We are of the opinion that the acceptance by the plaintiffs’ testator, of the structure which the defendants substituted in place of the one removed by them, was in judgment of law a. compensation for the damages alleged to have been done to said testator. It was constructed by them for the purpose of fulfilling all' their obligations in the premises to such testator. He accepted it as such. If it has failed to prove as durable as the old *120structure, (of which there is no certain evidence,) there is no principle of law or equity which would have allowed him to complain. And certainly the plaintiffs cannot be deemed to have acquired the easement in question otherwise than as qualified by the legal effect of these acts of their devisor. But if this view be erroneous, there are other principles which are fatal to the plaintiffs’ right of recovery. The right of the plaintiffs is an easement, and is appurtenant to their mill property. It consists of the right to carry water from the Fallkill creek across the land of their testator’s grantor, to the mill. This burden or servitude was annexed to the lands of said grantor, and the defendants, in the capacity of private owners, must be deemed to have acquired their roadway in subjection to. this easement or servitude. (Lampman v. Milks, 21 N. Y. Rep. 505.)
But the general railroad act, which is expressly- made applicable to these defendants, authorizes the defendants to construct their road across or upon the water course in question, and requires them .to restore the same to its former . state, or to such a state as' not unnecessarily to have impaired its usefulness. (Laws of 1850, p. 211, § 28, subd. 5, § 49.) The charter of the defendants/contained the same provision, omitting the word “ unnecessarily.” The work was done in 1850, but whether before or after the passage of the general railroad act, does not appear. This fact, however, is not material; for if the defendants were not authorized to make the alteration, because it impaired the usefulness of the easement, they were authorized to continue the substituted structure, unless it “ unnecessarily” impaired the easement ; and they would have been liable to the devisor of the plaintiffs only for the damages which accrued between the making of the change and the passage of the general railroad act. There was no proof of any such damages.
If, then, the legislature had the power to confer this authority upon the defendants, the plaintiffs cannot complain. *121because the acts of the defendants were done under legal sanction; and the only obligation imposed upon them by law, was to do the work in a skillful manner, and not unnecessarily to impair the usefulness of the easement.
The question therefore is, whether the acts of the defendants, of which the plaintiffs complain, constitute a taking of their property, within the meaning of that provision of the constitution which requires compensation to be made for private property taken for. public use. Whatever views I might entertain of this question, if it were new, I am satisfied it is no longer an open one in this state, but has been settled by repeated adjudications. (Radcliff’s Ex’rs v. The Mayor of Brooklyn, 4 Comst, 195. Gould v. Hudson Riv. R. R. Co., 2 seld. 522. Bellinger v. N. Y. Cent. R. R. Co., 23 N. Y. Rep. 42. People v. Kerr, 27 id. 193. Corey v. Buffalo, &c. R. R. Co., 23 Barb. 482. Getty v. Hud. Riv. R. R. Co., 21 id. 617. Ely v. City of Rochester, 26 id. 133. Plant v. L. I. R. R. Co., 10 id. 26. Bradley v. N. Y. and N. H. R. R. Co., 21 Conn. Rep. 294.)
These cases establish the principle that the legislature may rightfully authorize the construction of railroads or other works of a public nature, without requiring compensation to be made to persons whose property has not actually been taken, or appropriated, for the use thereof, but who may nevertheless suffer indirect or consequential damages by the construction of such work's.
This case is clearly within the principle stated. What property of the plaintiffs has been taken or appropriated by or for the use of the defendants ? ¡None whatever. They may suffer an injury by having the easement or servitude, with which the estate of their grantor and the road- way of the defendants are burdened, impaired. But this is an injury which the property of the plaintiffs suffers .in consequence of the construction of a public work, under legal authority, and not the taking of their property. Such loss has always *122been regarded as damnum absque injuria, except in cases where, by statute, compensation is required to be made. (Vide remarks of Denio, J. 23 N. Y. Rep. 48.)
[Dutchess General Term, May 13, 1867.The judgment must be affirmed, with costs.
Scrugham, Lott and Gilbert, Justices.]