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197 U.S. 544
HENRY MUHLKER, Plff. in Err.,
NEW YORK & HARLEM RALILROAD COMPANY and New York Central & Hudson River Railroad Company.
Argued December 12, 13, 1904
Ordered for reargument January 23, 1905.
Reargued February 24, 27, 1905.
Decided April 10, 1905.
Plaintiff sues to enjoin the use of a certain elevated railroad structure on Park avenue, in the city of New York, in front of his premises, unless upon payment of the fee value [197 U.S. 544, 545] of certain easements of light, air, and access, and other rights appurtenant to his premises. He also prays damages for injury sustained from the year 1890 to time of trial.
From the evidence in the case the supreme court found that the plaintiff had been, since 1888, the owner of a lot of land on the northwesterly corner of Park avenue and 115th street, on which he, in 1891, erected a five-story brick building, and that there were appurtenant to said lot and building 'certain easements of light, air, and access in and over said Park avenue, in front of said premises.' The defendant, The New York & Harlem Railroad Company, is and was during all the times mentioned herein the owner of a railroad and railroad structures in Park avenue, in front of such premises, and the New York Central & Hudson River Railroad Company is the lessee of said railroad structures under a lease dated April 1, 1873, for a term of four hundred and one years; that said railroad, prior to 1872, was operated on two tracks laid upon the surface of said avenue and along the center thereof, in front of said premises.
In pursuance of chapter 72 of the Laws of 1872 certain changes were made in the railroad in front of said premises, between the years 1872 and 1874, whereby the number of tracks was increased from two to four, and were laid along the center of the avenue, and at the south line of said premises were at the surface, and at the north line of said premises were laid in a trench about 5 1/2 feet below the surface. In front of said premises the railroad was bounded on both sides by masonry walls about 3 feet high above the surface, and cut off access across said avenue immediately in front of said premises.
The New York Central & Hudson River Railroad Company, in 1872 operated its trains over the railroad in front of said premises, and continued to do so until February 16, 1897.
The other facts are expressed in the finding of the court as follows:
A decree was entered enjoining the use of the railroad structure and its removal from in front of plaintiff's premises; [197 U.S. 544, 548] but it was provided that the injunction should not become operative if the defendants tender for the purpose of execution by the plaintiff 'a form of conveyance and release' to them of the easements of light, air, and access appurtenant to said premises, and tender further the sum of $3,000, with interest thereon from October 10, 1900. Damages were also adjudged to plaintiff in the sum of $1,400, with interest from February 16, 1897, and cost. Either party was given the right to move at the foot of the decree for further directions as to the enforcement of the same.
In the form of the decision and judgment entered, and as to the legal principles involved, the court professed to follow Lewis v. Now York & H. R. Co. 162 N. Y. 202, 56 N. E. 540.
The judgment was affirmed by the appellate division. It was reversed by the court of appeals (173 N. Y. 549, 66 N. E. 558), and the judgment of that court, upon the remission of the case, was made the judgment of the supreme court and the complaint dismissed without costs. The case was then brought here.
Messrs. Elihu Root, James C. Bushby, and L. M. Berkeley for plaintiff in error.
[197 U.S. 544, 553] Messrs. Ira A. Place and Thomas Emery for defendants in error.
Statement by Mr. Justice McKenna:
Mr. Justice McKenna, after stating the case, announced the judgment of the court and delivered the following opinion:
As we have observed, the supreme court followed Lewis v. New York & H. R. Co. 162 N. Y. 202, 56 N. E. 540, both in the 'form of decision and judgment' and 'the legal principles involved.' Discussion was not considered necessary. The appellate division affirmed the judgment on the authority of the same case and other cases which had been ruled by it.
