appropriation. And where land is taken for a public work, there is nothing in the principle we have stated which will preclude the appropriation of whatever might be necessary for incidental conveniences; such as the workshops or depot buildings of a railway company,2 or materials to be used in the construction of their road, and so on. Express legislative power, however, is needed for these purposes; it will not follow that, because such things are convenient to the accomplishment of the general object, the public may appropriate them without express authority of law; but the power to appropriate must be expressly conferred, and the public agencies seeking to exercise this high prerogative must be careful to keep within the authority delegated, since the public necessity cannot be held to extend beyond what has been plainly declared on the face of the legislative enactment.

What constitutes a Taking of Property.

*

Any proper exercise of the powers of government, which does not directly encroach upon the property of an individual, or disturb him in its possession or enjoyment, will not entitle him to compensation, or give him a right of action.3 If, for [* 542] instance, the State, under its power to provide and 1 Embury v. Conner, 3 N. Y. 511. 6 W. & S. 101; Davidson v. Boston There is clearly nothing in constitu- & Maine R. R. Co., 3 Cush. 91; Gould tional principles which would preclude v. Hudson River R. R. Co., 12 Barb. the legislature from providing that 616, and 6 N. Y. 522; Radcliff v. a man's property might be taken with Mayor, &c. of Brooklyn, 4 N. Y. 195; his assent, whether the assent was Murray v. Menifee, 20 Ark. 561; evidenced by deed or not; and if he Hooker v. New Haven and Northampaccepts payment, he must be deemed ton Co., 14 Conn. 146; People v. to assent. The more recent case of Kerr, 27 N. Y. 193; Fuller v. EdHouse v. Rochester, 15 Barb. 517, is ings, 11 Rich. Law, 239; Eddings not, we think, opposed to Embury v. v. Seabrook, 12 Rich. Law, 504; Conner, of which it makes no men- Richardson v. Vermont Central R. R. tion. See Haskell v. New Bedford, Co., 25 Vt. 465; Kennett's Petition, 108 Mass. 208. 4 Fost. 139; Alexander v. Milwaukee, 16 Wis. 247; Richmond, &c. Co. v. Rogers, 1 Duvall, 135; Harvey v. Lackawanna, &c. R. R. Co., 47 Penn. St. 428; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21. The discontinuance of a highway does not entitle parties incommoded thereby to compensation. Fearing v. Irwin, 55 N. Y. 486.

2 Chicago, B. and Q. R. R. Co. v. Wilson, 17 Ill. 123; Low v. Galena and C. U. R. R. Co., 18 Ill. 324; Giesy v. Cincinnati, W. and Z. R. R. Co., 4 Ohio, N. s. 308.

3 Zimmerman v. Union Canal Co., 1 W. & S. 346; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Monongahela Navigation Co. v. Coons,

regulate the public highways, should authorize the construction of a bridge across a navigable river, it is quite possible that all proprietary interests in land upon the river might be injuriously affected; but such injury could no more give a valid claim against the State for damages, than could any change in the general laws of the State, which, while keeping in view the general good, might injuriously affect particular interests. So if, by the erection of a dam in order to improve navigation, the owner of a fishery finds it diminished in value,2 or if by deepening the channel of a river to improve the navigation a spring is destroyed, or by a change in the grade of a city street the value of adjacent lots is diminished,* - in these and similar cases the law affords no redress for

1 Davidson v. Boston and Maine elaborately considered by Smith, J., R. R. Co., 3 Cush. 91.

the injury. So if, in consequence of the construction of a public work, an injury occurs, but the work was constructed on proper plan and without negligence, and the injury is caused by accidental and extraordinary circumstances, the injured party cannot demand compensation.1

[* 543]

*This principle is peculiarly applicable to those cases where property is appropriated under the right of eminent domain. It must frequently occur that a party will find his rights seriously affected though no property to which he has lawful claim is actually appropriated. As where a road is laid out along the line of a man's land without taking any portion of it, in consequence of which he is compelled to keep up the whole of what before was a partition fence, one-half of which his neighbor was required to support.2 No property being taken in this case, the party has no relief, unless the statute shall give it. The loss is damnum absque injuria. So a turnpike company, whose profits will be diminished by the construction of a railroad along the same general line of travel, is not entitled to compensation. So

