Eaton’s case will be considered first.
It is virtually conceded that, if the cut through the ridge had been made by a private land-owner, who had acquired no rights from the plaintiff or from the legislature, he would be liable for the damages
In support of the first ground, the defendants rely upon the plaintiff’s release, and upon the appraisal of damages under the statute.
The release does not support the defendants’ claim. The plaintiff released the defendants from damages on account of the laying out of the railroad through and over his land. The damages which the court ruled that the plaintiff would be entitled to recover were not occasioned by the laying out of the road over the plaintiff’s land, but by the construction of the road over the land of other persons. See Delaware & Raritan Canal Co. v. Lee, 2 Zabriskie 243. The ruling was, that the plaintiff could recover such damages as have been caused him in consequence of the defendants’ cutting away the ridge north of the plaintiff’s farm.
The defendants contend that the statute, providing for the appraisal of damages, authorized and required the appraisers to take into consideration any and all injury or damage which then, or in the future, might accrue to the plaintiff by reason of the cut through the high ridge, and to include the same in their award ; and that therefore the appraisal and subsequent payment furnish a complete bar to this action. The plaintiff concedes that, if the appraisers had authority to include this damage in their award, it must be presumed that they did so. See Aldrich v. Cheshire Railroad Co., 21 N. H. 359. Whether the appraisers had such authority depends, of course, upon the construction of the statute. By the statute in force when this railroad was built, it is enacted that the commissioners and selectmen “ shall assess the damages sustained by the owners of land in the same way and manner as road commissioners in the several counties are now by law required to do.” Comp. Stats., ch. 150, sec. 10. The road commissioners are to assess the damages sustained by owners of land “ as selectmen are required to do.” Comp. Stats., ch. 54, sec. 7. And selectmen “ shall assess the damages sustained by each owner of the land required for such highway.” Comp. Stats., ch. 52., sec. 16;—see, also, Blake v. Rich, 34 N. H. 282, pp. 285, 286; Dearborn v. B. C. & M. R. R., 24 N. H. 179, 185, 186.
If it be conceded that the legislature ought to have provided for the assessment of such damages, this undoubtedly presents a consideration to be weighed in determining the meaning of their language, but it does not absolutely necessitate the conclusion that they have made such provision. “ It is only in case of some reasonable' doubt of the meaning of the legislature, founded in the language of the act,” that such a consideration can control the court in its construction. And the omission to provide for this case does not necessarily involve the imputation that the legislature deliberately intended to transcend their constitutional power. .It is not altogether improbable that the con
Decisions in other jurisdictions, upon the construction of statutes differing in phraseology from our own, are not in point. See Indiana Central R. Co. v. Boden, 10 Indiana 96; Wabash & Erie Canal v. Spears, 16 Indiana 441; Davison, J., in Evansville & Crawfordsville R. R. Co. v. Dick, 9 Indiana 433, p. 435; Green, C. J., in Delaware & Raritan Canal Co. v. Lee, 2 Zabriskie 243, p. 249; Regina v. Eastern Counties Railway, 2 Queen’s Bench 347; Dodge v. Com'rs, 3 Metcalf 380; Whitehouse v. Androscoggin R. R. Co., 52 Maine 208; Parker v. B. & Me. R. R., 3 Cush. 107. If the construction of the statute in question has not already been settled adversely, to the plaintiff by a decision in this State, the court are unanimously of opinion that the statute should be construed as not authorizing an appraisal of the damages covered by the ruling in this case, and that the appraisal consequently does not bar the action. I am not prepared to say that the decision in Concord R. R. v. Greely, 23 N. H. 237, is not an authority for the defendants on this point; but no other member of the court is inclined to regard it in that light, and it is therefore unnecessary to consider whether, if it were held to be in point, the court ought to go to the length of overruling it. (As the decision in Concord R. R. v. Greely was not made until December, 1851, it seems that it could not have affected the appraisal in question.) It is satisfactory to know that our view that these damages were not included in the appraisal coincides with the contemporary understanding of the defendants. Of this, the language of the release affords conclusive evidence. It is obvious that the release does not include the damages in question; and
The defendants’ first position is, that the plaintiff' has already received compensation for this damage. This position the court have now overruled. The defendants’ next position is, that the plaintiff is not legally entitled to receive any compensation, but is bound to submit to the infliction of this damage without any right of redress. The argument is not put in the precise words we have just used, but that is what we understand them to mean. The defendants say that the legislative charter authorized them to build the road, if they did it in a prudent and careful manner; that they constructed the road at the cut with due care and prudence; and that they cannot be made liable as tort-feasors for doing what the legislature authorized them to do. This involves two propositions : first, that the legislature have .attempted to authorize the defendants to inflict this injury upon the plaintiff without making compensation ; and second, that the legislature have power to confer such authority. There áre decisions which tend to showThat the charter should not be construed as evincing any legislative intention to authorize this injury, or to shield the defendants from liability in a common law action. Tinsman v. Belvidere Delaware R. R. Co., 2 Dutcher N. J. 148; Sinnickson v. Johnson, 2 Harr. N. J. 129; Hooker v. New Haven & Northampton Co., 14 Conn. 146; Fletcher v. Auburn & Syracuse R. R. Co., 25 Wendell 462; Brown v. Cayuga & Susquehanna R. R. Co., 12 N. Y. (2 Kernan) 486, p. 491;—see, also, Eastman v. Company, 44 N. H. 143, p. 16; Hooksett v. Company, 44 N. H. 105, p. 110; Company v. Goodale, 46 N. H. 53, p. 57; Barrows, J., in Lee v. Pembroke Iron Co., 57 Maine 481, p. 488. But we propose to waive inquiry on this point, and to' consider only the correctness of the second proposition, or, in other words, the question of legislative power.
The defendants cannot claim protection under an implied power, where an express power would be invalid: the legislature cannot do indirectly what they cannot do directly. Unless an express provision in the charter, authorizing the infliction of this injury without making compensation, would be a valid exercise of legislative power, -the defendants cannot successfully set up the plea that the injury was necessarily consequent upon the exercise of their chartered powers, and therefore impliedly authorized. The defence, then, really presents this question : Have the legislature power to authorize the railroad corporation to divert the waters of the river, by removing a natural barrier, so as to cause the waters “ sometimes in floods and freshets ” to flow over the plaintiff’s land, “ carrying sand, gravel, and stones” upon his farm, without making any provision for his compensation ?
