FLORIDA SUPREME COURT. George SELDEN et al., Appts.,' 0. CITY OF JACKSONVILLE et al. (........Fla.........) *1. The guaranty of a constitution, that private property shall not be "taken" or "appropriated" without compensation, does not extend to mere consequential damages resulting to property abutting on a street from a change of grade of the street, or other improvement thereof not constituting a diversion of the street from street purposes, by municipal authorities acting within the scope of their charter powers, but only to a trespass upon or physical invasion of the abutting property. 2. The provisions of the Constitution of 1885, that private property shall not be "taken" without just compensation (section 12, Declaration of Rights); that the Legislature may provide for the drainage of the land of one person over or through that of another upon just compensation therefor to the owner of the land over which such drainage is had; and that no private property nor right of, way shall be "appropriated" to the use of any corporation or individual until full compensation shall first be made to the owner, or first secured to him by deposit of money, which compensation irrespective of any benefit from any improvement proposed by such corporation or individual (sections 28, 29, art. XVI.) do not of themselves render a municipality liable for mere consequential damages resulting *Head notes by RANEY, Ch. J. to property abutting on a street from the lawful change of grade or other authorized improvement of the street by the municipality. 3. Upon the voluntary dedication of land to the purposes of a street, it becomes, to the extent that it is necessary to be used for a street, the property of the people of the State; and the dedication carries with it the continuing power to change its grade or otherwise improve it in so far as such improvements are for street purposes. This power may be delegated by the Legislature to a municipality as one of its governmental agencies, and to the exercise of these powers the fee of the owners of abutting lots, in the street to its center, is at all times subject. 4. There are incident to the ownership of property abutting on a street certain property rights which the public generally do not possess, viz.: The right of egress and ingress from and to the lot by the way of the street, and of light and air which the street affords. These incidental rights are under a constitutional prohibition, simply against the "taking" or "appropriation" of private property, subordinate to the right of the State, or of any duly authorized governmental agency acting for it, to alter a grade or otherwise improve a street for street purposes. The original and all subsequent purchasers of abutting lots take with the implied understanding that the public shall have the right to improve or alter the street so far as may be necessary for its use as a street, and that they can sustain no claim for damages resulting to their lots or property from the improvement or destruction of such incidental rights as a mere conse NOTE.-Injury to abutter's easements of light, air | made for a taking of property by interfering with and access by vacating street, changing grade, etc. The fact that persons owning lots on a city street had some rights in the street which were different from those of the public at large was early recognized. The Supreme Court of the United States clearly indicates it in 1832 in the case of Cincinnati v. White, 31 U. S. 6 Pet. 438, 8 L. ed. 456. In 1839 the Kentucky Supreme Court says that the title to lands on a city street carries with it the right to certain services and easements as inviolable as the property in the lands themselves. Lexington & O. R. Co. v. Applegate, 8 Dana, 294, 33 Am. Dec. 497. In 1857 the Ohio Supreme Court said the abutting owner's rights in the street are property which are protected by the Constitution. Crawford v. Delaware, 7 Ohio St. 467. This doctrine has been reiterated more or less strongly and in reference to different things which have been alleged to be invasions of such rights until the present time. White's Bank of Buffalo v. Nichols, 64 N. Y. 73; Drake v. Hudson River R. Co. 7 Barb. 535; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117; Ross v. Thompson, 78 Ind. 90; Rensselaer v. Leopold, 3 West. Rep. 874, 106 Ind. 30; Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62, 31 Am. Rep. 306; Port Huron & S. W. R. Co. v. Voorheis, 50 Mich. 506. In Kane v. New York Elev. R. Co. 11 L. R. A. 640, 125 Ν. Υ. 164, the court said that if