appropriation 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 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. (a) 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 con 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 private 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 gores, 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 thus to dispose of private property, whether feet or acres are the subject of this assumed power." Matter of Albany St., 11 Wend. 151, 25 Am. Dec. 618, per Savage, Ch. J. To the same effect is Dunn v. City Council, Harper, 129. And see Paul v. Detroit, 32 Mich. 108; Baltimore, &c. R. R. Co. v. Pittsburgh, &c. R. R. Co., 17 W. Va. 812. 1 Embury v. Conner, 3 N. Y. 511. There is clearly nothing in constitutional 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. See Haskell v. New Bedford, 108 Mass. 208. 2 Chicago, B. & Q. R. R. Co. v. Wilson, 17 Ill. 123; Low v. Galena & C. U. R. R. Co., 18 Ill. 324; Giesy v. Cincinnati, W. & Z. R. R. Co., 4 Ohio St. 308. Or extra track room. Matter of Staten Island Transit Co., 103 N. Y. 251, 8 N. E. 548. (a) [A question as to the amount to be taken is a legislative not a judicial one. U. S. v. Gettysburgh Elec. Ry. Co., 160 U. S. 668, 16 Sup. Ct. Rep. 427.] ferred, 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. If, for instance, the 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 such 1 Zimmerman v. Union Canal Co., 1 W. & S. 846; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Davidson v. Boston & Maine R. R. Co., 3 Cush. 91; Gould v. Hudson River R. R. Co., 12 Barb. 616, and 6 N. Y. 522; Radcliff. Mayor, &c. of Brooklyn, 4 N. Y. 195; Murray v. Menefee, 20 Ark. 561; Hooker v. New Haven & Northampton Co., 14 Conn. 146; People v. Kerr, 27 N. Y. 188; Fuller v. Edings, 11 Rich. Law, 239; Eddings v. Seabrook, 12 Rich. Law, 504; Richardson v. Vermont Central R. R. Co., 25 Vt. 465; Kennett's Petition, 24 N. H. 139; Alexander v. Milwaukee, 16 Wis. 247; Richmond, &c. Co. v. Rogers, 1 Duvall, 135; Harvey v. Lackawanna, &c. R. R. Co., 47 Pa. St. 428; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21; Railroad Co. v. Richmond, 96 U. S. 521. The discontinuance of a highway does not entitle parties incommoded thereby to compensation. Fearing v. Irwin, 55 N. Y. 486; [Levee District No. 9 v. Farmer, 101 Cal. 178, 35 Pac. 569, 23 L. R. A. 388. This is particularly true if such persons are not abutting owners. Stanwood v. City of Malden, 157 Mass. 17, 31 N. E. 702, 16 L. R. A. 591; Glasgow v. City of St. Louis, 107 Mo. 198, 17 S. W. 743. To the effect that vacation of a street is a taking, see Cullen v. N. Y., N. H. & H. R. Ry. Co., 66 Conn. 211, 33 Atl. 910; Pearsall v. Eaton County Supervisors, 74 Mich. 558, 42 N. W. 77, 4 L. R. A. 193. See cases pro and con cited in notes to Selden v. Jacksonville, 14 L. R. A. 370, and 29 Am. St. 278. Many of which depend upon particular statutes; and Buhl v. Fort Street Union Depot Co., 98 Mich. 596, 57 N. W. 829, 23 L. R. A. 392; Dantzer v. Indianapolis Union Ry. Co., 141 Ind. 604, 39 N. E. 223, 34 L. R. A. 769.] Incidental injury to adjoining lot-owners from constructing a tunnel in a street to pass under a river will give no right of action. Transportation Co. v. Chicago, 99 U. S. 635. See the case in the Circuit Court, 7 Biss. 45. But a railroad company cannot be required at its own expense to construct and maintain across its right of way every new highway which may be laid out over it. That would be a taking without just compensation. People v. Lake Shore, &c. Ry. Co., 52 Mich. 277, 17 N. W. 841; Chicago & G. T. Ry. Co. v. Hough, 61 Mich. 507, 28 N. W. 532. [Statute requiring existing railway companies to build farm crossings, their roads having been built when the statute did not require it, is unconstitutional. If such crossings are considered as for public use, it is taking without compensation. People v. D. G. H. & M. Ry. Co., 79 Mich. 471, 44 N. W. 934, 7 L. R. A. 717. The State or its grantees may construct wharves upon its lands under navigable waters without compensation to riparian owners for injuries resulting. Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539, 12 L. R. A. 632.] 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, or if by deepening the channel of a river to im 1 Davidson v. Boston & Maine R. R. Co., 3 Cush. 91; Transportation Co. v. Chicago, 99 U. S. 635. 2 Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71. In Green v. Swift, 47 Cal. 536, and Green v. State, 73 Cal. 29, 11 Pac. 602, 14 Pac. 610, it is held that where one finds his land injured in consequence of a change in the current of a river, caused by straightening it, he cannot claim compensation as of right. [A riparian proprietor is entitled to compensation for land taken for public dam, for overflow of his lands, and diversion of water by reason thereof. Kaukauna W. P. Co. v. Green Bay & M. C. Co., 142 U. S. 254, 12 Sup. Ct. Rep. 173. But not, it seems, for injury from washing away soil of banks through reasonable increase of flow of water at times, caused by a dam authorized by the legislature. Brooks v. Cedar Brook & S. C. R. I. Co., 82 Me. 17, 19 Atl. 87, 7 L. R. A. 460; nor for injuries to rice fields by construction of harbor improvements in a navigable stream. Mills v. United States, 46 Fed. Rep. 738, 12 L. R. A. 673; Farist Steel Co. v. City of Bridgeport, 60 Conn. 278, 22 Atl. 561, 13 L. R. A. 590; Rumsey v. N. Y. &c. Ry. Co., 133 N. Y. 79, 30 N. E. 654, 28 Am. St. 600. The construction by the United States of a pier in a navigable river under authority of Congress for the improvement of navigation gives an owner of lands bordering on the river no right to compensation though his access to navigable water be cut off. Scranton v. Wheeler, 113 Mich. 565, 71 N. W. 1091, aff. 179 U. S. 141, 21 Sup. Ct. Rep. 48. Same doctrine, Sage v. New York, 154 N. Y. 61, 47 N. E. 1096, 61 Am. St. 592, 38 L. R. A. 606. A riparian owner on navigable water owns to high-water mark, which is that line below which the lands are so frequently flowed that they are not productive as agricultural lands, and the State cannot, even in aid of public navigation, by artificial means maintain such waters above high-water mark to In re the injury of riparian owners. Minnetonka Lake Improvement, 56 Minn. 513, 58 N. W. 295, 45 Am. St. 494. Below high-water mark the State has full authority and right on navigable waters to do whatsoever it pleases in aid of public navigation, and any injury resulting incidentally to the riparian owner is damnum absque injuria. In re Minnetonka Lake Improvement, supra. Right in lands flowed under exercise of right of eminent domain is more than a mere easement. It includes the right of exclusive occupation, and carries right to cut ice which forms on the water. Wright v. Woodcock, 86 Me. 113, 29 Atl. 953, 24 L. R. A. 499. See also, on general subject of taking riparian interests in lands, Patten Paper Co. Ltd. v. Kaukauna Water Power Co., 90 Wis. 370, 61 N. W. 1121, 63 N. W. 1019, 28 L. R. A. 443; Priew v. Wisconsin State Land & Imp. Co., 93 Wis. 534, 67 N. W. 918, 33 L. R. A. 645; Carlson v. St. Louis River D. & I. Co., 73 Minn. 128, 75 N. W. 1044, 72 Am. St. 610, 41 L. R. A. 371; Platt Bros. & Co. v. Waterbury, 72 Conn. 531, 45 Atl. 154, 48 L. R. A. 691; Valparaiso v. Hagen, 153 Ind. 337, 54 N. E. 1062, 48 L. R. A. 707. These last two cases are opposed to each other on the question of whether a riparian owner is entitled to compensation for the casting of the sewage of a city upon his lands to their injury. The Connecticut case finds support in Smith v. Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711, and in Grey ex rel. Simmons v. Paterson, N. J., 45 Atl. 995. The retention of surface water on lot in city, caused by change of grade in street, is not a taking in violation of constitution. Jordan v. Benwood, 42 W. Va. 312, 26 S. E. 266, 57 Am. St. 859, 36 L. R. A. 519. In Maine and Massachusetts where the " great ponds" belong to the State, the taking of a reasonable quantity of water by authority of the State is not a "taking" as against a mill owner with a water power on the outlet. Auburn v. prove the navigation a spring is destroyed,1 or by a change in the grade of a city street the value of adjacent lots is diminished,2 Union Water Power Co., 90 Me. 576, 38 Atl. 561, 38 L. R. A. 188. The diversion of water from its natural course in which it serves as motive power for a mill is in Michigan unlawful, and will be enjoined where such diversion is for drainage purposes only. Stock v. Jefferson, 114 Mich. 357, 72 N. W. 132, 38 L. R. A. 355.] 1 Commonwealth v. Richter, 1 Pa. St. 467. But in Winklemans v. Des Moines, &c. Ry. Co., 62 Iowa, 11, 17 N. W. 82, the value of a spring destroyed in railroad construction is held recoverable. [Incidental draining of a well through construction of a public work is a "direct injuring" of property within the meaning of that term in a statute authorizing the construction. United States v. Alexander, 148 U. S. 186, 13 Sup. Ct. Rep. 529.] It is justly said by Mr. Justice Miller, in Pumpelly v. The Green Bay, &c. Co., 13 Wall. 166, 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." See also Arimond . Green Bay, &c. Co., 31 Wis. 316; Aurora v. Reed, 57 Ill. 29, 11 Am. Rep. 1. 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. [A change in the plan of construction of a railway after condemnation may entitle the owner of lands condemned to additional compensation. Wabash, St. L. & P. R. Co. v. McDougall, 126 Ill. 111, 18 N. E. 291, 1 L. R. A. 207. The conversion of a public way into a pleasure driveway, and excluding loaded vehicles from it, is not, as against persons desiring to use it with such vehicles, a taking of their property for public use without compensation. Cicero Lumber Co. v. Cicero, 176 Ill. 9, 51 N. E. 758, 68 Am. St. 155, 42 L. R. A. 696.] Compare Aldrich v. Cheshire R. R. Co., 21 N. H. 859; West Branch, &c. Canal Co. v. Mulliner, 68 Pa. St. 857; Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42; Hatch v. Vt. Central R. R. Co., 25 Vt. 49; and cases, ante, p. 757. 2 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 ". 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 Pa. St. 187; In re Ridge Street, 29 Pa. St. 391; Callendar v. Marsh, 1 Pick. 418; Creal v. Keokuk, 4 Greene (Iowa), 47; Smith v. Washington, 20 How. 135; Skinner v. Hartford Bridge Co., 29 Conn. 523; Benden. Nashua, 17 N. H. 477; Pontiac v. Carter, 32 Mich. 164; Goszler v. Georgetown, 6 Wheat. 