Although the constitution of this State does not contain, in any one clause, an express provision requiring compensation to be made when private property is taken for public uses, yet it has been construed by
The vital issue then is, whether the injui’ies complained of amount to a taking of the plaintiff’s property, within the constitutional meaning of those terms. It might seem that to state such a question is to answe it; but an examination of the authorities reveals a decided conflict ( opinion. The constitutional prohibition (which exists in most, or all of the States) has received, in some quarters, a construction which renders it of comparatively little worth, being interpreted much as if it read, — “'No person shall be divested of the formal title to pix perty without compensation, but he may, without compensation, be deprived of all .that makes the title valuable.’’^! To constitue a “taking of property,” it seems to have sometimes been held necessary that there should be “ an exclusive appropriation,” “ a total .assumption of possession,” “ a complete ouster,” an absolute or total conversion of the entire property, “ a taking the property altogether.” These views seem to us to be founded on a misconception of the meaning of the term “ property,” as used in the various State constitutions.
In a strict legal sense, land is not “ property,”^but the subject of property. The term “ property,” although in common parlance frequently applied to a tract of land or a chattel, in its legal signification “means only the rights of the owner in relation to it.” “It denotes a right * * * * * over a determinate thing.” ("Property is the right of any person to possess, use, enjoy, and dispose of a thing.”/ Seldon, J., in Wynehamer v. The People, 13 N. Y. 378, p. 433; 1 Blackstone Com. 138; 2 Austin on Jurisprudence, 3d ed., 817, 818. If property in land consists in certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference “ takes,” pro tanto, the owner’s “ property.” The right of indefinite user (or of using indefinitely) is an essential quality or attribute of absolute property, without which absolute property can have no legal existence. Use is the real side of property.” | This right of user necessarily includes the right and power of excluding others from using the land. See 2 Austin on Jurisprudence, 3d ed., 836; Wells, J., in Walker v. O. C. W. R. R., 103 Mass. 10, p. 14. From the very nature of these rights of user and of exclusion, it_ is evident that they cannot be materially abridged without,-ipso facto, taking the owner’s “ property.” If the righTof indefinite user is an essential element of absolute property
If, on the other hand, the land itself be regarded as “ property,” the practical result is the same. The purpose- of this constitutional prohibition cannot be ignored in its interpretation. The framers of the constitution intended to protect rights which are worth protecting; not mere empty titles, or barren insignia of ownership; which are of no substantial value. If the land,|“ in its corporeal substance and entity,” is “ property,” still, aU that makes thisjn’operty of anyjralue is the aggregation of rights" of* qualities wTiich the law annexes as incidents to tTie ownership of Itry The constitutional prohibition must have-been mfeiidecTfo protect all the essential elements of ownership which make “ property ” valuable. Among these elements is, fundamentally, the right of user, including, of course, the corresponding right of excluding others from the use. See Comstock, J., in Wynehamer v. The People, 13 N. Y. 378, p. 396. A physical interference with the land, which substantially abridges this right, takes the owner’s “ property” t<^^Tso~greaFah’Axteht)ashe is thereby deprived of this right. “ To deprive one of the use of his land is depriving him of his laud ; ” for, as Lord Coeb said, — “IWhat is the land but the profits thereof? Sutherland, J., in People v. Kerr, 37 Barb. 357, p. 399; Co. Litt., 4 b. The private injury is thereby as completely effected as if the land itself were physically taken away.”
The principle must be the same whether the owner is wholly deprived of the use of his land, or • only partially deprived of it; although the amount or value of the property taken in the two instances may widely differ. If the railroad corporation take a strip four rods wide out of a farm to build their track upon, they cannot escape paying for the strip by the plea that they have not taken the whole farm. So a partial, but substantial, restriction of the right of user may not annihilate all the owner’s rights of property in the land, but it is none the less true that a part of his property is taken. ( Taking a part “ is as much forbidden by the constitution as taking the whole.) The difference is only one of degree ; the quantum of interest may vary, but the principle is the same.” See 6 Am. Law Review 197-198; Lawrence, J., in Nevins v. City of Peoria, 41 Illinois 502, p. 511. The explicit language used in one clause of our constitution indicates the spirit of the whole instrument. “ No part of a man’s property shall be taken * * * *
The injury complained of in this case is not a mere personal inconvenience or annoyance to the occupant. Two marked characteristics distinguish this injury from that described in many other cases. First, it is a physical injury to the land itself, a physical interference with the rights of property, an actual disturbance of the plaintiff’s possession. Second, it would clearly be actionable if done by a private person without legislative authority. The dafhage is “ consequential,” in the sense of not following immediately in point of time upon the act of cutting through the ridge, but it is what Sir William ERLE calls “ consequential damage to the actionable degree.” See Brand v. H. & C. R. Co., Law Reports, 2 Queen’s Bench 223, p. 249. These occasional inundations may produce the same effect in preventing the plaintiff from making a beneficial use of the land as would be caused by a manual asportation of the constituent materials of the soil. Covering the land with water, or with stones, is a serious interruption of the plaintiff’s right to use it in the ordinary manner. If it be said that the plaintiff still has his land, it may be answered, that the face of the land does not remain unchanged, and that the injury may result in taking away part of the soil (“ and, if this may be done, the plaintiff’s dwelling-house may soon follow ”) ; and that, even if the soil remains, the plaintiff may, by these occasional submergings, be deprived of the profits which would otherwise grow out of his tenure. “ His dominion over it, his power of choice as to the uses to which he will devote it, are materially limited.” Brinkerhoff, J., in Reeves v. Treasurer of Wood County, 8 Ohio St. 333, p. 346.
