take place, or where there are no rights invaded, or where the injury is common to all persons alike, or where it arises simply from the company doing that which they are authorized to do, independently of committing a nuisance, as loss of trade; thus a railroad may, by carrying freight and passengers, destroy the trade of canal and stage-coach companies, and of innkeepers along the route; these would not be considered injuries for which the Constitution had provided a remedy. This type of injury is nowhere better explained than in Shrunk v. Schuylkill Nav. Co.,' by Chief Justice TILGHMAN, wherein, in examining the act before him, he says: "The next observation that arises is that all injuries mentioned in the act are those which are done to property immediately, such as inundation of land, the swelling of the water into tail-races of mills, the taking away of earth, stone, or other material, or the carrying of a canal or lock through a man's land. These are palpable and direct, so there can be no dispute about the injury. Compensation shall be made for all damage arising from immediate injury to property, but not for any damage where there is no legal injury, which is called damnum absque injruia."

Now the explanation of these words is this: the learned chief justice examines the act to find out what injuries are meant, and he finds any injury by a dam being erected, such as inundation, injury to tail-races of mills, etc., and he correctly concludes that the injury in the act must mean an immediate injury to property, but he does not attempt to define what is an immediate injury to property, he simply finds that the injury complained of was not. The remainder of the opinion deals with the principle, what injuries are too remote to be entitled to compensation? But first it should be stated that the principle is clearly announced by the counsel for the defendant in the following words: "The plaintiff had no right to the fish or the water, and with equal propriety might any one maintain an action who, by the erection of the dam, is deprived of the opportunity of catching a shad above the falls." It will be seen that the chief justice follows this principle for establishing too remote damages, for he says: "There would be no end to damages

1 14 S. & R. 71, 83; see also Proprs. of Locks & Canals v. Nashua & Lowell Rd., 10 Cush. 385, per SHAW, C. J.

for injuries, considered in the most extensive sense of the word. For not only may the owners of land contiguous to the river complain of injury by the obstruction to the ascent of the fish, but also all other persons living in towns or lands near the river. All these persons feel the loss of fish. All persons accustomed to fish with an angle or a hoop net may truly say they are injured. There are other kinds of injuries too, sustained particularly by owners of lands on the river between Fairmount and the lower Falls; all these persons have lost the benefit of navigation free from toll in batteaux, flats, which was very useful, as it served to carry produce to market and to bring up manure for their lands. Yet it has not been contended that for such injuries compensation is to be made. Suppose the health of the country to be injured by the evaporation from the dams, is compensation to be made for this, the greatest of all injuries? I presume not. Where, then, are we to stop, or what is to be the boundary if we go beyond the limit I have mentioned? I confess I should be at a loss to fix any one. * * The

plaintiff had no property either in the fish or the river, and he was bound to know the law by which the river remained public property, and of course all emoluments from fisheries were precarious." Here the learned chief justice states the principle that there is no recovery where the injury is common to all alike, nor where the right of action is merely personal and not incident to the ownership of the property-these injuries are all too remotebut, on the contrary, that there should be a recovery if the injury is incident to the ownership, if the property is subjected to a perpetual servitude-then the owner's interest in it is injured; this is the key-stone to the true principle: if the property is subjected, by reason of the works to a perpetual servitude, then to the extent of that servitude, is the owner's interest in the property injured. It has been held in England' that noise, smoke, soot, etc., are such servitudes, and that vibrations from passing trains are also such servitudes.2 Now, if this be so, the question remains, are they such servitudes as the law intends to be compensated? In England this ques

1 Turner v. The Sheffield & Rotherman Ry. Co., 10 M. & W. 425. Hammersmith & City Railway Co. v. Brand, L. R., 4 Eng. & Irs. App. 171. It was not doubted that this was an injury, but it was held there was no recovery under the construction of the statute on another point.

tion came up' in the construction of the Land Clauses Consolidation Act and the Railway Clauses Consolidation Act, wherein it was held injuries inflicted by the construction meant simply by the actual construction, and not by the use as a way-going concern; so, of course, there was no compensation for the vibrations, although

1 Hammersmith & City Ry. Co. v. Brand, L. R., 4 Eng. & Irs. App. Cas., 171. 'There is one very important thought in connection with the meaning placed upon the word "construction” by the judges in this English case [Hammersmith, etc., Ry. Co. v. Brand, supra], which could not apply in Pennsylvania; in fact, the point I mean, not existing with us, however, is the one which probably led the English court to hold that the word "construction" meant the actual construction, and our courts to hold that the same word meant a way-going concern, thus; in England, Parliament is sovereign [that Parliament is sovereign is made clear in that delightful book," The Law of the Constitution," by Professor A. V. Dicey; wherein he says (p. 64) “Parliamentary sovereignty is, therefore, an undoubted legal fact. It is complete both on its positive and on its negative side. Parliament can legally legislate on any topic whatever which in the judgment of Parliament is a fit subject for legislation. There is no power which, under the Constitution, can come into rivalry with the legislative sovereignty of Parliament"], hence, Parliament being sovereign, all the judges held, first, that Parliament did that which they had the sovereign power to do, to wit: by authorizing the railway to be constructed and used, they did, by this very act, legalize the nuisance of working the railway; hence it can very readily be seen the effect that this parliamentary sovereignty would have upon the minds of the judges in seeking for a meaning of the word "construction," occurring in the very act which legalized the running of trains. It would be almost a solecism, where the words "use" and "construction" are almost indiscriminately used, and where the word "construction," as it appears in the act [see Railway Clauses Consolidation Act, 6, 16], seems to be used in connection with the actual construction of the road, to hold that it meant to apply to the running of trains, the nuisance of which Parliament had the sovereign power to legalize. Lord CAIRNS dissented, taking the broader ground that the word "construction" means a way-going concern, and with him were three out of the remaining eight judges; but I wish to show how the minds of the majority could have been influenced by the principle of parliamentary sovereignty. With us in Pennsylvania, however, the legis lature is not sovereign, in so far as it is controlled by the Constitution; hence it cannot legalize any nuisance which the Constitution has not given it the power to legalize; so that the factor which was present to the minds of the English judges in deciding upon the meaning of the word "construction" in an English parliamentary sovereign act, was absolutely absent, and correctly so, from the minds of the members of our Supreme Court, where they had to deal with the same word in our Constitution. They decided the word had a broader meaning than that of a mere actual construction, but meant construction as a way-going concern. That is, our Constitution gave no power to our legislature to legalize any nuisance, but was a check on any such power. The Constitution, standing over the legislature with the sword of Damocles,

