erty, in its broader and more appropriate sense, is not alone the chattel or the land itself, but the right to freely possess, use, and alienate the same; and many things are considered property which have no tangible existence, but which are necessary to the satisfactory use and enjoyment of that which is tangible. The people and the courts of Colorado are constantly treating as property the right to a use of water acquired by priority of appropriation; the right of user would, of course, be of no value without the water, but it is this right that is mainly the subject of ownership. Incorporeal hereditaments, particularly those denominated "easements," have always been considered property both by the civil and the common law. They are generally attached to things corporeal, and are said "to issue out of or concern" them; but any wrongful interference therewith has been promptly recognized and punished by the courts.

No good reason is observed for discriminating against the easement in a street connected with the lot of an abutting owner. We are disposed to say that it is property within the meaning of our constitution; and any interference therewith which results in injury to the realty must, with the exceptions hereinafter stated, be justly compensated if in such a case there be no technical taking. "If private property, there is a damaging thereof within the constitutional inhibition." Whatever permanently prevents the adjacent owners' free use of the street for ingress or egress to or from his lot, and whatever interference with the street permanently diminishes the value of his premises, is as much a damage to his private property as though some direct physical injury were inflicted thereon. But sometimes these interferences and resulting injury may properly, even in this state, be held to be dammun absque injuria; as where they are occasioned by a reasonable improvement of the street by the proper authority for the greater convenience of the public, or where a mere temporary inconvenience or injury results from a legitimate use thereof by the public.

The streets of a municipal corporation are highways; they are dedicated to the use of the general public, and it has a right therein in the nature of an easement,—a right which is termed an easement by some of the authorities. Whether the fee thereof be in the city or in the adjoining owner this right of the public ordinarily remains the same; if in the former, such fee is generally in trust, for the benefit of the public; if in the latter, it is subject to the right of user or enjoyment by the public for all the ordinary and legitimate purposes of a highway. With us the control thereof is, in either case, vested by law in the municipal government; it is the duty of the city council to protect and improve the same in such manner as will render it most useful for a highway. In determining what changes and improvements are most conducive to this end, the council exercises a large discretion, and unless unreasonable changes are made, or injury results to the adjoining premises through the unskillfulness or negli

gence of those employed, the owner thereof will not be heard to complain, though, in fact, the real value and convenience of his property are diminished thereby. For in purchasing his lot, or in relinquishing the public easement, he is conclusively presumed to have contemplated this power and authority of the municipal government, and is held to have anticipated any injury to his abutting land resuiting from a reasonable and proper exercise thereof. But it must be borne in mind that these presumptions attach only so long as the purpose of the change is to render the street more convenient and useful as a highway. When this object is abandoned, and the council direct or permit a change or use wholly foreign to the ordinary purposes of a highway, and when thereby adjacent property is actually damaged, the owner thereof is, in this state, entitled to reasonable compensation for the injury.

The abutting owner may well be presumed to have taken into consideration the fact that the grade of the street might be raised or lowered; that pavement might be laid and bridges and culverts constructed; and that a street railroad even might be built and operated thereon; and it may fairly be presumed that in purchasing he anticipated and allowed for the possible or probable damages to result from these and similar changes, or that he signified his consent thereto and thus deprived himself of any right to compensation therefor. But no such presumption, consent, or estoppel applies to the use of the street by an ordinary railroad. The argument that such a railroad is an improved public highway, and therefore its construction and operation in the street is only an improved and appropriate use thereof, we do not regard as resting either upon correct principle or sound logic. The street is designed for local convenience and use, and is dedicated thereto; it should be entirely unobstructive, save as temporary obstructions occur in the improvement thereof by the proper authorities or in its legitimate use by the public.

An ordinary railroad is not a local convenience; the city is but one of its termini; its cars do not stop at the beck of any one who may wish to ride, and do not commonly transport passengers from one point to another within the city; its ties and rails, as generally laid, are a permanent interference with the use of the street for ordinary vehicles; the smoke and dust, interruption, and noise produced by operating its trains are a perpetual annoyance, and the danger a constant menace, in the occupation and enjoyment thereof for the usual purposes. We cannot escape the conclusion that such a railroad is an additional burden or servitude not comprehended within the easement for an ordinary public street or highway,—a burden or servitude which the abutting owner cannot be presumed to have anticipated or consented to.

The railroad is a public benefit; it is generally of great advantage to the town or city to or through which it is built and operated. And for any injury or annoyance occasioned thereby which an adjoining

owner shares in common with the general public, he ought not to re cover; but for those damages which are peculiar to him, which affect his property and impair its value without injuring that of his neighbor, he ought in justice to receive compensation. We are aware that upon some of these questions the courts are by no means in accord. Our views conflict with the decisions of courts for whom we entertain the profoundest respect. But, while this want of harmony is to be regretted, it cannot be avoided, for agreement with all the able decisions is impossible. No attempt has been made to review, in this opinion, the cases; the task would be too long and laborious; we have not stated, exhaustively, the reasons controlling the views adopted upon this branch of the case, nor shall we undertake to do so. There are, however, a few subjects and decisions which we feel called upon to more specifically consider.

A distinction has sometimes been made with reference to the fee of the highway. The doctrine is announced and supported by a strong preponderance of authority that if the fee of the street be in the public, or in the municipality for the use of the public, the legislature may authorize it to be used for the construction and operation of a railroad, without compensation to the adjoining property-owner, and against his wishes. And of course the legislature may delegate to the municipal authorities power to grant the same privilege, with like immunity from liability to lot-owners along the street occupied. See the following works and the cases cited therein: 2 Dill. Mun. Corp. § 556; Mills, Em. Dom. § 203; Cooley, Const., Lim. (5th Ed.) 687. We are not, as may at first seem, ignoring this doctrine, or necessarily denying its correctness under the law prevailing where it has been declared. A careful examination shows that almost without exception those decisions, which consider the subject. and deny a right to compensation for injury where the abutting owner does not also own the fee of the street, were rendered under constitutions which require compensation only for the taking of private property, and a majority of those opinions are largely devoted to analyzing the word "taken" and to defining its meaning as used in their respective constitutions.

