the appropriation is made. When a part only of a man's premises is needed by the public, the necessity for the appropriation of that part will not justify the taking of the whole, even though compensation be made therefor. The moment the appropriation goes beyond the necessity of the case, it ceases to be justified on the principles which underlie the right of eminent domain.1

*

If, however, the statute providing for such appropriation [* 541] is acted upon, and the property owner accepts the compensation awarded to him under it, he will be precluded by this implied assent from afterwards objecting to the excessive appropriation. And where land is taken for a public work, there is

1 By a statute of New York it was enacted that whenever a part only of a lot or parcel of land should be required for the purposes of a city street, if the commissioners for assessing compensation should deem it expedient to include the whole lot in the assessment, they should have power so to do; and the part not wanted for the particular street or improvement should, upon the confirmation of the report, become vested in the corporation, and might be appropriated to public uses, or sold in case of no such appropriation. Of this statute it was said by the Supreme Court of New York: "If this provision was intended merely to give to the corporation capacity to take property under such circumstances with the consent of the owner, and then to dispose of the same, there can be no objection to it; but if it is to be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to private use, it assumes a power which, with all respect, the legislature did not possess. The constitution, by authorizing the appropriation of property to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the private use of another. It is in violation of natural right; and if it is not in violation of the letter of the constitution, it is of its spirit, and cannot be supported. This power has been supposed to be convenient when the greater part of a lot is taken, and only a small part left, not required for public use, and that small part of but little value in the hands of the owner. In such case the corporation has been supposed best qualified to take and dispose of such parcels, or goers, as they have sometimes been called; and probably this assumption of power has been acquiesced in by the proprietors. I know of no case where the power has been questioned, and where it has received the deliberate sanction of this court. Suppose a case where only a few feet, or even inches, are wanted, from one end of a lot to widen a street, and a valuable building stands upon the other end of such lot; would the power be conceded to exist to take the whole lot, whether the owner consented or not? The quantity of the residue of any lot cannot vary the principle. The owner may be very unwilling to part with only a few feet; and I hold it equally incompetent for the legislature to dispose of private property, whether feet or acres are the subject of this assumed power." Matter of Albany St., 11 Wend. 151, per Savage, Ch. J.

2 Embury v. Conner, 3 N. Y. 511. There is clearly nothing in constitutional

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, 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 compen

sation, or give him a right of action. If, for instance, the [* 542]* State, under its power to provide and 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 principles which would preclude the legislature from providing that a man's property might be taken with his assent, whether the assent was evidenced by deed or not; and if he accepts payment, he must be deemed to assent. The more recent case of House v. Rochester, 15 Barb. 517, is not, we think, opposed to Embury v. Conner, of which it makes no mention.

1 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.

2 Zimmerman v. Union Canal Co., 1 W. & S. 346; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Davidson v. Boston & Maine RR. Co., 3 Cush. 91; Gould v. Hudson River R.R. Co., 12 Barb. 616, and 6 N. Y. 522; Radcliff v. Mayor, &c., of Brooklyn, 4 N. Y. 195; Murray v. Menifee, 20 Ark. 561; Hooker v. New Haven and Northampton Co., 14 Conn. 146; People v. Kerr, 27 N. Y. 193; Fuller v. Eddings, 11 Rich. Law, 239; Eddings v. Seabrook, 12 Rich. Law, 504; Richardson v. Vermont Central R.R. Co., 25 Vt. 465; Kennett's Petition, 4 Fost. 139; Alexander v. Milwaukee, 16 Wis. 247; Richmond, &c., Co. v. Rogers, 1 Duvall, 135; Harvey v. Lackawana, &c., R.R. Co., 47 Penn. St. 428; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21.

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.1 So if, by the erection of a dam in order to improve navigation, the owner of a fishery finds it diminished in value, 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,

1 Davidson v. Boston and Maine R.R. Co., 3 Cush. 91. Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71.

in these

3 Commonwealth v. Richter, 1 Penn. St. 467. It is justly said by Mr. Justice Miller, in Pumpelly v. The Green Bay Co., 13 Wall. 180, that the decisions" that for the consequential injury to the property of an individual from the prosecution of improvement of roads, streets, rivers, and other highways for the public good, there is no redress," " have gone to the extreme and limit of sound judicial construction in favor of this principle, and in some cases beyond it; and it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as effectually to destroy or impair its usefulness, it is a taking within the meaning of the constitution." This whole subject is most elaborately considered by Smith, J., in Eaton v. Boston, C. & M. R.R. Co., 51 N. H. 504. It was decided in that case that, notwithstanding a party had received compensation for the taking of his land for a railroad, he was entitled to a further remedy at the common law for the flooding of his land in consequence of the road being cut through a ridge on the land of another; and that this flooding was a taking of his property within the meaning of the constitution. The cases to the contrary are all considered by the learned judge, who is able to adduce very forcible reasons for his conclusions. Compare Aldrich v. Cheshire R.R. Co., 21 N. H. 359; West Branch, &c., Canal Co. v. Mulliner, 68 Penn. St. 357; Bellinger v. N. Y. Central R.R. Co., 23 N. Y. 42; Hatch v. Vt. Central R.R. Co., 25 Vt. 49.

* British Plate Manufacturing Co. v. Meredith, 4 T. R. 794; Matter of Furman Street, 17 Wend. 649; Radcliff's Ex'rs v. Mayor, &c., of Brooklyn, 4 N. Y. 195; Graves v. Otis, 2 Hill, 466; Wilson v. Mayor, &c., of New York, 1 Denio, 595; Murphy v. Chicago, 29 Ill. 279; Roberts v. Chicago, 26 Ill. 249; Charlton v. Alleghany City, 1 Grant, 208; La Fayette v. Bush, 19 Ind. 326; Macy v. Indianapolis, 17 Ind. 267; Vincennes v. 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 v. Marsh, 1 Pick. 417; Creal v. Keokuk, 4 Greene (Iowa), 47; Smith v. Washington, 20 How. 135; Skinner v. Hartford Bridge Co., 29 Conn. 523 ; Benden v. Nashua, 17 N. H. 477; 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,

and similar cases the law affords no redress for 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 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 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 in Brouse 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 v. Vt. Central R.R. Co., 28 Vt. 102, with Mellen v. Western R.R. Corp., 4 Gray, 301. And see note 1, supra. 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.

& Troy and Boston R.R. Co. v. 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 of claim. Harvey v. Lackawana, &c., R.R. Co., 47 Penn. St. 428. “Every great public improvement must, almost of necessity, more or less, affect individual convenience and property; and when the injury sustained is remote 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.

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. 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 held that, as the land [* 544] 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 that the owner of the adjacent bank

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 appurte nant 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. In the Vermont case above cited it was held that an excavation by the company on their own land, so near the line of the plaintiff's that his land, without any artificial weight thereon, slid into the excavation, would render the company liable for the injury; the plaintiff being entitled to the lateral support for his land.

* Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Monongahela Navigation Co. v. Coons, 6 W. & S. 101. 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. And if 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 v. 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 their occupation unsafe. Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Same, ib. 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., 2 Dutch. 148; Alexander v. Milwaukee, 16 Wis. 255.