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453, 24 N. E. 919, where a steam railroad | easements, of light, air, and access as apwas permitted upon a street without lia- purtenant to abutting lots, and that they bility for consequential damages to adjoin-are as much property as the lots them ing property. The new principle based selves.” upon the public interest destroys all dis- Judgment is reversed and cause remanded tinction between the surface of the soil of for further proceedings not inconsistent a street and the space above the surface, with this opinion. and, seemingly, leaves remaining no vital remnant of the doctrine of the Elevated

Mr. Justice Brown concurs in the result. Railroad Cases. However, we need not go farther than the present case demands.

Mr. Justice Holmes, dissenting : When the plaintiff acquired his title those

I regret that I am unable to agree with cases were the law of New York, and assured the judgment of the court, and, as it seems to him that his easements of light and air to me to involve important principles, I were secured by contract as expressed in think it advisable to express my disagreethose cases, and could not be taken from ment, and to give my reasons for it. him without payment of compensation.

The plaintiff owns no soil within the And this is the ground of our decision.

limits of the avenue. The New York & Har. We are not called upon to discuss the power, lem Railroad Company at the time of the or the limitations upon the power, of the

change was, and long had been, the owner, courts of New York to declare rules of prop- and the other defendant was the lessee of erty or change or modify their decisions,

a railroad with four tracks along the midbut only to decide that such power cannotale of Park avenue, in front of the plainbe exercised to take away rights which have tiff's land, at the south end being at the been acquired by contract and have come surface of the avenue, and at the north in under the protection of the Constitution of

a trench about 41/2 feet deep, the railroad the United States. And we determine for ourselves the existence and extent of such being bounded on both sides by a masonry

wall 3 feet high, which prevented crossing contract. This is a truism; and when there

or access to the tracks. This is the finding is a diversity of state decisions the first in of the court of first instance, and I take it time may constitute the obligation of the

to be binding upon us.

We have nothing contract and the measure of rights under it. to do with the evidence. I take it to mean Hence the importance of the Elevated Rail- the same thing as the finding in Fries v. road Cases and the doctrine they had pro- New York de H. R. Co. 169 N. Y. 270, 62 nounced when the plaintiff acquired his N. E. 358, that the defendants had “acquired property. He bought under their assurance, the right without liability to the plaintiff and that these decisions might have been to have, maintain, and use their railroad different, or that the plaintiff might have and railroad structures as the same were balanced the chances of the commercial ad- maintained and used prior to February 16, vantage between the right to have the street

1897." The material portion of the deci. remain open and the expectation that it sion of the court of appeals is that on this would remain so, is too intangible to esti- state of facts, as was held in the similar mate. We certainly can estimate the dif

case of Fries v. New York & H. R. Co., the ference between a building with full access plaintiff had no property right which was of light and air and one with those elements infringed in such a way as to be anything impaired or polluted. But we have already more than damnum absque injuria. The expressed this.

We need only add that the finding that the railroad had the right to right of passage is not all there is to a maintain the former structures was held to street, and to call it the primary right is distinguish the case from the Elevated Railmore or less delusive. It is the more con: I road Cases, where pillars were planted in spicuous right, has the importance and the street without right as against the assertion of community interest and owner- plaintiff. Story v. New York Elev. R. Co. ship, properly has a certain dominance, but 90 N. Y. 122, 160, 170, 178, 43 Am. Rep. it is not more necessary to the making of 146; Lahr v. Metropolitan Elev. R. Co. 104 a city than the rights to light and air, held, N. Y. 268, 10 N. E. 528. The other sothough the latter are, in individual owner called finding, that the new structure inship and asserted only as rights of private fringes the plaintiff's right, is merely a property. The true relation and subordina- ruling of law that, notwithstanding the tion of these rights, public and private, is facts specifically found, the plaintiff has a. expressed, not only by the Elevated Rail cause of action by reason of his being an road Cases, but by other cases. They are abutter upon a public street. collected in 1 Lewis, Eminent Domain, & ole, The plaintiff's rights, whether expressed and, it is there said, “established beyond in terms of property or of contract, are all. question the existence of these rights, or'a construction of the courts, deduced by

