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Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 3) online

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mentally the right of user, including, of course, the correspond-
ing right of excluding others from the use. ... A physical in-
terference with the land which substantially abridges this right,
takes the owners' 'property' to just so great an extent as he is
thereby deprived of this right. To deprive one of the use of his
land is depriving him of his land ; for, as Lord Coke said : ' What
is the land but the profits thereof?' . . . The private injury
is thereby as completely affected as if the land itself was ' physi-
cally taken away.'"

As a matter of fact, the land itself is never taken. The land,
the corporeal substance, always remains. The possession may
be taken, or the entire title, or both, or something less; and in
any one of these cases the only "taking" that is possible is a
diminution of the right of user.^^

^ Compare the language of Austin, indefinite user would be utterly nuga-

who, noting the confusion between the tory, unless it were coupled with a cor-

meaning of property in a sense equiva- responding power of excluding others

lent to that of the Roman dominium or generally from anj' participation in the

■proprietas, and the "loose and vulgar use. The power of user and the power

acceptation" to denote "not the right of exclusion are equally rights to for-

of property or dominion, but the sub- bearances on the part of other persons

ject of such a right, as where a horse generally. By virtue of the right or

or piece of land is called my property," power of indefinitely using the subject,

eays :" The right of property or domin- other persons generally are bound to

ion (in so far as the right of user is forbear from disturbing the owner in

concerned) is resolvable into two ele- acts of user. By virtue of the right or

ments: First, the power of using indef- power of excluding other persons gen-

initely the subject of the right. . . . erally, other persons generally are

Secondly, a power of excluding others bound to forbear from using or med-

(a power which is also indefinite) from dling with the sul)ject. The rights of

using the same subject. For a power of user and exclusion are so blended, that



226S



EMINENT DORL^IN in THE UNITED STATES



§1117



On the basis of this reasoning compensation has been given,
though no land was occupied, where a leasehold was dimin-
ished in value by constructing an elevated railway on the
abutting street,^' where access to property was impaired, ^^
where a right of way was obstructed, ^^ and where the operation
of a railroad in a street caused abutting property to depreciate
in value.^° All these were considered takings of property rights.
But to constitute a taking the injury must be special, and not a
mere general injury common to the public at large. The dam-
age must be pecuUar to the particular property.^ ^



an offence against the one is commonly
an offence against the other. I can
hardly prevent you from plowing your
field, or from raising a building upon it,
without committing, at the same time,
a trespass. And an attempt on my
part to use the subject (as an attempt,
for example, to fish in your pond) is an
interference with your right of user as
well as with your right of exclusion."
Austin on Jurisprudence, 4th ed., 818,
836.

" Lake Roland El. R. R. v. Webster,
81 Md. 529, 32 Atl. 186.

58 Kansas: Central Branch U.P.R.R.
V. Twine, 23 Kan. 585, 33 Am. Rep. 203.

Kentucky: Camden Interstate R. R.
V. Smiley, 84 S. W. 523, 27 Ky. L. Rep.
134.

Ohio: Cincinnati I. St. & C. R. R. v.
Pfitzer, Ohio Prob. 248. A mere tem-
porary interference with access will not
be regarded as a taking. Gliddcn v.
Cincinnati, 4 Ohio S. & C. P. Dec. 423,
30 Cine. L. Bull. 213.

Oregon: McQuaid v. Portland & V.
Ry., 18 Ore. 237, 22 Pac. 899.

Tennessee: Hamilton County v. Rape,
101 Tenn. 222, 47 S. W. 416 (plaintiff
owned the fee of the street, but that
fact seems not to have made a differ-
ence).

'"'^Indiana: Cincinnati R. & M. R.
R. V. Miller, 36 Ind. App. 26, 72 N. K.
827.

Knnsaa: Tjeavenworth N. & S. Ry. v.
Curfan, 51 Kan. 432, 33 Pac. 297.



Rhode Island: Johnston v. Old Colony
R. R., 18 R. I. 642, 29 Atl. 594, 29 Am.
St. Rep. 800.

Utah: Dooly Block v. Salt Lake R. T.
Co., 9 Utah, 31, 33 Pac. 229.

60 Grossman v. R. R., 99 Tex. 641, 92
S. W. 836. And in Virginia where grad-
ing of a street caused plaintiff's land to
slide, injuring his buildings, it was held
that there was a taking of property':
Stearns v. City of Richmond, 88 Va. 992,
14 S. E. 847. And in Tennessee where
the city in grading a street injured
plaintiff's fences and threw surface
water upon his property, damaging his
wells, cellar, etc., this was considered
an application of property to public
use for which plaintiff was entitled to
compensation. Gray v. Knoxville, 85
Tenn. 99, 1 S. W. 622. But where a
change of grade left buildings erected
with reference to a previously estab-
lished grade as convenient of access as
before, and did not otherwise affect
the market value of the property, it
was held that there was no taking of
easement or property right. Lotze v.
Cincinnati, 61 Oh. St. 272, 55 N. E.
828.

