Whatever damages plaintiffs suffered were not only conjectural, but wholly consequential — incidental to the performance of a public work in a lawful and reasonably careful manner. In the facts stated in the majority opinion, I can find no *Page 96 breach of contract, no trespass, no negligence. In fact, in his oral argument, counsel for plaintiffs explicitly stated that they were not relying upon negligence as a basis for recovery. He did assert that their cause of action was predicated on § 16, Art. I, of the state constitution, which provides:
"Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt ismade to take private property for a use alleged to be public, thequestion whether the contemplated use be really public shall be ajudicial question . . ." (Italics ours.)
It is difficult to imagine a court granting an order of necessity for the taking or damaging of unborn mink. It is equally difficult to imagine that, in an action to condemn property for a public improvement, a court would consider the loss of unborn mink as an element of damage.
In any event, I think one who brings wild animals into a thickly populated community should be held to assume the risk of loss which, in whole or in part, results from their temperamental instability.
I dissent.
MILLARD, J., concurs with BLAKE, J.
GERAGHTY and ROBINSON, JJ., dissent. *Page 97