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But while the appropriation of land, in the exercise of the right of eminent domain, must be confined to the necessity; on the other hand, that amount may be appropriated, not only what is directly necessary for public use, but also whatever is incidentally needed, such as the workshops and depots of railroads. But the appropriation of lands for such incidental purposes must fall within a fair construction of the grant of power by the legislature, in order to be allowable; for the power to make such an appropriation cannot be justified by a consideration of its convenience or appropriateness, if it is not expressly conferred. Thus it was held that where a railroad company was granted the power" to enter upon any land to survey, lay down and construct its road," "to locate and construct branch roads," etc., to take land "for necessary side tracks," and "a right of way over adjacent lands sufficient to enable such company to con

that the power of deciding upon the need of the fee, "must of necessity rest in the legislature, in order to secure the useful exercise and enjoyment of the right in question. A case might arise where a temporary use would be all that the public interest required. Another case might require the permanent, and apparently the perpetual, occupation and enjoyment of the property by the public, and the right to take it must be co-extensive with the necessity of the case, and the measure of compensation should, of course, be graduated by the nature and the duration of the estate or interest of which the owner is deprived." In this case the land was appropriated for the purpose of extending the almshouse. See, also, Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 (6 Am. Rep. 70); Dingley v. Boston, 100 Mass. 544; Baker v. Johnson, 2 Hill, 343; Munger v. Tonawanda R. R. Co., 4 N. Y. 349; Rexford v. Knight, 11 N. Y. 308; Coster v. N. J. R. R. Co., 22 N. J. 227; Plitt v. Cox, 43 Pa. St. 486; Water Works Co. v. Burkhart, 41 Ind. 364.

1 N. Y. & Harlem R. R. Co. v. Kip, 46 N. Y. 546 (7 Am. Rep. 385); Chicago, etc., R. R. Co. v. Wilson, 17 Ill. 123; Low v. Galena, etc., R. R. Co., 18 Ill. 324; Giesy v. Cincinnati, etc., R. R. Co., 4 Ohio St. 308. In Eldridge v. Smith, 34 Vt. 484, it was held that the erection of buildings for the manufacture of cars, or for leasing to the employees of the road, was not so necessary to the conduct and management of a railroad, as to justify the condemnation of lands for such purposes. But it was held competent for the railroad company to appropriate lands for piling wood and lumber used in the construction and conduct of the road.

struct and repair the road," it was not authorized, after it had located the road, and was constructing its main road along the north side of a town, to appropriate a temporary right of way for a term of years, along the south side, which was to be used while the main road was being built.1

§ 143. What constitutes a taking. In order to lay the foundation of a claim for compensation for the taking of property in the exercise of the right of eminent domain, it is not necessary that there should be an actual or physical taking of the land. Whenever the use of the land is restricted in any way, or some incorporeal hereditament is taken away, which was appurtenant thereto, it constituted as much a taking as if the land itself had been appropriated. The flowing of lands, the diversion of streams, the appropriation of water fronts, on streams where the tide does not ebb and flow, and, likewise, in navigable streams, the condemnation of an exclusive wharfage, are only a few instances of the exercise of the right of eminent domain, in which the property taken is incorporeal. In respect to the appropriation of water fronts, according to the older authorities, if the

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1 Currier v. Marietta, etc., R. R. Co., 10 Ohio St. 121.

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2 Pampelly v. Green Bay, etc., Co., 13 Wall. 166; Hooker v. New Haven, etc., R. R. Co., 14 Conn. 146; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504; Glover v. Powell, 10 N. J. Eq. 211; Ashley v. Port Huron, 35 Mich. 296; Arimond v. Green Bay, etc., Co., 31 Wis. 316.

3 Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Eaton v. Boston, etc., R. R. Co., 51 N. H. 504; Brown v. Cayuga, etc., R. R. Co., 12 N. Y. 486; Norris v. Vt. Cent. R. R. Co., 28 Vt. 99.

