public charity." Fire Department v. Noble (1854) 3 E. D. Smith, 440; Fire Department v. Wright (1854) 3 E. D. Smith, 453

Franchise.-A franchise is private property under this provision. It is taken when the party to whom it has belonged is deprived of the power or means of exercising it; but it is not taken when its emoluments are diminished by an improvement which does not destroy or impair such power or means; such a diminution is not within the constitutional prohibition. "An indirect reduction of the profits of a thing does not constitute a seizure of it, so long as its substance, whether physical or moral, remains intact." Re Hamilton Avenue (1852) 14 Barb. 405.

A corporate franchise includes the right to use the railroad for all purposes authorized by law, and also "the right or privilege to contract for its use with other railroads, and thereby derive a profit." These rights cannot be taken away except by eminent domain, or under the police power. Roddy v. Brooklyn City & N. R. Co. (1898) 32 App. Div. 311, 52 N. Y. Supp. 1025.

Highways.-An abutting owner, by which is meant "a person having land bounded on the side of a public street and having no title or estate in its bed or soil, and no interests or private rights in the street, except such as are incident to lots so situated," has "incorporeal private rights therein which are incident to his property, which may be so impaired as to entitle him to damages." Abendroth v. Manhattan R. Co. (1890) 122 N. Y. 1, 11 L. R. A. 634, 19 Am. St. Rep. 461, 25 N. E. 496; Egerer v. New York C. & H. R. R. Co. (1902) 70 App. Div. 421, 75 N. Y. Supp. 476.

"Abutters upon a public street claiming title to their premises by grant from the municipal authorities, which contains a covenant that a street to be laid out in front of such property shall forever thereafter continue for the free and common passage of, and as public streets and ways for, the inhabitants of said city, and all others passing and returning through or by the same, in like manner as the other streets of the same city now are or lawfully ought to be, acquire an easement in the bed of the street for ingress and egress to and from their premises, and also for the free and uninterrupted passage and circulation of light and air through and over such street for the benefit of property situated thereon. The ownership of such easement is an interest in real estate, constituting property within the meaning of that term as used in the Constitution of the state, and requires compensation to be made therefor before it can lawfully be taken from its owner for public use." Lahr v. Metropolitan Elev. R. Co. (1887) 104 N. Y. 268, 10 N. E.

528. Kane v. New York Elev. R. Co. (1891) 125 N. Y. 164, 11 L. R. A. 640, 26 N. E. 278; Pond v. Metropolitan Elev. R. Co. (1889) 112 N. Y. 186, 8 Am. St. Rep. 734, 19 N. E. 487 (in which it was held that the abutting owner could recover only the temporary damages that had been sustained up to the time of the commencement of the action); Reining v. New York, L. & W. R. Co. (1891) 128 N. Y. 157, 14 L. R. A. 133, 28 N. E. 640. See also People ex rel. Dilzer v. Calder (1903) 89 App. Div. 503, 85 N. Y. Supp. 1015, where it is said that “an easement is a constitutional right of property which cannot be taken from its owner without just compensation."

The public acquires only a right of way over land taken for a highway, and the fee continues in the owner. A corporation cannot take such land without making compensation to the owner. Presbyterian Society v. Auburn & R. R. Co. (1842) 3 Hill, 567; Williams v. New York C. R. Co. (1857) 16 N. Y. 97, 69 Am. Dec. 651; Carpenter v. Oswego & S. R. Co. (1861) 24 N. Y. 655; Mahon v. New York C. R. Co. (1860) 24 N. Y. 658; Wager v. Troy Union R. Co. (1862) 25 N. Y. 526; Bloomfield & R. Natural Gaslight Co. v. Calkins (1875) 62 N. Y. 386; Craig v. Rochester City & B. R. Co. (1868) 39 N. Y. 404; Buffalo v. Pratt (1892) 131 N. Y. 293, 15 L. R. A. 413, 30 N. E. 233; Dusenbury v. Mutual U. Teleg. Co. (1882) II Abb. N. C. 440.

As a general rule “where lands are bounded by a public street, the legal presumption is that the grantor intended to convey the soil" to the center of the street; but the presumption does not apply where land is described as bounded by the line of the street unless a contrary intention clearly appears. An abutting owner, even if he does not own the fee of the street, has an easement in the street in common with the whole public to pass and repass, and also to have free access to and from his premises. The construction of a street surface railroad with the consent of the legislature is not an infringement of such an abutting owner's rights which will entitle him to compensation. Clark v. Rochester City & B. R. Co. (1888) 18 N. Y. S. R. 903, 2 N. Y. Supp. 563; Kellinger v. Forty-Second Street & G. Street R. Co. (1872) 50 N. Y. 206.

In Stroub v. Manhattan R. Co. (1891) 14 N. Y. Supp. 773, an injunction was granted restraining the defendant from constructing an additional track in front of the plaintiff's premises until it had acquired plaintiff's easement by purchase or otherwise.

