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on Sunday labor, included persons selling liquors, as provided by former act; Cortesy v. Territory, 7 N. M. 91, 19 L. R. A. 354, 32 Pac. 505, to same effect; Arthur v. Lahey, 96 U. S. 115, 24 L. Ed. 767 and Maddock v. Magone, 152 U. S. 372, 38 L. Ed. 483, 14 Sup. Ct. 589, both arguendo.

13 Wall. 166-182, 20 L. Ed. 557, PUMPELLY v. GREEN BAY CO.

Plea that a river dam was not higher than a statute authorized, pleads a conclusion of law, and is bad.

Approved in Dame v. Cochiti Reduction & Improvement Co., 13 N. M. 17, 18, 79 Pac. 298, 299, allegation that bonds fell due by reason of failure to pay interest held to be conclusion of law; Hopper v. Covington, 118 U. S. 151, 30 L. Ed. 193, 6 Sup. Ct. 1027, holding averment that bonds were executed pursuant to laws of State defective; Chicago etc. R. Co. v. Sturgis, 44 Mich. 540, 7 N. W. 213, holding where the title to sue is statutory and depends on special construction of facts, the declaration must aver the existence of the facts; Arimond v. Green Bay etc. Canal Co., 31 Wis. 331, following the rule of principal case against same company; also s. c., in 35 Wis. 47, to same effect; State v. City of Eau Claire, 40 Wis. 543, refusing to enjoin construction of a river dam, because the enabling act did not provide for compensating owners of overflowed lands, in the absence of an averment that any lands would be overflowed; dissenting opinion in Eisenbach v. Hatfield, 2 Wash. 265, 12 L. R. A. 645, 26 Pac. 547, arguendo.

Right to take private property for public use reaches back of all constitutional provisions, and the right to compensation for property so taken is incident to the exercise of that power; the powers exist as parts of one principle.

Approved in Idaho-Western Ry. Co. v. Columbia Conference etc., 20 Idaho, 580, 38 L. R. A. (N. S.) 497, 119 Pac. 64, holding compensation for land condemned must be determined by considering same elements vendor and purchaser would consider; St. James etc. M. E. Church v. Baltimore etc. R. Co., 114 Md. 447, 79 Atl. 37, holding unused portion of cemetery could be condemned for railroad use; Mansfield v. Balliett, 65 Ohio St. 461, 63 N. E. 89, holding city liable for damage caused to riparian owner by discharging sewage into natural watercourse; Pickens v. Coal River Boom & T. Co., 66 W. Va. 14, 24 L. R. A. (N. S.) 354, 65 S. E. 86, holding State charter of corporation to do work which without charter would be public nuisance absolves it from liability therefor, but not from action by individual suffering damage therefrom; Stolze v. Milwaukee etc. R. R. Co., 104 Wis. 55, 80 N. W. 70, holding no rights acquired to land condemned for railroad until assessed damages paid or provided for; dissenting opinion in Chicago. etc. Ry. Co. v. Illinois, 200 U. S. 598, 50 L. Ed. 611, 26 Sup. Ct. 341,

majority holding imposition on railroad of entire cost of removing and rebuilding of bridge made necessary by widening of channel by authorized officials not a "taking"; Monongahela Nav. Co. v. United States, 148 U. S. 324, 37 L. Ed. 467, 13 Sup. Ct. 625, holding the compensation to which company entitled for taking of a lock and dam must include value of the franchise to take tolls, as well as the actual property, and the court was not bound by the enabling act; Chicago etc. R. Co. v. Chicago, 166 U. S. 238, 41 L. Ed. 985, 17 Sup. Ct. 585, holding that a judgment of State court, awarding one dollar as compensation for opening a street across land used for railroad purposes, within city limits, could not be reviewed, as to amount; Chattanooga etc. R. Co. v. Felton, 69 Fed. 278, holding a railway receiver had no right of eminent domain to forcibly construct a cross-over track across the road of another company to reach a private manufactory; Reardon v. San Francisco, 66 Cal. 502, 56 Am. Rep. 113, 6 Pac. 323, holding property owner would be entitled to compensation, independent of statute, for damages caused by deposit of earth on it in grading a street, causing destruction of garden; Baltimore etc. Turnpike Road v. Baltimore etc. R. Co., 81 Md. 256, 31 Atl. 855, holding that an electric railway company had power to take a road of the turnpike company and road and track of an existing horse-car line for construction of its road under its constitutional charter from the legislature; Opinion of the Justices, 66 N. H. 631, 33 Atl. 1077, holding the State's power of eminent domain extends to a railroad, but it cannot be purchased for less than its value, without owner's consent; McCullough v. Brown, 41 S. C. 237, 23 L. R. A. 418, 19 S. E. 469, holding that the "dispensary act" was not a statute of prohibition, but for raising revenue, and valid; dissenting opinion in Orr v. Quimby, 54 N. H. 646, arguendo.

