Judgment is reversed and cause remanded for further proceedings not inconsistent with this opinion. 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 distinction between the surface of the soil of a street and the space above the surface, and, seemingly, leaves remaining no vital remnant of the doctrine of the Elevated Railroad Cases. However, we need not go farther than the present case demands. When the plaintiff acquired his title those cases were the law of New York, and assured to him that his easements of light and air were secured by contract as expressed in those cases, and could not be taken from him without payment of compensation. Mr. Justice Brown concurs in the result. Mr. Justice Holmes, dissenting: the judgment of the court, and, as it seems limits of the avenue. 1897." I take it to mean And this is the ground of our decision. We are not called upon to discuss the power, or the limitations upon the power, of the courts of New York to declare rules of property or change or modify their decisions, but only to decide that such power cannot be exercised to take away rights which have been acquired by contract and have come under the protection of the Constitution of the United States. And we determine for ourselves the existence and extent of such contract. This is a truism; and when there is a diversity of state decisions the first in time may constitute the obligation of the contract and the measure of rights under it. Hence the importance of the Elevated Railroad Cases and the doctrine they had pronounced when the plaintiff acquired his property. He bought under their assurance, and that these decisions might have been different, or that the plaintiff might have balanced the chances of the commercial advantage between the right to have the street remain open and the expectation that it sion of the court of appeals is that on this The material portion of the deciwould remain so, is too intangible to esti-state of facts, as was held in the similar mate. We certainly can estimate the difference between a building with full access plaintiff had no property right which was case of Fries v. New York & H. R. Co., the 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. 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-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, § 91e, 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 The Coler, 190 U. S. 437, 444, 445, 47 L. ed. 1126, 1131, 1132, 23 Sup. Ct. Rep. 811), and certainly never has been supposed to mean that all property owners in a state have a vested right that no general proposition of law shall be reversed, changed, or modified by the courts if the consequence to them will be more or less pecuniary loss. I know complete reversal of the Elevated Railroad Cases to-morrow if it should seem proper to the court of appeals. See Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80. But I conceive that the plaintiff in error must go much further than to say that my last proposition is wrong. I think he must say that he has a constitutional right, not only that the state courts shall not reverse their earlier decisions upon a matter of property rights, but that they shall not distinguish them unless the distinction is so fortunate as to strike a majority of this court as sound. For the court of appeals has not purported to overrule the Elevated Railroad Cases. It simply has decided that the import and the intent of those cases does not extend to the case at bar. In those cases the defendants had impaired the plaintiff's access to the street. It is entirely possible and consistent with all that they decided to say now that access is the foundation of the whole matter; that the right to light and air is a parasitic right incident to the right to have the street kept open for purposes of travel, and that when, as here, the latter right does not exist the basis of the claim to light and air is gone. way of consequence from dedication to and trusts for the purposes of a public street. They never were granted to him or his predecessors in express words, or, probably, by any conscious implication. If at the outset the New York courts had decided that, apart from statute or express grant, the abutters on a street had only the 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 way amazing. It would have been very possible to distinguish between the practical commercial advantage of the expectation that a street would remain open and a right in rem that it should remain so. See Stanwood v. Malden, 157 Mass. 17, 16 L. R. A. 591, 31 N. E. 702. Again, more narrowly, if the New York courts had held that an easement or light and air could be created only by express words, and that the laying out or dedication of a street, or the grant of a house bounding upon one, gave no such easement to abutters, they would not have been alone in the world of the common law. Keats v. Hugo, 115 Mass. 204, 216, 15 Am. Rep. 80. The doctrine that abutters upon a highway have an easement of light and air is stated as a novelty in point of authority in Barnett v. Johnson, 15 N. J. Eq. 481, 489, and that case was decided in a state where it was held that a like right might be acquired by prescription. Robeson v. Pittenger, 2 N. J. Eq. 57, 32 Am. Dec. 412. If the decisions, which I say conceivably might have been made, had been made as to the common law, they would have infringed no rights under the Constitution of the United States. So much, I presume, would be admitted by everyone. But, if that be admitted, I ask myself what has happened to cut down the power of the same courts as against that same Constitution at the present day. So far as I know the only thing which has happened is that they have decided the Elevated Railroad Cases, to which I have referred. It is on that ground alone that we are asked to review the decision of the court of appeals upon what otherwise would be purely a matter of local law. In other words, we are asked to extend to the present case the principle of Gelpcke v. Dubuque, 1 Wall. 175, 17 L. ed. 520, and Louisiana v. Pilsbury, 105 U. S. 278, 26 L. ed. 1090, as to public bonds bought on the faith of a decision that they were constitutionally issued. That seems to me a great, unwarranted, and undesirable extension of a doctrine which it took this court a good while to explain. The doctrine now is explained, however, not to mean that a change in the decision impairs the obligation of contracts (Burgess v. Seligman, 107 U. S. 20, 34, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Stanly County v. 25 S. C.