the owner of property bordering on a public street in which a trust has been established to have the same kept open for the benefit of the public, accepts and acts upon such trust by erecting buildings on his property he thereby acquires easements which cannot be taken from him without compensation. Just when the claim for compensation was first easements in the street is difficult to determine. It was alleged that "all access was cut off" in Simmons v. Camden, 26 Ark. 276 (1870), but it does not appear that the claim was made that the right of access was property which could not be taken without compensation. Vacation of street. The doctrine of the abutter's easements has been discussed and developed with reference to the vacation and the obstruction of streets and to the change of grade. The first two are generally held to be an interference with the abutter's property for which compensation must be made, while the reverse is held as to the third. Each owner of a lot on a public street has a right to the common and unrestricted use of the contiguous street so far as is necessary for affording him incidental services and easements. This appurtenant right partakes of the character of private property and is protected by the fundamental law as such. And the street cannot be closed without making compensation to him. Transylvania University v. Lexington, 3 B. Mon. 27, 38 Am. Dec. 173; Indianapolis v. Kingsbury, 101 Ind. 200; LeClercq v. Gallipolis, 7 Ohio, 217; Indianapolis v. Croas, 7 Ind. 9; Butterworth v. Bartlett, 50 Ind. 537; Pearsall v. Eaton County, 4 L. R. A. 193, 71 Mich. 438; Cook v. Quick, 127 Ind. 477. An Act which closes an alley over which abutting owners have a right of way is invalid if it does not provide for compensating such owners or obtaining their consent to vacation. Bannon v. Rohmisson (Ky.) 11 Ky. L. Rep. 987. Pennsylvania and Iowa have taken the opposite side of this question. When the government sees fit to vacate public A quence from the lawful use or improvement of | The approaches were to be built up solidly of the street as a highway. 5. The erection by a municipal government within the limits of a street, and for street purposes and under street conditions justifying it, of a viaduct for the purpose of changing the grade of the street, and in the exercise of its power to change such grades, is not a "taking" or "appropriation" of private property within the constitutional guaranty against such taking or appropriation, even though the mason work. Complainants own lots abutting on the portion of the street which will be occupied by the viaduct and the grade of the street will be raised in front of their premises to a considerable extent. To prevent the construction of this structure without making compensation this bill was filed. Further facts appear in the opinion. Messrs. A. W. Cockrell & Son, for ap abutting owners' rights of ingress, egress, light pellants: and air are destroyed thereby; nor is this result of law changed by the mere fact that other corporate bodies than the municipality have contributed to the expense of the erection of the viaduct. Whether, however, it would not be a diversion of the street from the street purposes, and a "taking" and "appropriation" for which compensation must be made, if the necessity for the viaduct was created by railroad tracks crossing the street, not presented. A (December 22, 1891.) PPEAL by complainants from a decree of the Circuit Court for Duval County dismissing a bill filed to enjoin the construction of a viaduct on a street in the City of Jacksonville. Affirmed. Commercial Street is a public street in the corporate limits of Jacksonville. It is crossed | by railroad tracks of several companies. For the alleged purpose of removing the danger to the public from being compelled to cross these tracks at grade the City undertook to construct a viaduct on the street above the tracks and carry the street over the top of the viaduct. streets the consequential loss, if any, must be borne by those who suffer. McGee's App. 114 Pa. 471; Paul v. Carver, 24 Pa. 211, 64 Am. Dec. 649. The vacation of a highway does not take from a person abutting thereon any property either for a public or private use for which he can recover compensation. Barr v. Oskaloosa, 45 Iowa, 278. The making of compensation is an indispensable attendant of the exercise of public right, and the Legislature could not have intended, by the general powers conferred upon the city, to violate or interfere with private rights. Gardner v. Newburgh, 2 Johns. Ch. 