There may be an appropriation of the rights of ownership in a particular piece of land, the entire interest of the former owner thus passing to the appropriator, or a right merely to use the land for the particular public purpose may be acquired. Whether there is an appropriation of the ownership of the land is usually a question of the construction of the statute under which the land is condemned, in connection with any constitutional restrictions upon the power. There is usually a presumption that the ownership, or, as it is ordinarily expressed, the "fee," does not pass, and, unless the statute explicitly authorizes the taking of a fee, or this is necessary for the particular use, it is ordinarily considered that a right of user only is taken by even a municipal corporation.2 So a railroad company ordinarily acquires by condemnation merely an easement in the land, and, in the case of land taken for highway purposes, the public frequently acquires merely the right to use the land for such purposes.

The rights of the owner of land may be infringed, not by the actual taking of the land for a particular public purpose, but by the fact that the utilization of neighboring land for such a purpose results in the forcing of water upon the former land, or the casting thereon of stone, earth, or sewerage, thus interfering with the owner's rights of user in the land, and to that extent appropriating his rights in the land.3 The taking for public use may also involve, not a physical invasion of the land itself, but merely the divesting of some of the natural rights incident to the ownership of land. So. one may be divested of rights as to the How of a natural watercourse, of access to water, or of rights with respect to percolating and surface water. Like2. Randolph, Eminent Domain. Sec. 205; 2 Lewis, Eminent Domain, Sec.Sec. 449-451.

3. Pumpelly v. Green Ray & Mississippi Canal Co., 13 v

(U. S.) 166, 20 L. Ed 557; Eaton v. Boston, C. & M. R. Co.. 51 N. H. 504. See editorial notes, 19 Harv. Law Rev. 127, 12 Columbia Law Rev.165 wise, one may be deprived of his natural right to freedom from dust, smoke, noise, and the like. The cases are in very considerable conflict as to the right to compensation for consequential injuries to land, arising from the invasion of the natural rights of freedom from dust, noise, or noxious odors.4

One may be entitled to compensation as having been deprived, by the physical appropriation of another person's land, of an easement which he enjoyed in such land.5 And it has been decided that if land is subject to an agreement restricting its use, the person for whose benefit such restriction exists is entitled to compensation when the land is appropriated under the power of eminent domain for a purpose which involves a violation of the agreement.6

4. Randolph, Eminent Domain, Sec. 152; 1 Lewis, Eminent Domain, Sec. 235. See notes, 19 Harv. Law Rev. 127; 10 Columbia Law Rev. 245, 12 Id. 165.

5. 1 Lewis, Eminent Domain, Sec. 223; Strickler v. City of Colorado Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 Pac. 313; Indianapolis & C. G. R. Co. v. Belt Ry. Co., 110 Ind. 5, 13. 10 N. E. 923; Ladd v. City of Boston, 151 Mass. 585, 21 Am. St. Rep. 481, 24 N. E. 858; Detroit Leather Specialty Co. v. Michigan Cent. R Co., 149 Mich. 588, 113 N. W. 14; Arnold v Hudson River R. Co., 55 N. Y. 661; Willey v. Norfolk S. R. Co., 96 N. C. 408. 1 S. E. 446; Neff v Pennsylvania R. Co., 202 Pa. 371, 51 Atl. 1038.

6. Long Eaton Recreation Grounds Co. v. Midland Railway (1902) 2 K. B. 574; Flynn v. New York, W. & B. R. Co., 218 N. Y. 140. Ann. Cas. 1918B. 588, 112 N. E. 913. See Allen v. Detroit, 167 Mich. 464. 133 N. W.

317, 36 L. R. A. N. S. 890, and editorial note 21 Harv. Law Rev. 139. In Ladd v. Boston, 151 Mass. 585, 21 Am. St. Rep. 585, 24 N. E. 858, a like result was obtained by regarding the restrictive agreement as creating a legal easement. See also, to the same general effect Riverbank Imp. Co. v. Chadwick, 228 Mass. 242, 117 N. E. 244.

That there is no right of compensation in such a case wa.; oecided in Doan v. Cleveland Short Line R. Co., 92 Ohio St. 461, 112 N. E. 505, on the ground that if the person entitled to the benefit of the restriction is allowed damages in such case, "only a mere device of conveyancing is necessary to defeat entirely the rule that depreciation of property incidental to a public use does not constitute a taking," quoting United States v. Certain Lands in Town of Jamestown, R. I., 112 Fed. 622. See also Wharton v. United

The fact that one's land abuts on a highway or street is quite generally considered to give him certain rights of light, air, and access, interference with which entitles him to compensation as for the taking of property. Rights of this character, as the subject of compensation, have been before referred to, as has the question of the extent to which the previous appropriation or dedication of land for a highway authorizes its use, without further compensation, for particular purposes, on the ground that such purposes are of a "highway" character.7