necessary for the exercise of the power. We do not understand this to be controverted by the plaintiffs in error. Their argument is, that though the city had the legal right to construct the tunnel, and to do what was necessary for its construction, subject to the condition that in doing the work there should be no unnecessary interference with private property, yet it was liable to make compensation for the consequential damages caused to persons specially injured. To this we cannot assent.

It is immaterial whether the fee of the street was in the State or in the City or in the adjoining lotholders. If in the latter, the State had an easement to repair and improve the street over its entire length and breath, to adapt it to easy and safe passage.

The extremest qualification of the doctrine is to be found, perhaps, in Pumpelly v. Green Bay Co., 13th Wall., 166 [80 U. S., XX., 557], and in Eaton v. R. R. Co., 51 N. H., 504. In those cases it was held that permanent flooding of private property may be regarded as a "taking." In those cases there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession. But in the present case there was no such invasion. No entry was made upon the plaintiffs' lot. All that was done was to render for a time its use more inconvenient.

The present Constitution of Illinois took effect on the 8th of August, 1870, after the work of constructing the tunnel had been substantially completed. It ordains that private property shall not be " taken or damaged" for public use without just compensation. This is an extension of the common provision for the protection of private property. But it has no application to this case, as was decided by the Supreme Court of the State in the case of Chicago v. Rumsey, recently decided and reported in Vol. X., Chicago Legal News, p. 333 [87 Ill., 348]. That case also decides that the City is not liable for consequential damages resulting from an improvement made in the street, the fee of which is in the City, provided the improvement had the sanction of the Legislature. It also decides that La Salle Street is such a street, and declares that a recovery of such damages by an adjacent lotholder has been denied by the settled law of the State up to the adoption of the present Constitution. There would appear, therefore, to be little left in this case for controversy.

It is undeniable that in making the improvement of which the plaintiffs complain the City was the agent of the State, and performing a public duty imposed upon it by the Legislature; and that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdiction and with care and skill, is a doctrine almost universally accepted alike in England and in this country. It was asserted unqualifiedly in British Cast-Plate Manufacturers v. Meredith, T. R., 794; in Sutton v. Clarke, 6 Taunt.,29;and in Boulton v. Crowther, 2 Barn. & C.. 703. It was asserted in Green v. Reading, 9 Watts, 382; O'Connor v. Pittsburgh, 18 Pa., 187; in Callender v. Marsh, 1 Pick., 418; as well as by the courts of numerous other States. It was asserted in Smith v. Corp. of Washington, 20 How., 135 [61 U. S., XV., 858], in this court; and it has been held by the Supreme Court of Illinois. The decisions in It is insisted, however, that the plaintiffs may Ohio, so far as we know, are the solitary excep- recover for the obstruction to the access of their tions. The doctrine, however it may at times lot, caused by the coffer-dam in the river. It is appear to be at variance with natural justice, admitted that the dam was necessary to enable rests upon the soundest legal reason. The State the City to construct the tunnel under the river; holds its highways in trust for the public. Im- and it is not complained that it was unskillfully provements made by its direction or by its au- built, or that it was kept in the stream longer thority are its acts, and the ultimate responsi-than the necessities of the work required, but it is bility, of course, should rest upon it. But it is the prerogative of the State to be exempt from coercion by suit, except by its own consent. This prerogative would amount to nothing if it does not protect the agents for improving highways which the State is compelled to employ. The remedy, therefore, for a consequential injury resulting from the State's action through its agents, if there be any, must be that, and that only, which the Legislature shall give. It does not exist at common law. The decisions to which we have referred were made in view of Magna Charta and the restriction to be found in the Constitution of every State, that private property shall not be taken for public use with-ized obstructions in navigable streams. They out just compensation being made. But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Cooley on Constitutional Limitations, page 542 and notes.