Richards, 23 Ind. 381; Green v. Reading, 9 Watts, 382; O'Conner v. Pittsburg, 18 Penn. St. 187; In re Ridge Street, 29 Penn. St. 391; Callendar r. Marsh, 1 Pick. 417; Creal v. Keokuk, 4 Greene (Iowa), 47; Smith v. Washington, 20 How. 135; Skinner v. Hart ford Bridge Co., 29 Conn. 523; Benden v. Nashua, 17 N. H. 477; Pontiac v. Carter, 32 Mich. 164; Goszler v. Georgetown, 6 Wheat. 703. The cases of McComb v. Akron, 15 Ohio, 474, and 18 Ohio, 229, and Crawford v. Delaware, 7 Ohio, N. s. 459, are contra. Those cases, however, admit that a party whose interests are injured by the original establishment of a street grade can have no claim to compensation; but they hold that when the grade is once established, and lots are improved in reference to it, the corporation has no right to change the grade afterwards, except on payment of the damages.

1 As in Sprague v. Worcester, 13 Gray, 193, where, in consequence of the erection of a bridge over a stream

on which a mill was situated, the mill was injured by an extraordinary rise in the stream; the bridge, however, being in all respects properly constructed. And see Brown v. Cayuga, &c. R. R. Co., 12 N. Y. 486, where bridge proprietors were held liable for similar injuries on the ground of negligence. And compare Norris . Vt. Central R R. Co., 28 Vt. 102, with Mellen v. Western R. R. Corp., 4 Gray, 301. And see note 3 on preceding page.

2 Kennett's Petition, 4 Fost. 139. See Eddings v. Seabrook, 12 Rich. Law, 504; Slatter v. Des Moines Valley R. R. Co., 29 Iowa, 154; Hoag . Switzer, 61 Ill. 294.

Troy and Boston R. R. Co. . Northern Turnpike Co., 16 Barb. 100. See La Fayette Plank Road Co. v. New Albany and Salem R. R. Co., 13 Ind. 90; Richmond, &c. Co. v. Rogers, 1 Duvall, 135. So an increased competition with a party's business caused by the construction or extension of a road is not a ground

where a railroad company, in constructing their road in a proper manner on their own land, raised a high embankment near to and in front of the plaintiff's house, so as to prevent his passing to and from the same with the same convenience as before, this consequential injury was held to give no claim to compensation.1 So the owner of dams erected by legislative authority is without remedy, if they are afterwards rendered valueless by the construction of a canal.2 *And in New York it has been [* 544]

of claim. Harvey v. Lackawanna, &c. the plaintiff's that his land, without R. R. Co., 47 Penn. St. 428. 66 Every any artificial weight thereon, slid into great public improvement must, almost the excavation, would render the comof necessity, more or less, affect indi- pany liable for the injury; the plainvidual convenience and property; and tiff being entitled to the lateral supwhen the injury sustained is remote port for his land. and consequential, it is damnum absque injuria, and is to be borne as a part of the price to be paid for the advantages of the social condition. This is founded upon the principle that the general good is to prevail over partial individual convenience." Lansing v. Smith, 8 Cow. 149.

Richardson v. Vermont Central R. R. Co., 25 Vt. 465. But quære if this could be so, if the effect were to prevent access from the lot to the highway. In certain Indiana cases it is said that the right of the owner of adjoining land to the use of the highway is as much property as the land itself; that it is appurtenant to the land, and is protected by the constitution. Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis, &c. R. R. Co., 9 Ind. 469; New Albany and Salem R. R. Co. v. O'Dailey, 13 Ind. 463. The same doctrine is recognized in Crawford v. Delaware, 7 Ohio, N. s. 459, and Street Railway v. Cumminsville, 14 Ohio, N. s. 523. See also Indianapolis R. R. Co. v. Smith, 52 Ind. 428; Pekin v. Brereton, 67 Ill. 477; Pekin v. Winkel, 77 Ill. 56; Grand Rapids, &c. R. R. Co. v. Heisel, 37 Mich. In the Vermont case above cited it was held that an excavation by the company on their own land, so near the line of

2 Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Monongahela Navigation Co. v. Coons, 6 W. & S. 101.