way of consequence from dedication to Coler, 190 U. S. 437, 444, 445, 47 L. ed. and trusts for the purposes of a public 1126, 1131, 1132, 23 Sup. Ct. Rep. 811), and street. They never were granted to him certainly never has been supposed to mean or his predecessors in express words, or, that all property owners in a state have probably, by any conscious implication. If a vested right that no general proposition at the outset the New York courts had de- of law shall be reversed, changed, or modicided that, apart from statute or express fied by the courts if the consequence to them grant, the abutters on a street had only the will be more or less pecuniary loss. I know rights of the public and no private ease of no constitutional principle to prevent the ment of any kind, it would have been in no complete reversal of the Elevated Railroad way amazing. It would have been very Cases to-morrow if it should seem proper possible to distinguish between the prac- to the court of appeals. See Central Land tical commercial advantage of the expecta Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, tion that a street would remain open and a 16 Sup. Ct. Rep. 80. right in rem that it should remain so. See But I conceive that the plaintiff in error Stanwood v. Malden, 157 Mass. 17, 16 L. must go much further than to say that my R. A. 591, 31 N. E. 702. Again, more nar- last proposition is wrong. I think he must rowly, if the New York courts had held that say that he has a constitutional right, not an easement or light and air could be created only that the state courts shall not reverse only by express words, and that the laying their earlier decisions upon a matter of out or dedication of a street, or the grant property rights, but that they shall not disof a house bounding upon one, gave no such tinguish them unless the distinction is so easement to abutters, they would not have fortunate as to strike a majority of this been alone in the world of the common law. court as sound. For the court of appeals Keats v. Hugo, 115 Mass. 204, 216, 15 Am. has not purported to overrule the Elevated Rep. 80.

The doctrine that abutters upon Railroad Cases. It simply has decided that a highway have an easement of light and the import and the intent of those cases air is stated as a novelty in point of author- does not extend to the case at bar. In those ity in Barnett v. Johnson, 15 N. J. Eq. 481, cases the defendants had impaired the plain489, and that case was decided in a state tiff's access to the street. It is entirely where it was held that a like right might possible and consistent with all that they be acquired by prescription. Robeson v. decided to say now that access is the founPittenger, 2 N. J. Eq. 57, 32 Am. Dec. 412. dation of the whole matter; that the right

If the decisions, which I say conceivably to light and air is a parasitic right incident might have been made, had been made as to the right to have the street kept open for to the common law, they would have in- purposes of travel, and that when, as here, fringed no rights under the Constitution of the latter right does not exist the basis of the United States. So much, I presume, the claim to light and air is gone. would be admitted by everyone.

But, if But again, if the plaintiff had an easethat be admitted, I ask myself what has ment over the whole street he got it as a happened to cut down the power of the tacit incident of an appropriation of the same courts as against that same Constitu- street to the uses of the public. The legistion at the present day. So far as I know lature and the court of appeals of New the only thing which has happened is that York have said that the statute assailed they have decided the Elevated Railroad was passed for the benefit of the public usCases, to which I have referred. It is on ing the street, and I accept their view. The that ground alone that we are asked to most obvious aspect of the change is that review the decision of the court of appeals the whole street now is open to travel, and upon what otherwise would be purely a mat- that an impassable barrier along its width ter of local law. In other words, we are has been removed,-in other words, that the asked to extend to the present case the convenience of travelers on the highway has principle of Gelpeke v. Dubuque, 1 Wall. been considered and enhanced. Now still 175, 17 L. ed. 520, and Louisiana v. Pils- considering distinctions which might be tak. bury, 105 U. S. 278, 26 L. ed. 1090, as to en between this and the earlier cases, it was public bonds bought on the faith of a deci- possible for the New York courts to hold, as sion that they were constitutionally issued. they seem to have held, that the easement That seems to me a great, unwarranted, and which they had declared to exist is subject undesirable extension of a doctrine which it to the fullest exercise of the primary right took this court a good while to explain. out of which it sprang, and that any change The doctrine now is explained, however, not in the street for the benefit of public travel to mean that a change in the decision im- is a matter of public right, as against what pairs the obligation of contracts (Burgess I have called the parasitic right which the v. Seligman, 107 U. S. 20, 34, 27 L. ed. plaintiff claims. Scranton v. Wheeler, 179 359, 2 Sup. Ct. Rep. 10; Stanly County v. U. S. 141, 45 L. ed. 126, 21 Sup. Ct. Rep. 48; Gibson v. United States, 166 U. S. 269, puted to a judgment which four justices of 41 L. ed. 996, 17 Sup. Ct. Rep. 578.

