In the Muhlker case, coming to the Supreme Court by writ of error from the supreme court of the State of New York, it was held that the owner of a piece of real property abutting on a street in New York who had acquired his title at a time when the state court had held that the owners of such abutting property had a right to easements of light, air and access, which could not be taken from them without compensation by an elevated railroad, was protected by the obligation clause from impairment of this right. An elevated railway, to be constructed, owned, and operated by a private company, had been authorized by a state law of 1892, but the denial in the state court that this contract right had been thereby impaired was based not upon the assertion that the construction of the railway did not impair the plaintiff's contract right, but upon the ground that the earlier doctrine that he had a contract right at all was incorrect. It is thus apparent that, speaking at all strictly, the validity of the act of 1892 was not in question, that act merely providing for the erection of the railroad, and containing no provision one way or the other regarding compensation to abutting property-owners. The federal court, however, assumed jurisdiction on writ of error. After referring to the earlier state doctrine that there was a right to compensation, the court say: "When the plaintiff acquired his title those cases were the law of New York, and assured to him that his easements of light and air were secured by contract as expressed in those cases, and could not be taken from him without payment of compensation. And this is the ground of our decision. We are not called upon to discuss the power, or the limitations upon the power, of the courts of New York to declare rules of property or change or modify their decisions, but only to decide that such power cannot be exercised to take away rights which have been acquired by contract and have come under the protection of the Constitution of the United States. And we determine for ourselves the existence and extent of such contract. This is a truism; and when there is a diversity of state decisions the first in time may constitute the obligation of the contract and the measure of rights under it." 71

70 See the dissenting opinion of Justice Peckham.

71 In Sauer v. City of New York (206 U. S. 536; 27 Sup. Ct. Rep. 686; 51 L. ed. 1170) the facts were similar to those in the Muhlker case, except that the elevated structure was a viaduct for a purely public use, and the federal court held that the abutting property-owners had no contract right to compensation as against such a purely public use of the street. inasmuch as the earlier doctrine of the state courts had not been to that effect.

Commenting upon the McCullongh and Muhlker cases, Professor W. F. Dodd in the Illinois Law Review (December, 1909) says: "They seem to warrant the statement that the federal Supreme Court will, in practically any case, be able to find a state statute to serve as a 'lay figure' in order to justify its taking jurisdiction over cases from state courts where contract rights are impaired by the reversal or modification of rules of law previously established by such courts. This practice may easily be extended to state cases passing upon for the first time and holding unconstitutional laws acted upon as valid, and under which contract rights had arisen before they were declared invalid; in just this manner was the rule of Gelpcke v. Dubuque extended so as to cover such cases as Hotel Co. v. Jones [see infra, Section 520] . . . A more logical view would be for the court to hold a judicial decision to be a 'law' in the technical sense, but the present attitude is better for the court, because it permits the Supreme Court to take or refuse jurisdiction as it pleases, while the holding of a decision to be a 'law' would operate to give an appeal to the Supreme Court as a matter of right from state decisions impairing the obligation of contracts."