162, 1 L. ed. 332; United States v. Fisher, 6 U. S. 2 Cranch, 390.2 L. ed. 314. The whole of the opinion in the latter case is valuable, and substantially repudiates decisions relied on, to the extent they tend to support defendants' contention in this case. Cogswell v. New York, N. H. & H. R. R. Co. 4 Cent. Rep. 225, 103 N. Y.10; Terre Haute & 1. R. Co. v. Bissell, 6 West. Rep. 253, 108 Ind. 113. When the wrong done arises from the construction, as distinguished from the operation of the "improvement," it stands upon the same footing, as to "consequential injuries, as if there had been an actual taking of a portion of plaintiff's property." Pennsylvania Š. V. R. Co. v. Walsh, 124 Pa. 544; Pennsylvania R. Co. v. Marchant, 12 Cent. Rep. 261, 119 Pa. 541; Chester County v. Brower, 10 Cent. Rep. 909, 117 Pa. 647; Pennsylvania grade of its streets without liability to abutting landowners. Radcliff v. Brooklyn, 4 N. Y. 205, 53 Am. Dec. 357, overruling Fletcher v. Auburn & S. R. Co. 25 Wend. 462; Callender v. Marsh, 1 Pick. 430; Burlington v. Gilbert, 31 Iowa, 356, 7 Am. Rep. 143; Fellowes v. New Haven, 44 Conn. 240, 26 Am. Rep. 447; Delphi v. Evans, 36 Ind. 90, 10 Am. Rep. 12; Shawneetown v. Mason, 82 Ill. 337, 25 Am. Rep. 321; Snyder v. Rockport, 6 Ind. 237; Goszler v. Georgetown, 19 U. S. 6 Wheat. 593, 5 L. ed. 339; Quincy v. Jones, 76 III. 231; Kepple v. Keokuk, 61 Iowa, 653, 2 Am. & Eng. Corp. Cas. 447, and note; Green v. Reading, 9 Watts, 382; O'Connor v. Pittsburgh, 18 Pa. 187; Taylor v. St. Louis, 14 Mo. 20, 55 Am. Dec. 89; Rounds v. Mumford, 2 R. I. 154; Humes v. Knox It is quite commonly held, however, that although one public way to property is closed if there is another left the property owner sustains no actionable damage. Coster v. Albany, 43 N. Y. 399; Fearing v. Irwin, 55 N. Y. 486; Gerhard v. Seekonk River Bridge Comrs. 2 New Eng. Rep. 619, 15 R. I. 334; Smith v. Boston, 7 Cush. 254; Polack v. San Francisco Orphan Asylum, 48 Cal. 490; Kings County F. Ins. Co. v. Stevens, 2 Cent. Rep. 430, 101 N. Y. 417; | ville, 1 Humph. 403, 34 Am. Dec. 657; Hovey v. Mayo, Helier v. Atchison, T. & S. F. R. Co. 28 Kan. 625; So the mere fact that by the discontinuance of a street complainant, instead of being able to reach a certain point by an unbroken separate line, has 43 Me. 322; Schattner v. Kansas City, 53 Mo. 162; Tate v. Missouri, K. & T. R. Co. 64 Mo. 149; Dorman v. Jacksonville, 13 Fla. 545, 7 Am. Rep. 253; Kehrer v. Richmond, 81 Va. 745. This rule is so firmly established that it is laid down almost without qualification by the textbooks (Lewis, Em. Dom. § 98; Dillon, Mun. Corp. $990; Elliott, Roads & Streets, p. 336; Ang. Highways, $211 et seq.), which cite authorities almost without number, many of which however do not to make a short turn and select other roads run-discuss or allude to the question of how far the ning in the same direction, is not sufficient to entitle him to compensation. Kimball v. Homan, 74 Mich. 699. Changing grade. The abutter's claims to compensation for a taking of his easements by changing the grade of a street have been almost wholly rejected by the same courts, which have held that he was entitled to compensation if the street was vacated; and the rule is that a municipality may, in the absence of a constitutional or statutory provision, change the abutter's easements are property. Since the New York Elevated Railroad Cases were decided the question has been brought up anew, but it is said that decisions sustaining the right of an individual proprietor of lands upon a street to the use of the same for access to his premises and giving him a remedy for interference with such rights are not applicable to cases of change of grade. Henderson v. Minneapolis, 32 Minn. 319, 6 Am. & Eng. Corp. Cas. 4. Even the Story Case, 90 N. Y. 122, 43 Am. Rep. 146, recognized the right of the municipality to alter R. Co. v. Lippincott, 8 Cent. Rep. 818, 116 Pa. | Rep. 146, decided in 1882, it was held, after 472; Edmundson v. Pittsburgh, M. & Y. R. Co. 1 Cent. Rep. 868, 111 Pa. 316; Shrunk v. Schuylkill Nav. Co. 14 Serg. & R. 71. Dorman v. Jacksonville, 13 Fla. 545, 7 Am. Rep. 253, decided that, under the clause in the Bill of Rights "inhibiting the taking of private property, without just compensation," the easement of the abutting owner on a public street was not protected unless some tangible property of the abutting owner was taken. But the suggestion was made, that "it might be proper for the Legislature by some general Act" to provide compensation to the abutting owner. There