Dissenting Opinion.
Nichols, P. J.The conclusion reached by the majority of the court, in my view, results in such rank injustice to appellants, and is so subversive of the private rights of a citizen of the state, and is so contrary to the plain unequivocal declaration of the Constitution of the state, and of American Constitutions generally, that I must enter an emphatic protest to such conclusion.
The majority opinion holds, in effect, in harmony with appellee’s contention, that the facts as averred in the complaint present a case simply of a change in the grade of a street with consequential damages, and that such change, though it interfere with, or deprive appellants of their ingress and egress to their property, or through it results as averred, in a total destruction of appellants’ abutting property, is not a taking thereof for which they are entitled to compensation; that the principle involved is the same as in the case of Morris v. City of Indianapolis (1911), 177 Ind. 369, 94 N. E. 705, and that therefore we cannot reverse this case without overruling the Morris case. Of course, this.court will hardly presume to overrule the Supreme Court, but we do not need to do so in order fully to meet appellee’s conten*340tion. That case, which is the only Indiana case cited in the majority opinion, involved only the alteration or change of the grade of a street, and in such a case it has been repeatedly held in this state that there can be no compensation for damages, and appellants make no contention to the contrary. It has been held, however, that if in grading a street the lateral support to abutting land is removed, the owner may have damages, O’Brien v. City of St. Paul (1878), 25 Minn. 331, 33 Am. Rep. 470; Buskirk v. Strickland (1882), 47 Mich. 389, 11 N. W. 210; Richardson v. Vt. Cent. R. Co. (1853), 25 Vt. 465, 60 Am. Dec. 283. Appellants -do not contend that the work done by appellee which resulted in the damages complained of was without authority of law. But appellants do claim that they are entitled to compensation for the damages they have suffered, which by the allegations of the complaint, admitted for the purposes of demurrer, were $12,000. This contention, as I view the case, is not without merit.
As it seems to me, the majority of the court stumble when they undertake to make a distinction between the rights of an abutting property owner when the public has only an easement in a highway or street, and when the title to such highway or street is a fee simple in the public. In cases like the one at bar, where the private rights of the abutting property owner have been invaded, where his property has been destroyed, and where, though it were not destroyed, his right of ingress and egress has been destroyed, his recovery must be the same whether the public holds only an easement in the highway or street, or whether the public is vested with the fee simple.
In the case of Adams v. Chicago, etc., R. Co. (1888), 39 Minn. 286, 39 N. W. 629, 1 L. R. A. 493, 12 Am. St. 644, it was held that it makes no difference that the fee is not in the abutter, he has, independent of the owner*341ship of the soil, an interest in the street appurtenant to his lot. That although the fee of the street be in the state or municipality, the owner of an abutting lot has, as appurtenant to his lot, an interest or easement in the street in front of it, which is entirely distinct from the interest of the public. The authority quotes with approval from Grand Rapids, etc., R. Co. v. Heisel (1878), 38 Mich. 62, 31 Am. Rep. 306 as follows: “Every lot owner has ‘a peculiar interest in the adjacent street which neither the local nor the general public can pretend to claim; a private right in the nature of an incorporeal hereditament legally attached to his contiguous ground; an incidental title' to certain facilities and franchises/ which is in the nature of property, and which can no more be appropriated against his will than any tangible property of which he may be the owner.” After directing attention to the elevated railroad cases and citing Story v. N. Y. Elevated R. Co. (1882), 90 N. Y. 122, 43 Am. St. 146, and Lahr v. Metropolitan Elevated R. Co. (1887), 104 N. Y. 268, 10 N. E. 528, the court says: “We think that in those cases the doctrine is unqualifiedly established that * * * no matter who may own the fee, an abutting owner necessarily enjoys certain advantages from the existence of an open street adjoining his property, which belong to him by reason of its location, and are not enjoyed by the general public, such as the right of free access to his premises, and the free admission and circulation of light and air to and through his property.” In the Lahr case cited above, the spirit of the court in dealing with the question may be better understood when we note that it held that if the rights of an abutting owner may be taken from him without his consent, or without compensation, “a system has been inaugurated which resembles more nearly legalized robbery, than any other form of acquiring property.”
*342In Theobald v. L., N. O. & T. R. Co. (1889), 66 Miss. 279, 288, 6 South. 230, 231, 4 L. R. A. 735, 14 Am. St. 564, the court says: “Whether the abutting owner has simply an easement in the street, while the fee is in the publie or in some other owner, or whether he has both the fee and an easement, he is equally entitled to require, that nothing shall be done in derogation of his rights.”