The nature of the injury done to the plaintiff may also be seen by adverting to the nature of the right claimed by the defendants. The primary purpose of the defendants in cutting through the ridge was to construct their road at a lower level than would otherwise have been practicable. But, although the cut was not made “ for the purpose of conducting the water in a given course” on to the plaintiff’s land, it has that result; and the defendants persist in allowing this excavation to remain, notwithstanding the injury thereby visibly caused to the plaintiff. Rather than raise the grade of their track, they insist upon keeping open a canal to conduct the flood waters of the river directly on to the plaintiff’s land. If it be said that the water came naturally from the southerly end of the cut on to the plaintiff’s land, the answer is, that the water did not come naturally to the southerly end of the cut. It came there by reason of the defendants’ having made that cut. In consequence of the cut, water collected at the southerly boundary of the ridge, north of the plaintiff’s farm, which would not have been
If it should be held that the legislature had conferred a valid authority upon the defendants to make this cut, if necessary to the construction of the railroad, or if made with care and skill, the question of necessity or of care would become material, and might have to be decided by a jury. (See Johnson v. Atlantic & St. L. R. Co., 35 N. H. 569; Estabrooks v. P. & S. R. Co., 12 Cush. 224; Mellen v. Western R. R., 4 Gray 301; Curtis v. Eastern R. R., 14 Allen 55; same case, 98 Mass. 428.) But in the view now taken, these questions are immaterial. The defendants are not held liable, as in some other cases, because their acts were unnecessary, or unskilful, and hence not within the contemplation of the charter. They are held liable, irrespective of any negligence on their part, on the ground that it was beyond the power of the legislature to authorize the infliction of this injury othe plaintiff, without making provision for his compensation.
In some instances, as soon as it has been made to appear that there is a legislative enactment purporting to authorize the doing of the act complained of, the complaint has been at once summarily disposed of by the curt statement “ that an act authorized by law cannot be a tort.” This is begging the question.” It assumes the constitutionality of the statute. If the enactment is opposed to the constitution, it ,is “ in fact no law at all.” “ The term unconstitutional law, in American jurisprudence, is a misnomer, and implies a contradiction.” “ The will of the legislature is only law when it is in harmony with, or at least is not opposed to, that controlling instrument which governs the legislative body equally with the private citizen.” Cooley’s Constitutional Limitations, 1st ed., pp. 3, 4. The error in question originates in a “ fallacy of reference.” It arises from following English authorities, without adverting to the immense difference between the practically omnipotent powers of the British parliament and the comparatively limited powers of our State legislatures, acting under the restrictions of written constitutions. Parliament is the supreme power of the realm. It is at once a legislature and a constitutional convention. 1 De Tocqueville’s Democracy in America, Reeves’s Translation, 2d Am. ed., 80. Parliament can “ do everything that is not naturally impossible; ” and what it does “no authority on earth can undo.” 1 Blackstone’s Com. 161; 4 Coke’s Inst. 36. A State legislature, on the other hand, “ is powerless when it attempts to pass the limits prescribed by the constitution.” See Cooley’s Const. Lim., 1st ed., 45, 46. In England, whenever it appears that the act complained of was authorized by- a parliamentary statute, the court are perfectly justified in dismissing the complaint, on the ground that the act was “ authorized by law.” In this country, when it appears that the legislature have gone through the form of enacting a statute purporting to authorize the act complained of, the further inquiry remains, whether the legislature had the constitutional power to pass such a statute. If they had not, then their enactment is not “ law,” and can afford no justification. The error of blindly following English authorities, as to the justification afforded by statutory enactments, has repeatedly been exposed. Swan, J., in Crawford v. The Village of Delaware, 7 Ohio St. 459, pp. 466, 477; Maison, Senator, in Bloodgood v. Mohawk & Hudson Railroad Co., 18 Wendell 9, pp. 29-31; Archer, C. J., in Barron v.
The error in the argument just commented upon may, perhaps, be summed up in the statement, that it confounds the legislature with the constitutional convention. Closely allied, to this is the error of confounding the legislature with the supreme court. It seems to have' been contended that the legislature is competent to determine whether a franchise will be injurious to other interests, and that it is to be presumed, after a legislative grant, “that there is no just claim for resulting damages which has not been provided for.” See American Law Magazine, vol. 1, No. 1, April, 1843, 58-60. This assumes both the omniscience and omnipotence of the legislature. If the legislators themselves are to finally decide whether they have transcended their constitutional powers, “ then,” in the words of Daniel Webster, “ the constitution ceases to be a legal and becomes only a moral restraint upon the legislature.” It “ is admonitory or advisory only, not legally binding * * *.” Speech on The Independence of the Judiciary, quoted in Cooley’s Const. Lim., 1st ed. 46, note 1. It is now universally conceded to be the province and duty of the judiciary to pass upon the constitutionality of statutes; but it is to be regretted that some courts have manifested excessive reluctance to pronounce statutes unconstitutional. “ Whatever respect may be due to the legislature, that due to the constitution is still greater Lawrence, J., in Bunn v. The People, 45 Illinois 397, p. 419. The result has sometimes been “to sacrifice the individual to the community.” See Sedgwick on Damages, 5th ed., 121, 122. “ It is not,” said Mr. Sedgwick, “ an agreeable observation to make, but I believe it cannot be denied, that the protection afforded by the English government to property is much more complete in this respect than under our system, although Parliament claims to be despotically supreme, and although we boast our submission to constitutional restrictions * * *. ” Sedgwick on Stat. and Const. Law 523, 524, note. Parliamentary acts, at the present time, usually contain carefully drawn clauses, scrupulously providing for the indemnity of those who are liable to be injured by the exercise of the powers granted by the act. In this country it too often happens that the legislature neglect to carefully perform this duty, and the failure of the courts to pronounce the act unconstitutional leaves the injured party without remedy. In view of the “ form that the constitutional provision has assumed” in the hands of some courts, “ it must,” said the same author, “ be admitted that in practice our constitutional guarantees are very flexible things' * * Sedgwick on Stat. and Const. Law 534.
