reference to this matter, Mr. Justice Miller has said1 that the decisions, which have denied the right of compensation for the consequential injury to the property of an individual from the prosecution of improvement of roads, streets, rivers, and other highways," "have gone to the extreme and limit of sound judicial construction in favor of this principle, and in some cases beyond it; and it remains true that where real estate is actually invaded by superinduced addition of water, earth, sand, or other material, or by having any artificial structure placed on it, so as effectually to destroy or impair its usefulness, it is a taking within the meaning of the constitution."

The greatest difficulty has been experienced in applying these principles to the police regulations of the highways or public streets, in consequence of the variety of uses to which the demands of modern life require them to be put. It has already been explained that, in most of the cities and village communities of this country, the public have only an easement of a right of way over the land used as a road, while the title to the soil remained in the owners, subject

477; Skinner v. Hartford Bridge Co., 29 Conn. 523; Green v. Reading, 9 Watts, 382; O'Connor v. Pittsburg, 18 Pa. St. 187; In re Ridge Street, 29 Pa. St. 391; Matter of Furman Street, 17 Wend. 649; Wilson v. Mayor, etc., of New York, 1 Denio, 595; Graves v. Otis, 2 Hill, 466; Radcliffe's Ex'rs v. Mayor, etc., Brooklyn, 4 N. Y. 195; Pontiac v. Carter, 32 Mich. 164; Lafayette v. Bush, 19 Ind. 326; Macy v. Indianapolis, 17 Ind. 267; Vincennes v. Richards, 23 Ind. 381; Roberts v. Chicago, 26 Ill. 249; Murphy v. Chicago, 29 Ill. 279; Creal v. Keokuk, 4 Greene (Iowa), 47. But see, contra, Atlanta v. Green, 67 Ga. 386; Johnson v. City of Parkersburg, 16 W. Va. 402 (37 Am. Rep. 779); McComb v. Akron, 15 Ohio, 474 (18 Ohio, 229); Crawford v. Delaware, 7 Ohio St. 459. In the last two cases it is held that when the grade of streets is first established, the consequential injury to adjoining property does not constitute a taking of property; but when the grade has once been established, and the adjoining property improved with reference to the existing grade, a change in grade, causing damage, would give rise to a claim for compensation. In O'Brien v. St. Paul, 25 Minn. 331, it is held that if the change in the grade of a street deprives the abutting land of its lateral support, it is a taking of property in the exercise of the right of eminent domain.

1 Pumpelly v. Green Bay, etc., Co., 13 Wall. 166, 180.

to the public easement. But in some of the States (notably New York and Indiana), it is provided by statute that the fee of land appropriated for highway purposes shall always be vested in the State. It is clear that any appropriation of the highway to other purposes, which would be inconsistent with, or different from, its use as a street, would be a taking of the private property of the abutting owner, where the soil remained his propery subject to the public easement. But it is not so clear whether such an appropriation of the highway would require the payment of compensation to the abutting owners, in cases where the fee of the road is in the State. If any right of property has been invaded in making the appropriation, compensation must be made, otherwise not. It has been very generally held that the proprietors of adjoining property have, as an easement over the land used as a highway, the right to the free and unobstructed use of the street, and any interference with such use was a taking of property, for which compensation had to be made. In New York, where the fee of the streets is in the State, the earlier cases seemed to deny to the abutting land owner any right of property in the

1 See ante, § 142.

3

2 All the cases cited post, in connection with the discussion of the right of the State to authorize the construction of horse and steam railways on the highways, support this general proposition. They only differ as to whether the running of these railways is inconsistent with the use of the land as a highway.

Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany & Salem R. R. Co. v. O'Daily, 13 Ind. 453; Indianapolis R. R. Co. v. Smith, 52 Ind. 428; Crawford v. Delaware, 7 Ohio St. 459; Street Railway v. Cummingsville, 14 Ohio St. 523; State v. Cincinnati Gas, etc., Co., 18 Ohio St. 262; Grand Rapids, etc., R. R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); Pekin v. Winkel, 77 Ill. 56; Lackland v. North Missouri R. R. Co., 31 Mo. 180; Green v. Portland, 32 Me. 431; Brown v. Duplessis, 14 La. Ann. 842. Vacation of public highway, not a taking. East St. Louis v. O'Flynn, 119 Ill. 200; McGee's Appeal (Pa.), 8 A. 237. But see, contra, Milburn v. Cedar Rapids, etc., R. R. Co., 12 Iowa, 246; Franz v. Railroad Co., 55 Iowa, 107.