In the case of Street Railway v. Cumminsville (1863), 14 Ohio St. 541, which involved the rights of abutting property owners in and to the adjacent street, the court says: “For this purpose, there is no occasion to distinguish between lands acquired for ordinary highways, leaving the fee in the owner, and lands dedicated for streets in towns, where the fee vests in the municipal corporation, in trust to answer the purposes of the use. In either case, the interest acquired and used by the public at large, is an easement, of a definite character and held for the attainment of known objects; and in either case, ‘distinct from the right of the public to the use of the street, is the right and interest of the owners of lots adjacent.' ” To the same effect, see Railway Co. v. Lawrence (1882), 38 Ohio St. 41, 48 Am. St. 419; Crawford v. Village of Delaware (1857), 7 Ohio St. 459, 469. But we do not need to look further, for our own state settled this question long ago in the case of Haynes v. Thomas (1855), 7 Ind. 38. The dedication there involved was under the act of 1818, in the Revision of 1831 p. 530, which provided that all donations or grants marked and noted as such on the plat of the town, wherein such donations or grants are made, shall be considered to all intents and purposes as general warranties, and it was held in that case that the right to use the street in a town, adjoining a lot abutting upon it, is as much property as the lot itself, and the legislature has as little power to take one away as *343the other, and that whether the act of dedication transfers the fee from the donor to the public, is not a material inquiry.
Another principle is just as effective to preserve appellants’ rights as the one which we have just discussed. It will be observed from the statement of facts in the majority opinion that appellee was the owner of twenty-two and one-half feet in front of appellants’ lots, and that it sold this tract of land to appellants’ remote grantor. It will hardly be denied, whatever may be the nature of the title that appellee holds in the highway in front of appellants’ property, that it had fully dedicated the same to the public for the use of a highway, and that such dedication preceded the time of the conveyance of the twenty-two and one-half feet to appellants’ remote grantor. It was held in Messick v. Kincaid, (1912), 147 Ky. 680, 145 S. W. 375, that a purchaser of lots on the faith of the vendor’s dedication of the street in front of them could sue to prevent the vendor from obstructing the street. And again, in Mayor & Council of Macon v. Franklin (1852), 12 Ga. 239, it was held that where a municipal corporation makes a valid dedication of land belonging to it, the dedication not only enures to the benefit of those who were purchasers before or at the time when the dedication was made, but, when made, it is for the benefit as well of all who become citizens subsequently, so that the latter may resist its revocation by such corporation, and it is an appropriation for public use forever, and all who may become members of that public are its beneficiaries, and have rights in the use which the law will protect.
In Cook v. City of Burlington (1870), 30 Iowa 94, 6 Am. St. 649, it was held that where Congress dedicated lands to public use, subsequent purchasers of lots abutting thereon possessed such an interest therein as to be *344entitled to an injunction against an absolute conveyance of the property for private purposes by the holder of the legal title.
In harmony with this principle, it has been held that by deeding lots with reference to a plan recorded by its predecessor, defendant represented that the ways shown by the plan existed, and the purchaser can enjoin incumbrance of such ways to his prejudice. Douglass v. Belknap, etc., Co. (1911), 76 N. H. 254, 81 Atl. 1086, 37 L. R. A. (N. S.) 953.
It would be a strange doctrine indeed that would permit a grantor, whether a public or a private holder, to convey real estate abutting upon a highway, which location must of necessity- enhance its value, by giving to its grantee the means of ingress and egress to his property, and thereafter the same grantor could by his own act ruthlessly, destroy such ingress and egress without compensation to the grantee.