It is said that “ if the legislature is competent to furnish the remedy, there is no denial of justice, though no action can be sustained at law.” 1 Amer. Law Magazine, April, 1843, 57. Leave to apply to a future
It has been contended that in order to establish the position “that the right of action in behalf of the party injured ” is “ the same as if no charter existed,” “ it is necessary to show that the grant ” of the franchise “ is absolutely void.” 1 Amer. Law Magazine 64. It is undoubtedly necessary to show that the charter is void, in so far as it purports to authorize the infliction of the injury in question; but not that it is void in all other respects, conferring no valid rights as against any person whatever. If the legislature grant a charter purporting to authorize the grantee to take the property of A for public use upon making compensation, and the property of B without making compensation, the charter is invalid as against B, but may confer a right as against A. It is familiar law that “where an agent exceeds his authority, what he does within it is valid, if that part be distinctly severable from the remainder.” 1 Parsons on Contracts, 4th ed., 58. The same principle applies to the exercise by the legislature of the power delegated to them by the constitution. No sound argument can be founded upon the hardship to the grantees of not receiving all that the legislature undertook to convey to them. Conceding that the grantees, by assuming the performance of the duties required of them by the charter, have paid a full consideration for all the privileges which the charter purported to convey to them, how does their case differ from that of other unfortunate persons who have purchased property of an irresponsible party who had no right to sell ? Is the fact that the purchaser paid a full consideration to the wrongful vendor allowed to divest the title of the true owner ? Yet, upon what other theory can it be said (1 Amer. Law Magazine 75) that “ we cannot look beyond the charter itself to determine the duties and liabilities of the grantee ?”
The consideration is sometimes urged, that the building of a railroad is a work of great public convenience and benefit. This may afford an excellent reason for taking the plaintiff’s land in the constitutional manner, but not for taking it without compensation. If the work is one of great public benefit, “ the public can afford to pay for it.” Green, Chan., in Hinchman v. Paterson Horse R. R. Co., 2 C. E. Green (N. J.) 75, p. 80; Parker, C. J., in Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35, p. 64. “ Either, therefore, the railway
It is said that a land-owner is not entitled to compensation where the damage is merely “ consequential.” The use of this term “ consequential damage ” “ prolongs the dispute,” and “ introduces an equivocation which is fatal to any hope of a clear settlement.” It means both damage which is so remote as not to be actionable, and damage which is actionable. Sometimes it is used to denote damage which, though actionable, does not follow immediately, in point of time, upon the doing of the act complained of; what Erle, C. J., aptly terms “consequential damage to the actionable degree.” Brand v. H. & C. R. Co., Law Reports, 2 Queen’s Bench 223, p. 249. It is thus used to
The severity of the injury ultimately resulting from an act is not always in inverse proportion to the lapse of time between the doing of the act and the production of the result. Heavy damages are recovered in case as well as in trespass. The question whether the injury constitutes a “taking of property” must depend on its effect upon proprietary rights, not on the length of time necessary to produce that effect. If a man’s entire farm is permanently submerged, is the damage to him any less because the submerging was only the “ consequential ” result of another’s act ? It has been said “ that a nuisance by flooding a man’s land was originally considered so far a species of ouster, that he might have had a remedy for it by assize of novel dis-seizin ; ” but if it be conceded that at present the only common law remedy is by an action on the case, that does not change the aspect of the constitutional question. The form of action in which the remedy must be sought cannot be decisive of the question whether the injury falls within the constitutional prohibition. “We are not to suppose that the framers of the constitution meant to entangle their meaning in the mazes ” of the refined technical distinctions by which the common law system of forms of action is “ perplexed and incumbered.” Such a test would be inapplicable in a large proportion of the States, where the distinction between trespass and case has been annihilated by the abolition of the old forms of action. We are not alone iq the opinion that the phrase “ consequential damage ” has been misapplied
It may perhaps be urged that a decision in favor of the plaintiff will give rise to a multiplicity of suits by other claimants, many of whom have sustained no substantial damage. But this affords no ground for denying redress to this plaintiff, who has clearly sustained a substantial injury. Nor will the present decision be a precedent in future cases differing in their nature from the one before us. The answers given by other courts to similar objections are quite decisive. Ld. Denman, C. J., in Regina v. Eastern Counties Railway Co., 2 Queen’s Bench 347, pp. 362, 363; Montague Smith, J., in Brand v. H. & C. Railway Co., Law Reports, 2 Queen’s Bench 223, p. 245; Parker, C. J., in Boston & Roxbury Mill Corp. v. Gardner, 2 Pick. 33, pp. 38, 39.
Our conclusion, that the second ground of defence set up in this case must be overruled, is supported by Pumpelly v. Green Bay Co., 13 Wallace U. S. 166; Evansville & Crawfordsville R. R. Co. v. Dick, 9 Ind. 433; and by that part of the decision in Richardson v. Vt. Central R. R. Co., 25 Vt. 465, which holds the plaintiff entitled to recover for damage occasioned by his land’s falling into the cut;—see, also, Hay v. Cohoes Co., 2 Comstock N. Y. 159; Ranney, J., in Carman v. Steubenville & Indiana R. R. Co., 4 Ohio St. 399, p. 413. In Hooker v. The New Haven & North Hampton Co., 14 Conn. 146, S. C. 15 Conn. 312, it was held that no intent of the legislature to authorize the injury was apparent; but some of the reasoning of Williams, G. J., tends very strongly to show that an attempt to confer such authority would have been unavailing. See 14 Conn. 151-162; 15 Conn. 317, 319, 321, 325.