Distinguished in People v. Eberle, 167 Mich. 485, 133 N. W. 522, holding will as to damages did not apply where injury resulted from exercise of police power in promotion of public welfare.

Eminent domain, compensation. Note, 7 Am. Dec. 534.

Government cannot, by abstaining from absolute conversion of property, inflict irreparable and permanent injury on it without making compensation under a plea that it is not "taken" for the public use.

Approved in Kansas City Gas Co. v. Kansas City, 198 Fed. 514, holding police power of State did not extend to passage of laws which violate fundamental rights secured by Federal Constitution; Kansas Natural Gas Co. v. Haskell, 172 Fed. 566, holding statute prohibiting conducting of natural gas from State void as to owners of gas-wells as taking of private property without compensation; Moore v. New Orleans W. W. Co., 114 Fed. 382, denying drainage commission right to remove and interfere with water company's pipes and mains without adequate

compensation; Dana v. Rock Creek Ry. Co., 7 App. D. C. 494, 496, holding railroad changing grade of street liable for injury to abutting owner for injury to mode of access; District of Columbia v. Prospect Hill Cemetery, 5 App. D. C. 514, holding public authorities seeking to acquire land by condemnation, could not withdraw from inquisition and judgment thereon because dissatisfied with price fixed, and seek by other means to procure smaller valuation; Sanitary District v. Chicago etc. R. Co., 267 Ill. 256, 108 N. E. 314, holding statute requiring railroad to construct bridges over watercourses did not apply where sanitary district channel was constructed across right of way atfer road was built; Litchfield v. Bond, 186 N. Y. 81, 78, N. E. 724, holding making of slash through privately owned forest by public survey constituted trespass for which officers were liable; Markwardt v. City of Guthrie, 18 Okl. 44, 11 Ann. Cas. 581, 9 L. R. A. (N. S.) 1150, 90 Pac. 30, holding city liable for nuisance caused by discharge of sewage into stream; Barron v. Memphis, 113 Tenn. 92, 106 Am. St. Rep. 810, 80 S. W. 833, where city enlarged bridge pier and thereby diverted current so that water overflowed land and eroded it, there was a "taking"; State v. Bancroft, 148 Wis. 146, 38 L. R. A. (N. S.) 526, 134 N. W. 338, holding where riparian rights taken by State in course of river improvement, owner was entitled to compensation; Sanborn v. Village of Enosburg Falls, 87 Vt. 484, 89 Atl. 748, holding municipality liable for injury to adjacent property by obstructing natural watercourse while improving streets; Head v. Amoskeag Mfg. Co., 113 U. S. 26, 28 L. Ed. 895, 5 Sup. Ct. 448, sustaining validity of State law authorizing riparian owners to construct milldams on paying compensation to owners of lands flooded thereby; Pennsylvania R. Co. v. Miller, 132 U. S. 83, 33 L. Ed. 272, 10 Sup. Ct. 37, and Pennsylvania R. R. v. Duncan, 129 Pa. St. 199, both holding that there was no contract between State and company to prevent adoption of amendment to Constitution, making the company liable to consequential damages from construction of road; United States v. Alexander, 148 U. S. 187, 37 L. Ed. 416, 13 Sup. Ct. 529, holding the drainage and permanent destruction of a well by construction of a tunnel for an aqueduct entitled owner to compensation (but this under 22 Stat. 168); Hollingsworth v. Parish of Tensas, 4 Woods, 288, 289, 17 Fed. 115, holding State has no such easement over riparian lands as to enable it to take the land for construction of a levee without making compensation; Douglass v. Leavenworth, 6 Kan. App. 99, 49 Pac. 677, holding individual may sue to abate public nuisance; Weaver v. Mississippi etc. Boom Co., 28 Minn. 539, 11 N. W. 115, holding the company liable for damage from diversion of course of stream, causing deposit of earth on riparian land and erosion of bank; Meyers v. City of St. Louis, 8 Mo. App. 275, holding that the building of a dike in the river,