[197 U.S. 544, 561] The court, by brief expression, pointed out the identity of the cases, and disposed of the defense made by the railroad companies of adverse possession as follows:
In the case at bar there is a complete change of ruling by the court of appeals. The Lewis Case is declared, in so far as it expressed rights of abutting property owners, to have been improvidently decided, and the Elevated Railroad Cases, which were made its support, were distinguished. The court rested its ruling on one point, the effect of the act of 1892, under which the structure complained of was erected, the court declaring that act a command to the railroad company in the interest of the public; indeed, made the state the builder of the new structure and the use of it by the railroads mere obedience to law. But it does not follow that private property can be taken, either by the erection of the structure, or its use. This was plainly seen and expressed in the Lewis Case as to the use of the structure. It was there said: 'When they [the railroads] commenced to use the steel viaduct, they started a new trespass upon the rights of abutting owners.' There was no hesita- [197 U.S. 544, 562] tion then in marking the line between the power of the state and the duty of the railroad, and assigning responsibility to the latter. This was in accordance with principle. The command of the state, the duty of the railroad to obey, may encounter the inviolability of private property. And in performing the duties devolved upon it a railroad may be required to exercise the right of eminent domain. Wisconsin, M. & P. R. Co. v. Jacobson, 179 U.S. 287 , 45 L. ed. 194, 21 Sup. Ct. Rep. 115. See also Worcester v. Norwich & W. R. Co. 109 Mass. 103. We do not, therefore, solve the questions in this case by reference to the power of the state and the duty of the railroads; the rights of abutting property owners must be considered, and against their infringement plaintiff urges the contract clause of the Constitution of the United States and the 14th Amendment. The latter is invoked because the act of 1892 does not provide for compensation to property owners, and the former on account of the conditions upon which the strip of land constituting the avenue was conveyed to the city. There were two deeds to the city, one made in 1825 and the other in 1827. That of 1825 was stated to be 'in trust, nevertheless, that the same be appropriated and be kept open as parts of public streets and avenues forever, in like manner as the other public streets and avenues in said city are and of right ought to be.' The deed of 1827 was also 'in trust that the same be left open as public streets for the use and benefit of the inhabitants of said city forever.' Plaintiff derives title from Poillon, grantor of the city in the deed of 1827, and hence contends that he is entitled to enforce the trust created by Poillon's deed to the city. The railroads oppose this contention. They assert title to the land upon which the structure complained of stands by deed and by prescription. The details of these contentions we need not repeat nor discuss. They are stated at length in the Lewis Case, and the conclusions there expressed are not disturbed by the decision of the court of appeals in the case at bar. The case is therefore presented to us as to the effect of the deed of [197 U.S. 544, 563] Poillon to the plaintiff and to the city as constituting a contract, and the effect of the act of 1892 as an impairment of that contract, or as taking plaintiff's property without due process of law. These questions were directly passed on and negatived by the court of appeals.
It will be observed from the statement of facts that, before the construction of the viaduct complained of, the railroad ran partly on the surface of the street and partly in a cut or trench, the latter being flanked by masonry walls 3 feet high. The viaduct is a solid roadbed 31 feet above the surface, having iron girders on the sides and in the middle, and supported by iron columns, of which there are six in front of the plaintiff's land. The old construction prevented crossing or access to the tracks. The new construction impairs or destroys the plaintiff's easements of light and air. And such easements the trial court found belonged to plaintiff in common with other abutters upon the public streets of New York, and his damages for their impairment to be, as expressed by Bartlett J., in his dissenting opinion, '$3,000 fee damages, $1,400 rental damages, from Eebruary 16, 1897, to October 10, 1900,' the date of trial; that is, $ 4,400 present damage. It is suggested, however, that the court of appeals did not deny the rights of the abutters, but considered that the most important phase of those rights was that of access, and the plaintiff did not have this over the railroad by reason of the stone wall. The basis of the suggestion, as we understand, is the idea that plaintiff was compensated for the injury of his easements of light and air by an increase of his easement of access without regard to the resulting damage. To do this, however, is to make one easement depend upon another, both of which are inseparable attributes of property and equally necessary to its enjoyment. It is impossible for us to conceive of a city without streets, or any benefit in streets, if the property abutting on them has not attached to it, as an essential and inviolable part, easements of light and air as well as of access. There is something of mockery to give one access to property which [197 U.S. 544, 564] may be unfit to live on when one gets there. To what situation is the plaintiff brought? Because he can cross the railroad at more places on the street, the state, it is contended, can authorize dirt, cinders, and smoke from 200 trains a day to be poured into the upper windows of his house.