was, when the decision of Dorman v. Jacksonville, 13 Fla. 545, 7 Am. Rep. 253, was made, a conflict in the authorities as to whether the easement of the abutting owner, his right of way, of ingress and egress to and from the street in and upon his premises, was such property as came within this clause of the Bill of Rights, and in the Case of Story, 90 N. Y. 122, 43 Am. the grade of the street by raising or lowering it without liability to the abutting property owner. A city is not liable for change of grade because it is presumed that the owner has been compensated for loss resulting from such change. Buchner v. Chicago, M. & N. R. Co. 56 Wis. 414. Rule in Ohio and Kentucky. In Ohio the owner of a lot on an unimproved street in erecting buildings thereon assumes the risk of all damages which may result from a subsequent reasonable grading and improvement of it. But if buildings have been erected with reference to a grade once established the city is liable for damages resulting to their owners from a change of grade. Akron v. Chamberlain County, 34 Ohio St. 328, 32 Am. Rep. 367; McCombs v. Akron, 15 Ohio, 474; Akron v. McComb, 18 Ohio, 229, 51 Am. Dec. 453; Crawford v. Delaware, 7 Ohio St. 459. In Kentucky the general rule was at first followed. Keasey v. Louisville, 4 Dana, 154, 29 Am. Dec. 395. elaborate arguments by the ablest lawyers in the country, this right of way was property protected by the constitutional provision, inhibiting the "taking of private property" without just compensation. The Legislature of the State of Florida did not respond to the appeal of the supreme court, but the Story Case, supra, gave in part the relief demanded, by declaring against Judge Gibson's views in O'Connor v. Pittsburgh, 18 Pa. 189, and against Judge Randall's views in Dorman v. Jacksonville, supra, that the constitutional protection inhibiting the taking of private property did extend to the easement or right of way of an abutting owner, in and upon and over his premises from and over the highway. When the constitutional convention of 1885 met, it determined to avoid, on the one hand, holding those who were authorized to condemn property for a public purpose responsible for direct or indirect damages or injuries to adja that although he owned the fee to the center of the street there was no actionable injury. Conklin v. New York, O. & W. R. Co. 3 Cent. Rep. 194, 102 N. Y. 107. So where the grade in front of plaintiff's property was raised to carry the street over a railroad track, laid five feet and nine inches above the grade of an intersecting street in such manner that a space of but eighteen feet was left in front of plaintiff's property as a carriage-way on the old grade, while the centre of the street was raised from two to four feet, three of the judges thought there was no ground for damages, although the remainder of the judges concurred in reversing on other grounds. Ottenot v. New York, L. E. & W. R. Co. 119 N. Y. 603. No damages can be recovered by an abutting property owner for the lowering of the grade of a street in order to separate it from the grade of a railroad which crossed it. Wilson v. New York, Cent. & H. R. R. Co. 2 N. Y. Supp. 65. The city could permit a bridge company to conBut in Louisville v. Louisville Rolling Mill Co., 3 struct a bridge over a river and grade the street to Bush, 427, 96 Am. Dec. 243 (1867), the private rights reach the bridge, even though a railroad company of light, air, and access were distinctly recognized, was permitted to place its rails on the 'street and although it was not expressly ruled that they alone over the bridge where a space of twelve or fifteen constituted property which could not be destroyed feet was left between the supporting wall of the without compensation. In that case the street was grade and the sidewalk in front ofiplaintiff's propto be filled about twelve feet above the grade of erty. Newport & C. Bridge Co. v. Foote, 9 Bush, plaintiff's lot, and he was directed by the city au- 266. thorities to fill his lot even with that grade so as to support it or to build a supporting wall, either of which would have practically destroyed the value of his property, and the court held it could not be done. The result of that case leaves it rather doubtful how far a city might destroy an easement of access by changing a grade, without liability. Grading to cross bridges or railroads. Where a city authorizes a railroad company to raise the grade of a street to carry it over the company's tracks which cross the street at right angles, an