J. L. 201; Lahr v. Ry. Co., 104 N. Y. 268, 10 N. E. 528 ; Wagner v. 'Ry. Co., 104 N. Y. 665, 10 N. E. 535 ; Wead v. R. Co., 64 Vt. 52, 24 Atl. 361; Lostutter v. City of Aurora, 126 Ind. 436, 26 N. E. 184, .12 L. R. A. 259 ; Town of Hazlehurst v. Mayes, 84 Miss. 7, 36 South. 33, 64 L. R. A. 805. In some cases payment for the damage caused by the change of use is sufficient ; Lucas v. Power Co., 92 Neb. 550, 138 N. W. 761.
Indirect or consequential damages. The principle that a right of compensation exists wherever private property is taken for pub lic use does not extend to the case of one whose property is indirectly damaged by the lawful use of property already belonging to the public. For example, it was held that an adjoining or abutting owner was not en titled to compensation for damages result ing from the change of a grade of a street; 4 Term 794; Proctor v. Stone, 158 Mass. 564, 33 N. E. 704 ; Brooks v. Improvement Co., 82 Me. 1, 19 Atl. 87, 7 L. R. A. 460, 17 Am. St. Rep. 459; Rauenstein v. R. Co., 136 N. Y. 528, 32 N. E. 1047, 18 L. R. A. 768. Callender v. Marsh, 1 Pick. (Mass.) 418, was the leading American case, and gave rise to a statute to remedy the wrong suggested by it. In Pennsylvania the doc trine of these cases was followed in a case in which Gibson, C. J., expressed regret that such injustice was remediless ; O'Con nor v. Pittsburgh, 18 Pa. 187 (a case refer red to by the same court as of a class in tended to be remedied by the constitution 1874 ; O'Brien v. Philadelphia, 150 Pa. 589, 24 Atl. 1047, 30 Am. St. Rep. 832). These and the other authorities were reviewed by the United States Supreme Court, and the same conclusion reached as being "well set tled both in England and in this country ;" Smith v. Corporation of Washington, 20 How. (U. S.) 135, 15 L. Ed. 858. Of the law at this period, it was said that the limitation of the term "taking" to an actual physical appropriation or divesting of title was "far too narrow to answer the purpose of jus tice; " Sedg. Const. L. (2d ed.) 456. See 1 Thayer, Cas. Const. L. 1053, 1055 ; 2 Am. R. & Corp. Cas. 435, n. The law on this specific subject of change of grades became firmly settled, except as changed by constitutional or statutory enactments, but on the general subject of what constitutes a "taking" of property, it has since undergone very great changes, and the narrow rule of physical ap propriation has ceased to afford a criterion of decision. An illustration of the tendency to treat this question liberally, rather than technically, is a decision that it is a "tak ing" of property to prohibit an owner of land on a boulevard from building, a certain limit, on the front part of the lot; City of St. Louis v. Hill, 116 Mo. 527, 22 S. W. 861, 21 L. R. A. 226 ; City of Philadelphia v. Linnard, 97 Pa. 242 ; In re Chestnut Street, 118 Pa. 593, 12 Atl. 585. See Vander lip v.• Grand Rapids, 73 Mich. 522, 41 N. W. 677, 3 L. R. A. 247, 16 Am. 'St. Rep. 597; Memphis Sr C. R. Co. v. R. Co., 96 Ala. 571,
11 South. 642, 18 L. R. A. 166. The older cases rested upon a narrow, the later ones upon a liberal, meaning of the word "prop erty" in the constitutions. Of the latter, Ea ton v. Railroad Co., 51 N. H. 504, 12 Am. Rep. 147, is the leading case on the subject of the right to compensation where property is in jured and not physically taken. Plaintiff's land was overflowed during a freshet as the result of the construction of the defendant's railroad. Damages for the land actually tak en for the railroad had been paid as the result of condemnation proceedings. It was held that the right to use the laud undisturbed really constituted the property in it, rather than the physical possession of the land itself, and that even if the land itself were the "property," a physical interference with it which abridged the right to use it was in fact a taking of .the owner's property to that ex tent. The opinion of Smith, J., in this case is said to have contributed more than any other towards the change in the law extend ing the effect of the word taking; Lewis, Em. Dom. § 58. See also Thompson v. Imp. Co., 54 N. H. 545; City of Janesville v. Carpen ter, 77 Wis. 288, 46 N. W. 128, 8 L. R. A. 808, 20 Am. St. Rep. 123 ; Weaver v. Boom Co., 28 Minn. 534, 11 N. W. 114; 14 Ch. Div. 58; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336 ; Earl, J., dissenting in Story v. R. R. Co., 90 N. Y. 122, 43 Am. Rep. 146. It is now quite settled that the flowing of lands, against the owner's consent and without compensation, is a taking; Eaton v. R. R., 51 N. H. 504, 12 Am. Rep.147; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 321. See also, Nevins v. City of Peoria, 41 Ill. 502, 89 Am. Dec. 392; Pettigrew v. Village of Evansville, 25 Wis. 223, 3 Am. Rep. 50 ; Pumpelly v. Canal Co., 13 Wall. (U. S.) 166, 20 L. Ed. 557. In the latter case, Miller, J., after referring to the decisions that there is no remedy for a consequential injury from the improvements of roads, streets, rivers, etc., said; "But we are of opinion that the decisions referred to have gone to the utter most limit of sound judicial construction in favor of this principle, and, in some cases, beyond it, and that it remains true that where real estate is actually invaded by su perinduced additions of water, earth, sand or other material, or by having any artificial structure placed on it, so as to effectually de stroy or impair its usefulness, it is a taking, within the meaning of the constitution, and that this proposition is not in conflict with the weight of judicial authority in this coun try, and certainly not with sound principle. Beyond this we do not go, and this case calls us to go no further." This was afterwards said by the court to be a case of "physical invasion of the real estate of the private owner, a practical ouster of his possession"; Mississippi & R. River Boom Co. v. Patter son, 98 U. S. 403, 25 L. Ed. 206.