In Barnett v. Johnson, 15 N. J. Eq. 481, there is a clear expression of the right of abutting owners to light and air, and of the common practice and sense of the world upon which it is founded. 'It is a right,' the court said, 'founded in such an urgent necessity that all laws and legal proceedings take it for granted; a right so strong that it protects itself, so urgent that, upon any attempt to annul or infringe it, it would set at defiance all legislative enactments and all judicial decisions.' And, graphically describing the right, observed further, 'is not every window and every door in every house in every city, town, and village the assertion and maintenance of this right?' It has been said Barnett v. Johnson anticipated 'the principle upon which compensation was at last secured in the Elevated Railroad Cases in New York.' 1 Lewis Em. Dom. 183.
It is manifest that easements of light and air cannot be made dependent upon the easement of access, and whether they can be taken away in the interest of the public under the conditions upon which the city obtained title to the streets is now to be considered. The answer depends upon the cases of Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146, and Lahr v. Metropolitan Elev. R. Co. 104 N. Y. 268, 10 N. E. 528, known as the Elevated Railroad Cases. The Lahr Case was decided in 1887. The plaintiff in the case at bar acquired title to his property in 1888.
The first of the Elevated Railroad Cases was the Story Case, decided in 1882. The plaintiff in the case was the owner of a lot on the corner of Moore and Front streets in the city of New York, on which there were buildings. To their enjoyment light, air, and access were indispensable, and were had through Front street. The defendant was about to construct [197 U.S. 544, 565] a railroad above the surface of that street upon a series of columns, about 15 inches square, 14 feet and 6 inches high, placed 5 inches inside of the sidewalk, with girders from 33 to 39 inches deep, for the support of cross ties for three sets of rails for a steam railroad. The cars were to be of such a construction as to reach within 9 feet of plaintiff's buildings, and trains were to be run every three minutes, and at a rate of speed as high as 18 miles an hour.
The fact of injury to the abutting lot was found by the trial court, and also that the city of New York was the owner in fee of Front street, opposite plaintiff's lots, and that he was not and never had been seised of the same in fee, nor had any estate therein.
The supreme court said the case involved the question whether the scheme of the defendant amounted to the taking of any property of the plaintiff; if it did, it was said, the judgment was invalid on the ground that the intended act, when performed, would violate, not only the provision of the Constitution, which declared that such property should not be taken without just compensation, but certain statutes by which defendant was bound or owed its existence, and which would not have been upheld unless, in the opinion of the court, they had provided means to secure such compensation.
The plaintiff contended that, as owner of the abutting premises, he had the fee to one half of the bed of the street opposite thereto, and he also contended, if the fee was in the city, he, as abutting owner, had such right to have light and access afforded by the street above the roadbed as entitled him to have it kept open for those uses until by legal process and upon just compensation that right was taken away. The defendant justified its intended acts through the permission of the city. The issue thus made the court passed on, and in doing so assumed that the city owned the fee of the street and that the plaintiff derived his title from the city. It was held that the plaintiff had acquired 'the right and privilege of [197 U.S. 544, 566] having the street forever kept open as such;' and that the right thus secured was an incorporated hereditament, which 'became at once appurtenant to the lot and formed an 'integral part of the estate' in it,' and which followed the estate and constituted a perpetual encumbrance upon the land burdened with it. 'From the moment it attached,' the court observed, 'the lot became the dominant, and the open way or street the servient, tenement.' Cases were cited for these propositions. And the extent of the easement was defined to be, not only access to the lot, but light and air from it. The court said: 'The street occupies the surface, and to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air, to the detriment of the abutting owner.' And further: 'The elements of light and air are both to be derived from the space over the land on the surface of which the street is constructed, and which is made servient for that purpose.' This was emphasized, the court observing: 'Before any interest passed to the city the owner of the land had from it the benefit of air and light. The public purpose of a street requires of the soil the surface only.' The easement was declared to be property and within the protection of the constitutional provision for compensation for its diminution by the contemplated structure.
It is, of course, impossible to reproduce the argument of the court by which its conclusions were sustained. It is enough to say that a distinction was clearly made between the rights of abutting owners in the surface of the street and their rights in the space above the street, and the distinction was also clearly made between damages and a taking. A review was made of the cases upon which those distinctions rested. The power of a city to alter a grade of a street was adverted to, and held not to justify the intended structure. There was no change in the street surface intended, it was said, 'but the elevation of a structure useless for street purposes and as foreign thereto' as the house which was held to be an obstructio- [197 U.S. 544, 567] n in Corning v. Lowerre, 6 Johns. Ch. 439, or the freight depot in Barney v. Keokuk, 94 U.S. 324 , 24 L. ed. 224.
