now provided by the statute that in appropriation of lands for highways, the fee shall be held to be condemned, and not simply a public easement acquired. And it would seem plausible that in the case of an ordinary highway the fee might be needed for use as a highway, since the demands of modern civilization require the soil of the streets of a city to contain imbedded in it the gas, water and sewer pipes, the telephone, telegraph, and electric light wires, etc., as well as to be used as a highway, thus rendering a joint occupation of the land by the public and the private owner impossible. It is by no means unreasonable, therefore, to provide for the condemnation of the fee in the beginning, instead of allowing successive condemnations of the soil, as the public demands each particular use to which it can be put. But it is hard to see the reason why in the condemnations of land, for other purposes, for railroad purposes, for example, the fee should be taken; and unless the necessity of taking the fee is proven, the taking would be an unlawful condemnation of private property. But if the fee is necessary, the taking of the fee for any purpose is lawful; and it seems to be the prevailing opinion that the question,

Weston v. Foster, 7 Met. 297; Dean v. Sullivan R. R. Co., 22 N. H. 316; Blake v. Rich, 34 N. H. 282; Jackson v. Rutland, etc., R. R. Co., 25 Vt. 150; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St. 308; Jackson v. Hathaway, 15 Johns. 447; Henry v. Dubuque & Pacific R. R. Co., 2 Iowa, 288; Elliott v. Fair Haven etc., R. R. Co., 32 Conn. 579, 586; Imlay v. Union Branch R. R. Co., 26 Conn. 249; State v. Laverack, 34 N. J. 201; Railroad Co. v. Shurmeir, 7 Wall. 272.

1 People v. Kerr, 37 Barb. 357; s. c. 27 N. Y. 188; Brooklyn Central, etc., R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. 420; Brooklyn & Newton R. R. Co. v. Coney Island R. R. Co., 35 Barb. 364; Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany & Salem R. R. Co. v. O'Dailey, 13 Ind. 353; Street Railway v. Cummingsville, 14 Ohio St. 523; State v. Cincinnati Gas Co., 18 Ohio St. 262; Millburn v. Cedar Rapids, etc., R. R. Co., 12 Iowa, 246; Franz v. Railroad Co., 55 Iowa, 107; Moses v. Pittsburg, etc., R. R., 21 Ill. 516.

2 New Orleans, etc., R. R. Co. v. Gay, 32 La. Ann. 471. In Illinois the condemnation of the fee for railroad purposes is expressly forbidden. Const. Ill. 1870, art. 2, § 13.

whether it is necessay is a legislative, and not a judicial one. The declaration of the legislature, that the fee is necessary, is, therefore, final and conclusive.1

But while the appropriation of land, in the exercise of the right of eminent domain, must be confined to the necessity; on the other hand, that amount may be appropriated, not only what is directly necessary for the public use, but also whatever is incidentally needed, such as the workshops and depots of railroads. But the appropriation of lands for such incidental purposes must fall within a fair construction of the grant of power by the legislature, in order to be allowable; for the power to make such an appropriation cannot be justified by a consideration of its convenience or appropriateness, if it is not expressly conferred. Thus it was held that where a railroad company was granted the power" to enter

1 In Hayward v. Mayer, etc., of New York, 7 N. Y. 314, 325, it is said that the power of deciding upon the need of the fee, "must of necessity rest in the legislature, in order to secure the useful exercise and enjoyment of the right in question. A case might arise where a temporary use would be all that the public interest required. Another case might require the permanent, and apparently the perpetual, occupation and enjoyment of the property by the public, and the right to take it must be co-extensive with the necessity of the case, and the measure of compensation should, of course, be graduated by the nature and the duration of the estate or interest of which the owner is deprived." In this case the the land was appropriated for the purpose of extending the almshouse. See, also, Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 (6 Am. Rep. 70); Dingley v. Boston, 100 Mass. 544; Baker v. Johnson, 2 Hill, 343; Munger v. Tonawanda R. R. Co., 4 N. Y. 349; Rexford v. Knight, 11 N. Y. 308; Coster v. N. J. R. R. Co., 22 N. J. 227; Plitt v. Cox, 43 Pa. St. 486; Water Works Co. v. Burkhart, 41 Ind. 364.

2 N. Y. & Harlem R. R. Co. v. Kip, 46 N. Y. 546 (7 Am. Rep. 385); Chicago, etc., R. R. Co. v. Wilson, 17 Ill. 123; Low v. Galena, etc., R. R. Co., 18 Ill. 324; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St. 308. In Eldridge v. Smith, 34 Vt. 484, it was held that the erection of buildings for the manufacture of cars, or for leasing to the employes of the road, was not so necessary to the conduct and management of a railroad, as to justify the condemnation of lands for such purposes. But it was held competent for the railroad company to appropriate lands for piling wood and lumber used in the construction and conduct of the road.

upon any land to survey, lay down and construct its road,' "to locate and construct branch roads," etc.,to take land "for necessary side tracks," and "a right of way over adjacent lands sufficient to enable such company to construct and repair the road," it was not authorized, after it had located the road, and was constructing its main road along the north side of a town, to appropriate a temporary right of way for a term of years along the south side, which was to be used while the main road was being built.1

§ 121d. What constitutes a taking. -In order to lay the foundation of a claim for compensation for the taking of property in the exercise of the right of eminent domain, it is not necessary that there should be an actual or physical taking of the land. Whenever the use of the land is restricted in any way, or some incorporeal hereditament is taken away, which was appurtenant thereto, it constituted as much a taking as if the land itself had been appropriated. The flowing of lands, the diversion of streams, the appropriation of water fronts, on streams where the tide does not ebb and flow, and, likewise, in navigable streams, the condemnation of an exclusive wharfage, are only a few instances of the

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1 Currier v. Marietta, etc., R. R. Co., 10 Ohio St. 121.

