of the cut on to the plaintiff's land, the answer is, that the water
did not come naturally to the southerly end of the cut.
there by reason of the defendants' having made that cut. In con-
sequence of the cut, water collected at the southerly boundary of
the ridge, north of the plaintiff's farm, which would not have been
there if the ridge had remained in its normal and unbroken con-
dition. They have "so dealt with the soil" of the ridge, that, if a
flood came, instead of being held in check by the ridge, and ulti-
mately getting away by the proper river channel without harm to
the plaintiff, it flowed through where the ridge once was on to
the plaintiff's land. "Could the defendants say they were not
liable because they did not cause the rain to fall," which resulted
in the freshet; or because the water "came there by the attraction
of gravitation?" See Bramwell, Baron, in Smith v. Fletcher, Law
Reports, 7 Exchq. 305, 310. If the ridge still remained in its nat-
ural condition, could the defendants pump up the flood-water into
a spout on the top of the ridge, and thence, by means of the spout,
pour it directly on to the plaintiff's land? If not, how can they
maintain a canal through which the water by the force of gravita-
tion will inevitably find its way to the plaintiff's land? See Ames,
J., in Shipley v. Fifty Associates, 106 Mass. 194, 199, 200, 8 Am.
Rep. 318; Chapman, C. J., in Salisbury v. Herchenroder, 106 Mass.
458, 460, 8 Am. Rep. 354. To turn a stream of water on to the
plaintiff's premises is as marked an infringement of his proprietary
rights as it would be for the defendants to go upon the premises
in person and "dig a ditch, or deposit upon them a mound of
earth." See Lawrence, J., in Nevins v. City of Peoria, 41 Ill. 502,
510, 89 Am. Dec. 392; Dixon, C. J., in Pettigrew v. Village of
Evansville, 25 Wis. 223, 231, 236, 3 Am. Rep. 50. The defendants
may, perhaps, regret that they cannot maintain their track at its
present level without thereby occasionally pouring flood-water on
to the land of the plaintiff. Indeed, the passage of this water
through the cut may cause some injury to the defendants' road
bed. But the advantages of maintaining the track at the present
grade outweigh, in the defendants' estimation, the risk of injury
by water to themselves and to the plaintiff.

In asserting the right to maintain the present condition of things as to the cut, the defendants necessarily assert the right to produce all the results which naturally follow from the existence of the cut. In effect, they thus assert a right to discharge water on to the plaintiff's land. Such a right is an easement. A right of "occasional flooding" is just as much an easement as a right of "permanent submerging;" it belongs to the class of easements which "are by their nature intermittent-that is, usable or used only at times." See Goddard's Law of Easements, 125. If the defendants had erected a dam on their own