The conclusion of the court and the distinctions made by it were repeated in Lahr v. Metropolitan Elev. R. Co. 104 N. Y. 271, 10 N. E. 528. The structure complained of in the latter case was also an elevated railroad.
Chief Judge Ruger, speaking for the court, opened his opinion by observing that the action was 'the sequel of the Story Case,' and that its defense seemed to have been conducted upon the theory of endeavoring to secure a re-examination of that case. The endeavor, it was said, must fail, because the doctrine of the Story Case had been pronounced after most careful consideration, and after two arguments at the bar, made by most eminent counsel, had apparently exhausted the resources of learning and reasoning in the discussion of the question presented. And it was declared that 'it would be the occasion of great public injury if a determination thus made could be inconsiderately unsettled and suffered again to become the subject of doubt and theme of renewed discussion.' The doctrine of the Story Case was declared to be stare decisis, not only upon all the questions involved, but upon all that came logically within the principles decided. There was an enumeration of those principles, as follows:
(1) That an elevated railroad, of the kind described was a perversion of the use of a street, which neither the city nor the legislature could legalize without providing compensation for the injury inflicted upon the property of abutting owners.
(2) That abutters upon a public street, claiming title by grant from the municipal authorities, which contained a covenant that streets which could be laid out should continue as other streets, acquired an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of the property situated thereon. [197 U.S. 544, 568] (3) That such easement was an interest in real estate and constituted property, within the meaning of the Constitution of the state, and could not be taken for a public use without payment of compensation.
(4) That an elevated railroad, upon which cars propelled by steam engines which generated gas, steam, and smoke, and distributed in the air cinders, dust, ashes, and other noxious and deleterious substances, and interrupted the free passage of light and air to and from adjoining premises, constituted a taking of the easement, and rendered the railroad company liable for the damages occasioned by such taking.
The application of these principles was resisted on the ground that the city was the grantor of the plaintiff in the Story Case, and could not derogate from the title a property it conveyed, and it was contended, that the case went off on that ground. This was rejected and the principles enumerated held to apply, notwithstanding the land in the street had been taken from plaintiff's grantor by proceedings in invitum. And rights of abutting owners were held to rest in contract constituted by the conditions upon which the city received the property.
Equally untenable are the grounds of distinction urged in the case at bar against the application of those principles. What are they? In the Story and Lahr Cases the railroads were imposed for the first time on the street. In the case at bar the Harlem railroad had occupied the surface of the street, and was changed to the viaduct. But in the Story and Lahr Cases it was not the fact that the railroads were imposed on the street for the first time that determined the judgment rendered. It was the fact that trains were run upon an elevated structure, interrupting the easements of light and air of the abutting owners. It was this that constituted a use inconsistent with the purpose of the street. It was the 'elevation of a structure,' to quote again from the Story Case, 'useless for general street purposes.' This situation of the railroad was especially dwelt upon in the Story Case, and that case was distinguished thereby from the surface railway cases. [197 U.S. 544, 569] And in the Lewis Case a difference was recognized between the two situations, and a balance struck between damage done by the railroad in one situation and the railroad in the other situation. The Lewis Case, we have seen, was overruled by the court of appeals in the case at bar, while the Story and Lahr Cases were said not to be in point. We think that the Lewis Case was an irresistible consequence of the others, and the Story and Lahr Cases are in point and decisive.
