51 New Hampshire, 504. - 1872.
Action on the case, brought by Eaton against the Boston, Concord and Montreal Railroad for damage to his farm during a freshet.
Plaintiff's land lies on Baker river; some distance above the farm was a narrow ridge about twenty-five feet high, extending westerly from the hills on the east to the river, and protecting the meadows below from floods. Defendants in constructing their road made a deep cut through this ridge in consequence of which the waters of the river in time of flood occasionally flow through and carry sand, gravel and stones upon plaintiff's land; this is the damage complained of.
The court below ruled pro forma for the plaintiff. Defendants excepted, and now appeal.
Smith, J. - * * * It is virtually conceded that, if the cut through the ridge had been made by a private landowner, who had acquired no rights from the plaintiff or from the Legislature, he would be liable for the damages sought to be recovered in this action. It seems to be assumed that the freshets were such as, looking at the history of the stream in this respect, might be "reasonably expected occasionally to occur." The defendants removed the natural barrier which theretofore had completely protected the plaintiff's meadow from the effect of these freshets; and, for the damages caused to the plaintiff in consequence of such removal, the defendants are confessedly liable, unless their case can be distinguished from that of the private landowner above supposed. Such a distinction is attempted upon two grounds, - first, that the plaintiff has already been compensated for this damage, it being alleged that the defendants have, by negotiation, or by compulsory proceedings, purchased of the plaintiff the right to inflict it; second, that the defendants are acting under legislative authority, by virtue of which they are entitled to inflict this damage on the plaintiff without any liability to compensate him therefor. [After considering the first ground and finding that it cannot be sustained, the opinion proceeds as follows :]
The defendants' next position is, that the plaintiff is not legally entitled to receive any compensation, but is bound to submit to the infliction of this damage without any right of redress. The argument is not put in the precise words we have just used, but that is what we understand them to mean. The defendants say that the legislative charter authorized them to build the road, if they did it in a prudent and careful manner; that they constructed the road at the cut with due care and prudence; and that they cannot be made liable as tort-feasors for doing what the Legislature authorized them to do. This involves two propositions: First, that the Legislature have attempted to authorize the defendants to inflict this injury upon the plaintiff without making compensation; and second, that the Legislature have power to confer such authority. * * *
The defendants cannot claim protection under an implied power, where an express power would be invalid; the Legislature cannot do indirectly what they cannot do directly. Unless an express provision in the charter, authorizing the infliction of this injury without making compensation, would be a valid exercise of legislative power, the defendants cannot successfully set up the plea that the injury was necessarily consequent upon the exercise of their chartered powers, and therefore impliedly authorized. The defense, then, really presents this question: Have the Legislature power to authorized the railroad corporation to divert the waters of the river, by removing a natural barrier, so as to cause the waters "sometimes in floods and freshets" to flow over the plaintiff's land, "carrying sand, gravel and stones" upon his farm, without making any provision for his compensation?
Although the Constitution of this State does not contain, in any one clause, an express provision requiring compensation to be made when private property is taken for public uses, yet it has been construed by the courts, in view of the spirit and tenor of the whole instrument, as prohibiting such taking without compensation; and it is understood to be the settled law of the State, that the Legislature cannot constitutionally authorize such a taking without compensation. Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35, pp. 66, 70; Perley, C. J., in Petition of Mount Washington Road Co., 35 N. H. 134, pp. 141, 142; Sargent, J., in Eastman v. Amoskeag Manuf. Co., 44 N. H. 143, p. 160; State v. Franklin Falls Co., 49 N. H. 240, p. 251. The counsel for the defendants have not been understood to question the correctness of this interpretation of the Constitution.
The vital issue then is, whether the injuries complained of amount to a taking of the plaintiff's property, within the constitutional meaning of those terms. It might seem that to state such a question is to answer it; but an examination of the authorities reveals a decided conflict of opinion. The constitutional prohibition (which exists in most, or all, of the States) has received, in some quarters, a construction which renders it of comparatively little worth, being interpreted much as if it read: "No person shall be divested of the formal title to property without compensation, but he may, without compensation, be deprived of all that makes the title valuable." To constitute a "taking of property," it seems to have sometimes been held necessary that there should be "an exclusive appropriation," "a total assumption of possession," "a complete ouster," an absolute or total conversion of the entire property, "a taking the property altogether." These views seem to us to be founded on a misconception of the meaning of the term "property" as used in the various State constitutions.
In a strict legal sense, land is not "property," but the subject of property. The term "property," although in common parlance frequently applied to a tract of land or a chattel, in its legal signification "means only the rights of the owner in relation to it." " It denotes a right .... over a determinate thing." "Property is the right of any person to possess, use, enjoy, and dispose of a thing." Seldon, J., in Wynehamer v. The People, 13 N. Y. 37S, p. 433; I Blackstone Com. 138; 2 Austin on Jurisprudence (3d ed.), 817, 818._ If property in land consists in certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference "takes," pro tanto, the owner's "property." The right of indefinite user (or of using indefinitely) is an essential quality or attribute of absolute property, without which absolute property can have no legal existence. "Use is the real side of property." This right of user necessarily includes the right and power of excluding others from using the land. See 2 Austin on Jurisprudence (3d ed.), 836; Wells, J., in Walker v. O. C. W. R. R., 103 Mass. 10, p. 14. From the very nature of these rights of user and of exclusion, it is evident that they cannot be materially abridged without, ipso facto, taking the owner's "property." If the right of indefinite user is an essential element of absolute property or complete ownership, whatever physical interference annuls this right takes "property," - although the owner may still have left to him valuable rights (in the article) of a more limited and circumscribed nature. He has not the same property that he formerly had. Then, he had an unlimited right; now, he has only a limited right. His absolute ownership has been reduced to a qualified ownership. Restricting A.'s unlimited right of using one hundred acres of land to a limited right of using the same land, may work a far greater injury to A. than to take from him the title in fee simple to one acre, leaving him the unrestricted right of using the remaining ninety-nine acres. Nobody doubts that the latter transaction would constitute a "taking of property." Why not the former?