statutory power, took the public house entirely, it would have to pay for it according to its value as a public house, and the interest of the occupier therein would be estimated with reference to the value of the custom of the public house; but the same considerations by which the value of the entirety is estimated must apply, and be taken into account, when the question is, whether the value of the public house, during a certain period of time, has or has not been deteriorated. The trade or custom is a thing appertaining to the premises, and not to the person of the occupier; but all things appertaining to the premises are part of the premises, and included in the interest of the occupier, which word 'interest' is a large and comprehensive word. I adopt the observation of the Court of Exchequer: Loss of profits by loss of business is a loss to the good-will of the premises, and the good-will is part of the value of the property."" In Caledonian Ry. Co. v. Walker's Trustees, (*) Lord Selborne, L. C., speaking of the rule criticised by Lord. Westbury, said: "If the point were open, I should myself think it questionable whether there was not a fallacy in such a test, depending upon the hypothesis of the same work being executed without authority, which (having regard to the nature and operation of acts for the execution of that class of public works) can hardly be supposed to have been within the contemplation of Parliament." (*) 7 App. Cas. 259. () p. 279. CHAPTER XXXVI. THE NATURE AND EXTENT OF THE LIABILITY FOR DAMAGES UNDER THE STATUTES OF EMINENT DOMAIN IN THE UNITED STATES. § 1106. Difference between English | § 1115. Early rule. and American law. 1107. No compensation for dam age outside the charter pow 1116. Second rule-Physical interference destroying beneficial use. 1117. Third rule-Any injury a taking of property. 1118. Rules under new constitutions. 1119. Massachusetts. 1120. English rule adopted in Pennsylvania. 1121. Rule in Illinois. 1122. Alabama. 1123. Other States. 1124. General conclusions. S1106. Difference between English and American law.— We have now examined the rules laid down by the English courts for the determination of the compensation to be awarded for lands taken or " injuriously affected" under the power of eminent domain. When we turn to the United States we find a much more complex condition of the law. The right of the legislature to take private property for public use is here exercised subject to the provisions of written constitutions, and in these again we find two different classes of provisions. The older constitutions provide generally that property shall not be "taken" without just compensation. On the other hand, in many of the States recent amendments have introduced a principle similar to that of the English statutes, and provide for compensation whenever the property is damaged or injured. Of these States, again, some adopt the fundamental English canon of interpretation, others reject it altogether. In addition to these reasons for a want of harmony, the decisions of the courts upon the effect of the older constitutional provisions have in the progress of time introduced principles of construction so much more liberal than was at first considered proper, that in many cases the property-owner has a standing almost as well protected as in jurisdictions in which the organic law has been amended in his interest. It will be most convenient here to begin with a consideration of the early rules laid down on the subject. § 1107. No compensation for damage outside the charter powers. As already explained, there is no more fundamental rule in all eminent domain cases than that compensation cannot be allowed in such proceedings for damage for improper construction, for negligence in construction, or for any acts outside the charter powers. The statute only contemplates such damage as flows from the execution of these powers. For everything else, the landowner's redress is either equitable or by an ordinary action at common law, for trespass, negligence, or for nuisance.() This, as we have already seen, is the cardinal principle, which governs the whole subject. Whatever right of redress the property-owner may have under the provisions of law empowering the grantee of the fran (*) King v. Iowa M. R.R. Co., 34 Ia. 458; Imler v. City of Springfield, 55 Allentown v. Kramer, 73 Pa. 406; Grand Rapids & I. R.R. Co. v. Heisel, 38 §1110. chise to take his property, whenever an injury is done him by an act outside the charter powers, he can always recover as for a tort at common law. The measure of damages will, in general, be equal to the amount of injury done down to the time of action begun, for in such a case the act being entirely unlawful, there is no reason to treat it as continuous.(*) But in some cases the injury is regarded as permanent and the plaintiff recovers once for all. (*) 1108. Legislature may prescribe more favorable rule.— The constitutional provision with reference to taking private property for public use fixes a limit below which the legislature cannot go. But as the legislature may annex such conditions as it pleases to the grant of a franchise, we frequently find in statutes a rule of damages more favorable to the land-owner than that of the constitution.() As a general thing it will be found that these statutes enlarge the measure of redress, by directing compensation to be paid for all damage done without regard to whether property is taken or not. § 1109. Consequential damages—Term_misused.—It is important to notice at the outset the peculiar meaning which in the United States the term "consequential damages" has acquired in this class of cases. Properly, consequential damage is such as is not direct, while, as we have noticed elsewhere, the term is sometimes used to (*) Florida Southern R.R. Co. v. Brown, 23 Fla. 104; and so where there has been an assessment of damages, and a railroad company makes an unlawful use of its right of way, the owner will be entitled to new damages, for compensation for such acts cannot have been included in the original assessment: Porterfield v. Bond, (Miss.), 38 F. R. 391. () Troy v. Cheshire R.R. Co., 23 N. H. 83; Fowle v. New Haven & N. Co., 107 Mass. 352; 112 Mass. 334; Wells v. New Haven & N. Co., 151 Mass. 46; Denver City I. & W. Co. v. Middaugh, 12 Col. 434. () Lycoming Gas & Water Co. v. Mayor, 99 Pa. 615; Heyneman v. Blake, 19 Cal. 579, 584, 585. denote such damages as, notwithstanding their indirect character, may be recovered (as, for instance, under the rule in Hadley v. Baxendale), and sometimes such as owing to this character may not under any circumstances be recovered. In cases arising under statutes of eminent domain, however, the term is used in a very restricted and peculiar sense which derives its force (though it does not derive its origin) from treating all damages attributable to the "taking" of property as direct, and all others as consequential. And so, when no land is taken, and there is no legal injury, such damage as comes from the mere exercise of public powers by public agents or by grantees of franchise, as in grading a street, is called consequential. The origin of this misuse of the term is to be traced to the early English cases which treated acts of public officers and others for which no action would lie as producing "consequential" damages, but there is nothing in the decisions under the Land Clauses Consolidation Act to show that the English judges have ever had occasion to consider such damages as indirect. And indeed, looking solely at the invasion of the land-owner's rights there is nothing less direct about them than the damages he suffers in other respects. Whether land is taken, or whether the value of premises abutting on a railroad is impaired by the operation of the road, or whether a lot is diminished in value by cutting down a grade, the loss is the direct result of the exercise of the power of eminent domain. The only case in which damages coming from the user of the powers granted can be treated as "consequential" is when they are "consequential" to a "taking," which in the early American cases was treated as the trespass against which the constitutional safeguard was provided. The theory of these cases seems to have been this: in the absence |