contended that neither the State nor the City had any right to obstruct passage on the river at all. Yet the river is a highway, a state highway as well as a national. It has long been held that navigable rivers wholly within a State are not outside of state jurisdiction so long as Congress does not interfere. An abridgment of the rights of those who have been accustomed to use them, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the Government of the State and its citizens, of which this court can take no cognizance. Wilson v. Black Bird Or. M. Co., 2 Pet., 250. In numerous instances, States have author

have authorized the erection of bridges, the piers of which have been more or less impediments to navigation. In this case the coffer-dam was only a temporary obstruction. It was no physical encroachment upon the plaintiffs' property, and it was maintained only so long as it was needed for the public improvement. The tunnel could not have been constructed without it. We cannot doubt that it was lawfully placed where it was, and having thus been, that the city is not responsible in damages for having erected and maintained it while discharging the duty imposed by the Legislature, the obstruction not

having been permanent or unreasonably pro- | served unbroken, and that an adjoining owner longed.

We have examined the decisions of the courts of Illinois, and others to which we have been referred by the plaintiffs in error, but in none of them was it decided that a riparian owner on a navigable stream, or that an adjoiner on a public highway, can maintain a suit at common law against public agents to recover consequential damages resulting from obstructing a stream or highway in pursuance of legislative authority, unless that authority has been transcended, or unless there was a wanton injury inflicted, or carelessness, negligence or want of skill in causing the obstruction.

Very many of the decisions relied upon were cases in which it appeared that the acts complained of as having wrought injurious consequences were done by private individuals, for their own benefit, and without sufficient legis lative authority. The distinction between cases of that kind and such as the present is very obvious. It was well stated by Gibbs, Ch. J., in Sutton v. Clarke, supra, which, as we have seen, was decided on the ground that the defendant was acting under the authority of an Act of Parliament, deriving no advantage to himself personally, and acting to the best of his skill and within the scope of his authority, and so was not liable for consequential damages. "This case," said the Chief Justice, "is totally unlike that of the individual who for his own benefit makes an improvement on his own land accord ing to his best skill and diligence, not foreseeing it will produce injury to his neighbor; if he thereby, though unwittingly, injure his neighbor, he is liable. The resemblance fails in this most important point, that his act is not done for a public purpose but for private emolument. Here the defendant is not a volunteer; he executes a duty imposed upon him by the Legisla. ture, which he is bound to execute."

The observations we have made cover the whole case as made for the plaintiffs in error, except the point presented by the 16th assign ment. That was not mentioned in the argument, but we will not overlook it.

excavating on his own land is subject to this restriction, that he must not remove the earth so near to the land of his neighbor that his neighbor's soil will crumble away under its own weight and fall upon his land. But this right of lateral support extends only to the soil in its natural condition. It does not protect whatever is placed upon the soil increasing the downward and lateral pressure. If it did, it would put it in the power of a lotowner, by erecting heavy buildings on his lot, to greatly abridge the right of his neighbor to use his lot. It would make the rights of the prior occupant greatly superior to those of the latter. Wyatt v. Harrison, 3 B. & Ad., 871; Lasala v. Holbrook, 4 Paige, 169; Wash. Easements, ch. 4, sec. 1.

The judgment is, therefore, affirmed.

Cited-2 McCrary, 346: 3 McCrary, 265; 90 N. Y., 184, 185; 11 N. W. Rep., 453; 18 N. W. Rep., 462, 572; 79 Ind., 499: 41 Am. Rep., 624; 90 N. Y.,176; 43 Am. Rep., 158; 16 W. Va., 420 37 Am. Rep., 783.

WILLIAM R. FOSDICK ET AL., Appts.,

v.

MICHAEL SCHALL, INTERVENER.

(See S. C., 9 Otto, 235-256.)

Cars sold, title to remain in vendor until paid for-not subject to lien of mortgage-vendor only a general creditor for amount unpaid.

1. Where one sold and delivered cars to a railroad company under an agreement that they were to remain his property until paid for, a prior mortgage given by the company upon all the property which it then owned or possessed or might afterwards acquire, did not attach as a lien upon the cars, but they remained the property of the vendor until paid for, and he might reclaim them, on default of payment.

of railroad property, it may impose such terms in 2. When a court of chancery appoints a receiver reference to the payment from the income during the receivership, of outstanding debts for labor, supplies, equipment or permanent improvement of stances of the particular case, appear to be reasonthe mortgaged property, as may, under the circumable.

