incident of property is a riparian owner's right of access to the stream. When the public takes this from him, as in (d), above, his property is taken. In case (e), the public has taken from A the right to occupy part of his land permanently with the water of the river which has been widened. Such a right as this in the land of another, called an easement, is also a well-recognized separable property right by the common law and so A must be paid for it. In all of these cases it will be noticed that A's rights have been taken from him in such a fashion that he cannot legally avail himself of them in any way. Rights he once had to the occupation or use of his property are now being enjoyed by the public. Up to this point there is no controversy about the matter.

§ 216. Substantial intrusion of tangible material. Cases (f) and (g) (§214) are somewhat different. No right is claimed by the public to keep water on A's land, if A chooses to dike it off; or to make noises or cast soot on A's land, if A can erect some barrier that will prevent these effects. All that is claimed is a right to be free from suit for injuring A's land as incidental to acts done elsewhere. The crude earlier conceptions of the common law undoubtedly regarded these acts as injuries to property, rather than as taking it, and hence they fell outside the constitutional prohibition. In the leading case of Pumpelly v. Green Bay Company (15), decided in 1871, it was held that a substantial flooding of land by water amounted to a taking of it for which compensation must be made. The court said: "Where real estate is ac

(15) 13 Wall., 166.

tually invaded by superinduced additions of water, earth, sand or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution." This case has been generally followed since in this country. Another case decided about the same time that had much effect in settling the law was one where a railroad had cut through a ridge of land which had protected the plaintiff's land from the freshets of a neighboring stream. Afterwards, water came through this cut at flood-time, depositing gravel upon plaintiff's farm and washing away his soil. This was held to amount to a taking of the plaintiff's property, his natural right to be free from such a change in the surface of the earth, and compensation was required (16).

§ 217. Noise and pollution of atmosphere. On the other hand, it is generally held that noise and the pollution of the atmosphere, as by the operation of a railroad, do not constitute a taking of property for which compensation must be made (17). The ringing of a bell, which has been previously enjoined as a nuisance, may be legalized by the legislature, without compensation, though it causes much discomfort to property owners in the vicinity (18). In these cases, there being no gross physical invasion of the area of the plaintiff's property, it has not been treated as a taking, although it may be shown that under a scientific classification of property rights dam

(16) Eaton v. Boston, etc. Railroad, 51 N. H., 504.

(17)

Beseman v. Pennsylvania Railroad, 50 N. J. L., 235. (18) Sawyer v. Davis, 136 Mass., 239.

age done by noise or smoke is essentially similar to that done by water.

§ 218. Improvement of navigation. In case (h) (§214) A's right of access to the stream has been interfered with, but only for the purpose of improving the river for purposes of navigation. Riparian rights are held subject to the paramount right of the public in the navigability of streams, and must yield to improvements in the exercise of this public right. So, in a case where Congress improved a navigable river by building in it, on submerged land in front of plaintiff's shore line, a pier that wholly cut plaintiff off from access to the channel of the river, it was held he could claim no compensation on the theory that his property was taken (19).

§ 219. Changes in public streets. Cases (i), (j), (k), (§214) involve the difficult question of what property rights an abutting owner has in a public street. It was early decided that any change of grade of a public street, whether by raising it or lowering it, did not amount to a taking of abutting property, no matter how much the latter might be damaged as a result. The streets were intended for public traffic, and anything that improved them for this purpose, without actually invading the boundaries of abutting property was within the rights of the public, just like improvements upon navigable rivers (§ 218). About 1880 there began in New York a remarkable litigation over the construction of the first elevated street railroads. These structures in the streets of New York city diminished the light and air of abutting

property, interfered with access to it, and also diminished its value by the noise and dirt of the trains. Abutting property owners attempted to compel the elevated companies to pay for the damage thus done upon the theory that they had some property rights in the streets that were taken by the erection of the elevated structure. The New York courts finally decided that the abutters had such property rights for the taking of which they were entitled to compensation. The theory of these rights has been thus stated by the New York court:

"It has now been decided that, although the land itself was not taken, yet the abutting owner, by reason of his situation, had a kind of property in the public street for the purpose of giving to such land facilities of light, of air, and of access from such street. These rights of obtaining for the adjacent lands facilities of light, etc., were called easements, and were held to be appurtenant to the land which fronted on the public street. These easements were decided to be property, and protected by the constitution from being taken without just compensation. It was held that the defendants, by the erection of their structure and the operation of their claims, interfered with the beneficial enjoyment of these easements by the adjacent land-owner, and in law took a portion of them. By this mode of reasoning, the difficulty of regarding the whole damage done to the adjacent owner as consequential only (because none of his property was taken), and, therefore, not collectible from the defendants, was overcome. The interference with these easements became a taking of them pro tanto, and their

value was to be paid for, and in addition the damage done the remaining and adjoining land by reason of the taking was also to be paid for, and this damage was in reality the one great injury which owners sustained from the building and operation of the defendant's road" (20).

These so-called easements of light, air, and access, are wholly subject to the right of the public to improve the street for the purpose of legitimate street traffic. For instance, if a city had erected a public viaduct in the street, to carry it up to a higher grade, and the injury to abutting owners had been just as great as in the case of the elevated railway, the abutters would have had no remedy (21). A striking illustration of this occurred in Buffalo, N. Y. A railroad was authorized to build an embankment six feet high in the middle of a street, which was held to take the abutting owners' easement of access, so that they must be paid for it. The streets crossing this one had to be graded up to the top of the embankment to get across, and the abutters on these streets were not allowed to recover because this grading was done to change the level of the street for street purposes, while the first one was not (22).

§ 220. What are legitimate public uses of streets? Evidently the New York elevated railroad cases depend upon the proposition that the occupation of the street by an elevated street railroad is not a legitimate use of

(20) Bohm v. Metropolitan Railway Co., 129 N. Y., 576, 587-88. (21) Sauer v. New York, 206 U. S., 536.

(22) Reining v. Railroad, 128 N. Y., 157; Rauenstein v. Railroad, 136 N. Y., 528.