25 S. C.-34.

this court think right. The foregoing distinctions seem to me not As I necessarily have dealt with the mer. wanting in good sense. Certainly I should its of the case for the purpose of presenting have been inclined to adopt one or both of my point, I will add one other consideration. them, or in some way to avoid the earlier Suppose that the plaintiff has an easement, decisions. But I am not discussing the and that it has been impaired, bearing in question whether they are sound. If my mind that his damage is in respect of light disagreement was confined to that I should and air, not access, and is inflicted for the be silent. I am considering what there is in benefit of public travel, I should hesitate to the Constitution of the United States for- say that in inflicting it the legislature went bidding the court of appeals to hold them beyond the constitutional exercise of the posound. I think there is nothing; and there lice power. To a certain, and to an apprebeing nothing, and the New York decision ciable, extent the legislature may alter the obviously not having been given its form law of nuisance, although property is affectfor the purpose of evading this court, led. To a certain, and to an appreciable, exthink we should respect and affirm it, if we tent the use of particular property may be do not dismiss the case.

limited without compensation. Not every What the plaintiff claims is really prop- such limitation, restriction, or diminution erty, a right in rem. It is called contract of value amounts to a taking in a constitumerely to bring it within the contract tional sense.


I have a good deal of doubt clause of the Constitution. It seems to me whether it has been made to appear that any a considerable extension of the power to de- right of the plaintiff has been taken or determine for ourselves what the contract is, stroyed for which compensation is necessary which we have assumed when it is alleged under the Constitution of the United States. that the obligation of a contract has been Scranton v. Wheeler, 179 U. S. 141, 45 L. ed. impaired, to say that we will make the same 126, 21 Sup. Ct. Rep. 48; Meyer v. Richindependent determination when it is al- mond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. leged that property is taken without due ct. Rep. 106. See Mugler v. Kansas, 123 Ū. compensation. But it seems to me that it S. 623, 668, 31 L, ed. 205, 212, 8 Sup. Ct. does not help the argument. The rule Rep. 273; Marchant v. Pennsylvania R. Co. adopted as to contract is simply a rule to 153 U. S. 380, 38 L. ed. 751, 14 Sup. Ct. prevent an evasion of the constitutional lim- Rep. 894; Camfield v. United States, 167 U. it to the power of the states, and, it seems S. 518, 523, 42 L. ed. 260, 261, 17 Sup. Ct.

. to me, should not be extended to a case like Rep. 864; People v. D'Oench, 111 N. Y. 359, this. Bearing in mind that, as I have said, 361, 18 N. E. 862; Sawyer v. Davis, 136 the plaintiff's rights, however expressed, Mass. 239, 49 Am. Rep. 27; Com. v. Alger, are wholly a construction of the courts, 1/7 Cush. 53. Compare United

United States v. cannot believe that whenever the 14th Lynah, 188 U. S. 445, 470, 47 L. ed. 539, Amendment, or Article I., § 10, is set up, 548, 23 Sup. Ct. Rep. 349. we are free to go behind the local decisions

I am authorized to say that the CHIEF on a matter of land law, and, on the ground JUSTICE, Mr. Justice White, and Mr. Justhat we decide what the contract is, declare tice Peckham concur in the foregoing dis

sent rights to exist which we should think ought to be implied from a dedication or location

(197 U. S. 510) if we were the local courts. I cannot be- GEORGE S. WHITAKER and Mary I. lieve that we are at liberty to create rights

Whitaker, Plffs. in Err., over the streets of Massachusetts, for instance, that never have been recognized THOMAS MCBRIDE and William Killgore. there. If we properly may do that, then I am wrong in my assumption that, if the New Publio lands-riparian proprietorsrights York courts originally had declared that the

to unsurveyed island. laying out of a public way conferred no private rights, we should have had nothing to 1. A rule of local law that the owner of say. But if I am right, if we are bound by

land bordering on a river owns to the cen

ter of the channel inures to the benefit of a local decisions as to local rights in real es

patentee from the United States as against tate, then we equally are bound by the dis

une claiming to enter as a homestead an tinctions and the limitations of those rights unsurveyed island, in such river, where the declared by the local courts. If an excep

omission to survey the island was not due tion were established in the case of a deci

to fraud or mistake, and subsequent appli

cations for a survey have been refused by sion which obviously was intended to evade

the Land Department. constitutional limits, I suppose I may as- 2. A patentee from the United States gov. sume that such an evasion would not be im

ernment has all the rights of a riparian own.

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er in the channel lying opposite his banks, Messrs. Francis G. Hamer and E. E. although his land may be itself surrounded Brown for plaintiffs in error. by two channels of the river.