There was evidence at the trial that during the progress of the necessary excavation of La Salle Street a portion of the walls of the plaint-income of the receivership to discharge obligations 3. It is within the power of the court to use the iffs' buildings on the lot cracked and sunk. This for labor, supplies and the like, which, but for the was caused by the caving in of the excavation diversion of funds, would have been paid in the orin the street, the timbers used for bracing the dinary course of business. sides having given way. In reference to this testimony the court instructed the jury that if they were satisfied from the evidence that the sinking of the wall, or rather the cracking of the wall, was due to the weight of the wall upon the selvage or portion of the earth which was left, and not to the removal of the material

which was taken out of the street, that is, from the pit, the defendants were not liable. If they were satisfied that if the wall had not stood upon the plaintiffs' lot where it did there would have been no change in the level of the ground there, but that the change in the level which caused the deflection of the wall was due to the weight of the wall resting upon the earth after the excavation was made, then the defendant was not liable for that.

4. The owner of the cars, for the balance due upon such contract, occupies the position of a general creditor only, and cannot receive from the funds arising from the mortgage sale, such balance. [No. 631.]

Argued Jan. 7, 8, 1879. Decided Mar. 10, 1879.

APPEAL from the Circuit Court of the United

States for the Northern District of Illinois.
The case is fully stated by the court.
Messrs. Henry Crawford and Ashbel
Green, for appellants.

Mr. R. Biddle Roberts (argument of John M. Butler being also filed), in support of discretionary power of court of equity to order payment of operating expenses of railway, prior to appointment of receiver, for Schall, in

tervener.

We think this instruction was entirely right. The general rule may be admitted that every property. See note to Pennock v. Coe, 64 U. S., XVI., NOTE. The lien of a mortgage on after-acquired landowner has a right to have his land pre-436.

Mr. Chief Justice Waite delivered the opin- | and delivery of the said cars as above stated. ion of the court: Shipping receipts to be evidence of delivery. (Signed) MICHAEL SCHALL.

were held for its use and benefit, or in which it | holders answered this petition, claiming that had any beneficial interest. He was also au- the title of the cars had passed to the company thorized to run, operate and manage the road under its contract with Schall, and that conseand pay the expenses thereof, and manage and quently the lien of the mortgages had attached control all the property and affairs of the com- to the cars as after-acquired property. They pany. Authority was also given him to use the denied the right of Schall to payment for the moneys of the company for any and all the pur- cars out of the income of the road or out of the poses specified in the order, and he was required, proceeds of the sale, and they denied his right as speedily as possible, to examine into the con- to a return of the cars. dition of the property and assets of the company, its contracts, leases, running arrangements, its business affairs, and take an inventory of its movable property and make a schedule of its floating indebtedness for labor and supplies, and report the same, as soon as might be, with his recommendation as to the proper disposition of the same and payment thereof. Under this order Anderson took possession of the property, and on the 11th of June the receivers appointed by the state court filed their final accounts, and asked to be discharged from their trust.

are held by the courts of Illinois to be, in effect, | the property is worth more than is due upon the so far as the Chattel Mortgage Act of that State contract of purchase, the mortgagees can obtain is concerned, the same as though a formal bill the benefit of the overplus, is a question we are of sale had been executed and a mortgage given not called upon to consider. back to secure the price. We had occasion to As to the second question, we have no doubt consider that question in Hervey v. Locomotive that when a court of chancery is asked by railWorks, 93 U. S., 664 [XXIII., 1003], and there road mortgagees to appoint a receiver of railheld, following the Illinois decisions, that if road property pending proceedings for foresuch an instrument was not recorded in accord- closure, the court, in the exercise of a sound juance with the provisions of the Chattel Mort- dicial discretion, may, as a condition of issuing gage Act, R. S., Ill., 1874, 711, 712, a lien like the necessary order, impose such terms in refthat of Schall would have no validity as against erence to the payment from the income during third persons. Whatever may be the rule in the receivership of outstanding debts for labor, other States, this is, undoubtedly, the effect of supplies, equipment or permanent improvethe Illinois Statute as construed by the courts ment of the mortgaged property as may, under of that State. In Green v. Van Buskirk,5 Wall., the circumstances of the particular case, ap 307 [72 U. S., XVIII., 599], this court also pear to be reasonable. Railroad mortgages and held that "Where personal property is seized the rights of railroad mortgages are comparaand sold under an attachment, or other writ is- tively new in the history of judicial proceedsuing from a court of the State where the prop-ings. They are peculiar in their character and erty is, the question of the liability of the prop- affect peculiar interests. The amounts involved erty to be sold under the writ must be deter- are generally large, and the rights of the parmined by the law of that State, notwithstanding ties oftentimes complicated and conflicting. It the domicil of all the claimants to the prop- rarely happens that a foreclosure is carried erty may be in another State." Hervey v. Lo- through to the end without some concessions comotive Works [supra], was also a case of seiz- by some parties from their strict legal rights, in ure and sale under judicial process; and the order to secure advantages that could not otherlanguage of the court, as expressed in its opin-wise be attained, and which it is supposed will ion delivered by Mr. Justice Davis, is to be construed in connection with that fact.