abutting property owner whose easements are thereby interfered with has no right of action against the company. Uline v. New York Cent. & H. R. R. Co. 2 Cent. Rep. 116, 101 N. Y. 108. Where a railroad crossed a highway below grade and for the purpose of restoring the highway to the use of the public bridged its tracks and graded up the highway to the bridge level thereby raising the surface of the street in front of plaintiff's property so as to interfere with his easements, it was held In conflict with the doctrine of the above cases is the following: Where the grade of the street is lowered to make the street conform to a railroad crossing compensation must be made. Buchner v. Chicago, M. & N. R. Co. 56 Wis. 414. Obstructing or destroying street. Neither the municipality nor the State can appropriate a street to any purpose which will render valueless the abutting real estate. St. Paul & P. R. Co. v. Schurmeier, 74 U. S. 7 Wall. 272, 19 L. ed. 74; McCaffrey v. Smith, 41 Hun, 117; Mahon v. New York Cent. R. Co. 24 N. Y. 658. A sale for the benefit of a town cannot be made of all of a street except an alley, even though it owns the fee. Moose v. Carson, 7 L. R. A. 548, 104 N. C. 431. This question will be further developed in the note to the case next following this. The rules as laid down above have been much changed by constitutional and statutory provisions in many of the States. H. P. F. cent property not actually taken, and on the other to guard and protect the easement, or right of way of an abutting owner, in and upon and over a public highway, from an invasion by any corporation whatever, municipal or otherwise, by placing such right of way upon the same footing as actual tangible "private property." Art. 16, § 29. Constitutional provisions for the security of person and property should be liberally construed. Boyd v. United States, 116 U. S. 635, 29 L. ed. 752. See Giesy v. Cincinnati, W. & Z. R. Co. 4 Ohio St. 308; Cincinnati & S. G. A. St. R. Co. v. Cumminsville, 14 Ohio St. 523; McCombs v. Akron, 15 Ohio, 474; Akron v. McComb, 18 Ohio, 229, 51 Am. Dec. 453. Independently of the change in the Constitution of Florida enlarging the inviolability of private rights, the following propositions are established by the weight of authority. The fee is in complainants to the center of Commercial Street; the distinction as to the rights of abutting owners who do not own, compared with those who own, is drawn in Florida S. R. Co. v. Brown, 23 Fla. 104. Every lot-owner, whose premises abut on the street, has a peculiar interest in the adjacent street, which neither the local nor the general public can pretend to claim, a private right in the nature of an incorporeal hereditament legally attached to his contiguous ground; an incidental title to certain facilities and franchises, which is in the nature of property, and which can no more be appropriated against his will than any tangible property of which he may be owner. Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62, 31 Am. Rep. 312; Elisabeth, L. & B. S. R. Co. v. Combs, 10 Bush, 382, 19 Am. Rep. 67. The abutters upon a public street, owning the soil and fee to the center thereof, have an casement in the bed of the street for ingress and egress to and from their premises and also for the free and uninterrupted circulation of light and air through and over such street, for the benefit of their property. Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146. The ownership of such easement is an interest in real estate, constituting property, within the meaning of the constitutional provision. Lahr v. Metropolitan Elev. R. Co. 6 Cent. Rep. 371, 104 N. Y. 268, affirming Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146. The right of an owner of land abutting on a public street is property in such a sense as to entitle him to compensation, in case the street is appropriated to a use which deprives it of its character as a public way. Elliott, Roads & Streets, p. 156; Chicago, K. & N. R. Co. v. Hazels, 26 Neb. 364; Central Branch U. P. R. Co. v. Andrews, 41 Kan. 370; Grand Rapids & 1. R. Co. v. Heisel, 38 Mich. 71; Stone v. Fairbury, P. & N. R. Co. 68 Ill. 394, 18 Am. Rep. 556; Imlay v. Union Branch R. Co. 26 Conn. 249, 68 Am. Dec. 392; Starr v. Camden & A. R. Co. 24 N. J. L. 592; Morris & E. R. Co. v. Newark, 10 N. J. Eq. 352; Port Huron & S. W. R. Co. v. Voorheis, 50 Mich. 506. The right of access to abutting premises is so far regarded as "private property" that not even the Legislature can take it away and deprive the owner of it without compensation. Elliott, Roads & Streets, p. 526, and notes 3, 4, and cases cited; Transylvania University v. Lexington, 3 B. Mon. 25, 38 Am. Dec. 173; Abendroth v. New York Elev. R. Co. 11 L. R. A. 634, 122 N. Y. 1. Mr. W. B. Young, with Mr. J. M. Barrs, City Atty., for appellees: Unless changed by Constitution, or some statute of the State, no liability for compensation accrues unless there is an "appropriation," a taking of the particular property. Montgomery v. Townsend, 80 Ala. 489; Radcliff v. Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357; Louck v. Hawkins, 1 Rich. L. 417; Smith v. Washington Corp. 61 U. S. 20 How. 135, 15 L. ed. 858; Dorman v. Jacksonville, 13 Fla. 545, 7 Am. Rep. 253; Montgomery v. Maddox, 89 Ala. 181. The consequential injury to property resulting from the lawful use of an independent right is never held to be a taking. Tiedeman, Pol. Powers, p. 397 et seq. What is it the city proposes to do in this case? It is simply in effect to raise the grade of the street. St. Paul v. Wilkin (Minn.) 7 Am. & Eng. Corp. Cas. 522. An injunction will not be granted to restrain the raising of the grade of a street. Callender v. Marsh, 1 Pick. 417; Smith v. Washington Corp. supra; Kepple v. Keokuk, 61 Iowa, 653, 2 Am. & Eng. Corp. Cas. 443. Whatever right an abutter has in the street is subject to the paramount authority of the State to regulate and control the street for all the purposes of a street, and to make it more suitable for the wants of the public. Radcliff v. Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357, dissenting opinion in Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146. Raney, Ch. J., delivered the opinion of the court: The last clause in the 12th section of the Declaration of Rights of our Constitution is: "Nor shall private property be taken without just compensation." This is not, however, the only provision of that instrument relating to the exercise of the right of eminent domain. There are two sections in the "Miscellaneous Provisions," or 16th article, which read as follows: "Sec. 28. The Legislature may provide for the drainage of the land of one person over or through that of another upon just compensation therefor to the owner of the land over which such drainage is had. "Sec. 29. No private property nor right of way shall be appropriated to the use of any corporation or individual until full compensation shall be first made to the owner or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be provided by law." It cannot be denied that the almost uniform course of decision has been that a municipal | we are satisfied that the rights just mentioned government was not liable for any conse- are within the meaning of the word "propquential damages resulting to dwelling lots erty," as it is used in this constitutional profrom an authorized or lawful change of grade vision. These incidental rights of property of the street by the municipal authorities, are under a constitutional guaranty simply where the constitutional provision obtaining against the "taking" or "appropriation" of has been like that of our Declaration of Rights: property, subordinate to the right of the State, "Nor shall private property be taken without just compensation." Such seems to have been this court's understanding of the law twenty years ago, as is shown by Dorman v. Jacksonville, 13 Fla. 538, 7 Am. Rep. 253. The meaning given by the courts and commentators to the words "taken" or "appropriated," as used in such provision, is that there must be a trespass upon or a physical invasion of the abutting property to bring municipal authorities within the constitutional prohibition, as long as such authorities keep within the scope of their powers in using or improving the street. If they do no illegal act, as by creating a nuisance, or do not appropriate the street to other than street purposes, or do not invade, or do physical injury to, the abutting property, there is, in the absence of negligence, or of the want of due skill and care in making improvements (which negligence or want of care or skill may of itself be a ground of corporate responsibility for damages), no liability to the owners of such property for any dam age resulting from a change of grade or other improvement in the street made by the municipal powers for the convenience or benefit of the public in using the highway as such. The voluntary dedication of the street as a highway creates certain rights in the public; the land so dedicated becomes to the extent that it is necessary to be used