*• Pennsylvania Co. v. Stanley, 10
Ind. App. 421, 37 N. E. 288, 38 N. E.
421. Injury to remaining land by
l)roximity to a schoolhouse, for which
tlie land was taken, may be considered.
Haggard /'. Independent School Dist.,
113 la. 486, 85 N. W. 777. And on
this point see also cases in §§ 1119-



§§ 1118, 1119 MASSACHUSETTS 22G9

§ 1118. Rules under new constitutions.

The hardship inflicted by the old rule, that any damage or
injury outside the taking was damnum absque injuria, has led in
many States to the adoption of new constitutional provisions,
which require that compensation shall be made not only for
property taken, but for property "damaged" or "injured."
The terms used are substantially equivalent to the "injuriously
affected" of the English statutes, and the question arises
whether the English principles of interpretation are to govern.
The theory which underlies the construction put by the English
judges on the Lands Clauses Consolidation Act and similar stat-
utes is in reality the same which lies behind the older American
decisions — that the corporation condemning or taking the land
stands in the shoes of the original owner, and is not responsible
for acts of user producing damage to property of adjoining
owners when he would not have been responsible. From this
the conclusion was drawn in England that "injuriously" af-
fected meant affected by some act importing injuria as between
a landowner and his neighbor; in both countries the principle
was recognized that damage done in the exercise of statutory
powers was damnum absque injuria. Now that we have con-
stitutions incorporating the terms used in the English statutes,
it has been argued that they are to be taken subject to the En-
glish principles of construction.

§ 1119. Massachusetts.

Massachusetts is one of the States retaining the old provision,
and in cases where redress is not enlarged by statute, no dam-
ages are considered apart from the taking;"'- but the same
question has there arisen upon the interpretation of particular
statutes, which generally have extended the landowner's re-
dress to aU cases of injury. In Trowbridge v. Brookline,®' the
statute made the respondent liable generally for "damages

1123, where compensation is given for ance of damages was based on the land-
property "damaged" under constitu- owner's title to the fee in the highway,
tion or statute. which was taken. Hartshorn v. Wor-
«2 Walker v. Old Colony & N. R. R., cester, 113 Ma.ss. 111. See also Stan-
103 Mass. 10, 4 Am. Rep. 509. And so wood v. Maiden, 157 Mass. 17, 31 N. E.
where the laying out of a highway nv 702, 16 L. R. A. 591.
suited in a change of grade, the allow- ''^ 144 Mass. 139.



2270 EMINENT DOMAIN IN THE UNITED STATES § 1119

occasioned by the laying out, making, and maintaining" a
sewer. Under this and similar provisions it is held in Massa-
chusetts that damages can be recovered for injuring land not
taken and not abutting on land taken.^^ And it is held by the
Supreme Court that under such a provision where a town
lawfully took land and constructed a common sewer therein,
whereby a well upon land not taken and not adjoining land
taken was made dry, the well being fed by water percolating
through the soil, it must respond to damages in the owner of
the well. Allen, J., said:

"The respondent contends that it had the right of an owner
of the land taken to make excavations in it, and thereby drain
its neighbor's well ; that its act, without the authority and pro-
tection of the statute, was lawful, and invaded no right of
the petitioner, and gave her no right of action; and that, in
accordance with the decisions in England, the statute should be
construed to intend only damages which, but for the protection
of the statute, could be recovered by action. But the respond-
ent does not stand, in this respect, in the position of a purchaser
of the land, taking the rights of its grantor. It is not the ab-
solute owner of the land, but it took and holds the right to oc-