4 Harding v. Stanford Water Co., 41 Conn. 87; Proprietors, etc., v. Nashua & Lowell R. R. Co., 10 Cush. 388; March v. Portsmouth, etc., R. R. Co., 19 N. H. 372; Rome v. Addison, 34 N. H. 206; Johnson v. Atlantic, etc., R. R. Co., 35 N. H. 569; Haynes v. Burlington, 38 Vt. 350; Boughton v. Carter, 18 Johns. 405; Baltimore, etc., R. R. Co. v. Magender, 34 Md. 79 (6 Am. Rep. 310); Stein v. Burden, 24 Ala. 120; Pettigrew v. Evansville, 25 Wis. 223.

Varick v. Smith, 9 Paige, 547.
Murray v. Sharp, 1 Bosw. 539.

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stream was a navigable one, that is, one in which the tide ebbed and flowed, and the title to the bed of which was in the State, the appropriation to public uses of the water front was held not to involve any taking of property for which compensation had to be made; and this has also been held to be the rule in reference to those fresh water streams, which are practically navigable, and the title to whose beds is in the State." But these cases have not been followed by later adjudications, so far as they assert the right to take away from the riparian proprietor all access to the navigable stream by and over his land. This right of access to the stream is declared to be an incorporeal hereditament, appurtenant to the abutting land, which cannot be taken away without proper compensation.3

The diversion of navigable streams is also a taking of property, for which compensation must be made to the riparian owner. Although the riparian owner has no property in the water, or in the bed of the stream, he has a right to make a reasonable use of it, and since a diversion of the stream will interfere with the reasonable use, perhaps deprive him altogether of its use, compensation must be made to him for this loss, as being a taking of property.*

It frequently happens in the experience of municipal life that in order to prevent an accidental fire from becoming a general conflagration, one or more houses which stand in the path of the fire will be destroyed by means of explo

1 Gould v. Hudson River R. R. Co., 6 N. Y. 522; Pennsylvania R. R. Co. v. N. Y., etc., R. R. Co., 23 N. J. Eq. 157; Stevens v. Paterson, etc., R. R. Co., 34 N. J. 532.

2 Tomlin v. Dubuque, etc., R. R. Co., 32 Iowa, 106 (7 Am. Rep. 176). 3 Railway v. Renwick, 102 U. S. 180; Yates v. Milwaukee, 10 Wall. 497; Chicago, etc., R. R. Co. v. Stein, 75 Ill. 41. As to rights of property in highways, see post.

4 People v. Canal Appraisers, 13 Wend. 355; Gardner v. Newburg, 2 Johns. Ch. 162; Bellinger v. N. Y. Central R. R. Co., 23 N. Y. 42; Morgan v. King, 35 N. Y. 454; Hatch v. Vermont Cent. R. R. Co., 25 Vt. 49; Thunder Bay, etc., Co. v. Speechly, 31 Mich. 332; Emporia v. Soden, 25 Kan. 588 (37 Am, Rep. 265.)

sives or otherwise, in order to check it. It is never done, except in cases where the destroyed houses would have inevitably been consumed by the fire. The owners of these houses, therefore, have not suffered any loss by their destruction; and on this ground, and on the plea of overruling necessity, such destruction of buildings has been held not to be an appropriation under the right of eminent domain, and no claim for compensation can be made by the Owners. And where a municipal officer orders the destruction the municipal corporation is not liable for damages, in the absence of a statute to that effect.1

But the consequential or incidental injury to property, resulting from the lawful exercise of an independent right, is never held to be a taking of property in the constitutional sense, where the enjoyment of the right or privilege does not involve an actual interference or disturbance of

property rights. "In the absence of all statutory provisions to that effect, no case, and certainly no principle, seems to justify the subjecting a person, natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damage to others in their property or business. This always happens more or less in all rival pursuits, and often where there is nothing of that kind. One mill or one store or school injures another. One's dwelling is undermined, or its lights darkened, or its prospect obscured, and thus materially lessened in value by the erection of other buildings upon lands of other proprietors. One is beset with noise or dust or other inconvenience by the alteration of a street, or more especially by the introduction of a railway, but there is no redress in any of