land across the river below the plaintiff's meadow, and by means of flash-boards thereon had occasionally caused the water to flow back and overflow the plaintiff's meadow so long and under such circumstances as to give them a prescriptive right to continue such flowage, the right thus acquired would unquestionably be an "easement." The right acquired in that case does not differ in its nature from the right now claimed. In the former instance, the defendants flow the plaintiff's land by erecting an unnatural barrier below his premises. In the present instance, they flow his land by removing a natural barrier on the land above his premises. In both instances, they flow his land by making “a nonnatural use" of their own land. In both instances, they do an act upon their own land, the effect of which is to restrict or burden the plaintiff's ownership of his land (see Leconfield v. Lonsdale, Law Reports, 5 Com. Pleas, 657, 696); and the weight of that burden is not necessarily dependent upon the source of the water, whether from below or above. See Bell, J., in Tillotson v. Smith, 32 N. H. 90, 95, 96, 64 Am. Dec. 355. In both instances they turn water upon the plaintiff's land "which does not flow naturally in that place." If the right acquired in the former instance is an easement, equally so must be the right claimed in the latter. If, then, the claim set up by the defendants in this case is well founded, an easement is already vested in them. An easement is property, and is within the protection of the constitutional prohibition now under consideration. If the defendants have acquired this easement, it cannot be taken from them, even for the public use, without compensation. But the right acquired by the defendants is subtracted from the plaintiff's ownership of the land. Whatever interest the defendants have acquired in this respect the plaintiff has lost. If what they have gained is property, then what he has lost is property. If the easement, when once acquired, cannot be taken from the defendants without compensation, can the defendants take it from the plaintiff in the first instance without compensation? See Brinkerhoff, J., ubi supra; Selden, J., in Williams v. N. Y. Central R. R., 16 N. Y. 97, 109, 69 Am. Dec. 651. An easement is all that the railroad corporation acquire when they locate and construct their track directly over a man's land. The fee remains in the original owner. Blake v. Rich, 34 N. H. 282. Yet nobody doubts that such location and construction is a “taking of property," for which compensation must be made. See Redfield, J., in Hatch v. Vt. Central R. R., 25 Vt. 49, 66. What difference does it make in principle whether the plaintiff's land is encumbered with stones, or with iron rails? whether the defendants run a locomotive over it, or flood it with the waters of Baker's river? See Wilcox, J., in March v. P. & C. R. R., 19 N. H. 372, 380; Walworth, Chan., in Canal Com'rs & Canal Appraisers v. People, 5 Wend. 423, 452. *

We think that here has been a taking of the plaintiff's property; that, as the statutes under which the defendants acted make no provision for the plaintiff's compensation, they afford no justification; that the defendants are liable in this action as wrong-doers; and that the ruling of the court was correct. These conclusions, which are supported by authorities to which reference will soon be made, seem to us so clear, that, if there were no adverse authorities, it would be unnecessary to prolong the discussion of this case. But, as there are respectable authorities which are in direct conflict with these conclusions, it has been thought desirable to examine some arguments which have, at various times, been advanced in support of the opposite view.

*

*

In some instances, as soon as it has been made to appear that there is a legislative enactment purporting to authorize the doing of the act complained of, the complaint has been at once summarily disposed of by the curt statement "that an act authorized by law cannot be a tort." This is begging the question. It assumes the constitutionality of the statute. If the enactment is opposed to the Constitution, it is "in fact no law at all." The error in question * * arises from following English authorities, without adverting to the immense difference between the practically omnipotent powers of the British Parliament and the comparatively limited powers of our state legislatures, acting under the restrictions of written constitutions. Parliament is the supreme power of the realm. It is at once a legislature and a constitutional convention. * *

It is said that a land-owner is not entitled to compensation where the damage is merely "consequential." The use of this term "consequential damage" "prolongs the dispute," and "introduces an equivocation which is fatal to any hope of a clear settlement." It means both damage which is so remote as not to be actionable, and damage which is actionable. Sometimes it is used to denote damage which, though actionable, does not follow immediately, in point of time, upon the doing of the act complained of; what Erle, C. J., aptly terms "consequential damage to the actionable degree." Brand v. H. & C. R. Co., Law Reports, 2 Queen's Bench, 223, 249. It is thus used to signify damage which is recoverable at common law in an action of case, as contradistinguished from an action of trespass. On the other hand, it is used to denote a damage which is so remote a consequence of an act that the law affords no remedy to recover it. *** When, then, it is said that a land-owner is not entitled to compensation for "consequential damage," it is impossible either to affirm or deny the correctness of the statement until we know in what sense the phrase "consequential damage" is used. If it is to be taken to mean damage which would not have been actionable at common law if done

by a private individual, the proposition is correct. The constitutional restriction was designed "not to give new rights, but to protect those already existing." Pierce on Am. R. R. Law, 173; and see Rickett v. Directors, &c., of Metropolitan Railway Co., Law Reports, 2 House of Lords, 175, 188, 189, 196. But this does not concern the present case, where it is virtually conceded that the injury would have been actionable if done by a private individual not acting under statutory authority. If, upon the other hand, the phrase is used to describe damage, which, though not following immediately in point of time upon the doing of the act complained of, is nevertheless actionable, there seems no good reason for establishing an arbitrary rule that such damage can in no event amount to a "taking of property."