Messrs. M. P. Kinkaid, E. C. Calkins,

and H. M. Sinclair for defendants in error. [No. 135.) Submitted January 18, 1905. Decided April

Mr. Justice Brewer delivered the opin10, 1905.

ion of the court:

The decision of the supreme court of the IN N ERROR to the Supreme Court of the state was that the owner of lands bordering

State of Nebraska to review a judgment on a river owns to the center of the chanwhich, reversing the judgment of the Dis- nel, and takes title to any small bodies of trict Court of Buffalo County in that state, land on his side of the channel that have upheld the title of the patentees from the not been surveyed or sold by the governFederal government of lands bordering on ment. It is the settled rule that the quesa river to an unsurveyed island in such tion of the title of a riparian owner is one river. Affirmed.

of local law. In Hardin v. Jordan, 140 U. See same case below, 65 Neb. 137, 90 N. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, W. 966.

838, the matter was discussed at some

length, the authorities cited, and the conStatement by Mr. Justice Brewer: clusion thus stated by Mr. Justice Bradley,

This was an action commenced on June delivering the opinion of the court (p. 384, 27, 1898, in the district court of Buffalo L. ed. p. 434, Sup. Ct. Rep. p. 813): county, Nebraska, and terminated by a deci- “In our judgment the grants of the govsion of the supreme court of the state. 65 ernment for lands bounded on streams and Neb. 137, 90 N. W.966. The facts found by other waters, without any reservation or the district court are that McBride and restriction of terms, are to be construed as Killgore were respectively the owners and to their effect according to the law of the in possession of tracts of land bordering on state in which the lands lie.” the Platte river, one on the north and the See also Shively v. Bowlby, 152 U. S. 45, other on the south side thereof. Between 38 L. ed. 347, 14 Sup. Ct. Rep. 548; Lowndes these two tracts, and in the main channel v. Huntington, 153 U. S. 19, 38 L. ed. 618, of the Platte river, is an island, containing 14 Sup. Ct. Rep. 758; Grand Rapids & I. R. about 22 acres. This island had been in the Co. v. Butler, 159 U. S. 87, 92, 40 L, ed. 85, possession of McBride and Killgore for 87, 15 Sup. Ct. Rep. 991; St. Anthony Falls

. more than ten years prior to the bringing of Water Power Co. v. St. Paul Water Comrs. the action, but during that time they were 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. contending as to how much of the land each 157; Kean v. Calumet Canal & Improv. Co. was entitled to. It had never been surveyed 190 U. S. 452, 47 L. ed. 1134, 23 Sup. Ct. by the government.

Rep. 651; Hardin v. Shedd, 190 U. S. 508, It appeared in evidence that Whitaker, in 47 L. ed. 1156, 23 Sup. Ct. Rep. 685. 1897, settled on the island, claiming the If there were no island in this case it right to enter the same as a homestead; would not, under these authorities, be questhat application to the Land Department of tioned that the title of the riparian owners the government to have the island surveyed extended to the center of the channel. How was, in 1897, refused, the Department de- far does the fact that there is this unsurclining to take any action in the matter. veyed island in the river abridge the scope These lands were a part of the Fort Kear of the rule? In seeking an answer to this ney Military Reservation, which was sur-question these facts must be borne in mind. veyed and sold under a special act of Con- The official surveys made by the government gress, dated July 21, 1876 (19 Stat. at L. are not open to collateral attack in an ac94, chap. 220), the patent to McBride, who tion at law between private parties. Stonehad entered his tract as a homestead, bear-road v. Stoneroad, 158 U. S. 240, 39 L. ed. ing date March 28, 1885. There was testi. 966, 15 Sup. Ct. Rep. 822; Russell v. Maxmony tending to show that the island was well Land Grant Co. 158 U. S. 253, 39 L. at the time of the survey of the reservation ed. 971, 15 Sup. Ct. Rep. 827; Horne v. frequently covered with water, and that Smith, 159 U. S. 40, 40 L. ed. 68, 15 Sup. since then-perhaps owing to the construc-ct. Rep. 988. A meander line is not a line tion of bridges and dykes-overflows had of boundary, but one designed to point out been less frequent and the land better adapt- the sinuosity of the bank or shore, and a ed to occupation and cultivation. The de- means of ascertaining the quantity of land cree directed by the supreme court was ad- in the fraction which is to be paid for by verse to Whitaker, and quieted the title to the purchaser. St. Paul & P. R. Co. v. McBride and Killgore to the island, giving Schurmeir, 7 Wall. 272, 19 L. ed. 74; Harto each one half.