Appellant’s property, of the value aforesaid, consisted of lots abutting on the abutment and levee or approach to the bridge, which was a highway, and public street in the town of West Lafayette, and which lots had been raised to the grade of such highway and street and valuable buildings erected thereon. There was nothing at the time of such erection, or thereafter until the unprecedented flood in March, 1913, that suggested that there would be any change in such abutment and' levee. After such unprecedented flood the appellee concluded to widen the throat of the bridge over the river, and to that end, by contract, caused the abutment, and the levee in front of appellants’ property to be removed. Appellee caused an excavation to a depth of fifty feet to be made immediately in front of and next to appellants’. property, thereby leaving appéllants’ lot without ■ support, and the soil and dirt thereof caved into the excavation. From a new abutment, which was constructed *345170 feet further west, a new bridge was built over the excavation made, which bridge instead of being of the width of eighty feet, which was the width of the old' levee which constituted the highway, was but fifty-six feet wide, thereby leaving an air space of twelve feet between the bridge and appellants’ lots. The bridge was nine feet higher than the old levee with a banister four feet high on each side made of concrete and stone. It will be seen from this that appellants’ lots, from which there was free ingress and egress before the new bridge was constructed, was thereafter absolutely cut off from any ingress or egress. The waters of the river, having free access under said new bridge, are turned against and over appellants’ lots carrying thereon vast quantities of sand, earth, and debris, and carrying away the soil. ' We cannot imagine a more complete destruction of property rights. Who desires the task of going into the presence of this wreck and ruin, which under the opinion of the majority of the court might as well have been appellants’ castle, their home, as their place of business, and, with the majority opinion as a text, of undertaking to demonstrate to appellants the beauties of American constitutions in their protection of the private rights of the citizen; as contrasted with the “rights of the king” of former days?
Section 21, Art. 1, of the Constitution of Indiana, being §66 Burns 1914, provides that no man’s property shall be taken without just compensation. This provision is for the protection of the citizen and should have a liberal construction to that end. The Supreme Court of this state, in the case of School Town of Andrews v. Heiney (1912), 178 Ind. 1, 98 N. E. 628, opinion by Myers, J., has defined a taking of property within the constitutional provisions to be “an actual interference with or disturbance of property rights, which are not merely consequential, or incidental injuries' to property, *346or property rights, as distinguished from prohibition of use, or enjoyment, or destruction of interests in property.” After citing authorities, the Supreme Court says: “It seems axiomatic in that, if property may not be physically taken without just compensation under due process of law, one cannot be deprived of its use or enjoyment for that is in effect a taking.” Appellants, as owners of the abutting lots,') had a peculiar and distinct interest in the easement of the highway or street in front thereof, which is distinguished from the interest of the general public, in that it becomes an' interest adhering to the contiguous grounds and buildings thereon, affording convenient access for their use. This interest in the street, because of appellants’ lots and buildings adjusted thereto as the street then existed, was a valuable right recognized by the law, and which cannot be taken without just compensation. Town of Rensselaer v. Leopold (1886), 106 Ind. 29, 5 N. E. 761.
In Haslett v. New Albany, etc., R. Co. (1893), 7 Ind. App. 603, 34 N. E. 845, it was held that the owner of a lot abutting- on a street in a town or city has a distinct and separate interest from the public in the easement of the street, in that his rights and interests are legally inherent in the lot itself, affording him the free and convenient use thereof. This property right cannot be taken from him or even impaired, without compensation. Numerous authorities are cited.
In Protzman v. Indianapolis, etc., R. Co. (1857), 9 Ind. 467, 68 Am. Dec. 650, it was held that the right to use and enjoy the street is an appurtenance to the lot abutting upon the street, and any injury to the appurtenance is an injury to the whole property. The court citing, Haynes v. Thomas, supra, says: “It is decided that the right of the owner of a town lot abutting upon the street, to use the street, is as much property as the lot itself; that it is appurtenant to the lot, and is protected *347by the constitution. It cannot be taken away without compensation. The lot and street adjoining, then, as to the owner of the former, would seem to constitute but one piece of property, and an injury to the latter would seem to be an injury to the former — to the whole property.”
In O’Brien v. Central Iron, etc., Co, (1902), 158 Ind. 218, 63 N. E. 302, 57 L. R. A. 508, 92 Am. St. 305, the action was for damages for the obstruction of a street. The lower court had sustained a demurrer to the complaint for damages, and the Supreme Court, reversing the lower court, says: “The abutter * * * has an individual property right, appendant to his premises, in that part of the street which is necessary to free and convenient egress and ingress- to his property. That this latter right is private and personal and unshared by the community, and cannot be taken away, or materially interfered with, without the wrong-doer being answerable in damages, had been many times declared by this court.” Many authorities are cited. It is not contended that appellee was a wrong-doer, but the principle as to compensation is the same. The street or highway had been just as effectually obstructed, and appellants’ egress and ingress just as effectually cut off, as if there had been a vacation of the street. There was a complete abandonment of the highway so far as appellants were concerned, and this, together with the destruction of their property, amounted to a taking of the same, under the authorities above cited.
