Eaton v. Boston, Concord & Montreal Railroad.

to place the rights of property upon higher grounds than the mere legislative sense of justice and equity that this prohibition upon legislative power was embodied in the bill of rights." MOORE, J., in Buffalo B. B. & C. R. R. Co. v. Ferris, 26 Tex. 588, 602.

It has been contended, that in order to establish the position "that the right of action in behalf of the party injured” is “the same as if no charter existed," "it is necessary to show that the grant" of the franchise "is absolutely void." 1 Am. Law Mag. 64. It is undoubtedly necessary to show that the charter is void, in so far as it purports to authorize the infliction of the injury in question; but not that it is void in all other respects, conferring no valid rights as against any person whatever. If the legislature grant a charter purporting to authorize the grantee to take the property of A for public use upon making compensation, and the property of B without making compensation, the charter is invalid as against B, but may confer a right as against A. It is familiar law that "where an agent exceeds his authority, what he does within it is valid, if that part be distinctly severable from the remainder." 1 Parsons on Contracts (4th ed.), 58. The same principle applies to the exercise by the legislature of the power delegated to them by the constitution. No sound argument can be founded upon the hardship to the grantees of not receiving all that the legislature undertook to convey to them. Conceding that the grantees, by assuming the performance of the duties required of them by the charter, have paid a full consideration for all the privileges which the charter purported to convey to them, how does their case differ from that of other unfortunate persons who have purchased property of an irresponsi ble party who had no right to sell? Is the fact that the purchaser paid a full consideration to the wrongful vendor allowed to divest the title of the true owner? Yet, upon what other theory can it be. said (1 Am. Law Mag. 75) that "we cannot look beyond the charter itself to determine the duties and liabilities of the grantee?"

The consideration is sometimes urged, that the building of a railroad is a work of great public convenience and benefit. This may afford an excellent reason, for taking the plaintiff's land in the constitutional manner, but not for taking it without compensation. If the work is one of great public benefit, "the public can afford to pay for it." GREEN, Chan., in Hinchman v. Patterson Horse R. R ̧ Co., 2 C. E. Green (N. J.), 75, 80; PARKER, C. J., in Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35. 64. "Either, therefore,

Eaton v. Boston, Concord & Montreal Railroad.

* *

"Why is he called upon

Cash v. Whitworth, 13 La.

the railway ought not to be made, or the damage may well be paid for." BRAMWELL, Baron, in Brand v. H. & C. Railway Co., Law Rep., 2 Q. B. 223, 231. "In the case at bar, the plaintiff is expected to give his land" rather than another?" COLE, J., in Ann. 401, 403. "Taxation exacts money from individuals as their share of a justly imposed and apportioned public burden, and the equivalent is presumptively received in the benefits conferred by the government. Property taken for public use from one or more individuals only, by right of eminent domain, is taken not as his or their share of an apportioned public burden, but as something distinct from and more than his or their share of the public burdens, and therefore the justice and necessity of a constitutional provision for compensation." BUTLER, J., in Booth v. Town of Woodbury, 32 Conn. 130; RUGGLES, J., in People v. Mayor of Brooklyn, 4 Comst. 419, 424.

In Street Railway v. Cumminsville, 14 Ohio St. 523, it was found as a fact, that, taking into consideration the interests of the company and the general traveling public, as well as those of the lotowners, the location was "as little injurious as it would be in any other part of the highway." "This," said RANNEY, J., p. 550, "is the common case, where private property is taken for public uses. Reduced into plain English, it simply amounts to this, that the company and the public will gain as much as the lot-owners lose. The difficulty of giving this any effect in the present case arises from the fact that the justice of the constitution has provided that what the one thus gains and the other loses shall be paid for, before the property is taken or invaded."