din v. Jordan, 140 U. S. 371, 35 L. ed. 428,

11 Sup. Ct. Rep. 808, 838; Horne v. Smith, | veyed to him the title to the island, saying
159 U. S. 40, 40 L. ed. 68, 15 Sup. Ct. Rep. (p. 95, L. ed. p. 88, Sup. Ct. Rep. p. 994):
988. The Fort Kearney reservation was a “We have no doubt upon the evidence that
single body of land, whose survey was di- the circumstances were such at the time of
rected by a special act of Congress, and the survey as naturally induced the survey-
there is nothing to show that, in making the or to decline to survey this particular spot
survey, there was any intentional wrong on as an island. There is nothing to indicate
the part of the surveyors. Evidently the mistake or fraud, and the government has
survey of the entire tract was completed be- never taken any steps predicated on such a
fore the lands, or any part of them, were of-theory; and did not survey the so-called is-
fered for sale. According to statements in land No. 5 until twenty-five years after the
the brief of counsel for plaintiff in error as survey of 1831, and nearly twenty years
well as in the opinion of the Secretary of after that of 1837.”
the Interior in Re Christensen, 25 Land. These considerations furnish a sufficient
Dec. 413, there were several islands in the answer to the question, and sustain the de-
Platte river within the reservation not sur-cision of the supreme court of Nebraska.
veyed. The Secretary says that it does not

It is further contended that the land of appear why the lines of survey were not ex

one of these patentees is itself part of an tended over these islands, but in the brief of island, and that therefore he has no ripacounsel, as well as in the opinion of the su- rian rights. It is sufficient reply to this preme court it is stated that the instruc- contention that the government surveyed tions issued by the Land Department to the and patented the lands up to the banks of surveyors were to survey all islands of 21

the channel in which the island in controacres and upwards. The reason of the Department, or of the surveyors (which ever

versy is situated, and a patentee, although may have been responsible for the omission his land may be itself surrounded by two to survey these small islands), for these channels of the river, has all the rights of omissions is not disclosed. Possibly they

a riparian owner in the channel lying oppo

site his banks.
may have been regarded as having no sta-
bility as tracts of land, but as mere sand-

Nothing herein stated conflicts with bars, which are frequently found in western Horne v. Smith, 159 U. S. 40, 40 L. ed. 68. waters, and are of temporary duration, ex

15 Sup. Ct. Rep. 988; Niles v. Cedar Point isting to-day and gone to-morrow. Be that Club, 175 U. S. 300, 44 L. ed. 171, 20 Sup. as it may, there is nothing to indicate any Ct. Rep. 124; French-Glenn Live Stock Co. fraud or mistake on the part of the survey

v. Springer, 185 U. S. 47, 46 L. ed. 800, 22 Doubtless this island of about 22 acres Sup. Ct. Rep. 563; or Kirwan v. Murphy, was regarded as coming within their in- | 189 U. S. 35, 47 L. ed. 698, 23 Sup. Ct. Rep. structions, and very likely at the time of 599. In the first of those cases it appeared the survey did not contain even 21 acres. that the survey stopped at a bayou, and did Further, an application for a survey of this not extend to the main channel of the Indian island was refused, and this refusal was re- river, a mile distant; and we held that the peated once or twice. The Secretary of the line of that bayou must be considered as the Interior based his action on the decision of boundary of the grant; that it could not be this court in Grand Rapids & I. R. Co. v. extended over the unsurveyed land between Butler, 159 U. S. 87, 40 L. ed. 85, 15 Sup. the bayou and the main channel of the Indian Ct. Rep. 991, and held that the Department river; that it was a case of an omission was precluded from a survey and sale of an from the survey of land that ought to have island after the lands on the adjacent banks been surveyed, and that such omission did of the river had been surveyed and sold. In not operate to transfer unsurveyed land to the Grand Rapids Case it appeared that the the patentee of the surveyed land bordering land on the east bank of Grand river had on the bayou. In the second we held that, been surveyed in 1831, and that on the west as the survey showed a meander line borderbank of the river in 1837, and also that in- ing on a tract of swamp or marsh lands, cluded in this last survey were four islands. the grant by patent terminated at the meUpon these surveys the adjacent land and ander line, and did not carry the swamp the islands were sold and patented to pri- lands lying between it and the shores of vate parties. In 1855 a parcel of ground in Lake Erie. In the third, it appeared that the river was, under instructions from the there was no body of water in front of the surveyor general, surveyed and marked "is-meandered line, and we held that that line land No. 5," and for that island a patent must, therefore, be the limit of the grant, was issued to the railroad company.

We and the fact that outside the side lines exheld that the patent to the riparian owner tended there was a body of water did not issued before the date of the last survey con-'operate to extend the grant into any portiou


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