altogether, not a consequential injury to it, which is no taking at all. For compensation of the latter, the citizen must depend on the forecast and justice of the legislature."

It is established under this decision that the legislature has in Pennsylvania, subject to the provisions of the new Constitution of that State, absolute control over the highroads, and may deal with them as it thinks proper, without regard to the consequences to individuals, who will have no claim to compensation for the resulting loss unless they can point to some act of assembly conferring a right that would not otherwise exist. The rule applies to urban highways not less than rural, and a railway company may be empowered to run its locomotives at grade through the thoroughfares of a populous city without guarding the track by fences or indemnifying the owners for the depreciation of their property. Compensation was accordingly denied, in Struthers v. The Dunkirk R. R. Co.,2 for the construction of a railway in the public street immediately in front of the plaintiff's dwelling, although he had suffered a real and serious injury from the smoke, noise, and cinders of the trains and locomotives, from the obstruction of the highway, and from the hindrance to the use of the ordinary means of transportation.

It follows from the same principle that as the legislature may vary the uses of a street or highway, so they may vacate it altogether. So considered, such an act takes nothing from the owners of the abutting lots, and on the contrary enlarges their estate by surrendering the public right of way, and replacing them where they stood before the street was opened; and it follows that they are not entitled to compensation for the loss that may be incidentally occasioned by the closing of the street.

A private road is private property, and an act of assembly to vacate it without paying for it, would be depriving the owner of his property. But a public road belongs to nobody but the State; and when the government sees proper to vacate

Snyder v. Pennsylvania R. R., 55 Pa. St. 340. 2 87 Pa. St. 282.

it, the consequential loss, if there be any, must be borne by those who suffer just what they would have had to bear from a refusal to open it in the first place.

It is not an argument against the existence of such a power that there is a large amount of property whose chief value would be destroyed by closing the roads that lead to it, or that it might be carried to the extent of vacating the principal avenues of a great town, because this would result in the absurd conclusion that the State could not vacate a useless road and substitute a better one in its place. The injunction which had been asked for to restrain the respondent from building on the ground which had belonged to the grantor under whom he claimed before the opening of the street, was accordingly refused.

1

Such a conclusion may be just as to rural districts, where the land lies open on every side, but is hardly applicable to urban highways, which have been laid out and paved at the expense of the adjacent land, or as against persons who have purchased or built in the belief that the street would remain open as a means of access. It cannot be said of one thus situated that he is no worse off than if the street had not been opened, and he may, ou the contrary, have good reason for averring that he has been misled, and will suffer irreparable injury if it is closed.2

If the authority of the legislature is paramount while the highway remains open, and for the purpose of vacating it, they cannot vary the rights of the land-owners as between themselves, and if the latter have expressly or impliedly agreed that a street shall be laid out as an avenue for business, the contract will be binding, although the State declines the dedication or closes the street after it has been accepted. Such, at least, is the doctrine advanced in Faust v. The Railway Co.; although it may be doubted whether it is not an implied condition of such a contract that it shall be ratified by the authorities, and whether they do not become

1 Paul v. Carver, 12 Harris, 207, 211.

2 Ante, p. 373.

83 Phila. 164, 166.

parties to it, and irrevocably bound, by accepting and acting on its terms.

It results from these decisions that the owners of land may be compelled in Pennsylvania to bear the entire cost of the opening and paving of an adjacent street, or a part of their land may be taken for such purposes without payment on the theory that the benefit will equal or exceed the burden, and yet have no right to compensation for the subsequent conversion of the street into a track for trains or locomotives, the pretext being that such a change of use is not a taking; 1 and it will seemingly be immaterial that the complainant has built on the street and has no other means of egress. Such a conclusion is the more inequitable because it is conceded that the jury may, as I have elsewhere stated, in assessing the damages for the appropriation of part of a tract to a public use, consider how it will affect the residue, and make a deduction for the consequential benefit.2 The effect of the judgment in the Philadelphia & Trenton R. R. Co.'s case accordingly is that the abutting owners have no legal or constitutional right to recover the diminution of value occasioned by laying a railway track on the street, although they received nothing for their land, and compensation would clearly have been due, had the land been taken in the first instance for a railway.