1 Taylor v. Plymouth, 8 Met. 462; Ruggles v. Nantucket, 11 Cush. 433; Stone v. Mayor, etc., of N. Y., 25 Wend. 157; Russell v. Mayor, etc., of N. Y., 2 Denio, 461; American Print Works v. Lawrence, 21 N. J. 248; American Print Works v. Lawrence, 23 N. J. 590; White v. Charleston, 1 Hill (S. C.) 571; Keller v. Corpus Christi, 50 Texas, 614 (32 Am. Rep. 513); Conwell v. Emrie, 2 Ind. 35; Field v. Des Moines, 39 Iowa, 575; McDonald v. Redwing, 30 Minn. 38; Sirocco v. Geary, 3 Cal. 69.

these cases. The thing is lawful in the railroad as much as in the other cases supposed. These public works came too near some and too remote from others. They benefit many and injure some. It is not possible to equalize the advantages and disadvantages. It is so with everything, and always will be. Those most skilled in these matters, even empirics of the most sanguine pretensions, soon find their philosophy at fault in all attempts at equalizing the ills of life. The advantages and disadvantages of a single railway could not be satisfactorily balanced by all of the courts in forty years; hence they would be left, as all other consequential damage and gain are left, to balance and counterbalance themselves as they best can." "1 Thus there is no taking of property, if the owner of a fishery finds it reduced in value in consequence of improvement in the navigation of the river, or a spring is destroyed, or other damage done to riparian land by the same or similar causes, or where the value of adjoining property is affected by a change in the grade of the street. In

1 Hatch v.Vt. Central R. R. Co., 25 Vt. 49; Richardson v. Vermont Cent. R. R. Co., 25 Vt. 465; Railroad Company v. Richmond, 96 U. S. 521; Davidson v. Boston & Maine R. R. Co., 3 Cush. 91; Kennett's Petition, 24 N. H. 135; Hooker v. New Haven, etc., R. R. Co., 14 Conn. 146; Gould v. Hudson River R. R. Co., 6 N. Y. 522; People v. Kerr, 27 N. Y. 188; Zimmerman v. Union Canal Co., 1 Watts & S. 846; Monongahela Navigation Co. v. Coons, 6 Watts & S. 101; Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 71; Harvey v. Lackawanna, etc., R. R. Co., 47 Pa. St. 428; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21; Fuller v. Edings, 11 Rich. L. 239; Edings v. Seabrook, 12 Rich. L. 504; Alexander v. Milwaukee, 16 Wis. 247; Murray v. Menefee, 20 Ark. 561.

2 Shrunk v. Schuylkill Navigation Co., 14 Serg. & R. 71. See Parker v. Milldam Co., 20 Me. 353 (37 Am. Dec. 56); Commonwealth v. Chapin, 5 Pick. 199 (16 Am. Dec. 386); Commonwealth v. Look, 108 Mass. 452; Carson v. Blazer, 2 Binn. 475 (4 Am. Dec. 463).

3 Commonwealth v. Richter, 1 Pa. St. 467; Green v. Swift, 47 Cal. 536; Brown v. Cayuga, etc., R. R. Co., 12 N. Y. 486; Davidson v. Boston & Maine R. R. Co., 3 Cush. 91; Sprague v. Worcester, 13 Gray, 193; Transportation Co. v. Chicago, 99 U. S. 635.

♦ Gozzler v. Georgetown, 6 Wheat. 593; Smith v. Washington, 20 How. (U. S.) 135; Callendar v. Marsh, 1 Pick. 418; Bender v. Nashua, 17 N. H.

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