There are also numerous cases in which the decisions, or dicta, tend to sustain the principle of the present decision. People v. Nearing, 27 N. Y. 306, pp. 308, 310; Brinkerhoff, J., in Reeves v. Treasurer of Wood County, 8 Ohio St. 333, p. 346 (and see in this connection Tide Water Co. v. Coster, 3 C. E. Green N. J. 158, S. C. 3 C. E. Green 54); In the matter of Bushwick Avenue, 48 Barb. 9, J. F. Barnard, J., p. 12; Mullin, P. J., in Village of Lancaster v. Richardson, 4 Lansing 136, p. 141; Lee v. Pembroke Iron Co., 57 Me. 481, Barrows, J., p. 488; Bigelow, J., in Brigham v. Edmands, 7 Gray 359, p. 363; Zabriskie, Chan., in Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken Horse R. R. Co., 20 N. J. Ch. (5 C. E. Green) 61, p. 62; Gardner v. Village of Newburgh, 2 Johns. Ch. 162; Beck, J., in McCord v. High, 24 Iowa 336, p. 342; Woodruff v. Neal, 28 Conn. 165; Valentine, J.,
This conclusion is also supported by the definitions given by various judges and text-writers to the phrase “ a taking of property.” See, in addition to the foregoing citations, Angell on Watercourses, 6th ed., sec. 465 a; Cooley’s Const. Lim., 1st ed., 544; Wilde, J., in Austin v. Murray, 16 Pick. 121, p. 126; Putnam, J., in Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467, p. 482; Nevius, J., in Ten Eyck v. The Delaware & Raritan Canal Co., 3 Harrison N. J. 200, p. 205; Ex parte Jennings, 6 Cowen 518, pp. 525, 526; Walworth, Chan., and Allen, Senator, in Canal Com’rs & Appraisers v. The People, ex rel. Tibbits, 5 Wendell 423, pp. 452, 456; Sutherland, J., in S. C., 13 Wendell 355, pp. 372, 373; Walworth, Chan., in S. C., 17 Wend. 571, p. 605; Maison, Senator, in Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wendell 9, pp. 34, 35; Leonard, J., in Walther v. Warner, 25 Mo. 277, p. 289; Lawrence, J., in Nevins v. City of Peoria, 41 Illinois 502, pp. 509, 511; Archer, C. J., in Barron v. Mayor of Baltimore, 2 Am. Jurist 211, 212 (since overruled—see S. C., 7 Peters U. S. 243, p. 244); Smith, J., in Goodall v. Milwaukee, 5 Wis. 32, pp. 39, 45, 46; Selden, J., in Williams v. N. Y. Central R. R., 16 N. Y. 97, pp. 100, 110; Perkins, J., in Wabash & Erie Canal v. Spears, 16 Ind. 441, p. 443.
It seems to have been sometimes supposed that the decisions opposed to these views are so numerous, that to differ from them might “ almost wear the aspect of presumption.” Such appears to have been the opinion of Mr. Sedgwick, who evidently differed, as to the intrinsic merits of the question, from the supposed weight of authority. Sedgwick on Stat. and Const. Law, 1st ed., 525, 533, 534. There are, undoubt
There are classes or groups of authorities which, upon a superficial examination, might be supposed irreconcilable with our conclusions, but which, in fact, are not in point.
Thus, a petitioner for assessment of damages under a statute may fail to recover damages similar to those claimed here, because the statute did not provide for such a case; but it does not follow that he cannot maintain a common law action. See Indiana Central R. Co. v. Boden, 10 Ind. 96; Proprietors of Locks & Canals v. Nashua Lowell R. R. Co., 10 Cush. 385, p. 388; Estabrooks v. P. & S. R. R. Co., 12 Cush. 224. A petitioner under a statute can get nothing more than the statute gives him. The construction and not the constitutionality of the statute is the point for decision. Nothing else was decided in reference to Bradley’s damages in Kennett’s Petition, 24 N. H. 139, p. 143. If the case at bar were a petition under the statute, we should hold, as already intimated, that Eaton could not, in that proceeding, recover the damages claimed in this action. On the other hand, a common law action may fail, because there is a remedy given by statute which is exclusive. Henniker v. Contoocook Valley R. R., 29 N. H. 146; Stevens v. Proprietors of Middlesex Canal, 12 Mass. 466; Shaw, C. J., in Dodge v. County Com’rs, 3 Met. 380, pp. 381, 382. (In Rowe v. Granite Bridge Corporation, 21 Pick. 344, it seems to be assumed that there was a statutory remedy for the damage to real estate ; see pp. 345, 346, 348.) In Massachusetts the statute provides for an assessment of damages in some cases which are not held to be included in the New Hampshire statutes. Hence, in some instances, an action of tort which would be maintainable in this State might be defeated in Massachusetts, upon the ground that there was an exclusive remedy by petition under the statute. See Babcock v. Western R. R., 9 Met. 553; Mellen v. Western R. R., 4 Gray 301; Estabrooks v. Peterborough & Shirley R. R., 12 Cush. 224; Perry v. Worcester, 6 Gray 544; Curtis v. Eastern R. R. Co., 14 Allen 55; S. C., 98 Mass. 428.
So there are cases where the plaintiff fails, not because the act
Again: there is a class of cases where the plaintiff has failed, not because the damage complained of did not amount to a “ taking of property,” but because it was held that in those instances the plaintiff had already been compensated for it, — the courts holding that the damage must, in contemplation of law, be regarded as having been included in the assessment under the statute, or in the purchase money paid to the plaintiff. Examples of this class of cases may be found in Skinner v. Hartford Bridge Co., 29 Conn. 523; Sabin v. Vt. Central R. R., 25 Vt. 363; Norris v. Vt. Central R. R., 28 Vt. 99; Steele v. Western Inland Lock Navigation Co., 2 Johns. 283; Clark’s Adm’x v. Hannibal & St. Joseph R. R., 36 Mo. 202; Hortsman v. Covington & Lexington R. R. Co., 18 B. Monroe 218, p. 222; Baltimore & Potomac R. R. v. Magruder, 34 Md. 79. And see Babcock v. Western R. R., 9 Met. 553, p. 556. It seems to us that the decision in Boothby v. Androscoggin & Ken. R. R., 51 Maine 318, might well have been put upon this ground;—see the clear statement of Stites, J., in the somewhat analogous use of Hortsman v. Covington & Lexington R. R. Co., 18 B. Monroe 218, p. 222. The principle of these cases would be applicable here, if the damage complained of had been occasioned by the construction" of the railroad over Eaton’s land, instead of over the land of other persons.