The severity of the injury ultimately resulting from an act is not always in inverse proportion to the lapse of time between the doing of the act and the production of the result. Heavy damages are recovered in case as well as in trespass. The question whether the injury constitutes a "taking of property" must depend on its effect upon proprietary rights, not on the length of time necessary to produce that effect. If a man's entire farm is permanently submerged, is the damage to him any less because the submerging was only the "consequential" result of another's act? It has been said "that a nuisance by flooding a man's land was originally considered so far a species of ouster, that he might have had a remedy for it by assize of novel disseisin;" but if it be conceded that at present the only common law remedy is by an action on the case, that does not change the aspect of the constitutional question. The form of action in which the remedy must be sought cannot be decisive of the question whether the injury falls within the constitutional prohibition. "We are not to suppose that the framers of the Constitution meant to entangle their meaning in the mazes" of the refined technical distinctions by which the common-law system of forms of action is "perplexed and encumbered." Such a test would be inapplicable in a large proportion of the states, where the distinction between trespass and case has been annihilated by the abolition of the old forms of action. * * *

[After a lengthy review of the authorities:] By the foregoing review of authorities, it appears that the number of actual decisions in irreconcilable conflict with the present opinion is much smaller than has sometimes been supposed, and that, in a large proportion of the cases cited, the application of the principles here maintained would not have necessitated the rendition of a different judgment from that which the courts actually rendered in those

cases.

Case discharged.

SAWYER v. DAVIS.

(Supreme Judicial Court of Massachusetts, 1884. 136 Mass. 239, 49 Am. Rep. 27.)

[Case reserved. The plaintiff manufacturers had been enjoined by the present defendants from ringing their mill bell before 6:30 a. m. as a nuisance. See Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519. Acting under subsequent legislative authority the selectmen of Plymouth granted to plaintiffs a license to ring their bell at 5 a. m. as they had done before the injunction. Plaintiffs then filed a bill of review to have the former injunction dissolved or modified in accordance with said license. On demurrer to the bill, Colburn, J., reserved the case for the full court.]

C. ALLEN, J. Nothing is better established than the power of the Legislature to make what are called police regulations, declaring in what manner property shall be used and enjoyed, and business. carried on, with a view to the good order and benefit of the community, even although they may to some extent interfere with the full enjoyment of private property, and although no compensation is given to a person so inconvenienced. Bancroft v. Cambridge, 126 Mass. 438, 441. In most instances, the illustrations of the proper exercise of this power are found in rules and regulations restraining the use of property by the owner, in such a manner as would cause disturbance and injury to others. But the privilege of continuing in the passive enjoyment of one's own property, in the same manner as formerly, is subject to a like limitation; and with the increase of population in a neighborhood, and the advance and development of business, the quiet and seclusion and customary enjoyment of homes are necessarily interfered with, until it becomes a question how the right which each person has of prosecuting his lawful business in a reasonable and proper manner shall be made consistent with the other right which each person has to be free from unreasonable disturbance in the enjoyment of his property. Merrifield v. Worcester, 110 Mass. 216, 219, 14 Am. Rep. 592. In this conflict of rights, police regulations by the Legislature find a proper office in determining how far and under what circumstances the individual must yield with a view to the general good. For example, if, in a neighborhood thickly occupied by dwelling-houses, any one, for his own entertainment or the gratification of a whim, were to cause bells to be rung and steamwhistles to be blown to the extent that is usual with the bells and steam-whistles of locomotive engines near railroad stations in large cities, there can be no doubt that it would be an infringement of the rights of the residents, for which they could find ample remedy and vindication in the courts. But if the Legislature, with a view to the safety of life, provides that bells shall be rung and