In Indianapolis, etc., Co. v. Smith (1876), 52 Ind. 428, it was held that the railroad company is liable in damages for injury occasioned by reason of the construction of a raised railroad track along the'street of the city, thereby causing the water from the rains and freshets to flow upon adjacent real estate; and also for injury occasioned by reason of the construction of an *348embankment on a street approaching a street crossing of said track, in front of a lot in a city occupied by a dwelling house, thereby rendering the approach to the lot in front of such street impossible for carriages, 'wagons and vehicles and inconvenient for foot passengers.
The case of Dantzer v. Indianapolis, etc., R. Co. (1894), 141 Ind. 604, 39 N. E. 223, 34 L. R. A. 769, 50 Am. St. 343, is in harmony with the principle here announced, though deciding against the property owner who had sued for injunction. It is there stated that: “The property rights of the lot owner, as against the public, are coterminous with the lines of his lot, but that property right may be obstructed and its uses defeated by cutting off ingress and egress to and from such lines from points upon the street beyond such lines. In such case there should be and is a remedy.” The relief there sought was by injunction, but the court held that there was a remedy at law. Certainly, then, there should be a remedy for cutting off egress and ingress immediately at such property lines.
In the case of Oler v. Pittsburgh, etc., R. Co. (1916), 184 Ind. 431, 111 N. E. 618, citing with approval Haynes V. Thomas, supra, it was held that the private right of egress and ingress of an abutter was one which the legislature itself could not take away, and with it take away the right to compensation for the deprivation.
Other authorities discuss the principle, many of which are cited from the above authorities. I deem it sufficient in reaching the conclusion as to this principle to which I must come, to consider only Indiana authorities. But the principle as declared in Indiana is in harmony with the great weight of authorities in the other states.
In 20 C. J. §156, the general principle is stated thus: “While the owner of a lot abutting on a public street has *349the same right to the use of the street, that rests in the public, he at the same time has other rights which are special and peculiar to him, and the right of ingress and egress is one of them. The right of access is appurtenant to his lot and is private property; to destroy that right is to damage his property, and when this is done for the public good, just compensation must be made therefor. When, therefore, a person owns a lot which abuts upon a portion of a street which is vacated, so that access to the lot is shut off, he is entitled to compensation.” Many authorities are cited sustaining the foregoing principle.
In Hooker v. New Haven and Northampton Co. (1843), 14 Conn. 146, 15 Conn. 312, 36 Am. Dec. 477, it is held that if a public work is of a character necessarily to disturb the occupation and enjoyment of his estate, by one whose land is not taken, he may have an action on the case for such injury notwithstanding the statute makes no provision.
In Reardon v. San Francisco (1885), 66 Cal. 492, 6 Pac. 317, 56 Am. St. 109, it was held that the word “damaged” embraces more than physical invasions of property. It is not restricted to cases where the owner is entitled to recover as for a tort at common law. The language is intended to cover all cases even those in which, in the proper execution of a public work or purpose, the right or property of any person in a pecuniary way may be injuriously affected.
It will be observed that many cases from the Supreme Court of the State of Illinois are cited and discussed in the majority opinion. We do not find it necessary to review each of these cases, but only to cite from that state cases which are directly in point with the case at bar.
In Rigney v. City of Chicago (1881), 102 Ill. 64, it was held that where a city constructed a viaduct or *350bridge on a public street, near its intersection with another street, thereby cutting off access to the first named street from the plaintiff’s house and lot, over and along the street intersected, except the means of a pair of stairs whereby the plaintiff’s premises fronting on the latter street and near the obstruction were permanently damaged and depreciated in value by reason of being deprived of such access, it was held that the city was liable to the plaintiff in damages for the injury. Dickey, C. J., in a concurring opinion says: “It is not every change in grade made in a street which may in effect impair the value of the lot in its vicinity, which is a violation of a right of a proprietor thereof. Such changes in a street as it may reasonably be supposed might be made for the improvement of a public highway, the purchaser of a lot upon the street must be assumed to have consented to when the purchase was made. The making of such changes is not therefore, an invasion of his right in that regard. But it cannot be assumed that the purchaser gave his assent to sudden and extraordinary changes in the grade of a public highway such as it is unreasonable to suppose ’the purchaser at the time of the original sale, or when he made improvements would naturally anticipate might be required for the improvement of the public highway. To make such changes is an invasion of the right of the lot owner, and is the exercise of a power under this right in the nature of an easement spoken of, and if the value of the property and the property is really impaired thereby, in such case the injury of the lot is the damage which under our constitution must be compensated.”