for a street, the property of the people of the State, and the dedication of it to such purpose carries in this country, as well as in England, the continuing power to change its grade or otherwise improve it, in so far as such improvements are for street purposes. This power may be delegated by the Legislature to a municipality as one of its governmental agencies, and to the exercise of these powers the fee of the abutting owner in the street to its centre is at all times subject, in the manner or to the extent indicated above, under a constitutional provision like that in our Bill of Rights. In some cases holding these views there has been an omission, at least, to notice any distinction between the rights of an abutting owner as such, and the public generally in or as to the streets, but there can be no doubt that there is a substantial and clearly defined difference. There is incident to abutting property, or its ownership, even where the abutter's fee or title does not extend to the middle of the street, but only to its boundary, certain property rights which the public generally do not possess. They are the right of egress and ingress from and to the lot by the way of the street, and the right of light and air which the street affords. Viewing property to be not the mere corporal subject of ownership, but as being all the rights legally incidental to the ownership of such subject, which rights are generally said to be those of user, exclusion and disposition, or the right to use, possess and dispose of (Lewis, Em. Dom. §§ 54, 55; Dillon, Mun. Corp. § 5876; Cooley, Const. Lim. 675, 676); or any duly authorized governmental agency acting for it, to alter the grade or otherwise improve the streets for street purposes. An original purchaser of an abutting lot, and all subsequent purchasers, take with the implied understanding, or as tacitly agreeing that the public shall have the right to thus improve or alter the street so far as may be necessary for its use as a street, and that they can sustain no claim for damages resulting to their lots or property from the impairment or destruction of such incidental rights, as a mere consequence from the use or improvement of the streets as highways. Ohio and Kentucky alone, of all the courts of this country, have denied such subordination of these incidental rights to the highway rights of the public. The doctrine of the courts of the other states and of the United States is that so long as there is no application of the street to purposes other than those of a highway, or no diversion of it from street purposes, any changes of grade made lawfully and in the exercise of good faith, or not maliciously, or for the purpose of doing injury to the abutter, is not within the constitutional inhibition against taking property without compensation, nor the basis for an action for damages. Lewis, Em. Dom. § 96, and authorities cited in note; Dorman v. Jacksonville, supra. The Ohio doctrine as summarized by Lewis in his work on Eminent Domain, section 98, pp. 121, 122, gives a right of recovery not only under the circumstances indicated above, but also where one builds to an established grade and it is changed to his damage; or where one builds before a grade is established, but succeeds in anticipating the grade which is afterwards established, and the grade after being so established is changed; or where one builds before a grade is established, and afterwards an unreasonable grade is established. The right of recovery is based in the later cases there upon the guaranty that private property shall not be taken for public use without just compensation (Lewis, Em. Dom. p. 122), and the property taken is spoken of in these cases as the right of access. In the earlier cases, however, the ground of the decision was that of natural right and justice. Judge Dillon, in a note to his work on Municipal Corporations, $ 990, p. 1226, says of the doctrine obtaining in this State, that the common-law measure of the liability of municipal corporations has been designedly and deliberately carried beyond the limits established by the current of decision elsewhere. In Kentucky, in the case of Louisville v. Louisville Rolling Mill Co., 3 Bush, 416, the grade of the street was to be raised twelve feet above the mill company's lot at the only point of ingress and egress, the improvement entirely closing the passway, and in the Newport & C. Bridge Co. v. Foote, 9 Bush, 264, there was sufficient space left between the appellee's lot and the bridge for two wagons to pass abreast; |