2 Pampelly v. Green Bay, etc., Co., 13 Wall. 166; Hooker v. New Haven, etc., R. R. Co., 14 Conn. 146; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504; Glover v. Powell, 10 N. J. Eq. 211; Ashley v. Port Huron, 35 Mich. 296; Arimond v. Green Bay, etc., Co., 31 Wis. 316.

3 Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Eaton v. Boston, etc., R. R. Co., 51 N. H. 504; Brown v. Cayuga, etc., R. R. Co., 12 N. Y. 486; Norris v. Vt. Cent. R. R. Co., 28 Vt. 99.

4 Harding v. Stanford Water Co., 41 Conn. 87; Proprietors, etc., v. Nashua & Lowell R. R. Co., 10 Cush. 388; March v. Portsmonth, etc., R. R. Co., 19 N. H. 372; Rome v. Addison, 34 N. H. 306; Johnson v. Atlantic, etc., R. R. Co., 35 N. H. 569; Haynes v. Burlington, 38 Vt. 350; Boughton v. Carter, 18 Johns. 405; Baltimore, etc., R. R. Co. v. Magender, 34 Md. 79 (6 Am. Rep. 310); Stein v. Burden, 24 Ala. 130; Pettigrew v. Evansville, 25 Wis. 223.

5 Varick v. Smith, 9 Paige, 547. 6 Murray v. Sharp, 1 Bosw. 539.

exercise of the right of eminent domain, in which the property taken is incorporeal. In respect to the appropriation of water fronts, according to the older authorities, if the stream was a navigable one, that is, one in which the tide ebbed and flowed, and the title to the bed of which was in the State, the appropriation to public uses of the water front was held not to involve any taking of property for which compensation had to be made; and this has also been held to be the rule in reference to those fresh water streams, which are practically navigable, and the title to whose beds is in the state. But these cases have not been followed by later adjudications, so far as they assert the right to take away from the riparian proprietor all access to the navigable stream by and over his land. This right of access to the stream is declared to be an incorporeal hereditament, appurtenant to the abutting land, which cannot be taken away without proper compensation.3

The diversion of navigable streams is also a taking of property, for which compensation must be made to the riparian owner. Although the riparian owner has no property in the water, or in the bed of the stream, he has a right to make a reasonable use of it, and since a diversion of the stream will interfere with the reasonable use, perhaps deprive him altogether of its use, compensation must be made to him for this loss, as being a taking of property. It frequently happens in the experience of municipal life

1 Gould v. Hudson River R. R. Co., 6 N. Y. 522; Pennsylvania R. R. Co. v. N. Y., etc., R. R. Co., 23 N. J. Eq. 157; Stevens v. Paterson, etc., R. R. Co., 34 N. J. 532.

2 Tomlin v. Dubuque, etc., R. R. Co., 32 Iowa, 106 (7 Am. Rep. 176). 3 Railway v. Renwick, 102 U. S. 180; Yates v. Milwaukee, 10 Wall. 497; Chicago, etc., R. R. Co. v. Stein, 75 Ill. 41. As to rights of property in highways, see post.

4 People Canal Appraisers, 13 Wend. 355; Gardner v. Newburg, 2 Johns. Ch. 162; Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42; Morgan v. King, 35 N. Y. 454; Hatch v. Vermont Cent. R. R. Co., 25 Vt. 49; Thunder Bay, etc., Co. v. Speechly, 31 Mich. 332; Emporia v. Soden, 25 Kan. 588 (37 Am. Rep. 265).

that in order to prevent an accidental fire from becoming a general conflagration, one or more houses which stand in the path of the fire will be destroyed by means of explosions or otherwise, in order to check it. It is never done, except in cases where the destroyed houses would have inevitably been consumed by the fire. The owners of these houses, therefore, have not suffered any loss by their destruction; and on this ground, and on the plea of overruling necessity, such destruction of buildings have been held not to be an appropriation under the right of eminent domain, and no claim for compensation can be made by the owners. And where a municipal officer orders the destruction, the municipal corporation is not liable for damages, in the absence of a statute to that effect.'

But the consequential or incidental injury to property, resulting from the lawful exercise of an independent right, is never held to be a taking of property in the constitutional sense, where the enjoyment of the right or privilege does not involve an actual interference or disturbance of property rights. "In the absence of all statutory provisions to that effect, no case, and certainly no principle, seems to justify the subjecting a person, natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damage to others in their property or business. This always happens more or less in all rival pursuits, and often where there is nothing of that kind. One mill or one store or school injures another. One's dwelling is undermined, or its lights darkened, or its prospect obscured, and thus materially lessened in value by the erection of other buildings upon lands of other proprietors.

1 Taylor v. Plymouth, 8 Met. 462 Ruggles v. Nantucket, 11 Cush. 433; Stone v. Mayor, etc., of N. Y., 25 Wend. 157; Russell v. Mayor, etc., of N. Y., 2 Denio, 461; American Printworks v. Lawrence, 21 N. J. 248; Amercan Print Works v. Lawrence, 23 N. J. 590; White v. Charleston, 1 Hill (s. c.) 571; Keller v. Corpus Christi, 50 Texas 614 (32 Am. Rep. 513); Conwell v. Emrie, 2 Ind. 35; Field v. Des Moines, 39 Iowa, 575; McDonald v. Redwing, 13 Minn. 38; Sirocco v. Geary, 3 Cal. 69.