dissenting.
I regret that I am unable to agree with the judgment of the court, and as it seems to me to involve important principles I think it advisable to express my disagreement and to give my reasons for it.
The' plaintiff owns no soil within the limits of the avenue. *572The New York and Harlem Railroad Company at the time of the change was and long had been the owner, and the other defendant was the lessee of a railroad with four tracks along the middle of Park avenue, in front of the plaintiff’s land, at the soúth end being at the surface of the avenue, and at the north in a trench about four feet and a half deep, the railroad being bounded on both sides by a masonry wall three feet high, which prevented crossing or access to the tracks. This is . the finding of the court of first instance and I take it to be binding upon us. We have nothing to do with the evidence. I take it to mean the same thing as the finding in Fries v. New York & Harlem R. R., 169 N. Y. 270, that the defendants had “acquired the right without liability to the plaintiff to have, maintain and use their railroad and railroad structures as the same were maintained and used prior to February 16, 1897.” The material portion of the decision of the Court of Appeals is that on this state of facts, as was held in the similar ease of Fries v. New York & Harlem R. R., the plaintiff had no property right which was infringed in such a way as to be anything more than damnum absque injuria. The finding that the railroad had the right to maintain the former structures was held to distinguish' the case from the elevated railroad cases, where pillars were planted in the street without right as against the plaintiff. Story v. New York Elevated R. R., 90 N. Y. 122, 160, 170, 178; Lahr v. Metropolitan Elevated Ry., 104 N. Y. 268. The other so-called finding, that the new structure infringes the plaintiff’s right, is merely a ruling of law that notwithstanding the facts specifically found the plaintiff has a cause of action by reason of his being an abutter upon a public street.
The plaintiff’s rights, whether expressed in terms of property or of contract, are all a construction of the courts, deduced by way of consequence from dedication to and trusts for the purposes of a public street. They never were granted to him or his predecessors in express words, or, probably, by any conscious implication. If at the outset the New York courts had *573decided that apart from statute or express grant the abutters on a street had only the rights of the public and no private easement of any kind, it would have been in no way amazing: It would have been very possible to distinguish between the practical commercial advantages of the expectation that a street would remain open and a right in rem that it should remain so. See Stanwood v. Malden, 157 Massachusetts, 17. Again, more narrowly, if the New York courts had held that an easement of light and air could be created only by express words, and that the laying out or dedication of a street, or the grant of a house bounding upon one, gave no such easement to abutters, they would not have been alone in the world of the common law. Keats v. Hugo, 115 Massachusetts, 204, 216. The doctrine that abutters upon a highway have an easement of light-and air is stated as a novelty in point of authority in Barnett v. Johnson, 15 N. J. Eq. 481, 489, and that case was decided in a State where it was held that a like right might be acquired by prescription. Robeson v. Pittenger, 1 Green Ch. 57.
If the decisions, which I say conceivably might have been made, had been made as to the common law, they would have infringed no rights under the Constitution of the United States. So much, I presume, would be admitted by every one. But if that be admitted, I ask myself what has happened to cut down the power of the same courts as against that same Constitution at the present day. So far as I know the only thing which has happened is that they have decided the elevated railroad cases, to which I have referred. It is on that ground alone that we arc asked to review the decision of the Court of Appeals upon what otherwise would be purely a matter of local law. Tn other words, we are asked to extend to the present case-the principle Of Gelpcke v. Dubuque, 1 Wall. 175, and Louisiana v. Pilsbury, 105 U. S. 278, as to public bonds bought on the faith of a decision that they were constitutionally issued. . That seems to me a great, unwarranted and undesirable extension of a doctrine which it took this court a good while do explain. The doctrine now is explained, however, *574not to mean that a change in the decision impairs the obligation of contracts, Burgess v. Seligman, 107 U. S. 20, 34; Stanly County v. Coler, 190 U. S. 437, 444, 445, and certainly never has been supposed to mean that all property owners in a State have a vested right that no general proposition of law shall be reversed, changed or modified by the courts if the consequence to them will be more or less pecuniary loss. I know of no constitutional principle to prevent the complete reversal of. the elevated railroad cases to-morrow, if it should seem proper to the Court of Appeals. See Central Land Co. v. Laidley, 159 U. S. 103.