And if

In any case, if parties exercising the right of eminent domain shall cause injury to others by a negligent or improper construction of their work, they may be liable in damages. Rowe v. Granite Bridge Corporation, 21 Pick. 348; Sprague v. Worcester, 13 Gray, 193. a public work is of a character to necessarily disturb the occupation and enjoyment of his estate by one whose land is not taken, he may have an action on the case for the injury, notwithstanding the statute makes no provision for compensation. As where the necessary, and not simply the accidental, consequence was, to flood a man's premises with water, thereby greatly diminishing their value. Hooker v. New Haven and Northampton Co., 14 Conn. 146; s. c. 15 Conn. 312; Evansville, &c. R. R. Co. v. Dick, 9 Ind. 433; Robinson v. N. Y. and Erie R. R. Co, 27 Barb. 512; Trustees of Wabash and Erie Canal r. Spears, 16 Ind. 441; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504. So where, by blasting rock in making an excavation, the fragments are thrown upon adjacent buildings SO as to

render

held that, as the land where the tide ebbs and flows, between high and low water mark, belongs to the public, the State may lawfully authorize a railroad company to construct their road along the water front below high-water mark, and the owner of the adjacent bank can claim no compensation for the consequential injury to his interests.1 So the granting of a ferry right with a landing on private property within a highway terminating on a private stream is not an appropriation of property,2 the ferry being a mere continuation of the highway, and the landing place upon the private property having previously been appropriated to public uses.

These cases must suffice as illustrations of the principle stated, though many others might be referred to. On the other hand, any injury to the property of an individual which deprives the owner of the ordinary use of it, is equivalent to a taking, and entitles him to compensation.3 Water front on a stream where the tide does not ebb and flow is property, and if taken, must be paid for as such. So with an exclusive right of wharfage upon tide water. So with the right of the owner of land to use

their occupation unsafe. Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Same, 2 N. Y. 163; Carman v. Steubenville and Indiana R. R. Co., 4 Ohio, N. s. 399; Sunbury and Erie R. R. Co. v. Hummel, 27 Penn. St. 99. There has been some disposition to hold private corporations liable for all incidental damages caused by their exercise of the right of eminent domain. See Tinsman v. Belvidere and Delaware R. R. Co., 26 N. J. 148; Alexander v. Milwaukee, 16 Wis. 255. 1 Gould v. Hudson River R. R. Co., 6 N. Y. 522. And see Stevens v. Paterson, &c. R. R. Co., 34 N. J. 532; Tomlin v. Dubuque, &c. R. R. Co., 32 Iowa, 106; s. c. 7 Am. Rep. 176. So far as these cases hold it competent to cut off a riparian proprietor from access to the navigable water, they seem to us to justify an appropriation of his property without compensation; for even those courts which hold the fee in the soil under navigable waters to be in the State

admit valuable riparian rights in the adjacent proprietor. See Yates v. Milwaukee, 10 Wall. 497; Chicago, &c. R. R. Co. v. Stein, 75 Ill. 41. Compare Pennsylvania R. R. Co. v. New York, &c. R. R. Co., 23 N. J. Eq. 157.

2 Murray v. Menifee, 20 Ark. 561. 8 Hooker v. New Haven and Northampton Co., 14 Conn. 146; Pumpelly v. Green Bay, &c. Co, 13 Wall. 166; Arimond v. Green Bay, &c. Co., 31 Wis. 316; Port Huron v. Ashley, 35 Mich. 296. The flowing of private lands by the operations of a booming company is a taking.of property. Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308. The legislature cannot authorize a telegraph company to erect its poles on the lands of a railroad company without compensation. Atlantic, &c. Telegraph Co. v. Chicago, &c. R. R. Co., 6 Biss 158.

Varick v. Smith, 9 Paige, 547. See Yates v. Milwaukee, 10 Wall. 497. 5 Murray v. Sharp, 1 Bosw. 539.