Another distinction is claimed, as we have already observed, between the case at bar and those cases. The act of the railroad in occupying the viaduct, it is said, was the act of the state. But this defense was made in the other cases. It did not give the court much trouble. It is urged, however, now, with an increased assurance. Indeed, it is made the ground of decision, as we have seen by the court of appeals. The court said: 'The decisions in the Elevated Railroad Cases are not in point. There no attempt was made by the state to improve the street for the benefit of the public. Instead, it granted to a corporation the right to make an additional use of the street, in the doing of which it took certain easements belonging to abutting owners, which it was compelled to compensate them for.' And, further, making distinction between those cases and that at bar, said: 'The state could not if it would-and probably would not if it could-deprive defendant of its right to operate its trains in the street. But it had the power in the public interest to compel it to run its trains upon a viaduct instead of in the subway.' And the court concluded that it was the state, not the railroads, who did the injury to plaintiff's property. The answer need not be hesitating. The permission, or command of the state, can give no power to invade private rights, even for a public purpose, without payment of compensation; and payment of such compensation, when necessary to the performance of the duties of a railroad company, may be, as we have already observed, part of its submission to the command of the state. The railroads paid one half of the expense of the change, 'by the com- [197 U.S. 544, 570] mand of the statute, and hence under compulsion of law,' to quote from the court of appeals. The public interest, therefore, is made too much of. It is given an excessive, if not a false, quantity. Its use as a justification is open to the objection made at the argument,-it enables the state to do by two acts that which would be illegal if done by one. In other words, as, under the law of New York, the state can authorize a railroad to occupy the surface of a street, it can subsequently permit or order the railroad to raise its tracks above the street and justify the impairment of property rights by the public interest. It was said in the Story Case that 'the public purpose of a street requires of the soil the surface only.' And this was followed in Fobes v. Rome, W. & O. R. Co. 121 N. Y. 505, 8 L. R. A. 453, 24 N. E. 919, where a steam railroad was permitted upon a street without liability for consequential damages to adjoining property. The new principle based upon the public interest destroys all distinction between the surface of the soil of a street and the space above the surface, and, seemingly, leaves remaining no vital remnant of the doctrine of the Elevated Railroad Cases. However, we need not go farther than the present case demands. 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. Hence the importance of the [197 U.S. 544, 571] Elevated Railroad Cases and the doctrine they had pronounced when the plaintiff acquired his property. He bought under their assurance, and that these decisions might have been different, or that the plaintiff might have balanced the chances of the commercial advantage between the right to have the street remain open and the expectation that it would remain so, is too intangible to estimate. We certainly can estimate the difference between a building with full access of light and air and one with those elements impaired or polluted. But we have already expressed this. We need only add that the right of passage is not all there is to a street, and to call it the primary right is more or less delusive. It is the more conspicuous right, has the importance and assertion of community interest and ownership, properly has a certain dominance, but it is not more necessary to the making of a city than the rights to light and air, held, though the latter are, in individual ownership ship and asserted only as rights of private property. The true relation and subordination of these rights, public and private, is expressed, not only by the Elevated Railroad Cases, but by other cases. They are collected in 1 Lewis, Eminent Domain, 91e, and, it is there said, 'established beyond question the existence of these rights, or easements, of light, air, and access as appurtenant to abutting lots, and that they are as much property as the lots themselves.'
Judgment is reversed and cause remanded for further proceedings not inconsistent with this opinion.
Mr. Justice Brown concurs in the result.
Mr. Justice Holmes, dissenting:
I regret that I am unable to agree with the judgment of the court, and, as it seems to me to involve important principles, I think it advisable to express my disagreement, and to give my reasons for it.
The plaintiff owns no soil within the limits of the avenue. [197 U.S. 544, 572] The New York & Harlem Railroad Company at the time of the change was, and long had been, the owner, and the other defendant was the lessee of a railroad with four tracks along the middle of Park avenue, in front of the plaintiff's land, at the south end being at the surface of the avenue, and at the north in a trench about 4 1/2 feet deep, the railroad being bounded on both sides by a masonry wall 3 feet high, which prevented crossing or access to the tracks. This is the finding of the court of first instance, and I take it to be binding upon us. We have nothing to do with the evidence. I take it to mean the same thing as the finding in Fries v. New York & H. R. Co. 169 N. Y. 270, 62 N. E. 358, that the defendants had 'acquired the right without liability to the plaintiff to have, maintain, and use their railroad and railroad structures as the same were maintained and used prior to February 16, 1897.' The material portion of the decision of the court of appeals is that on this state of facts, as was held in the similar case of Fries v. New York & H. R. Co., the plaintiff had no property right which was infringed in such a way as to be anything more than damnum absque injuria. The finding that the railroad had the right to maintain the former structures was held to distinguish the case from the Elevated Railroad Cases, where pillars were planted in the street without right as against the plaintiff. Story v. New York Elev. R. Co. 90 N. Y. 122, 160, 170, 178, 43 Am. Rep. 146; Lahr v. Metropolitan Elev. R. Co. 104 N. Y. 268, 10 N. E. 528. The other socalled finding, that the new structure infringes the plaintiff's right, is merely a ruling of law that, notwithstanding the facts specifically found, the plaintiff has a cause of action by reason of his being an abutter upon a public street.