the court conceded that the property was subjected to an injurious servitude. Lord CAIRNS dissented from this construction and adopted the broader, more catholic view-injuriously affected by the construction-as a way-going concern. Our constitutional provision is somewhat similar to the English statute, and the Pennsylvania Supreme Court has, I think correctly, taken a position similar to that of Lord CAIRNS, that the word "construction" means the way-going concern. Of course, this does not mean that the railroad is always liable for damages arising from the use, this contention would be absurd, but what it does mean is this: upon paying damages arising from the construction of the road as a way-going concern, and thus having subjected the property to a perpetual servitude, and having paid for this right of servitude, of course it can use it. Had the word "use" been resorted to in the Constitution, it would probably have been contended that the road would have been continually liable for these damages, whereas by the use of the word "construction" in the sense of a way-going concern, it follows that whenever a road subjects a property to a perpetual servitude, and pays for the injury resulting from that servitude, it receives in return a perpetual right to charge that property with the said servitude, and, of course, is never again liable for the said use. That the Pennsylvania Supreme Court has held that the word "construction" is used in the sense of a way-going concern, I think is beyond doubt.1

says: You can create railroads, you can authorize them to run anywhere, you can authorize them to exercise their powers, but subject to compensation for the injuries they cause. Railroads had, previously to the new Constitution, been liable where land was taken for the injury as a way-going concern, and the people in the Constitution used the word "construction" in that sense.

In Lycoming Gas Water Co. v. Moyer, 3 Out. 615, if in the "construction" of its works any injury should be done to private property, compensation should be made. Moyer claimed damages, because the company tapped a small run, in order to procure water for its works, thereby diminishing the flow of water into his race. That is, the water was taken from the race for the company's use as way-going concern, yet the charter provided compensation for injury in the "construction;" still the court held that Moyer should recover"construction" meant the way-going concern. To the same effect is City of Reading v. Althouse, 12 Norris 400, under the new Constitution. In Western Penn. Rd. v. Hill, 6 Smith 460, Hill claimed damages for decrease of the business of the mill, by reason of the danger of driving horses near it, and the danger to persons going to and from the mill. The court said: the direct and

There is another legal principle which requires explanation. "Every man has the right to the natural use and enjoyment of his own property, and if, whilst lawfully in such use and enjoyment, without negligence or malice on his part an unavoidable loss occurs to his neighbor, it is damnum absque injuria, for the rightful use of one's land may cause damage to another without any legal wrong." This principle is expressed in the maxim, "sic utere tuo, ut alienum non lœdus," of which it has been said, the maxim "is no help to decision, as it cannot be applied till the decision is made."

This is very true, but there is an underlying principle illustrating what the courts have considered "the natural use and enjoyment of one's own property." Our own Supreme Court has clearly shown this distinction in the following cases: In Penn. Coal Co. v. Sunderson, 18 W. N. C. 181, the plaintiff claimed damages for the pollution of a stream running through his land by the "pumpings" out of a mine on the company's work, the said "pumpings" being the necessary result of the natural use and development of the coal property. The court held, in effect, as the property was coal property, the natural use of it was to develop it, and that the removal of the water from the workings of a coal mine was essential to the business of coal mining, as also was its discharge into the natural water courses. In Pottstown Gas Co. v. Murphy, 3 Wright 257, the plaintiff below claimed damages because the gas from the company's works percolated into his well. The company urged not immediate results of the "construction" of a road over land taken, if injurious, gives title to compensation, and as the court sustained Hill's claim, they must have used the word "construction" in the sense of a way-going concern, for that was the only way in which Hill claimed damages. To the same effect is IIornstein v. Atlantic, etc., Rd., 1 Smith 87. In Wilmington, etc., R. v. Stauffer, 10 Smith 374, Stauffer claimed damages for the loss of use of his barn, which by reason of its proximity to the railroad, was rendered unsafe to use as a barn from the danger of fire. The court sustained this claim, thus holding the railroad as a way-going concern.

In the above, I have cited a few cases under the new Constitution-where the words used are “in the construction of their works, etc., etc.,” and a few cases under the General Railroad Act of 1849-where the words used in providing for damages (see Purdon, p. 1219, § 35), are: “in consequence of the making or opening of said railroad, etc., etc.," so it is clear beyond question, that the Supreme Court have interpreted the words "making or opening" and "construction," as meaning a way-going concern.