by which its stream was diverted from a lot which derived its value from a waterfront, was an act entitling the owner to compensation; Trenton Water Co. v. Raff, 36 N. J. L. 343, holding legislature cannot authorize erection of a dam which, by causing a back water, permanently injures land without liability to make compensation; Robert v. Sadler, 104 N. Y. 232, 58 Am. Rep. 499, 10 N. E. 429, holding a city having accepted an easement for a public street cannot remove more soil than is necesssary to bring it to proper grade; Staton v. Norfolk etc. R. Co., 111 N. C. 284, 17 L. R. A. 843, 16 S. E. 183, holding legislative authority to construct a railroad did not entitle it to flood land without making compensation; had it purported to do so, it would be unconstitutional; Chattanooga v. Dowling, 101 Tenn. 345, 47 S. W. 700, a municipality in constructing a public sewer cannot suffer sewage to be discharged on private land through incompleteness of sewer without making compensation; Gulf, Colorado & Santa Fe R. Co. v. Eddins, 60 Tex. 663, holding where, by the construction of a steam railroad on a public street, special damage was caused to a lot owner, an action for damages will lie; Janesville v. Carpenter, 77 Wis. 301, 20 Am. St. Rep. 133, 8 L. R. A. 813, 46 N. W. 132, holding a statute prohibiting a riparian owner from driving piles in river-bed without providing for compensation is unconstitutional; dissenting opinion in Munn v. Illinois, 94 U. S. 144, 24 L. Ed. 90, majority holding that statute of Illinois, regulating public warehouses and the charges for warehousing and inspection of grain, is not in conflict with the Federal Constitution; dissenting opinion in Watuppa Reservoir Co. v. Fall River, 147 Mass. 561, 1 L. R. A. 470, 18 N. E. 474, majority holding that the legislature, under act of 1847, could appropriate the waters of great ponds for domestic, municipal or public uses without compensating riparian proprietors; dissenting opinion in State v. City of Hamilton, 47 Ohio St. 86, 23 N. E. 943, majority holding that a chartered gas company had no exclusive right to supply the city which would prevent the city erecting its own gasworks without compensation; Western Union Tel. Co. v. Williams, 86 Va. 705, 19 Am. St. Rep. 915, 8 L. R. A. 433, 11 S. E. 109, holding statute authorizing the erection of telegraph poles along a public road without providing for compensation to land owners unconstitutional; Hodges v. Seaboard etc. R. Co., 88 Va. 654, 14 S. E. 381, holding the occupation of a street by a railroad company imposes an additional servitude on abutting owners owning the fee of road, for which they must be compensated; Town of Nahant v. United States, 136 Fed. 285, 69 L. R. A. 723, 70 C. C. A. 641, arguendo.

Distinguished in Richardson v. United States, 100 Fed. 717, holding damage to riparian owners due to improvements on navigable streams not recoverable in Court of Claims; Grand Rapids etc. Ry. Co. v. Village

of Morley, 166 Mich. 82, 131 N. W. 141, holding village using dam as right of way and paying owner therefor not liable for flood damages caused by dam; Price v. United States, 174 U. S. 377, 43 L. Ed. 1013, 19 Sup. Ct. 767, holding an owner of property stolen by an Indian tribe not entitled to compensation by United States for consequential damage to other property not stolen, unless so provided by act of Congress.

What constitutes damage for public use for which compensation must be made. Note, 4 Am. St. Rep. 400.

Meaning of the word "damaged" in the constitutional guaranty that private property shall not be taken or damaged for public use without just compensation. Note, 109 Am. St. Rep. 905, 906,

916.

Distinction between taking or damaging property and consequential injuries. Note, 47 L. R. A. (N. S.) 465, 466.

Where real estate is actually 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.

Approved in Peabody v. United States, 231 U. S. 538, 58 L. Ed. 353, 34 Sup. Ct. 159, holding subjection of land to burden of governmental use by constantly firing heavy guns over it in time of peace would amount to taking of property; Hopkins v. Clemson Agricultural College, 221 U. S. 647, 35 L. R. A. (N. S.) 243, 55 L. Ed. 896, 31 Sup. Ct. 654, holding college corporation liable for taking land when by erecting dikes it caused plaintiff's land to be washed away; United States v. Grizzard, 219 U. S. 182, 55 L. Ed. 165, 31 Sup. Ct. 162, holding permanent flooding of land was taking; Manigault v. Springs, 199 U. S. 484, 50 L. Ed. 280, 26 Sup. Ct. 127, flooding of lands consequent on erection of dam under statutory authority is not "taking" where flooding can be prevented by raising height of dikes; United States v. Lynah, 188 U. S. 469, 472, 47 L. Ed. 548, 549, 23 Sup. Ct. 356, 358, holding United States liable for compensation where land totally flooded by erection of dams and other public works; Cartwright v. Southern Pac. Co., 206 Fed. 235, holding where direct result of dikes was caused by washing away of plaintiff's soil, suit was in nature of trespass, within meaning of statute of limitations; Greenleaf Johnson Lumber Co. v. United States, 204 Fed. 499, holding where effect of widening navigable channel was to destroy private piers built as aid to commerce under law of State result was taking of property; Lyle v. National Home, 170 Fed. 844, considering but not deciding whether diversion of water from plaintiff's property with consequential damages thereto could be taking; Meriwether v. Board of Directors of St. Francis Levee District, 165 Fed. 320, 91 C. C. A. 285, holding owner

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