-34. But again, if the plaintiff had an casement over the whole street he got it as a tacit incident of an appropriation of the street to the uses of the public. The legislature and the court of appeals of New York have said that the statute assailed was passed for the benefit of the public using the street, and I accept their view. The most obvious aspect of the change is that the whole street now is open to travel, and that an impassable barrier along its width has been removed,-in other words, that the convenience of travelers 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 easement 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, 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. this court think right. 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. 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 easement, 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, 45 L. ed. 126, 21 Sup. Ct. Rep. 48; Meyer v. Rich V. 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 almond, 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, I7 Cush. 53. Compare United States 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 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 im I am authorized to say that the CHIEF JUSTICE, Mr. Justice White, and Mr. Justice Peckham concur in the foregoing dis sent. (197 U. S. 510) GEORGE S. WHITAKER and Mary I. บ. THOMAS MCBRIDE and William Killgore. Public lands riparian proprietors—rights to unsurveyed island. 1. 2. A rule of local law that the owner of land bordering on a river owns to the center of the channel inures to the benefit of a patentee from the United States as against one claiming to enter as a homestead an unsurveyed island, in such river, where the omission to survey the island was not due to fraud or mistake, and subsequent appllcations for a survey have been refused by the Land Department. A patentee from the United States gov. ernment has all the rights of a riparian own See same case below, 65 Neb. 137, 90 N. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, W. 966. Statement by Mr. Justice Brewer: This was an action commenced on June 27, 1898, in the district court of Buffalo county, Nebraska, and terminated by a decision of the supreme court of the state. 65 Neb. 137, 90 N. W. 966. The facts found by the district court are that McBride and Killgore were respectively the owners and in possession of tracts of land bordering on the Platte river, one on the north and the other on the south side thereof. Between these two tracts, and in the main channel of the Platte river, is an island, containing about 22 acres. This island had been in the possession of McBride and Killgore for more than ten years prior to the bringing of the action, but during that time they were contending as to how much of the land each was entitled to. It had never been surveyed by the government. 838, the matter was discussed at some length, the authorities cited, and the conclusion thus stated by Mr. Justice Bradley, delivering the opinion of the court (p. 384, L. ed. p. 434, Sup. Ct. Rep. p. 813): "In our judgment the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be construed as to their effect according to the law of the state in which the lands lie." See also Shively v. Bowlby, 152 U. S. 45, 38 L. ed. 347, 14 Sup. Ct. Rep. 548; Lowndes v. Huntington, 153 U. S. 19, 38 L. ed. 618, 14 Sup. Ct. Rep. 758; Grand Rapids & I. R. Co. v. Butler, 159 U. S. 87, 92, 40 L. ed. 85, 87, 15 Sup. Ct. Rep. 991; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 349, 42 L. ed. 497, 18 Sup. Ct. Rep. 157; Kean v. Calumet Canal & Improv. Co. 190 U. S. 452, 47 L. ed. 1134, 23 Sup. Ct. Rep. 651; Hardin v. Shedd, 190 U. S. 508, 47 L. ed. 1156, 23 Sup. Ct. Rep. 685. If there were no island in this case it would not, under these authorities, be questioned that the title of the riparian owners extended to the center of the channel. How far does the fact that there is this unsurveyed island in the river abridge the scope of the rule? In seeking an answer to this question these facts must be borne in mind. The official surveys made by the government are not open to collateral attack in an action at law between private parties. Stone It appeared in evidence that Whitaker, in 1897, settled on the island, claiming the right to enter the same as a homestead; that application to the Land Department of the government to have the island surveyed was, in 1897, refused, the Department declining to take any action in the matter. These lands were a part of the Fort Kearney Military Reservation, which was surveyed and sold under a special act of Congress, dated July 21, 1876 (19 Stat. at L. 94, chap. 220), the patent to McBride, who had entered his tract as a homestead, bear-road v. Stoneroad, 158 U. S. 240, 39 L. ed. ing date March 28, 1885. There was testimony tending to show that the island was at the time of the survey of the reservation frequently covered with water, and that since then-perhaps owing to the construction of bridges and dykes-overflows had been less frequent and the land better adapted to occupation and cultivation. The decree directed by the supreme court was adverse to Whitaker, and quieted the title to McBride and Killgore to the island, giving to each one half. 966, 15 Sup. Ct. Rep. 822; Russell v. Maxwell Land Grant Co. 158 U. S. 253, 39 L. ed. 971, 15 Sup. Ct. Rep. 827; Horne v. Smith, 159 U. S. 40, 40 L. ed. 68, 15 Sup. Ct. Rep. 988. A meander line is not a line of boundary, but one designed to point out the sinuosity of the bank or shore, and a means of ascertaining the quantity of land in the fraction which is to be paid for by the purchaser. St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 19 L. ed. 74; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, "We have no doubt upon the evidence that the circumstances were such at the time of the survey as naturally induced the surveyor to decline to survey this particular spot as an island. There is nothing to indicate mistake or fraud, and the government has never taken any steps predicated on such a theory; and did not survey the so-called island No. 5 until twenty-five years after the survey of 1831, and nearly twenty years after that of 1837." These considerations furnish a sufficient answer to the question, and sustain the decision of the supreme court of Nebraska. It is further contended that the land of one of these patentees is itself part of an island, and that therefore he has no riparian rights. It is sufficient reply to this contention that the government surveyed and patented the lands up to the banks of the channel in which the island in contro versy is situated, and a patentee, although his land may be itself surrounded by two channels of the river, has all the rights of a riparian owner in the channel lying opposite his banks. 11 Sup. Ct. Rep. 808, 838; Horne v. Smith, | veyed to him the title to the island, saying |