** Dodge V. County Commrs., 3 Met. statute where a railroad location was
380; Parker v. Boston & Me. R. R., 3 taken over land of three persons, and
Cush. 107, 50 Am. Dec. 709; Marsden the three joined in petition for ap-
V. Cambridge, 114 Mass. 490; Boston praisement of their damages; it was
Belting Co. v. Boston, 152 Mass. 307, held that they could not each recover
25 N. E. 613; Sheldon v. Boston & A. for damages to land not taken occa-
R. R., 172 Mass. 180, 51 N. E. 1078; eioned by the whole taking,— that is,
Wellington v. Boston & M. R. R., 158 by the taking of land of the other two
Mass. 185, 33 N. E. 393. petitioners. The court said there was
Compare the English doctrine, no special or peculiar damage to any
§ 1091. lands save those immediately adjoin-
In Rand v. Boston, 164 Mass. 354, ing the land taken, and compensation
41 N. E. 484, it was held that if dam- could not be given for damages which
ages from building an embankment were general, affecting the whole town,
would not have given a right of action Wellington v. Boston & M. R. R., 158
at common law, no right of action was Mass. 185, 33 N. E. 393, and 41 N. E.
given by a statute providing for pay- 652, 35 Am. St. Rep. 485. (Citing Pro-
ment of all damages sustained by any jjrietors of Locks & Canals v. Nashua &
person in his property by the taking of L. R. R., 10 Cush. 385; Boston & W.
land for a public way, where no land R. R. v. Old Colony R. R., 12 Cush.
of plaintiff wius taken. But this was 605; lOames v. Worsted Co., 11 Met.
ujjon the construction of a particular 570; Fuller v. Mfg. Co., 16 Gray, 46.)



§ 1120 ENGLISH RULE ADOPTED IN PENNSYLVANIA 2271

cupy the land for certain purposes, and to do upon it certain
acts authorized by the statute. In exercising its rights, the
town acts, not under the title of the owner, but by virtue of the
authority given by the statute, and under the obligation im-
posed by the statute to pay all damages occasioned thereby.
The petitioner had a right to collect and keep the water in her
well; and depriving her of it, so as to injure her land, was a
damage to her. It is no answer that other landowners had the
same right in respect to their lands, and that, if the petitioner's
damages had been in consequence of the exercise of those rights
in his land by a landowner, she could not have recovered dam-
ages from him. The respondent's rights in the land, and its
authority to do the act which caused the damage, are given
by the statute which gives a remedy to the petitioner to re-
cover damages."

He then cited Parker v. Boston & Maine Railroad, where
a claim for damages to land not within nor adjoining the lo-
cation of the road, by changing the grade of a highway and
draining a well, was allowed. In that case the court said that
the statute allowing all damages, made the payment of all
such damages a condition to the acquisition by the railroad of
special rights in the land. Further, a petition for damages
when land was taken in such a case was not a substitute for an
action at law, so that damages might be allowed which would
not be allowed in an action at law. The decisions in cases of
taking the waters of great ponds were also cited as confirming
this doctrine. These cases come to the opposite conclusion
from that of the English cases. The result of the general rule
of statutory interpretation in Massachusetts is to allow all
proximate damages where the case comes within such statute,
regardless of whether such damages would be allowed in an
action at law.^''

§ 1120. English rule adopted in Pennsylvania.

In Pennsylvania, the effect of the early rule and the reasons
which led to the adoption of a new constitutional provision have

«5 Watuppa Reservoir v. Fall River, 343, 73 Am. St. Rep. 520; McNamara
134 Mass. 267. See also Bickford v. v. Com., 184 Mass. 304, 68 N. E.
Hyde Park, 173 Mass. 552, 54 N. E. 332.



2272 EMINENT DOMAIN IN THE UNITED STATES § 1120

been thoroughly discussed. Previous to the adoption of the con-
stitution of 1874, ''the citizen whose property was injured by a
corporation in the construction of its works had no remedy there-
for, unless some portion of its property was actually taken. This
was an immunity enjoyed by corporations, and not by individ-
uals. Cases of great hardship soon arose. O'Connor v. Pitts-
burgh ^^ was one of these. In that case the city, by the change
of the grade of a street, practically ruined a valuable church
property;yet there was no remedy. . . . Instances of a like na-
ture might be cited indefinitely. I have selected this one as an
illustration of the principle, and as perhaps one of the most
striking. In all of them, however, there was an injury to the
property of the plaintiff in consequence of the erection or the
construction of the works of the corporation, as by the change
of grade in O'Connor v. Pittsburgh, and the interference with
water-rights in Monongahela Navigation Co. v. Coons." In
all these cases the property had been seriously injured, and yet
no portion of it taken by the offending corporation." ^^

The Pennsylvania constitution of 1874 *^^ provides that
municipal and other corporations and individuals, invested
with the right of taking private property for public use, shall
make just compensation ''for property taken, injured, or de-
stroyed by the construction or enlargement of their works,
highways, or improvements, which compensation shall be paid
or secured before such taking, injury, or destruction." This
clause is held to have introduced a "radical change" in the
law of the State as regards consequential injuries, so called;
under it a county has been held liable for injury in the erec-
tion of a county bridge, and this in an action on the case, no
remedy having been provided by the legislature.^" And so
it has been held that municipal corporations are liable for
consequential damages due to opening and grading streets,^ ^