As between the parties, notwithstanding the Illinois Statute, the transaction is just what, on its face, it purports to be, "A conditional sale, with a right of rescission on the part of the ven dor, in case the purchaser shall fail in payment of his installments-a contract legal and valid as between the parties, but made with the risk, on the part of the vendor, of his losing his lien" if it works a legal wrong to third parties. Murch v. Wright, 46 Ill., 488. The question, then, is whether these mortgagees occupy the position of third parties within the meaning of that term as used in this statute.

They are in no sense purchasers of the cars. The mortgage attaches to the cars, if it attaches at all, because they are "after acquired" property of the company; but as to that class of property it is well settled that the lien attaches subject to all the conditions with which it is incumbered when it comes into the hands of the mortgagor. The mortgagees take just such an interest in the property as the mortgagor acquired; no more, no less. These cars were loose property susceptible of separate ownership and separate liens," and "such liens, if binding on the railroad company itself, are unaffected by a prior general mortgage given by the company and paramount thereto." U. S. v. R. R. Co., 12 Wall., 362 [79 U. S., XX., 434]. The title of the mortgagees in this case, therefore, is subject to all the rights of Schall under his con

tract.

The possession taken by the receiver is only that of the court, whose officer he is, and adds nothing to the previously existing title of the mortgagees. He holds, pending the litigation, for the benefit of whomsoever in the end it shall be found to concern, and in the meantime the court proceeds to determine the rights of the parties upon the same principles it would if no change of possession had taken place.

It follows that the decree ordering a return of the cars to Schall was right. Whether, if

operate for the general good of all who are interested. This results almost as a matter of necessity from the peculiar circumstances which surround such litigation.

The business of all railroad companies is done to a greater or less extent on credit. This credit is longer or shorter, as the necessities of the case require; and when companies become pecuniarily embarrassed, it frequently happens that debts for labor, supplies, equipment and improvements are permitted to accumulate, in order that bonded interest may be paid and a disastrous foreclosure postponed, if not altogether avoided. In this way the daily and monthly earnings, which ordinarily should go to pay the daily and monthly expenses, are kept from those to whom in equity they belong, and used to pay the mortgage debt. The income out of which the mortgagee is to be paid is the net income obtained by deducting from the gross earnings what is required for necessary operating and managing expenses, proper equipment and useful improvements. Every railroad mortgagee in accepting his security impliedly agrees that the current debts made in the ordinary course of business shall be paid from the current receipts before he has any claim upon the income. If for the convenience of the moment something is taken from what may not improperly be called the current debt fund, and put into that which belongs to the mortgage creditors, it certainly is not inequitable for the court, when asked by the mortgagees to take possession of the future income and hold it for their benefit, to require as a condition of such an order that what is due from the earnings to the current debt shall be paid by the court from the future current receipts before anything derived from that source goes to the mortgagees. In this way the court will only do what, if a receiver should not be appointed, the company ought itself to do. For even though the mortgage may in terms give a lien upon the profits and income, until possession of the mortgaged premises is actually taken