The danger to which the occupants of the remaining land and the stock thereon will be exposed by the operation of a railway up on the land taken cannot be considered in assessing damages; Indianapolis Traction Co. v. Larrabee, 168 Ind. 237, 80 N. E. 413, 10 L. R. A. (N. S.) 1003, and note, 11 Ann. Cas. 695, on the general question of the dan ger to the owner of the property, or his fam ily, or his live stock, as an element of dam ages. The conclusion is that the cases dis agree too much to form a settled rule and they are collected, dealing with the subject from all points of view.
The interference with the rights of abut ting owners by building an elevated railroad on a street was held a taking of private property for public use without compensa tion, to restrain which the 'plaintiff was en titled to an injunction; Story v. R. Co., 90 N. Y. 122, 43 Am. Rep. 146. This case was decided by four judges against three dis senting, whose views were expressed by Earl, J., in an opinion much referred to, contending that it was a use of the properly incident to its purpose as a public highway. An effort to secure a re-examina tion of the doctrine of this case resulted in its affirmance ; Lahr v. Ry. Co., 104 N. Y. 268, 10 N. E. 528. In a subsequent case the New York court of appeals stated the law of that state to be that, although the abut ting owner might have an injunction, and in the same proceeding recover full compensa tion for the permanent injury, he could not, in an action at law, recover permanent dam ages measured by the diminution in value of the property, buit only such temporary damages as he had sustained at the time of commencing the action; Pond v. Ry. Co., 112 N. Y. 190, 19 N. E. 487, 8 Am. St. Rep. 734.
In a leading case the construction of an ordinary commercial railroad along a street in front of a lot without impairing ingress and egress, but resulting in the usual in juries to the lot from steam, smoke, dust, smells, interference with light and. air, jar ring the ground; etc., was held to be an ap propriation of the street for what was not a proper street use, for which damages were recoverable, but limited to the injury result ing from the operation of the road in front of the lot, and not including any accruing from operating it on other parts of the street; Adams v. R. Co., 39 Minn. 286, 39 N. Ns. 629, 1 L. R. A. 493, 12 Am. St. Rep. 644.
The Maryland court of appeals, in review ing the decisions on the subject, and partic ularly the New York cases, mentions as the only other cases holding that opinion, Craw ford v. Village of Delaware, 7 Ohio St. 460; Adams v. H. Co., 39 Minn. 286, 39 N. W. 629,
1 L. R. A. 493, 12 Am. St. Rep. 644; Theo bold v. Ry. Co., 66 Miss. 279, 6 South. 230, 4 L. R. A. 735, 14 Am. St. Rep. 564; and con siders that its own decision in Mayor, etc., of Cumberland v. Willison, 50 Md. 148, 33 Am. Rep. 304, and O'Brien v. R. Co., 74 Md. 363, 22 Atl. 141, 13 L. R. A. 126, should be adhered to as being in accord with the decid ed weight of judicial opinion. The conclu sion is thus stated : "The New York doctrine involves this inextricable dilemma, viz., if the grading of a street by a municipal cor poration cuts off all access to a person's house, albeit his property is thereby destroy ed and rendered,valueless, it is not taken in the constitutional sense ; but if a railroad company in lawfully constructing its road does precisely the same thing that the city did in grading a street, then the abutter's property is taken, though not physically en tered upon at all. The structure is there fore a lawful one. But it does not destroy the street as a street, though it may cause the plaintiff greater inconvenience in gain ing access to his lots than he encountered before it was built. But this and other in juries complained of are purely incidental and consequential, though the appellant, un der the statutes of Maryland, is not without a remedy therefor ; Garrett v. Ry. Co., 79 Md. 277, 29 Atl. 830, 24 L. R. A. 396.
The question what constitutes a taking, under the older constitutional provisions, was much considered with respect to the use of streets and. highways by many other modern appliances, such as gas and water pipes, steam and electric railroads, and poles for telegraph, telephone, and electric light wires. In this class of cases, of which the elevated railroad cases have been used as an illustration, the question has turned on the consideration whether the proposed use was a legitimate incidental use of the street as such, and the tendency of the cases is in favor of a very liberal construction of the rights of the public, at least in streets of cities. In some states a distinction is made between city streets and country roads, and the public easement in the latter is much more restricted, and the rights of abutting owners to damages consequently more ex tended ; Bloomfield & Rochester Nat. Gas Light Co. v. Calkins, 62 N. Y. 386; Appeal of Sterling, 111 Pa. 35, 2 Atl. 105, 56 Am. Rep. 246 ; Pennsylvania R. Co. v. Railway, 167 Pa. 62, 31 Atl. 468, 27 L. R. A. 766, 46 Am. St. Rep. 659 ; Kincaid v. Gas Co., 124 Ind. 577, 24 N. E. 1066, 8 L. R. A. 602, 19 Am. St. Rep. 113. See IMPAIRING- THE OBLIGATION OF CONTRACTS.