words, that the convenience of travellers on the highway has been considered and enhanced. Now still considering distinctions which might be taken between this and the earlier cases, it was possible for the New York Courts to hold, as they seem to have held, that the casement which they had declared to exist is subject to the fullest exercise of the primary right out of which it sprang, and that any change in the street for the benefit of public travel is a matter of public right, as against what I have called the parasitic right which the plaintiff claims. Scranton v. Wheeler, 179 U. S. 141; Gibson v. United States, 166 U. S. 269.

The foregoing distinctions seem to me not wanting in good sense. Certainly I should have been inclined to adopt one or both of them, or in some way to avoid the earlier decisions. But I am not discussing the question whether they are sound. If my disagreement was confined to that I should be silent. I am considering what there is in the Constitution of the United States forbidding the Court of Appeals to hold them sound. I think there is nothing; and there being nothing, and the New York decision obviously not having been given its form for the purpose of evading this court, I think we should respect and affirm it, if we do not dismiss the case.

What the plaintiff claims is really property, a right in rem. It is called contract merely to bring it within the contract clause of the Constitution. It seems to me a considerable extension of the power to determine for ourselves what the contract is, which we have assumed when it is alleged that the obligation of a contract has been impaired, to say that we will make the same independent determination when it is alleged that property is taken without due compensation. But it seems to me that it does not help the argument. The rule adopted as to contract is simply a rule to prevent an evasion of the constitutional limit to the power of the States, and, it seems to me, should not be extended to a case like this. Bearing in mind that, as I have said, the plaintiff's rights, however expressed, are wholly a construction of the courts. I cannot

believe that whenever the Fourteenth Amendment or Article I, section 10, is set up we are free to go behind the local decisions on a matter of land law, and, on the ground that we decide what the contract is, declare rights to exist which we should think ought to be implied from a dedication or location if we were the local courts. I cannot believe that we are at liberty to create rights over the streets of Massachusetts, for instance, that never have been recognized there. If we properly may do that, then I am wrong in my assumption that if the New York Courts originally had declared that the laying out of a public way conferred no private rights we should have had nothing to say. But if I am right, if we are bound by local decisions as to local rights in real estate, then we equally are bound by the distinctions and the limitations of . those rights declared by the local courts. If an exception were established in the case of a decision which obviously was intended to evade constitutional limits, I suppose I may assume that such an evasion would not be imputed to a judgment which four Justices of this court think right.

As I necessarily have dealt with the merits of the case for the purpose of presenting my point, I will add one other consideration. Suppose that the plaintiff has an casement and that it has been impaired, bearing in mind that his damage is in respect of light and air, not access, and is inflicted for the benefit of public travel, I should hesitate to say that in inflicting it the legislature went beyond the constitutional exercise of the police power. To a certain and to an appreciable extent the legislature may alter the law of nuisance, although property is affected. To a certain and to an appreciable extent the use of particular property may be limited without compensation. Not every such limitation, restriction or diminution of value amounts to a taking in a constitutional sense. I have a good deal of doubt whether it has been made to appear that any right of the plaintiff has been taken or destroyed for which compensation is necessary under the Constitution of the United States. Scranton v. Wheeler, 179 U. S. 141; Meyer v.

Richmond, 172 U. S. 82. Sec Mugler v. Kansas, 123 U. S. 623, 668; Marchant v. Pennsylvania R. R., 153 U. S. 380; Camfield v. United States, 167 U. S. 518, 523; People v. D'Oench, 111 N. Y. 359, 361; Sawyer v. Davis, 136 Massachusetts, 239; Commonwealth v. Alger, 7 Cush. 53. Compare United States v. Lynah, 188 U. S. 445, 470.

I am authorized to say that the CHIEF JUSTICE, MR. JUSTICE WHITE and MR. JUSTICE PECKHAM concur in the foregoing dissent.

MISSOURI г. NEBRASKA,

NEBRASKA v. MISSOURI.

IN EQUITY. ON BILL AND CROSS BILL.

No. 5, Original. Submitted November 28, 1904.–Decided December 19, 1904.--Decree entered March 5, 1905.

Final Decree entered in accordance with opinion delivered December 19, 1904, reported in 196 U. S. 23, and stipulation of the parties.

THIS cause coming on for final decree, in pursuance of the opinion of this court filed herein on December 19, 1904, and the stipulation of the respective parties by their counsel filed herein on January 30, 1905, which said stipulation is in words and figures as follows, to wit:

"In the opinion of the court in the above-entitled cause, the order and finding of the court having been made as follows: "It appears from the record that about the year 1898 the county surveyors of Nemaha County, Nebraska, and Atchison County, Missouri, made surveys of the abandoned bed of the Missouri River, ascertained the location of the original banks on either side, and to some extent marked the middle of the old channel. If the two States will agree upon these surveys VOL. CXCVII-37

Stipulation as to Decree.

197 U. S.

and locations as correctly marking the original banks of the river and the middle of the old channel, the court will, by decree, give effect to that agreement; or, if either State desires a new survey, the court will order one to be made and will cause monuments to be placed so as to permanently mark the boundary lines between the two States. The disposition of the case by final decrce is postponed for forty days, in order that the court may be advised as to the wishes of the parties in respect to these details.'

"In pursuance whereof now come the parties hereto by their respective counsel and agree that the said surveys made by the county surveyors of Nemaha County, Nebraska, and Atchison County, Missouri, as reported by the Commissioners and set forth in the opinion of the court, constitute and be correct boundary lines between the said States, the same constituting the middle of the old channel of Missouri River as found by said court in its opinion.

"It is further agreed between the parties hereto that the monuments marking said boundary line established by the said county surveyors of said counties are not of a permanent character, and many of them have become destroyed or removed, and that in order to mark a permanent boundary line it is necessary and is deemed best that permanent monuments be erected at regular intervals on said line in such manner as will quiet all dispute in reference to said boundary.

"It is further agreed that said permanent monuments can be best established under the supervision of the Commissioners heretofore appointed by the court, to wit; Alfred Hazlett and John W. Halliburton, and it is therefore requested by the parties to this cause that the court, by a proper order, direct and require said Commissioners to establish or cause to be established under their direction such permanent monuments as may by them be deemed necessary in the premises and in accordance with the order of the court heretofore made, and make a report to the court of their acts and doings therein. In the execution of their powers herein said Commissioners

shall have authority to employ such surveyors and other assistants and procure such material as may be necessary in the establishment of the permanent monuments, marking said boundary line in accordance with the opinion of the court heretofore rendered and this agreement.

"It is further agreed that said Commissioners for their services hercin shall receive such compensation as may be agreed upon by the respective parties, and if the parties are unable to agree, then such as may be fixed by the court after the services have been performed and due report thereon made. "On account of the unfavorable condition of the weather during the winter months and of the character of the ground during the spring months, the partics hereto respectfully request the court that said Commissioners be granted until the first day of May, 1905, in which to make their report.

STATE OF MISSOURI, Complainant, By EDWARD C. CROW,

And on motion of Herbert S. Hadley, Attorney General of the State of Missouri, counsel for said complainant, that a decree be entered in this cause in accordance with said opinion and stipulation:

It is now here ordered, adjudged and decreed by this court that the middle of the channel of the Missouri River, according to its course as it was prior to the avulsion of July 5, 1867, is and shall be the true boundary line between Missouri and Nebraska, and that said boundary line is indicated upon and shown by the following plat: