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. No property being taken in this case, the party has no relief unless the statute shall give it. The loss is damnum absque iniuria. 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 house, so as to prevent his passing to and from the same with the same convenience as before, this consequential inquiry was held to give no claim to compensation. So

N. W. 661; Beseman v. Pa. R. R. Co., 50 N. J. L. 235, 13 Atl. 164. Compare Baltimore & O. R. R. Co. v. Fifth Bapt. Ch., 108 U. S. 317, 2 Sup. Ct. Rep. 719; Cogswell v. New York, &c. R. R. Co., 103 N. Y. 10, 8 N. E. 537.

1 Kennett's Petition, 4 Fost. 139. See Eddings v. Seabrook, 12 Rich. Law, 504; Slatten v. Des Moines Valley R. R. Co., 29 Iowa, 148; Hoag v. Switzer, 61 Ill. 294. [If construction of railway along opposite side of highway causes depreciation of lands, the owner is entitled to compensation for such depreciation as is occasioned by causes not affecting the public generally. Lake Erie & Western Ry. Co. v. Scott, 132 Ill. 429, 24 N. E. 78, 8 L. R. A. 330.] Merely crossing a railroad by another track is not a taking of property. Lehigh V. R. R. Co. v. Dover, &c. R. R. Co., 43 N. J. 528. But this cannot be universally true. See Lake Shore, &c. R. R. Co. v. Chicago, &c. R. R. Co., 100 Ill. 21. Damage for the resulting inconvenience may be allowed as well as for maintaining the crossing. Chicago & W. I. R. R. Co. v. Englewood, &c. Ry. Co., 115 Ill. 375, 4 N. E. 246.

2 Troy & Boston R. R. Co. v. Northern Turnpike Co., 16 Barb. 100. See La Fayette Plank Road Co. v. New Albany & 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. Lackawanna, &c. R. R. Co., 47 Pa. St. 428. "Every great public improvement must, almost of necessity, more or less affect individual convenience and property; and where 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. 146, 149.

3 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. 467; New Albany & Salem R. R. Co. v. O'Daily, 13 Ind. 453. The same doctrine is recognized in Crawford v. Delaware, 7 Ohio St. 459; Street Railway v. Cumminsville, 14 Ohio St. 523; Schneider v. Detroit; 72 Mich. 240, 40 N. W. 329;

the owner of dams erected by legislative authority is without remedy, if they are afterwards rendered valueless by the construction of a canal. And in New York it has been 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. 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,1 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.2 Water front on a stream where

the tide does not ebb and flow is property, and, if taken, must be paid for as such.1 So with an exclusive right of wharfage upon tide water.2 So with the right of the owner of land to use an adjoining street, whether he is owner of the land over which the street is laid out or not. So with the right of pasturage in streets, which belongs to the owners of the soil. So a partial destruction or diminution of value of property by an act of the government which directly and not merely incidentally affects it, is to that extent an appropriation.5

It sometimes becomes important, where a highway has been laid out and opened, to establish a different and higher grade of way upon the same line, with a view to accommodate an increased public demand. The State may be willing to surrender the control of the streets in these cases, and authorize turnpike, plankroad, or railroad corporations to occupy them for their purposes; and if it shall give such consent, the control, so far as is neces

861, 21 L. R. A. 226.] So, if under a statute a road officer cuts a drain on property to draw surface water from a highway. Ward v. Peck, 49 N. J. L. 42, 6 Atl. 805. So, if in grading a street an embankment is placed so as to take up part of an abutting lot, and injure a house on it. Vanderlip v. Grand Rapids, 73 Mich. 522, 16 Am. St. 597, and note, 3 L. R. A. 247, 41 N. W. 677; Broadwell v. Kansas City, 75 Mo. 213. [Use of artificial means to increase the flow of natural gas to the injury of others supplied from some common reservoir, is a taking entitling to compensation. Manufacturer's G. & O. Co. v. Indiana N. G. & O. Co., 155 Ind. 461, 57 N. E. 912, 50 L. R. A. 768.

1 Varick v. Smith, 9 Paige, 547. See Yates v. Milwaukee, 10 Wall. 497.

2 Murray v. Sharp, 1 Bosw. 539. 3 Lackland v. North Missouri R. R. Co., 31 Mo. 180. See supra, p. 785, note 3. Abutters, as members of the public who have not bought by a plat, have no right of action for the obstruction of a street under State authority. Gerhard v. Seekonk, &c. Com., 15 R. I. 334, 5 Atl. 199.

4 Tonawanda R. R. Co. v. Munger, 5 Denio, 255; Woodruff v. Neal, 28 Conn. 165. In the first case it was held that a by-law of a town giving liberty to the inhabitants to depasture their cows in the public highways under certain regulations, passed under the authority of a general statute empowering towns to

pass such by-laws, was of no validity, because it appropriated the pasturage, which was private property, to the public use, without making compensation. The contrary has been held in New York as to all highways laid out while such a statute was in existence; the owner being held to be compensated for the pasturage, as well as for the use of the land for other purposes, at the time the highway was laid out. Griffin v. Martin, 7 Barb. 297; Hardenburgh v. Lockwood, 25 Barb. 9. See also Kerwhacker v. Cleveland, C. & C. R. R. Co., 3 Ohio St. 172, where it was held that by ancient custom in that State there was a right of pasturage by the public in the highways.

5 See Glover v. Powell, 10 N. J. Eq. 211; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504. Even a temporary right to the possession of lands cannot be given by the legislature without provision for compensation. San Mateo Water Works v. Sharpstein, 50 Cal. 284. A provision in the charter of a corporation that it shall not be liable for diverting water is void. Harding v. Stamford Water Co., 41 Conn. 87. [Destruction of crops planted after the location of a railway, but before condemnation or compensation, entitles the tenant planting them to compensation. Lafferty v. Schuylkill River E. S. Ry. Co., 124 Pa. St. 297, 16 Atl. 869, 3 L. R. A. 124.]

sary to the purposes of the turnpike, plank-road, or railway, is thereby passed over to the corporation, and their structure in what was before a common highway cannot be regarded as a public nuisance. But the municipal organizations in the State have no power to give such consent without express legislative permission; the general control of their streets which is commonly given by municipal charters not being sufficient authority for this purpose. When, however, the public authorities have thus assented, it may be found that the owners of the adjacent lots, who are also owners of the fee in the highway subject to the public easement, may be unwilling to assent to the change, and may believe their interests to be seriously and injuriously affected thereby. The question may then arise, Is the owner of the land, who has been once compensated for the injury he has sustained in the appropriation of his land as a highway, entitled to a new assessment for any further injury he may sustain in consequence of the street being subjected to a change in the use not contemplated at the time of the original taking, but nevertheless in furtherance of the same general purpose?

When a common highway is made a turnpike or a plank-road, upon which tolls are collected, there is much reason for holding that the owner of the soil is not entitled to any further compensa

1 See Commonwealth v. Erie & N. E. R. R. Co., 27 Pa. St. 339; Tennessee, &c. R. R. Co. v. Adams, 3 Head, 596; New Orleans, &c. R. R. Co. v. New Orleans, 26 La. Ann. 517; Chicago, &c. R. R. Co. v. Joliet, 79 Ill. 25; Donnaher's Case, 16 Miss. 649.

2 Lackland v. North Missouri R. R. Co., 81 Mo. 180; New York & Harlem R. R. Co. v. Mayor, &c. of New York, 1 Hilt. 562; Milhau v. Sharp, 27 N. Y. 611; State v. Cincinnati, &c. Gas Co., 18 Ohio St. 262; State v. Trenton, 36 N. J. 79; Chamberlain v. Elizabethport, &c. Co., 41 N. J. Eq. 43; Garnett v. Jacksonville, &c. Co., 20 Fla. 889. In Inhabitants of Springfield v. Connecticut River R. R. Co, 4 Cush. 63, it was held that legislative authority to construct a railroad between certain termini, without prescribing its precise course and direction, would not prima facie confer power to lay out the road on and along an existing public highway. Per Shaw, C. J.: "The whole course of legislation on the subject of railroads is opposed to such a construction. The crossing of public highways by railroads is obviously necessary,

and of course warranted; and numerous provisions are industriously made to regulate such crossings, by determining when they shall be on the same and when on different levels, in order to avoid collision; and, when on the same level, what gates, fences, and barriers shall be made, and what guards shall be kept to insure safety. Had it been intended that railroad companies, under a general grant, should have power to lay a railroad over a highway longitudinally, which ordinarily is not necessary, we think that would have been done in express terms, accompanied with full legislative provisions for maintaining such barriers and modes of separation as would tend to make the use of the same road, for both modes of travel, consistent with the safety of travellers on both. absence of any such provision affords a strong inference that, under general terms, it was not intended that such a power should be given." See also Commonwealth v. Erie & N. E. R. R. Co., 17 Pa. St. 339; Attorney-General v. Morris & Essex R. R. Co., 19 N. J. Eq. 386.

The