In Nevins v. City of Peoria (1866), 41 Ill. 502, 89 Am. Dec. 392, it is held that: “And if it should become necessary for the interest of the public, in the process of grading or drainage of the streets, that the lot of an individual shall be rendered unfit for occupancy, either *351wholly or in part, the public should pay for it to the extent to which it deprives the owner of its legitimate use. The constitutional provision that private property shall not be taken for public use without due compensation, applies as well to secure the payment for property partially taken for the use or convenience of a street, as when wholly taken and converted into a street. The question of the degree to which the property is taken, makes no difference in the application of the principle. Private rights are never to be sacrificed to public convenience or necessity, without full compensation. And it appears, that, for injuries done to the property of an individual in the process of grading and drainage of a street, * * *, he may have his action on the case against the city, and it must respond in danSiges.” See, also, City of Pekin v. Brereton (1873), 67 Ill. 477, 16 Am. Rep. 629; City of Pekin v. Winkel (1875), 77 Ill. 56; City of Elgin v. Eaton (1876), 83 Ill. 535, 25 Am. Rep. 412; Stack v. City of East St. Louis (1877), 85 Ill. 377, 28 Am. Rep. 619.
In the case of Chicago v. Taylor (1888), 125 U. S. 161, 31 L. Ed. 638, the court cited with approval the case of Rigncy v. City of Chicago, supra, and held that under the constitution of that state it is not necessary that the damage should be caused by trespass or an actual physical invasion of the owner’s real estate, if the construction and operation of the railroad or other improvement is the cause of the damage, though consequentially.
The majority opinion relies in part for the conclusion which it has reached upon the case of Bradbury v. Walton (1893), 94 Ky. 163, 21 S. W. 869. This case involved the question of the vacation of a county public highway that was lateral to a turnpike and by the statute of that state was discontinued. We do not need to discuss the merits of this case for an examination dis*352closes that it is not in point. It must be kept in mind that in the case at bar we are dealing with lots that were abutting upon a public highway that was a street. In the Bradbury case from which the majority opinion has quoted so extensively we quote this principle of law: “Streets of a town or city are acquired by grant with the implied right of ingress and egress to the abutting lot owner, the grantor, or the party making the dedication, saying to the owners of the lots: ‘This right of ingress and egress you shall have.’ ” This principle was early declared by the courts of Kentucky to be the fundamental law of that commonwealth.
In the case of Transylvania University v. City of Lexington (1842), 3 B. Munroe 25, the court on p. 27, says: “Every owner of ground on any street in Lexington, has the right, as inviolable as it is indisputable, to the common and unobstructed use of the contiguous highway, so far as it may be necessary for affording him certain incidental easements and services, and a convenient outlet to other streets. And of this right, the Legislature cannot deprive him, without his consent; or a just compensation in money. The extent of this appurtenant right, depending on circumstances, may not, in the particular case, be easily definable with mathematical precision. So far as it exists, however, it partakes of the character of private property, and is therefore protected by the fundamental law, as property.” This principle is sustained in the case of Gargan v. Louisville, etc., R. Co. (1889), 89 Ky. 212, 12 S. W. 259, 6 L. R. A. 340, where it was held that when the closing up of one end of a street or alley leaves to the owner of property bordering upon the street or alley no convenient or reasonable means of access to other streets to which he has theretofore had convenient access, he is entitled to his action for damages, and that the city cannot either for its own use, or for the use of a private *353corporation appropriate the street to the injury of the property holder without making just compensation. The Transylvania case above quoted is cited with approval in the case of Illinois, etc., R. Co. v. Elliott (1908), 129 Ky. 121, 128, and Henderson v. City of Lexington (1909), 132 Ky. 390, 409, 111 S. W. 318, 22 L. R. A. (N. S.) 20. On the principle here involved the heart of the Kentucky court is right, and is in harmony with the principle announced in 1 Elliott, Roads and Streets (3d ed.) §488, where the author says: “Individual owners of abutting property have a private interest in the highway distinct from the public, of which they cannot be deprived without compensation. Of this they cannot be deprived by any use that destroys the character of the road or street as a way for free and unobstructed passage.” To sustain this principle so stated the author cites Cummins v. City of Seymour (1881), 79 Ind. 491, where the court on p. 501, says: “It is equally well settled that where one does sustain a special injury, different in character from that sustained by the public, he may have his action. Ross v. Thompson, 78 Ind. 90.”