There is another class of cases t inguishable from the present by the fact that the complainant in th cases has been deprived only of the privilege which he had enjoye' in common with the rest of the public, of using public property. No ivate or exclusive right is invaded. The act complained of is merely a egulation of a public right. Suppose that the State cause or authorize an obstruction to the navigation of a navigable river which belongs to the State, but do not thereby invade or flood the lands of the riparian owner. The diminished facilities for navigation may render the adjacent land less valuable ; but so may a lawful change in the mode of occupying an adjacent tract of land belonging to a private owner. The riparian owner’s land remains intact. He is only “ deprived of the use of what was never his own.” See Gould v. Hudson River R. R., 6 N. Y. (2 Selden) 522; S. C., 12 Barb. 616; Barrows, J., in Lee v. Pembroke Iron Co., 57 Maine 481, pp. 486-488; Shaw, C. J., in Davidson v. Boston & Maine R. R., 3 Cush. 91, p. 106; Strong, J., in People v. Tibbetts, 19 N. Y. 523, p. 528; Folger, J., in Coster v. Mayor of Albany, 43 N. Y. 399, p. 415; Shrunk v. Pres., &c., of Schuylkill Nav. Co., 14 Serg. & Rawle 71;
The case at bar is clearly distinguishable from the class of cases where an entry on land for a merely temporary purpose has been held not to be a “ taking of property; ” as, for example, an entry to perambulate the boundaries of towns, or to make preliminary surveys with a view to determining the location of a proposed railroad (see 1 Redf. on R., 4th ed., 240, 241),or “the entry of an officer charged with the execution of criminal process upon the land of a third person for the purpose of making the arrest.” In these instances there is only “ a technical trespass,” and the damage, in general, is merely nominal. The real estate is not “ permanently subjected to a servitude.” “ The beneficial possession of the owner is not substantially interfered with.” See Winslow v. Gifford, 6 Cush. 327; Polly v. Sar. & Wash. R. R. Co., 9 Barb. 449; Walworth, Chan., in Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9, p. 17; Bigelow, J., in Brigham v. Edmands, 7 Gray 359, p. 363; Leonard, J., in Walther v. Warner, 25 Mo. 277, p. 289. This principle is utterly inapplicable here, where the right is claimed to impose a permanent servitude, and where, if the claim is well founded, the defendants will gain and the plaintiff will lose the title to an easement, thus seeming to bring the case within the definition in the dicta of Shepley, C. J., in Cushman v. Smith, 34 Me. 247, pp. 258, 260. It was claimed in argument
Bassett v. Salisbury Manufacturing Company, 47 N. H. 426, was an application to a court of equity for an injunction to restrain the defendants from flowing the plaintiff’s land by means of a dam. It appeared that the company had kept up the water in their dam the entire year, under a claim of right, for about seven years, with the knowledge of the plaintiff and his grantors, and without objection on their part. It also appeared that during the same time the company had made expensive erections of mills and machinery to be operated by the power so gained. It was held that the acquiescence of the plaintiff and his grantors furnished good reason for refusing to exercise the summary power of granting an injunction. That decision is not in point here. The present proceeding is a suit at law. It is not an application to a court of equity to exercise the discretionary power of granting the extraordinary and summary remedy by injunction. Nor are the facts as to the plaihtiif’s acquiescence, or as to the defendants’ change of position, shown to bo similar to what was proved in Bassett v. S. M. Co.
There are decisions exempting municipal corporations from liability in civil actions for neglect to perform public duties. See Eastman v. Meredith, 36 N. H. 284; Bigelow v. Randolph, 14 Gray 541. There are also decisions exempting municipalities and some classes of public officers from liability for the manner of performing duties of a purely public or judicial nature. We do not propose to consider the intrinsic correctness of all the decisions which have proceeded upon these grounds (see Dillon, C. J., in McCord v. High, 24 Iowa 336, p. 350), for the principles upon which they are founded do not apply to the present defendants. The damage here complained of results from an act of commission, not omission. The defendants do not stand in the position of public bodies constituted for the sole purpose of executing a public trust or duty, in the performance of which they have no other interest than that which every citizen has. “ True, the public benefit may be so far promoted by works authorized to be made by such corporations, that the' property of individuals taken by them by virtue of tlieir charters may be deemed to be taken for public use, within the constitutional provision on that subject; still, they exercise their corporate privileges under a private grant of the legislature, conferring upon
There are cases where an .action against a corporation must fail, not because the defendants are a chartered body, but because the act complained of would not have been actionable if done by a private individual without legislative authority ; the damage being remote, or being caused by “the reasonable use by another of his own property” (damnum absque injuria). “ If my neighbor sets up a rival store or public house, he injures me, but I cannot sue him.” So, if the public open a new road, “ and thereby draw away custom from my hotel or my stage line, I have no remedy unless one is given by statute.” See Petition of Mt. Washington Road Co., 35 N. H. 134; Fuller v. Edings, 11 Rich. S. C. Law 239; S. C., 12 Rich. Law 504; Richmond & Lexington Turnpike Road Co. v. Rogers, 1 Duvall Ky. 135. “ The removal of a county or State capital “will often reduce very largely the value of all the property of the place from whence it was moved ; but in neither case can the party injured * * * * * claim compensation from the public.” Cooley’s Const. Lim., 1st ed., 384.. A railroad corporation, in erecting a fence upon their own land to prevent the snow from being blown upon their road, are merely making a proper and reasonable use of their
Hatch v. Vt. Central Railroad Co., 25 Vermont 49, may be noticed in this connection. It was there decided that the defendants were not liable for the action of their embankment in causing the water, “ upon the occasion of showers and melting of the snow,” to flow into the plaintiff’s store, provided the railroad “ was built in a manner to do the plaintiff no unnecessary damage.” We incline to think that, by the law as held in Vermont, the act complained of would not have been actionable if done by a private individual upon his own land, adjacent to the plaintiff’s lot. In that State, no action is maintainable for obstructing or diverting water percolating' through the soil—Chatfield v. Wilson, 28 Vermont 49; and it would not be unreasonable to infer that no action can be maintained there for so changing the level of the soil as to cause mere surface waters to pass into adjacent lots “ in greater quantities or in other directions than they were accustomed to flow” (see Angell on Watercourses, 6th ed., sec. 108 a, et seq., citing authorities not in. entire accord with the decisions of our own court in Swett v. Cutts, 50 N. H. 439, and Bassett v. Salisbury Manufacturing Co., 43 N. H. 569). Besides the damage caused by surface water, Hatch also claimed to recover on account of the obstruction to his business caused by the embankment in the street, and the running, &c., of trains thereon. The decision against him on that branch of the case is not in point here. So far as that part of Hatch’s case was concerned, there was no physical interference with or encroachment upon his land. It did not appear that Hatch owned the fee in any part of the highway. When the case came up a second time (28 Vermont 142, p. 147), Bennett, J., said, — “ The case, then, does not call upon us to decide what would have been the rights of Hatch, if any, in'case it had been shown that he owned the fee in the land to'the centre of the highway.” The physical consequences of the defendants’ acts (apart from the matter of the surface water) did not extend beyond the limits of the highway, within which the plaintiffs had no proprietary interest.