"If," said WILLIAMS, J. [in 3 Bush. (Ky.) 429, 430], “the improvement is of great public utility, it will not be an onerous burden for the public to pay the damage; if so, it would, of course, be a much greater and peculiar burden and hardship on these individual proprietors. If the damages are great, they should not be imposed to the destruction of the individual proprietors. If they are not great, the burden on the public will be light. If too heavy to be imposed on the public, this should admonish the authorities not to impose them on the individual proprietors." WILLIAMS, J., in Louisville ▼. Rolling Mill Co., 3 Bush (Ky.), 416, 429, 430; and see WILLIAMS, C. J., in Enfield Toll Bridge Co. v. Hartf. & N. H. R. R. Co., 17 Conn. 40, 58, 59.

VOL. XII.-21

v.

Eaton v. Boston, Concord & Montreal Railroad.

It is said that a land owner is not entitled to compensation where the damage is merely "consequential." The use of this term," consequential damage" "prolongs the dispute," and "introduces an equivocation which is fatal to any hope of a clear settlement." It means both damage which is so remote as not to be actionable, and damage which is actionable. Sometimes it is used to denote damage which, though actionable, does not follow immediately, in point of time, upon the doing of the act complained of; what ERLE, C. J., aptly terms "consequential damage to the actionable degree." Brand v. H. & C. R. Co., Law Rep., 2 Q. B. 223, 249. It is thus used to signify damage which is recoverable at common law in an action of case, as contradistinguished from an action of trespass. On the other hand, it is used to denote a damage which is so remote a consequence of an act that the law affords no remedy to recover it. The terms, "remote damages" and "consequential damages” “are not necessarily synonymous, or to be indifferently used. All remote damages are consequential, but all consequential damages are by no means remote." Sedgwick on Damages (5th ed.), 56.

When, then, it is said that a land owner is not entitled to compensation for "consequential damage," it is impossible either to affirm or deny the correctness of the statement until we know in what sense the phrase "consequential damage" is used. If it is to be taken to mean damage which would not have been actionable at common law if done by a private individual, the proposition is correct. The constitutional restriction was designed "not to give new rights, but to protect those already existing." Pierce on Am. R. R. Law, 173; (and see Rickett v. Directors, etc., of Metropolitan Railway Co., Law Rep., 2 H. of L. 175, 188, 189, 196). But this does not concern the present case, where it is virtually conceded that the injury would have been actionable if done by a private individual not acting under statutory authority. If, upon the other hand, the phrase is used to describe damage, which, though not following immediately in point of time upon the doing of the act complained of, is nevertheless actionable, there seems no good reason for establishing an arbitrary rule that such damage can in no event amount to a "taking of property."

The severity of the injury ultimately resulting from an act is not always in inverse proportion to the lapse of time between the doing of the act and the production of the result. Heavy damages are recovered in case as well as in trespass. The question whether the

Eaton v. Boston, Concord & Montreal Railroad.

injury constitutes a "taking of property" must depend on its effect upon proprietary rights, not on the length of time necessary to produce that effect. If a man's entire farm is permanently submerged, is the damage to him any less because the submerging was only the "consequential" result of another's act? It has been said "that a nuisance by flooding a man's land was originally considered so far a species of ouster, that he might have had a remedy for it by assize of novel disseizin; " but if it be conceded that at present the only common-law remedy is by an action on the case, that does not change the aspect of the constitutional question. The form of action in which the remedy must be sought cannot be decisive of the question whether the injury falls within the constitutional prohibition. "We are not to suppose that the framers of the constitution meant to entangle their meaning in the mazes" of the refined technical distinctions by which the common-law system of forms of action is "perplexed and incumbered." Such a test would be inapplicable in a large proportion of the States, where the distinction between trespass and case has been annihilated by the abolition of the old forms of action. We are not alone in the opinion that the phrase "consequential damage" has been misapplied in some of the discussions on this constitutional question (see the criticisms of MILLER, J., in Pumpelly v. Green Bay Co., 13 Wall. [U. S.] 166, 180; PAINE, J., in Alexander v. City of Milwaukee, 16 Wis. 247, 258; SUTHERLAND, J., in People v. Kerr, 37 Barb. 357, 403, 408); and we think that the confusion thus engendered will account for some erroneous decisions. If this most ambiguous expression is to be used at all in this connection, the meaning attached to it should always be clearly defined, as is done in Pierce on Am. Railroad Law, 173.