593; Stewart v. Clinton, 79 Mo. 603; Kehrer v. Richmond, 81 Va. 745; Meth. Epis. Church . Wyandotte, 31 Kan. 721, 3 Pac. 527. See cases, ante, p. 296, and Conklin v. New York, &c. Ry. Co., 102 N. Y. 107, 6 N. E. 663; Uline v. New York, &c. R. R. Co., 101 N. Y. 98, 4 N. E. 536; Henderson v. Minneapolis, 32 Minn. 319, 20 N. W. 322; [Selden ". City of Jacksonville, 28 Fla. 558, 10 So. 457, 29 Am. St. 278 and note, 14 L. R. A. 370. It seems that where the constitntion contains a provision requiring com in these 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 pensation for property " damaged for public use, that a change of grade, result ing in damage, gives an action. Rauenstein v. N. Y. L. & W. Ry. Co., 136 N. Y. 538, 32 N. E. 1074, 18 L. R. A. 768; O'Brien v. Philadelphia, 150 Pa. 589, 24 Atl. 1047, 30 Am. St. 832, and note, pp. 835 et seq.; Henderson v. McClain, 102 Ky. 402, 43 S. W. 700, 39 L. R. A. 349; Searle v. City of Lead, 10 S. D. 312, 405, 73 N. W. 101, 913, 39 L. R. A. 345; Pueblo v. Strait, 20 Col. 13, 36 Pac. 789, 46 Am. St. 273, 24 L. R. A. 392; Dickerman v. Duluth, Minn., 92 N. W. 1119; Brown v. City of Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18 L. R. A. 161. Though property does not abut on the street but on an alley opening into it. Id. There is no taking as against abut ting owner where a railway company constructs in a public way a stone abutment nine feet high which reduces the width in front of his premises to ten feet, interfering with access of light and air, and almost destroying access to the abutting property. Garrett v. Lake Roland Elevated R. Co., 79 Md. 277, 29 Atl. 830, 24 L. R. A. 396. Similar cases are Willis v. Winona, 59 Minn. 27, 60 N. W. 814, 26 L. R. A. 142; Home Building & C. Co. v. City of Roanoke, 91 Va. 52, 20 S. E. 895, 27 L. R. A. 551. But see Field v. Barling, 149 Ill. 556, 37 N. E. 850, 24 L. R. A. 406, where it is held that an overhead bridge across an alley which obstructs access of light and air to abutting property is such an injury as must be compensated for though the city owns the alley and authorized the bridge. A similar conclusion was reached in Willamette Iron Works v. Oregon R. & N. Co., 26 Oreg. 224, 37 Pac. 1016, 29 L. R. A. 88, which involved a railway bridge approach in a public street. It is a taking against the constitutional inhibition to require abutting owners in New Hamshire to keep sidewalks free from snow and ice. State v. Jackman, 69 N. H. 318, 41 Atl. 347, 42 L. R. A. 438.] Com pare cases, post, p. 812, note. The cases of McComb v. Akron, 15 Ohio, 474, 18 Ohio, 229, and Crawford v. Delaware, 7 Ohio St. 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. And see Johnson v. Parkersburg, 16 W. Va. 402, 37 Am. Rep. 779. That if the lateral support to his land is removed by grading a street the owner is entitled to compensation, see O'Brien v. St. Paul, 25 Minn. 331; Buskirk v. Strickland, 47 Mich. 389, 11 N. W. 210. [Parke v. City of Seattle, 5 Wash. 1, 31 Pac. 310, 32 Pac. 82, 20 L. R. A. 68 ] 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. [The destruction of oysters by turning the sewage of a city upon their beds is a taking, requiring compensation. Huffmire v. Brooklyn, 162 N. Y. 584, 57 N. E. 176, 48 L. R. A. 421.] In Hamilton v. Vicksburg, &c. R. R. Co., 119 U. S. 280, 7 Sup. Ct. Rep. 206, the obstruction of a navigable stream by unavoidable delay in rebuilding a lawful bridge was held not actionable. 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. Norris v. Vt. Central R. R. Co., 28 Vt. 99, with Mellen v. Western R. R. Corp., 4 Gray, 301. And see note on preceding page. The inconvenience from smoke and jar caused by the careful construction and operation of a railroad near property is not actionable. Carroll v. Wis. Cent. R. R. Co., 40 Minn. 168, 41 And compare |