In the case of Pumpelly v. Green Bay Company (1871), 13 Wall. 166, 20 L. Ed. 557, from the Supreme Court of the United States, where the court in discussing a like constitutional provision of the State of Wisconsin to the one here involved, with interpretation that protects the citizen’s private rights, says: “It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond *354the power of ordinary legislation to change or control them, it shall be held that if the government refrain from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable, and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.”
It is argued that the action of appellee in widening the throat of the bridge was an exercise of the police power, and that therefore there can be no recovery for the loss sustained, in other words, that such an injury is damnum absque injuria; but this argument cannot prevail.
In 20 C. J. p. 689, §152, it is stated as a general principle that: “Any occupation or use of a street or highway which obstructs the same so as to destroy or materially impair the easements of ah abutting owner is a taking of, or injury to, private property entitling such owner to compensation, although such occupation or use is authorized by the legislature or the municipal authorities, or the obstruction, is erected by the city in the exercise of its police power.” This principle is there sustained by many authorities.
Again, it is stated in 1 Dillon, Municipal Corporations (5th ed.) §302, as follows: “All-embracing and penetrating as the police power of the State is, and of necessity must be, it is nevertheless subject, liké all other legislative powers, to the paramount authority of the *355State and Federal Constitutions. A fight conferred or protected by the Constitution cannot be overthrown or impaired by any authority derived from the police power.”
The principle is illustrated by the case of City of Chicago v. Le Moyne (1902), 119 Fed. 662, 56 C. C. A. 278, which was a case involving the construction of a viaduct in a street, and the court held that “The contention that the construction of the viaduct was in the legitimate exercise of the police power of the city, and that any damage to property thereby occasioned is damnum absque injuria, notwithstanding the constitutional provision that ‘private property shall not be taken or damaged for public use without just compensation,’ cannot be sustained. The question is set at rest by the recent decision of the supreme court of Illinois, in City of Chicago v. Jackson (as yet unreported officially), 63 N. E. 1013, holding, with Judge Dillon, that ‘a right conferred or protected by the constitution cannot be overthrown or impaired by any authority derived from the police power.’ ”
In re Cheesebrough (1879), 78 N. Y. 232, 237, it is said that: “The interference with property under the police power may be justified in most cases by the application of the principle that one shall so use his own property as not to injure or endanger the property or health, or disturb unnecessarily the peace and comfort of his neighbor. But there never can be any necessity under the police power or the law of necessity to permanently appropriate land to the public use without compensation.”
When I consider that along with the destruction of the means of ingress and egress there was in this case a destruction of the property from which there had been an ingress and egress, thereby totally annihilating appellants’ property rights, I must say that it would be *356strange reasoning indeed that would undertake to justify such an invasion without compensation by the government, of the private rights of one of its citizens, even though such an invasion be in the exercise of police power.
I have already quoted from Pumpelly v. Green Bay, etc., Co., supra, but before closing this dissenting opinion I must again advert to that opinion. On p. 180, Miller, C. J., says: “We are not unaware of the numerous cases in the State courts in which the doctrine has been successfully invoked that for a consequential injury to the property of the individual arising from the prosecution of improvements of roads, streets, rivers, and other highways, for the public good, there is no redress; and we do not deny that the principle is a sound one, in its proper application, to many injuries to property so originating. And when, in the exercise of our duties here, we shall be called upon to construe other State constitutions, we shall not be unmindful of the weight due to the decisions of the courts of those States. But we are of opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle, and, in some cases, beyond it, and that 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 to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle.”
I am pleased to declare myself in harmony with this clear expression of judicial acumen, and for the purposes of this opinion to emphasize that part of it that opines that the decisions holding no redress, have gone *357to the uttermost limit of sound judicial construction in favor of the principle, and to assert that the majority-opinion in this case is among the cases that have gone beyond it.
These are troublous times, when enemies from without and from within, taking advantage of the turmoil of war and its aftermath, would strike down our American constitutions, both federal and state, days so ominous that those who fought to save our country from the hand of the aggressor and to vindicate its honor, have deemed it imperative that they organize to preach Americanism and the supremacy of constitutional law. But they must be hindered in their patriotic efforts, if, while they proclaim American liberty and rights, the courts by judicial misinterpretation of constitutional rights, take from the private citizen his property, without due process and compensation — in this case of the value of $12,000, and for aught that appears, their all. With equal plausibility, the citizen’s liberty or life may be taken.
Under the facts in this case, and in view of the plain provisions of the Constitution, I must stand for the constitutional rights of the private citizen and I, therefore, dissent from the majority opinion.
The demurrers to the respective paragraphs of complaint should be overruled.