Opinion of the Court. In Shively v. Bowlby, the leading authorities of the courts of the United States and of most of the States, and of Great Britain, as to the character of the title to submerged land, are considered, and the conclusion announced that the title is in each State, with full power in the state legislature to confer it on individuals, subject at all times to the servitude of the Federal government for regulation and improvement of navigation. In Eldridge v. Trezevant, the doctrine existing in the State of Louisiana that lands abutting on the rivers and bayous were subject to a servitude in favor of the public, whereby such portions thereof as were necessary for the purpose of making and repairing public levees might be taken, in pursuance of law, without compensation, was fully recognized as enforceable notwithstanding the Fourteenth Amendment. By the established law of Pennsylvania, as observed by Mr. Justice Gray in Shively v. Bowlby, "the owner of lands. bounded by navigable water has the title in the soil between high and low water mark, subject to the public right of navigation, and to the authority of the legislature to make public improvements upon it, and to regulate his use of it." The constitution of that State, prior to 1873, provided that no man's property could "be taken or applied to public use without the consent of his representatives and without just compensation being made." In Monongahela Navigation Co. v. Coons, 6 Watts & Searg. 101, plaintiff's mill site was destroyed by the backing up of water by a dam built by a canal company under authority of law for the improvement of navigation, and the Supreme Court of Pennsylvania held this to be a mere consequential damage resulting from the exercise of the public right to improve navigation; that it was damnum absque injuria; and that such flooding and injury did not amount to a taking under the constitution. In the opinion of the court it was stated by Chief Justice Gibson: "It cannot be said that the plaintiff's mill was taken or applied, in any legitimate sense, by the State, or by the company VOL. CLXVI-18 Opinion of the Court. invested with its power; nor can it be said that he was deprived of it. In the case of the Philadelphia and Trenton Railroad, 6 Whart. 25, the words in the first paragraph were allowed to have their obvious and popular meaning, so as to be restrained to property taken away, and not extended to property injured by an act which did not amount to an assumption of the possession ; "Still, it is only to a case of taking that the obligation extends; and when a corporation acts by virtue of a constitutional law, it is subject to no other responsibility for acts of consequential damage, than is specially provided for. "It is not, therefore, enough to set before us a case of moral wrong, without showing us that we have legal power to redress it. Beyond constitutional restraint or legislative power, there is none but the legislative will, tempered by its sense of justice, which has happily been sufficient, in most cases, to protect the citizen. Compensation has been provided for every injury which could be foreseen, whether within the constitutional injunction or not, in all laws for public works by the State or a corporation; though cases of damage have occurred which could neither be anticipated nor brought within the benefit of the provision by the most strained construction. In one instance, a profitable ferry on the Susquehanna, at its confluence with the Juniata, was destroyed by the Pennsyl vania canal; and, in another, an invaluable spring of water, at the margin of the river, near Selinsgrove, was drowned. These losses, like casualties in the prosecution of every public work, are accidental, but unavoidable; and they are but samples of a multitude of others." Numerous subsequent cases sustain the rule thus laid down, which is, indeed, the general rule upon the subject. The Pennsylvania constitution of 1873 contained this additional provision: "Municipal and other corporations and individuals, invested with the privilege of taking private prop erty for public use, shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such Opinion of the Court. taking, injury or destruction"; and in Pennsylvania Co. v. Marchant, 119 Penn. St. 541, it was ruled that this had relation to such injuries to one's property as were the natural and necessary results of the original construction or enlargement of its works by a corporation, and not of their subsequent operation. S. C. 153 U. S. 380. The Fifth Amendment to the Constitution of the United States provides that private property shall not “be taken for public use without just compensation." Here, however, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property, whether upland or submerged, or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power. The applicable principle is expounded in Transportation Co. v. Chicago, 99 U. S. 635. In that case, plaintiff being an owner of lands situated at the intersection of La Salle street, in Chicago, with the Chicago River, upon which it had valuable dock and warehouse accommodations, with a numerous line of steamers accustomed to land at that dock, was interrupted in his use thereof by the building of a tunnel under the Chicago River by authority of the state legislature, in accomplishing which work it was necessary to tear up La Salle Street, which precluded plaintiff from access to his property for a considerable time; also to build a coffer dam in the Chicago River, which excluded his vessels from access to his docks; and such an injury was held to be damnum absque injuria. This court said, again speaking through Mr. Justice Strong: "But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Cooley on Constitutional Limitations, page 542 and notes. The extremest quali Syllabus. fication of the doctrine is to be found, perhaps, in Pumpelly v. Green Bay Company, 13 Wall. 166, and in Eaton v. Boston, Concord &c. Railroad, 51 N. H. 504. In those cases it was held that permanent flooding of private property may be regarded as a 'taking.' In those cases there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the plaintiff's lot. All that was done was to render for a time its use more inconvenient." Moreover, riparian ownership is subject to the obligation to suffer the consequences of the improvement of navigation in the exercise of the dominant right of the Government in that regard. The legislative authority for these works consisted simply in an appropriation for their construction, but this was an assertion of a right belonging to the Government, to which riparian property was subject, and not of a right to appropriate private property, not burdened with such servitude, to public purposes. In short, the damage resulting from the prosecution of this improvement of a navigable highway, for the public good, was not the result of a taking of appellant's property, and was merely incidental to the exercise of a servitude to which her property had always been subject. Judgment affirmed. NELSON v. FLINT. ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 196. Argued and submitted March 3, 1897. - Decided March 22, 1897. On the face of the papers contained in the record, the right of the plaintiff below to recover is clear. Conversations between two makers of a note, in the absence of the payee, and without his knowledge, are not binding upon him, and are not admissible in evidence against him in an action to recover on the note. A party cannot, by merely filing with the clerk an affidavit not incorporated Statement of the Case. in any bill of exceptions, bring into the record evidence of what took place at the trial. The errors alleged were frivolous, and the writ of error was sued out for delay, for which, in affirming the judgment, ten per cent damages are allowed under clause 2 of Rule 23. ON June 3, 1892, the defendant in error commenced suit in the District Court of the Fourth Judicial District of the Territory of Utah for the county of Weber upon a promissory note, of which the following is a copy: "$6700. SALT LAKE CITY, UTAH, April 3, 1891. "On or before the 23d day of April, 1892, without grace, for value received, we or either of us promise to pay to the order of Richard Flint sixty-seven hundred dollars, negotiable and payable at Ogden, Utah, without defalcation or discount, with interest, at the rate of ten per cent per annum, from date until paid, both before and after judgment. "Interest payable semi-annually. "ALFRED H. NELSON. "FRANK J. CANNON. The original answer denied that plaintiff was the owner or holder of the note, and alleged generally that it was made without consideration, and that plaintiff wrongfully obtained possession thereof. Subsequently an amendment was filed which stated that the plaintiff had been since about June 19, 1889, the holder and owner of two promissory notes signed by the defendants Nelson and Frank J. Cannon, amounting to $6700; that he offered to surrender those notes and waive all claim for interest if the makers would furnish him a new note signed by them and their codefendant in this case, A. H. Cannon; that in reliance upon such agreement the note sued upon was signed and the plaintiff obtained possession of it upon a promise to return the old notes, which he had failed to do. This amended answer was met by, in substance, a general denial. Upon a trial before the court and a jury a verdict and judgņient were returned and entered |