*« 18 Pa. 187. ^0 Chester Co. v. Brower, 117 Pa. 647,
" 6 W. & S. 101. 2 Am. St. Rep. 713, 12 Atl. 577. And
"* Paxson, J., in Pcnn. R. R. v. Mar- so where a well is (lostroyed in course
chant, 119 Pa. 541, 554, 13 Atl. 690, 4 of the construction of a reservoir on ad-
Am. St. Rep. 659. joining land. Shuter v. Philadelphia, 3

•9 Art. xvi, § 8. This constitution Phila. 228.

was adopted in 1873, and went into " Pusey v. Allegheny, 98 Pa. 522.
effect Jan. 1, 1874.



§ 1120 ENGLISH RULE ADOPTED IN PENNSYLVANIA 2273

and to changes of grade.^^ So also where a railroad embank-
ment built along a river bank so changed the course of the river
as to wash away alluvial deposits on plaintiff's land and make
future deposits impossible, whereas such deposits had pre-
viously accrued to plaintiff's farm every year, the railroad com-
pany was held liable for the destruction of the deposit already
there, and also for the loss of future deposits. ^^

The provision is not held to mean that the railroad company
is liable (when it takes no property) for noise, smoke, and dust
caused by its ordinary operation; ^^ there must be injury from
its construction or enlargement. But if access to plaintiff's
property is cut off, though no property be taken, he can re-
cover.^^

The rule of the EngHsh courts has been adopted in its en-
tirety, and it is said injury means ''such a legal wrong as would
be the subject of an action for damages at common law." In a
case where the question was whether a property owner, none of
whose land was taken, could recover for the noise, smoke, cin-
ders, etc., of the railroad; i. e., the consequences of its opera-
tion; it was held that he could not. The argument of the court
seems to be, 1st, that if a recovery were permitted, the line
could be drawn nowhere — ''as far as the whistle of the locomo-
tive can be heard and its smoke can be carried" the recovery
must follow; 2d, that if a recovery were permitted the owners
of turnpikes and canals the value of which is diminished by

" Where the landowner has no title plaintiff's spring, and was done with-

to the land in the street. Hobson v. out negligence, no recovery was al-

Philadelphia, 150 Pa. 595, 24 Atl. 1048; lowed. O'Neil v. Ben Avon Borough, 9

though the change is not immediately Pa. Dist. 130.

in front of plaintiff's property. Lewis v. " Freeland v. Pennsylvania R. R.,

Homestead, 194 Pa. 199, 45 Atl. 123. 197 Pa. 529, 47 Atl. 745, 80 Am. St.

Where plaintiff built his house before Rep. 850.

confirmation of a plan for change of ^^ Penn. R. R. v. Lippincott, 116 Pa.

grade, he may recover for damages to 472, 9 Atl. 871, 2 Am. St. Rep. 618;

both land and house. O'Brien t^. Phila- Penn. R. R. v. Marchant, 119 Pa. 541,

delphia, 150 Pa. 589, 24 Atl. 1047, 30 13 Atl. 690, 4 Am. St. Rep. 659; Doover

Am. St. Rep. 832; but where he built v. Pennsylvania R. R., 142 Pa. 36, 21

after confirmation of the change of Atl. 755.

grade, he may recover only for damage " Penn S. V. R. R. v. Walsh, 124 Pa.

to his land. Groff v. Philadelphia, 150 544, 17 Atl. 186, 10 Am. St. Rep. 611;

Pa. 594, 24 Atl. 1048. But where the Penn. S. V. R. R. v. Ziemer, 124 Pa.

grading cut off percolating water from 560, 17 Atl. 187.

143



2274 EMINENT DOMAIN IN THE UNITED STATES § 1121

loss of custom, of taverns and public-houses neglected, or stage-
coach lines which have lost business, must all be allowed redress;
3d, that such injuries could not be ascertained in advance,
while the constitution requires that they shall be; 4th, that no
such liabiHty is imposed on individuals : that if a natural person
were the owner of the road, he would not be responsible in dam-
ages; and that the limitations upon this principle, as that he
must not establish a nuisance, have no application to the case
in hand, because 'Hhe necessities of a railroad company, and
the character of its business, compel it to seek the heart of a
great city." ^^