Richardson v. Vt. Central R. R. Co., 25 Vt. 465, is, upon the first point therein decided, an authority in favor of the present plaintiff. The second point decided in that case is similar to the point in Hatch’s case, which was last discussed. The court expressly said, p. 472, that it did not appear that the fee in the soil of the highway belonged to the Richardsons, and that “the action was evidently not predicated or tried upon any such supposed state of facts.” Whatever may be said as to some of the language of the court in these Vermont cases, the actual decisions on the points last named in each case are not necessarily in conflict with the result reached in- the present case. Because an act which does not physically affect a lot of land is held not to be a “ taking of the owner’s property,” it does not follow that such a physical injury to land as the present plaintiff complains of is not a “ taking.” If it should be conceded that no mere personal inconvenience, annoyance, or discomfort to a land-owner can amount to a taking of property, and that the legislature may constitutionally authorize the defendants to inflict such annoyances, these concessions do not dispose of the plaintiff’s claim. He complains that the physical consequences of the defendants’ acts extended beyond their land into his land; that his possession has been disturbed, his premises invaded, and his soil covered with foreign substances. The legislature may authorize a railroad corporation to do some acts, which, but for such authority, would be punishable as nuisances. But it does not follow that the legislative power in this direction is unlimited. On the contrary, the legislature are powerless when they attempt to pass “ the limits prescribed by the constitution,” and one of those limits is reached whenever the proposed act amounts to a taking of private property without compensation.
We come now to a class of cases, many of \yldch might well have been placed under some of the preceding heads. They are what, for want of a better name, may be called “the highway grade cases,” viz., unsuccessful actions against municipalities to recover damages alleged to have been sustained by adjacent land-owners in consequence of the grading of highways, or the changing of the grade, or the making of other alterations or improvements in highways. If the decisions in some of these cases are necessarily inconsistent with the conclusions reached in this opinion, still there is a large proportion of the cases of which this is not true. We think that many of these cases have been correctly decided, but that the courts have not always put the decision
When land is taken in the first instance for a highway, the public pay for and acquire “ complete control of the soil over which it passes, for all the purposes of its proper enjoyment and maintenance.” Angelí on Highways, 2d ed., sec. 202. “ The rights of the public to the highway, for the legitimate purposes of travel and improving the road, are as perfect and absolute as the rights of a natural person are to his private property in lands” (dissenting opinion of Birchard, J., in McCombs v. Town Council of Akron, 15 Ohio 474, p. 481). If a private land-owner lowers the grade of his own lot, and does not thereby cause his neighbor’s soil (which has 'no artificial weight upon it) to break away, “ and slide down of its own weight,” no action will lie. • So, if he raises the grade of his own lot, without placing or causing to be placed any foreign substance upon his neighbor’s lot, his neighbor has no legal remedy against him. His acts may render the occupation' of the neighboring lot less convenient; but he lias simply exercised his right to make a reasonable use of his own land, and his neighbor has a corresponding or correlative right to do acts of the same nature on Ms land. In like manner, when a town lower or raise the grade of a street, without thereby undermining, or invading, or causing foreign substances to be placed upon the soil of the adjacent owner, or in any way disturbing such owner’s possession, they are only making a reasonable use of their proprietary rights. “No consequences flow from their acts that would have made a natural person liable had he been the owner and performed the same acts.” Birchard, J., ubi supra, p. 482. . Without touching the adjacent owner’s lot, or in any way encroaching upon it, the town “ had as clear and perfect authority to raise its street higher or sink it lower than the level of his lot, as he would undoubtedly have had to elevate, or sink his ground, without touching or otherwise injuring or interfering with-the public street.” Robertson, C. J., in Keasy v. Louisville, 4 Dana 154, p. 155. In such a case there is no encroaching upon the soil of the adjacent owners, “ or invading tlieir dominion.” “ Not a shovel full of earth was taken from it or thrown upon it. There stands their property, within its proper limits, as it stood before ; ” per curiam, in Henry v. Pittsburgh, &c., Co. 8 Watts & Serg. 85, p. 86. Towns are “not bound to grade and improve, or pay for grading and improving, the adjacent lots of private persons, so as to make them ..correspond with the street.” Spofford, J., in Reynolds v. Shreveport, 13 Louisiana Ann. 426, p. 427. When, then, the acts of the town have been done within the limits of the highway, and do not produce any physical effect or change without those limits, neither taking anything from the soil of the adjacent lots, or superimppsing anything upon that soil which was not there before, there is no question of constitutional law involved. The town have.only made the same reasonable use of their property that every private owner may make of his property. “ The rights of the
Among the cases where we think that the decision may well stand upon the ground of reasonable user of public property, and where, therefore, the result actually reached (i. e., the exemption of the municipality from liability) is not inconsistent with the present decision, are the following: Humes v. Mayor, &c., of Knoxville, 1 Humphrey Tenn. 403; Rounds v. Mumford, 2 Rhode Island 154; Callender v. Marsh, 1 Pick. 418; Roberts v. Chicago, 26 Illinois 249; Macy v. Indianapolis, 17 Indiana 267; Creal v. Keokuk, 4 G. Greene (Iowa) 47; Reynolds v. Shreveport, 13 Louisiana Ann. 426; Hoffman v. St. Louis, 15 Missouri 651; Benedict v. Goit, 3 Barb. 459; Simmons v. City of Camden, 26 Arkansas 276; Keasy v. Louisville, 4 Dana 154. We are also inclined to enumerate, under the same head, Henry v. Pittsburgh, &c., Co., 8 Watts & Serg. 85; Reading v. Keppleman, 61 Penn. St. 233; Green v. Reading, 9 Watts 382; Snyder v. Rockport, 6 Indiana (Porter) 237; Slatten v. Des Moines Valley R. R. Co., 29 Iowa 148 (where the defendants justified under a city ordinance; see Cole, C. J., p. 156). See, also, in this connection, Edwards, J., in Waddell v. Mayor of New York, 8 Barb. 95, p. 99; Whittieer v. Portl. & Ken. R. R., 38 Maine 26. We think it quite apparent that Towle v. Eastern R. R., 17 N. H. 519 (see, also, 18 N. H. 547), may well be classed under this head. The defendants acted under the order of the town, and the act directed by the town was one for which a private owner would not have been held answerable. See, also, the remarks of Parker, C. J., p. 523, suggesting the further distinction that the act there complained of was not the voluntary act of the defendants, done for purposes of their own convenience and benefit.