The constitution of Colorado contains the following provision: "Private property shall not be taken or damaged for public or private use without just compensation." We believe that the framers of this instrument did not insert the words "or damaged" therein without a purpose. We cannot consent to the proposition that these words add nothing to the word "taken," also used, and that the provision would be just as broad without them. It is hardly necessary to invoke the course of construction which forbids that we shall consider them as either meaningless, or merely cumulative.

The position taken in some of the cases is that if the adjoining owner has not the fee of the street, and the value of his property be diminished 50 per cent. by the construction of the railroad therein,

he has no redress; while if he be the fortunate owner of this fee, he may recover not only for the taking or appropriation of the street, but also for the interference with his easement, and the decrease occasioned in the value of his premises. Yet, whether he own the fee or not, his rights in connection with the street, while it remains a street, are practically the same. His possession of this fee in no special way contributes to the use or enjoyment of his lot, and enables him to exercise no greater control over the street than he would have without it. This distinction as to the fee seems to rest upon the fact that in our case there is a wrongful incumbrance of his freehold, while in the other there is not. The actual injury inflicted is about the same in both. But while if the fee vests in the city there may be no wrongful incumbrance of his estate, in the sense of these cases, there is, under our constitution, at least, a damaging thereof for which he is entitled to compensation.

Constitutional provisions, where only the taking of private property is to be compensated, have frequently been held to include any "direct physical obstruction or injury" to the abutting premises, even though there be no actual appropriation of the ground itself, as where by excavation or embankment water was caused to overflow the same,a kind or class of injuries for which, in the absence of constitutional or statutory enactment, a remedy existed at common law. Toledo, W. & W. Ry. Co. v. Morrison, 71 Ill. 616; Hooker v. New Haven & N. Co. 14 Conn. 146; Pumpelly v. Green Bay Co. 13 Wall. 166. We think this construction of the provision eminently reasonable and just. Accepting it as correct, we are forced to draw the inference that the words "or damaged" with us were intended to reach still another class of injuries. To this class belong, in our judgment, those complained of in the case at bar. Upon this subject see Gottschalk v. C., B. & Q. R. Co. (Sup. Ct. Nebraska,) 16 N. W. Rep. 475; also, Transp. Co. v. Chicago, 99 U. S. 635, and other cases hereinafter considered.

There has heretofore been no interpretation of our constitutional provision by this court with reference to damages, such as those complained of in the case before us.

The rights of the parties in Colorado Cent. R. R. v. Mollandin, 4 Colo. 154, occurred prior to the adoption of that instrument; and for this reason, although the decision was rendered subsequent thereto, no mention was made, or discussion had, of the constitutional inhibition. But section 48 of chapter 18 of the Revised Statutes of 1868 provides that private property shall not be "taken, or injuriously affected," without compensation. This statute remained in force till 1876; and it may be urged that the decision in the Mollandin Case, supra, was governed thereby. We may admit that the words of the statute, "injuriously affected," are as comprehensive in meaning as the word "damaged" used in the constitution, and yet not be concluded by the foregoing decision. The statute was not relied upon or discussed in

that case; not a word appears in the opinion itself nor in the briefs and arguments of counsel to show that it was even remotely considered. The opinion of a court is not decisive of a question not mentioned therein, although the same might, and perhaps should, have been passed upon. It is generally a party's privilege to waive a statutroy right; and courts, particularly those of last resort, do not as a rule press upon litigants the benefit of a right or privilege which they have elected not to invoke or claim. Had the court been called upon for a construction of that statute, it is probable that a view would have been adopted similar to the one here announced as to our constitutional provision.

The sixty-eighth section of The Land Clauses Consolidation Act, 8 & 9 Vict, c. 18, contains the following language: "If any party shall be entitled to any compensation in respect of any land or any interest therein, which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction," such compensation was to be determined as in the act provided. It will be observed that this section contains the words "taken" and "injuriously affected," used in our statute of 1868, and it is not improbable that these words were borrowed, either directly or indirectly, from section 48 aforesaid, or from some other English act using them in the same connection. The English courts, in interpreting this statute, have usually (not always) held that the words "injuriously affected" only allow compensation where a right of action would have existed at common law; yet, in their application of this construction, they have been extremely liberal, sometimes declaring that actionable at common law which we generally do not so consider.

In McCarthy v. Metropolitan Board of Works, L. R. 7 C. P. 508, the action was brought to recover for the depreciation in value occasioned to plaintiff's premises by the stopping up and destruction of a certain dock near the same. Plaintiff had no right or easement in the dock other than his right as one of the public;" "nor was there appurtenant or otherwise belonging to plaintiff's premises any easement or privilege in or to the dock." But, by reason of their proximity thereto,-there being only a narrow street between the buildings, were rendered valuable, either to sell or occupy; and by the destruction thereof they were permanently damaged and diminished in value. The court, per WILLIS, J., says: "Notwithstanding the striking differences of opinion which have been expressed upon this subject, I cannot entertain the slightest doubt that what was done here was an injurious affecting of the plaintiff's property, which would have given him a cause of action before the statute, and which entitles him to compensation under section 48." The plaintiff's recovery of $1,900 was sustained.

In East & West India Docks v. Gattke, 3 McN. & G. 154, defendant professed to have "incurred great pecuniary loss and damage by