1 Harvey v. Railroad Co., 47 Pa. St. 428; Snyder v. Pennsylvania R. R, 55 Id. 340, 344.

2 Mifflin v. Railroad Co., 16 Pa. St. 182; Plank-Road Co. v. Thomas, 20 Id. 91; ante, pp. 302, 349.

LECTURE XX.

Eminent Domain (concluded).

The Taking by which the Right may be exercised. Seizure. - Abrogation of the Right of Property. Forfeiture. Flooding Land.-Obstructing a Way or Watercourse. Removing Lateral Support. - The Doctrine that an Assumption as well as a Deprivation of Possession is necessary to constitute a Taking. Every Direct Interference with the Enjoyment of Property legally occasioned by the Government for the Public Good, a Taking. - The Doctrine of Consequential Damages. The Liability of an Owner for Injuries resulting from his Use of his own Land the Measure of the State's Duty to compensate for Injuries resulting from its Exercise of the Right of Eminent Domain. - Summary of Cases in which Compensation may be required: 1. Where the Whole of a Lot or Tract is taken; 2. Where Part only is taken; 3. Where Redress is sought for Acts done on Land belonging to other Persons and appropriated by the State to Public Use.

THE answer to the first inquiry- What is property? — is virtually a response to the second- What is the taking that may not occur without conpensation? For as property is a right to the entire or partial use, occupation, or enjoyment of some specific thing, it may be taken either by abrogating the right, or so dealing with the thing that the right cannot be beneficially executed or enjoyed. A man's property is taken when his horse is carried away by a trespasser or for the service of the government in time of war; but it is also taken when his goods or chattels are forfeited for felony or treason, as soon as the sentence is pronounced and before the writ is issued to carry it into effect. So land may be taken by acts done in pursuance of an authority conferred by statutes, and rendering it physically unfit for use or habitation,1

1 Pumpelly v. The Green Bay Co., 13 Wallace, 166; Eaton v. The Railroad Co., 51 N. H. 504; The Transportation Co. v. Chicago, 99 U. S. 635, 642.

or by a statutory transfer of the title to commissioners with an adequate provision for the assessment of the damages, on the report of a jury of viewers, although its physical condition remains unchanged and it is not entered upon or occupied.1 If the effect is produced, it matters not by what means; and an act done off the land in question may be as much within the above definition as if the land were occupied. Backing the water of a stream which runs through the complainant's premises, so as to impair its usefulness as a water-power, or flood the land, is consequently a taking, whether the dam or embankment is built on the land or lower down the stream; and so of the diversion of the stream before it reaches the land.2

So an act which precludes the exercise of a right over another's land is a taking; as, for instance, if a way or watercourse is obstructed by the owner of the servient lot, or by a railway company under an authority conferred by the government.3 Property may consequently be taken, according to the common use of language, and within the scope of these decisions, although there is no such entry upon, or occupation of, the soil as would sustain an action of ejectment or assize of novel disseisin.4

Cutting down trees or hedges, or excavating sand or gravel, is a taking, and so is the damage caused by digging so near another's line as to cause a caving in or subsidence of the soil from its own weight, and not by reason of a superadded pressure from above. The appropriate remedy in the former instance is trespass, and in the latter an injunction or action on the case; but this does not affect the principle, which depends on the effect produced and not on the means, and is

1 Philadelphia v. Dickson, 38 Pa. 247; Philadelphia v. Dyer, 41 Id. 463.

2 Pumpelly v. The Green Bay Co., 13 Wallace, 166; Eaton v. B. C. & M. R. R. Co., 51 N. H. 504; Sinnickson v. Johnson, 2 Harrison, 129.

Arnold v. The Hudson River R. R. Co., 55 N. Y. 661; Story v. The Elevated R. R. Co., 90 Id. 122, 149.

Stone v. The F. & R. R. R. Co., 68 Ill. 394; Rigney v. Chicago, 102 Id. 76.

Richardson v. The Vermont Central R. R. Co., 25 Vt., 465, 471.