Under the Pennsylvania decisions, plaintiff cannot recover
for indirect injuries, such as noise, vibration and dirt, resulting
from operation of a railroad over its own land ; ^'^ there must be
some actual taking or injury to land belonging to plaintiff, and
an abutting owner cannot recover for imposing an additional
servitude on a highway by laying out a railroad through it if
he does not own the fee of the highway. No property being
taken or injured, there is no damage to be compensated. This
is on the ground that the fact that he is an abuttor does not
make his damages special. His damage is merely what all who
live near a railroad suffer; and this is the means by which the
case is to be reconciled with the principle that a railroad im-
poses an additional burden. ^^ When, though no property has
been taken, a liability exists, the jury must estimate whether
on the whole the property is benefited or damaged, e. g. com-
paring the situation after the completion of the entire scheme
of improvement in connection with a viaduct, with that which
existed before its construction.^^

§ 1121. Rule in Illinois.
By the Illinois constitution of 1870 it is provided that "pri-

" Penn. R. R. v. Marchant, 119 Pa. authority in Pennsylvania, and was de-

541, 561, 13 Atl. 690, 4 Am. St. Roj). cided in 188G.

659; Pennsylvania Co. v. Pennsylvania " Wunderlich v. Pennsylvania R. R.,

So. II. R., 151 Pa. 3:M, 25 Atl. 107; 223 Pa. 114, 72 At!. 247.

Jones V. Erie & W. V. R. R., 151 Pa. 30, " Willock v. Beaver Valley R. R.,

25 Atl. 134, 31 Am. St. Rep. 722, 17 L. 222 Pa. 590, 72 Atl. 237.

R. A. 758. Pittsburg June. R. R. v. " Robbins v. City of Seranton, 217

McCutcheon, 18 Wkly. Notes Cas. 527, Pa. 577, 66 Atl. 977.
Bcems to run counter to the current of



§ 1121 KULE IN ILLINOIS 2275

vate property shall not be taken or damaged for public use with-
out just compensation." In Metropolitan West Side Elevated
Railroad v. GolV° it was held that prior to the adoption of this
provision damage caused to neighboring property owners by
construction and operation of railroads was without remedy,
but that after its adoption such damages became recoverable
as at common law. The question was very throughly discussed
in Rigney v. City of Chicago ^^ which was an action on the case
to recover damages alleged to have been sustained by plaintiff
by reason of the construction by the city of a viaduct some two
hundred and fifty feet from plaintiff's premises, but which im-
paired his access. The evidence was that both rental and fee
value were largely reduced. It was admitted that the title to
the streets affected was in the city. It was not claimed that
plaintiff's possession was disturbed, or that any direct physical
injury had been done his premises. The following extracts
will show the scope of the opinion:

''The gravamen of the plaintiff's complaint is, that the de-
fendant, in cutting off his communication with Halsted St. by
way of Kinzie St., has deprived him of a pubUc right which he
enjoyed in connection with his premises, and thereby inflicted
upon him an injury in excess of that shared by him with the
public generally, and it is for this excess he seeks to recover,
and nothing more. The instruction given for defendant denies
the right of recovery for this excess, and in effect holds that
where the fee of the streets is in the municipahty, as in the
present case, there can be no recovery in any case for an ob-
struction of this character, except where some direct physical
injury has been done to the plaintiff's premises. ... It is a
well-recognized principle, that where a thing not malum in se
is authorized to be done by a valid act of the legislature, and
it is performed with due care and skill, in strict conformity
with the provisions of the act, its performance cannot, by the
common law, be made the ground of an action, how^ever much
one may be injured by it. In all such cases the statute affords a
complete indemnity to those acting under its authority, not-
withstanding the injury complained of would, in the absence
of the statute, be actionable by the common law.

80 100 111. App. 323. 8' 102 111. 64.



2276 EMINENT DOMAIN IN THE UNITED STATES § 1121

''In the absence, therefore, of any constitutional provisions
on the subject, it would be competent for the legislature to
authorize the taking or damaging of private property for pub-
He use, and the owner would be without redress so far as any
common-law remedy is concerned.

"With a view of preventing great hardships and abuses that
might arise through inconsiderate legislation in the application
of this acknowledged principle of the common law, the framers
of the constitution of 1848 inserted therein this express provi-
sion : ' Nor shall any man's property be taken or applied to pub-
lic use without the consent of his representatives in the General
Assembly, nor without just compensation being made to him.' "

The court then went on to show that under this provision
any direct physical injury to the property of a private person,
by which he is deprived of its ordinary use and enjoyment, had
been held by the courts of the State to be a taking of property
to the extent of the damages thereby occasioned. Speaking
of the addition of the words "or damaged" in the constitu-
tion the court said:

"The addition of the words 'or damaged' can hardly be
regarded as accidental, or as having been used without any
definite purpose. On the contrary, we regard them as signifi-



Online LibraryTheodore SedgwickA treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 3) → online text (page 63 of 94)