street, as a highway, which would be invaded by a different appropriation of the land. But in a late case, it has been held, not only that the abutting land owner has, as appurtenant to his land, an incorporeal right of property in the free and unrestricted use of the street or highway, but also a right to the free passage of light and air over the land used as a street, and any interference with either right would constitute a taking of property, for which compensation must be made. Judge Danforth said, in delivering the opinion of the court, that the land in question was "conceded to be a public street. But besides the right of passage, which the grantee as one of the public acquired, he gained certain other rights as purchaser of the lot, and became entitled to all the advantages which attached to it. The official survey - its filing in a public office the conveyance by deed referring to that survey and containing a covenant for the construction of the street and its maintenance, make as to him and the lot purchased a dedication of it to the use for which it was constructed. The value of the lot was enhanced thereby and it is to be presumed that the grantee paid, and the grantor received an enlarged price by reason of this added value. There was thus secured to the plaintiff the right and privilege of having the street forever kept open as such. For that purpose, no special or express grant was necessary; the dedication, the sale in reference to it, the conveyance of the abutting lot with its appurtenances, and the consideration paid were of themselves suf

1 People v. Kerr, 37 Barb. 357; s. c. 27 N. Y. 188; Ferring v. Irwin, 55 N. Y. 486; Kellinger v. Forty-Second St., etc., R. R. Co., 50 N. Y. 206; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234 (6 Am. Rep. 70); Coster v. Mayor, etc., 43 N. Y. 399.

2 Story v. New York Elevated R. R. Co., 90 N. Y. 122, 145, 146. See to same effect Pittsburg Junction R. R. Co. v. McCutcheon (Pa.), 7 A. 146 note; Wagner v. Elevated R. R. Co., 104 N. Y. 665; Lahr v. Elevated R. R. Co., 104 N. Y. 268; Bulton v. Short Route Ry. Transfer Co. (Ky.), 4 S. W. 332.

ficient. The right thus secured was an incorporeal hereditament; it became at once appurtenant to the lot, and formed an integral part of the estate' in it. It follows the estate and constitutes a perpetual incumbrance upon the land burdened with it. From the moment it attached, the lot became the dominant, and the open way or street the servient tenement.2 Nor does it matter that the acts constituting such dedication are those of a municipality. The State even, under similar circumstances, would be bound, and so it was held in the City of Oswego v. Oswego Canal Co.: In laying out the village plot,' says the court, and in selling the building lots, the State acted as the owner and proprietor of the land; and the effect of the survey and sale, in reference to the streets laid down on the map, was the same as if the survey and sale had been made by a single individual.' Lesser corporations can claim no other immunity, and all are bound upon the principle that to retract the promise implied by such conduct, and upon which the purchaser acted, would disappoint his just expectation.

"But what is the extent of this easement? what rights or privileges are secured thereby? Generally it may be said, it is to have the street kept open, so that from it access may be had to the lot, and light and air furnished across the

1 Citing Wyman v. Mayor of N. Y., 11 Wend. 487; Trustees of Watertown v. Cowen, 4 Paige, 510.

2 Citing Child v. Chappell, 9 N. Y. 246; Hills v. Miller, 3 Paige, 256; Trustees of Watertown v. Cowen, 4 Paige, 514.

8 6 N. Y. 257.

It is a fact, at least in the more modern of our cities, that the public streets were originally indirect dedications by the owner to the public, by laying out a plat, and selling lots, bounded by certain streets, set forth in the plat. The sale of the lots imposed upon the land, over which the street was laid out, at least as against the owner of the land, an easement that the land shall be forever kept open as a street for the use of the lot owners. And the subsequent acceptance by the public of the street so dedicated can certainly make no change, in this regard, in the rights of the lot owners.

open way. The street occupies the surface, and to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air, to the detriment of the abutting owner. To hold otherwise would enable the city to derogate from its own grant, and violate the arrangement on the faith of which the lot was purchased. This, in effect, was an agreement, that if the grantee would buy the lot abutting on the street, he might have the use of light and air over the open space designated as a street. In this case, it is found by the trial court, in substance, that the structure proposed by the defendant,1 and intended for the street opposite to the plaintiff's premises, would cause an actual diminution of light, depreciate the value of the plaintiff's warehouse and thus work to his injury. In doing this thing, the defendant will take his property as much as if it took the tenement itself. Without air and light, it would be of little value. Its profitable management is secured by adjusting it in reference to the right obtained by his grantor over the adjoining property. The elements of light and air are both to be derived from the space over the land, on the surface of which the street is constructed, and which is made servient for that purpose. He therefore has an interest in that land, and when it is sought to close it, or any part of it, above the surface of the street, so that light is in any measure to his injury prevented, that interest is to be taken, and one whose lot, acquired as this was, is directly dependent upon it for a supply, becomes a party interested and entitled, not only to be heard, but to compensation." 2

1 A railroad elevated fifteen feet above the surface.

2 In a strong dissenting opinion, Judge Earl said: "If the plaintiff has an unqualified private easement in Front Street for light and air and for access to his lot, then such easement cannot be taken or destroyed without compensation to him. (Arnold v. Hudson River R. R. Co., 55 N. Y. 661.) But whatever right an abutter, as such, has in the street is subject to the paramount authority of the State to regulate and control the street, for all the purposes of a street, and to make it more