It may, perhaps, be urged that a decision in favor of the plaintiff will give rise to a multiplicity of suits by other claimants, many of whom have sustained no substantial damage. But this affords no ground for denying redress to this plaintiff, who has clearly sus tained a substantial injury. Nor will the present decision be a precedent in future cases differing in their nature from the one before us. The answers given by other courts to similar objections are quite decisive. Ld. DENMAN, C. J., in Regina v. Eastern Counties Railway Co., 2 Q. B. 347, 362, 363; MONTAGUE SMITH, J., Brand . H. & C. Railway Co., Law Rep., 2 Q. B. 223, 245; PARKER,

Eaton v. Boston, Concord & Montreal Railroad.

C. J., in Boston and Roxbury Mill Corp. v. Gardner, 2 Pick. 33, 38, 39.

Our conclusion, that the second ground of defense set up in tais case must be overruled, is supported by Pumpelly v. Green Bay Co., 13 Wall. (U.S.) 166; Evansville & Crawfordsville R. R. Co. v. Dick, 9 Ind. 433; and by that part of the decision in Richardson v. Vt. Central R. R. Co., 25 Vt. 465, which holds the plaintiff entitled to recover for damage occasioned by his land falling into the cut. See, also, Hay v. Cohoes Co., 2 N. Y. 159; RANNEY, J., in Carman v. Steubenville & Indiana R. R. Co., 4 Ohio St. 399, 413. In Hooker v. The New Haven & Northampton Co., 14 Conn. 146; S. C., 15 id. 312, it was held that no intent of the legislature to authorize the injury was apparent; but some of the reasoning of WILLIAMS, C. J., tends very strongly to show that an attempt to confer such authority would have been unavailing. See 14 Conn. 151-162; 15 id. 317, 319, 321, 325.

There are also numerous cases in which the decisions, or dicta, tend to sustain the principle of the present decision. People v. Nearing, 27 N. Y. 306, 308, 310; BRINKERHOFF, J., in Reeves v. Treasurer of Wood County, 8 Ohio St. 333, 346 (and see, in this connection, Tide Water Co. v. Coster, 3 C. E. Green [N. J.], 158; S. C 3 id. 34); In the matter of Bushwick Avenue, 48 Barb. 9, J. F. BARNARD, J., p. 12; MULLIN, P. J., in Village of Lancaster v. Richardson, 4 Lans. 136, 141; Lee v. Pembroke Iron Co., 57 Me. 481, BARROWS, J., p. 488; BIGELOW, J., in Brigham v. Edmands, 7 Gray, 359, 363; ZABRISKIE, Chan., in Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken Horse R. R. Co., 20 N. J. Ch. (5 C. E. Green) 61, 62; Gardner v. Village of Newburgh, 2 Johns. Ch. 162; BECK, J., in McCord v. High, 24 Iowa, 336, 342; Woodruff v. Neal, 28 Conn. 165; VALENTINE, J., in U. P. R. W. Co. E. D. v. Rollins. 5 Kan. 167, 176, 177, and in Caulkins v. Mathews, 5 id. 191, 200; People v. Platt, 17 Johns. 195; State v. Glen, and Cornelius v. Glen, 7 Jones' Law (N. C.), 321, 512; Crenshaw v. Slate River Co., 6 Randolph (Va.), 245; State v. Franklin Falls Co., 49 N. H. 240, 251; State v. Laverack, 34 N. J. Law (5 Vroom), 201; Martin, Ex parte, 8 English (Ark.), 198; Attorney-General v. Germantown, etc., Turn pike Road, 55 Penn. St. 466; Glover v. Powell, 2 Stockton's Ch. (N.J.) 211; HOAR, J., in Morse v. Stocker, 1 Allen, 150, 157, 158; Moale v. Mayor of Baltimore, 5 Md. 314, LE GRAND, C. J., pp. 321, 322; see, also, J. C. SMITH, J., in Morgan v. King, 35 N. Y. 454, 457; WAL