The Massachusetts decisions, which exempt towns from liability for the flow of surface water from the highway on to premises adjacent to the highway (Flagg v. Worcester, 13 Gray 601; Turner v. Dartmouth, 13 Allen 291;—see, also, Dickinson v. Worcester, 7 Allen 19), give towns no greater rights or immunities in this respect than individual proprietors have in that State. (See Gannon v. Hargadon, 10 Allen 106; Bates v. Smith, 100 Mass. 181.) “ In this respect,” said Merrick, J., 13 Gray 603, “ the rights of towns and of the owners of land adjoining a highway are not dissimilar to those of coterminous proprietors of land.” (And, in Franklin v. Fisk, 13 Allen 211, it was held, that while the public may raise the level of their travelled path and
We do not assert that all tlie “highway grade cases,” where municipalities have bSen exempted from liability, could have been decided on the foregoing ground of reasonable user of public property. But a considerable proportion of the remaining cases of this class are very near the border line in this respect; and, without a fuller statement of facts, or a perfect knowledge of the law in each jurisdiction relative to the construction given to the right of reasonable user on the part of individual proprietors (particularly in reference to surface water), it is difficult to determine on which side of the line some of the cases belong. We do not feel certain that the following cases could not have been decided on the above ground of reasonable user. O’Connor v. Pittsburgh, 18 Penn. St. 187; Rome v. Omberg, 28 Ga. 46 (see Lumpkin, J., pp. 47, 49); Roll v. Augusta, 34 Ga. 326; St. Louis v. Gurno, 12 Mo. 414; White v. Corporation of Yazoo City, 27 Miss. 357; Clark v. City of Wilmington, 5 Harr. Del. 243, p. 244; Wilson v. Mayor of New York, 1 Denio 595;—see, also, Carr v. Northern Liberties, 35 Penn. St. 324; Angell on Watercourses, 6th ed., secs. 108, l, 108, m. In the oft-quoted case of Radcliff’s Ex’rs v. Mayor of Brooklyn, 4 Comst. (N. Y.) 195, some of the views of Bronson, J., are in direct conflict with the present decision (see 4 Comstock 197, 198, 203-208); but no less than five pages of the opinion are occupied in attempting to establish the position that the corporation of Brooklyn had done nothing more than a private owner might lawfully have done in the exercise of the same proprietary rights. If this last position does not accord with the current of authority, still the fact that it was the opinion entertained by Bronson, J., in that case, may have induced a less careful consideration by that eminent judge of the other grounds of the decision, which were wholly unnecessary if the above position was well taken.
The case of Benden v. Nashua, 17 N. H. 477, was decided in 1845, but the volume of reports in which it is contained was not published until 1864. In 1855, Sawyer, J., in delivering the opinion in Ball v. Winchester, 32 N. H. 435, p. 441, undertook to state the questions
Without reviewing all the cases on this topic (see Smith v. Washington, 20 How. 135; Lafayette v. Spencer, 14 Ind. 399; Vincennes v. Richards, 23 Ind. 381; Plum v. Morris Canal & Banking Co., 2 Stockton Ch. N. J. 256; and other cases collected in Dillon on Municipal Corporations, sec. 783, note 1), it is quite clear to our minds that the judgments rendered in a very considerable proportion of them are not necessarily irreconcilable with our conclusions in the case at bar.
So far as the decisions in any of these “ highway grade cases ” are absolutely inconsistent with the present opinion, we are not disposed to acquiesce in them, nor to decide this case upon their authority. That authority has been somewhat weakened by the dissatisfaction expressed by some judges at the harshness and injustice of the decisions which they have felt compelled to make (see O’Connor v. Pittsburgh, 18 Penn. St. 187; Woodward, J., in in re Ridge St., 29 Penn. St. 391, p. 395; Kinney, J., in 4 G. Greene (Iowa) 47, p. 52); also, by the fact that the manifest hardship thus engendered has led, in more than one instance, to legislative enactments for the protection of adjacent land-owners (see, in our own State, the statuté of 1848, chap. 725, prob
No one can read these “ highway grade cases ” without perceiving-how much American courts have relied upon the English authorities as establishing the position that the formal enactment of a statute purporting to authorize the doing of an act always affords a complete justification to the doer. The fallacy of assuming that our State legislatures possess the practically omnipotent powers of the British parliament, or that they pass none but constitutional statutes, has already been exposed. It is, however, worth remark, that the English case most frequently cited in these American decisions (Gov. & Co. of the British Cast Plate Manufacturers v. Meredith, 4 Term 794) was one which, it seems to us, might well have been decided on the ground that the paving commissioners had simply made the same reasonable use of public property that an individual might lawfully have made of his private property; that they had done nothing more in the street than a private individual might do with impunity upon his own land.
By the foregoing review of authorities, it appears that the number of actual decisions in irreconcilable conflict with the present opinion is much smaller than has sometimes been supposed, and that, in a large proportion of the cases cited, the application of the principles here maintained would not have necessitated the rendition of a different judgment from that which the courts actually rendered in those cases.
Thus far Eaton’s case alone has been under consideration. The only difference between Eaton’s case and Aiken’s case arises from the fact that a small part of the ridge is included in Aiken’s farm, while none of it is on the farm of Eaton. This difference does not affect the present inquiry, which relates solely to the correctness of the ruling at the trial. The court did not rule that Aiken could recover the damages occasioned to him by the entire cut through the ridge. The ruling was carefully limited to “ such damages as have been caused ” the plaintiffs “in consequence of the defendants’ cutting away the ridge north of the plaintiffs’ farms.” If any damage was caused to Aiken by the defendants’ removing any portion of that “ small part ” of the ridge which was included in his farm, he is not entitled to recover for it under this ruling. So far, then, as the correctness of the ruling is concerned, Aiken’s case stands on the same legal principle as Eaton’s. Under this ruling it will be for a jury to say how much of the injury to Aiken’s meadow was occasioned by the removal of that part of the ridge which was north of Aiken’s farm.
In both cases the exception is overruled. As the defendants elect trial by jury, the order must be,
Case discharged.