The plaintiff's rights, whether expressed in terms of property or of contract, are all a construction of the courts, deduced by way of consequence from dedication to and trusts for the purposes of a public street. They never were granted to him or his predecessors in express words, or, probably, by any conscious implication. If at the outset the New York courts had [197 U.S. 544, 573] decided that, apart from statute or express grant, the abutters on a street had only the rights of the public and no private easement of any kind, it would have been in no way amazing. It would have been very possible to distinguish between the practical commercial advantage of the expectation that a street would remain open and a right in rem that it should remain so. See Stanwood v. Malden, 157 Mass. 17, 16 L. R. A. 591, 31 N. E. 702. Again, more narrowly, if the New York courts had held that an easement of light and air could be created only by express words, and that the laying out or dedication of a street, or the grant of a house bounding upon one, gave no such easement to abutters, they would not have been alone in the world of the common law. Keats v. Hugo, 115 Mass. 204, 216, 15 Am. Rep. 80. The doctrine that abutters upon a highway have an easement of light and air is stated as a novelty in point of authority in Barnett v. Johnson, 15 N. J. Eq. 481, 489, and that case was decided in a state where it was held that a like right might be acquired by prescription. Robeson v. Pittenger, 2 N. J. Eq. 57, 32 Am. Dec. 412.
If the decisions, which I say conceivably might have been made, had been made as to the common law, they would have infringed no rights under the Constitution of the United States. So much, I presume, would be admitted by everyone. But, if that be admitted, I ask myself what has happened to cut down the power of the same courts as against that same Constitution at the present day. So far as I know the only thing which has happened is that they have decided the Elevated Railroad Cases, to which I have referred. It is on that ground alone that we are asked to review the decision of the court of appeals upon what otherwise would be purely a matter of local law. In other words, we are asked to extend to the present case the principle of Gelpcke v. Dubuque, 1 Wall. 175, 17 L. ed. 520, and Louisiana v. Pilsbury, 105 U.S. 278 , 26 L. ed. 1090, as to public bonds bought on the faith of a decision that they were constitutionally issued. That seems to me a great, unwarranted, and undesirable extension of a doctrine which it took this court a good while to explain. The doctrine now is explained, however, [197 U.S. 544, 574] not to mean that a change in the decision impairs the obligation of contracts (Burgess v. Seligman, 107 U.S. 20, 34 , 27 S. L. ed. 359, 2 Sup. Ct. Rep. 10; Stanly County v. Coler, 190 U.S. 437, 444 , 445 S., 47 L. ed. 1126, 1131, 1132, 23 Sup. Ct. Rep. 811), and certainly never has been supposed to mean that all property owners in a state have a vested right that no general proposition of law shall be reversed, changed, or modified by the courts if the consequence to them will be more or less pecuniary loss. I know of no constitutional principle to prevent the complete reversal of the Elevated Railroad Cases to-morrow if it should seem proper to the court of appeals. See Central Land Co. v. Laidley, 159 U.S. 103 , 40 L. ed. 91, 16 Sup. Ct. Rep. 80.
But I conceive that the plaintiff in error must go much further than to say that my last proposition is wrong. I think he must say that he has a constitutional right, not only that the state courts shall not reverse their earlier decisions upon a matter of property rights, but that they shall not distinguish them unless the distinction is so fortunate as to strike a majority of this court as sound. For the court of appeals has not purported to overrule the Elevated Railroad Cases. It simply has decided that the import and the intent of those cases does not extend to the case at bar. In those cases the defendants had impaired the plaintiff's access to the street. It is entirely possible and consistent with all that they decided to say now that access is the foundation of the whole matter; that the right to light and air is a parasitic right incident to the right to have the street kept open for purposes of travel, and that when, as here, the latter right does not exist the basis of the claim to light and air is gone.
But again, if the plaintiff had an easement over the whole street he got it as a tacit incident of an appropriation of the street to the uses of the public. The legislature and the court of appeals of New York have said that the statute assailed was passed for the benefit of the public using the street, and I accept their view. The most obvious aspect of the change is that the whole street now is open to travel, and that an impassable barrier along its width has been removed,-in other [197 U.S. 544, 575] words, that the convenience of travelers on the highway has been considered and enhanced. Now still considering distinctions which might be taken between this and the earlier cases, it was possible for the New York courts to hold, as they seem to have held, that the easement which they had declared to exist is subject to the fullest exercise of the primary right out of which it sprang, and that any change in the street for the benefit of public travel is a matter of public right, as against what I have called the parasitic right which the plaintiff claims. Scranton v. Wheeler, 179 U.S. 141 , 45 L. ed. 126, 21 Sup. Ct. Rep. 48; Gibson v. United States, 166 U.S. 269 , 41 L. ed. 996, 17 Sup. Ct. Rep. 578.