But I conceive that the plaintiff in- error must go much further than to say that my last proposition is wrong. I think he must say that he has a constitutional right not only that the state courts shall not reverse their earlier decisions upon a matter of property rights, but that they shall not distinguish them unless the distinction is so fortunate as to strike a majority of this court as sound. For the Court of Appeals has not purported to overrule the elevated railroad cases. It simply has decided that the import and the intent of those cases does not extend to the case at bar. In those cases the defendants had impaired the plaintiff’s access to the street. It is entirely possible and consistent with all that they decided to say now that access is the foundation of the whole matter; that the right to light and air is a parasitic right incident to the right to have the street kept open for purposes of travel, and that when, as here, the latter right does not exist the basis of the claim to light and air is gone.
• But again, if the plaintiff had an easement over the whole street he got it as a tacit incident of- an appropriation of the street to the uses of the public. The legislature and the Court of Appeals of New York have said that the statute assailed was passed for the benefit of. the public using the street; and I accept their view. The most obvious* aspect of the change is that the whole street now is open to travel, and that an impassable barrier along its width has been removed, in other *575words, that the convenience of travellers on the highway has been considered and enhanced. Now still considering distinctions which might be taken between this and the earlier cases, it was possible for the New York Courts to hold, as they seem to have held, that the casement which they laid declared to exist is subject to the fullest exercise of the primary right out of which it sprang, and that any change in the street for the benefit of public travel is a matter of public right, as against what I have called the parasitic right which the plaintiff claims. Scranton v. Wheeler, 179 U. S. 141; Gibson v. United States, 166 U. S. 269.
The foregoing distinctions seem to me not wanting in good sense. Certainly I should have been inclined to adopt one or both of them, or in some way .to avoid the earlier decisions. But I am not discussing the question whether they are sound. If my disagreement was confined to that I should be silent. I am considering what there is in the Constitution of the United States forbidding the Court of Appeals'to hold them sound. I think there is nothing; and there being nothing, and the New York decision obviously not having been given its form for the purpose of evading this court, I think wo should respect and affirm it, if we do not dismiss the case.
What the plaintiff claims is really property, a right in reni. It is called contract merely to bring it within the contract clause of the Constitution. It seems to me a considerable extension of the power to determine for ourselves what the contract is,-, which we have assumed when it is alleged that the obligation of a contract has been impaired, to say that we will make the same independent determination when it is alleged that property is taken without due compensation. But it seems to me that it does not help the argument. The rule adopted as to contract is simply a rule to prevent an evasion of the constitutional limit to the power of the States, and, it seems to me, should not be extended to a case like this. Bearing in mind that, as I have said, the plaintiff’s rights, however expressed, are wholly a construction of Hip murta. I cannot *576believe that whenever the Fourteenth Amendment or Article I, section 10, is set up we are free to go behind the local decisions on a matter of land law, and, on the ground that we decide what the contract is, declare rights to exist which we should think ought to be implied from a dedication or location if we were the local courts. I cannot believe that we are at liberty to create rights over the streets of Massachusetts, for instance, that never have been recognized there. If we properly may do that, then I am wrong in my assumption that if the New York Courts originally had declared that the laying out of a public way conferred no private rights we should have had nothing to say. But if I am right, if we are bound by local decisions as to local rights in real estate, then we .equally are bound by the distinctions and the limitations of those rights declared by the local courts. If an exception were established in the case of a decision which obviously was intended to evade constitutional limits, I suppose I may assume that such an evasion would not be imputed to a judgment which four Justices of this court think right.
As Í necessarily have dealt with the merits of the case for the purpose of presenting my point, I will add one other consideration. Suppose that the plaintiff has an easement and that it has been impaired, bearing in mind that his damage is in respect of light and air, not access, and is inflicted for the benefit of public travel, I should hesitate to say that in inflicting it the legislature went beyond the constitutional exercise of the police power. To a certain and to an appreciable excent the; legislature may alter the lav of nuisance, although property is affected. To a certain and to an appreciable extent the use of particular property may be limited without compensation. Not every such limitation, restriction or diminution of value amounts to a taking in a constitutional sense. I have a good deal of doubt whether it has been made to appear that any right of the plaintiff has been taken or destroyed for which compensation is necessary under the Constitution of the United States. Scranton v. Wheeler, 179 U. S. 141; Meyer v. *577Richmond, 172 U. S. 82. See Mugler v. Kansas, 123 U. S. 623, 668; Marchant v. Pennsylvania R. R., 153 U. S. 380; Camfield v. United States, 167 U. S. 518, 523; People v. D'Oench, 111 N. Y. 359, 361; Sawyer v. Davis, 136 Massachusetts, 239; Commonwealth v. Alger, 7 Cush. 53. Compare United States v. Lynah, 188 U. S. 445, 470.
I am authorized to say that the Cm me Justice, Mr. Justice White and Mr. Justice Beckham concur in the foregoing dissent.