The foregoing distinctions seem to me not wanting in good sense. Certainly I should have been inclined to adopt one or both of them, or in some way to avoid the earlier decisions. But I am not discussing the question whether they are sound. If my disagreement was confined to that I should be silent. I am considering what there is in the Constitution of the United States forbidding the court of appeals to hold them sound. I think there is nothing; and there being nothing, and the New York decision obviously not having been given its form for the purpose of evading this court, I think we should respect and affirm it, if we do not dismiss the case.
What the plaintiff claims is really property, a right in rem. It is called contract merely to bring it within the contract clause of the Constitution. It seems to me a considerable extension of the power to determine for ourselves what the contract is, which we have assumed when it is alleged that the obligation of a contract has been impaired, to say that we will make the same independent determination when it is alleged that property is taken without due compensation. But it seems to me that it does not help the argument. The rule adopted as to contract is simply a rule to prevent an evasion of the constitutional limit to the power of the states, and, it seems to me, should not be extended to a case like this. Bearing in mind that, as I have said, the plaintiff's rights, however expressed, are wholly a construction of the courts, I cannot [197 U.S. 544, 576] believe that whenever the 14th Amendment, or Article I., 10, is set up, we are free to go behind the local decisions on a matter of land law, and, on the ground that we decide what the contract is, declare rights to exist which we should think ought to be implied from a dedication or location if we were the local courts. I cannot believe that we are at liberty to create rights over the streets of Massachusetts, for instance, that never have been recognized there. If we properly may do that, then I am wrong in my assumption that, if the New York courts originally had declared that the laying out of a public way conferred no private rights, we should have had nothing to say. But if I am right, if we are bound by local decisions as to local rights in real estate, then we equally are bound by the distinctions and the limitations of those rights declared by the local courts. If an exception were established in the case of a decision which obviously was intended to evade constitutional limits, I suppose I may assume that such an evasion would not be imputed to a judgment which four justices of this court think right.
As I necessarily have dealt with the merits of the case for the purpose of presenting my point, I will add one other consideration. Suppose that the plaintiff has an easement, and that it has been impaired, bearing in mind that his damage is in respect of light and air, not access, and is inflicted for the benefit of public travel, I should hesitate to say that in inflicting it the legislature went beyond the constitutional exercise of the police power. To a certain, and to an appreciable, extent the legislature may alter the law of nuisance, although property is affected. To a certain, and to an appreciable, extent the use of particular property may be limited without compensation. Not every such limitation, restriction, or diminution of value amounts to a taking in a constitutional sense. I have a good deal of doubt whether it has been made to appear that any right of the plaintiff has been taken or destroyed for which compensation is necessary under the Constitution of the United States. Scranton v. Wheeler, 179 U.S. 141 , 45 L. ed. 126, 21 Sup. Ct. Rep. 48; Meyer v. [197 U.S. 544, 577] Richmond, 172 U.S. 82 , 43 L. ed. 374, 19 Sup. Ct. Rep. 106. See Mugler v. Kansas, 123 U.S. 623, 668 , 31 S. L. ed. 205, 212, 8 Sup. Ct. Rep. 273; Marchant v. Pennsylvania R. Co. 153 U.S. 380 , 38 L. ed. 751, 14 Sup. Ct. Rep. 894; Camfield v. United States, 167 U.S. 518, 523 , 42 S. L. ed. 260, 261, 17 Sup. Ct. Rep. 864; People v. D'Oench, 111 N. Y. 359, 361, 18 N. E. 862; Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27; Com. v. Alger, 7 Cush. 53. Compare United States v. Lynah, 188 U.S. 445, 470 , 47 S. L. ed. 539, 548, 23 Sup. Ct. Rep. 349.
I am authorized to say that the CHIEF JUSTICE, Mr. Justice White, and Mr. Justice Peckham concur in the foregoing dissent.