An abutting owner is not entitled to consequential damages caused by the change of grade of a railroad company's tracks by a direct mandate of the legislature. Fries v. New York & H. R. Co. (1901)

169 N. Y. 270, 62 N. E. 358. But the same company was held liable to an abutting owner for damages caused by the erection of a station house which was not required by the act directing a change of grade. Dolan v. New York & H. R. Co. (1902) 74 App. Div. 434, 77 N. Y. Supp. 815. The rights of abutting owners as affected by the change of grade of Park avenue were also considered in Pape v. New York & H. R. Co. (1902) 74 App. Div. 175, 77 N. Y. Supp. 725.

Power cannot be given to a municipal corporation in opening a street to take the whole of a lot against the owner's consent, when part only is required for the street, whereby the corporation becomes the owner of the whole lot, with a provision that the part not needed for the street may be applied to private use. "The Constitution, by authorizing the appropriation of private property to public use, impliedly declares that for any other use private property shall not be taken from one and applied to the private use of another; it is in violation of natural right." Re Albany Street (1834) 11 Wend. 149, 25 Am. Dec. 618, construing 2 R. L. 416, § 179, relating to streets in the city of New York. This statute was again considered in Embury v. Conner (1850) 3 N. Y. 511, 53 Am. Dec. 325, where it was said that while one man's property cannot, without his consent, be transferred to another under the exercise of the right of eminent domain, if it is in fact transferred with the owner's consent, a statute authorizing it is not objectionable on constitutional grounds.

As a general rule land in a city street which is discontinued or closed under lawful authority reverts to the adjoining owner, who thereupon becomes entitled to the land to the center of the street, and the city cannot hold the land as private property, and dispose of it to third persons. Re John & C. Streets (1839) 19 Wend. 659.

The general highway act (1 Rev. Stat.) so far as it authorizes the laying out of roads through wild and unimproved land, no mode for compensation to the owners being provided, is unconstitutional. Gould v. Glass (1855) 19 Barb. 179; Wallace v. Karlenowefski (1854) 19 Barb. 118.

The grantor of land used by a plank road company has no reversion, and is not entitled to compensation on a surrender of the land to a town for highway purposes. Heath v. Barmore (1872) 50 N.

Y. 302.

The owner of land in the city of New York included in a street laid out on a map made by commissioners under the act of 1813, chap. 86, is not entitled to compensation for buildings erected within

such street after the filing of the map. Re 127th Street (1878) 56 How. Pr. 60, Daniels, J.

"The right to property includes the right to use that property for any lawful purpose of profit to the owner. . . . Whenever that right is restricted, property is taken within the meaning of the Constitution." The legislature cannot constitutionally deprive an owner of property of the right to use it even to the extent of erecting buildings thereon in his discretion, by providing that such right shall cease on filing a map appropriating such land for public streets. A statute thus depriving the owner of the right to use his property takes it without compensation, and is unconstitutional. Re Rogers Ave. (1885) 29 Abb. N. C. 361, 22 N. Y. Supp. 27, Sp. T. Judge Cullen.

An easement in a street, the fee of which is in the city, is property, and cannot be destroyed or impaired without compensation to the owner. Story v. New York Elev. R. Co. (1882) 90 N. Y. 122, 43 Am. Rep. 146; Mahady v. Bushwick R. Co. (1883) 91 N. Y. 148, 43 Am. Rep. 661; Tiffany v. United States Illuminating Co. (1884) 67 How. Pr. 73, affirmed in 9 Jones & S. 280; Carter v. New York Elev. R. Co. (1888) 14 N. Y. S. R. 859, (1888) 134 N. Y. 168, 31 N. E. 514.

The rule in the Story Case was applied in Egerer v. New York C. & H. R. R. Co. (1891) 130 N. Y. 108, 14 L. R. A. 381, 29 N. E. 95, where it was held that an abutting owner's right of access could not be destroyed or impaired by discontinuing the street without providing compensation for the injury sustained by him, or furnishing other adequate means of access.

A change of grade of a street is not a taking of property which will entitle an abutting owner to damages, even if such a change of grade is made by a private corporation under a contract with the city, provided the work is done with due care, and in a skilful manner. Wilson v. New York C. & H. R. R. Co. (1886) 2 N. Y. Supp. 65. See Re Comesky (1903) 83 App. Div. 137, 81 N. Y. Supp. 1049; also Re Borup (1905) 102 App. Div. 262, 92 N. Y. Supp. 624

A change of grade of a street is not the taking of property, and an abutting owner is not entitled to compensation therefor. Talbot v. New York & H. R. Co. (1896) 151 N. Y. 155, 45 N. E. 382.

Where land is taken for a highway or street, and the public acquires only a right of way, with the powers and privileges incident to that right, the owner of the fee retains his exclusive right in all mines, quarries, springs of water, timber, and earth, for all purposes not incompatible with the right of way (Jackson ex dem. Yates v.

Hathaway [1818] 15 Johns. 447, 452, 8 Am. Dec. 263; Higgins v. Reynolds [1865] 31 N. Y. 156; Niagara Falls Suspension Bridge Co. v. Bachman [1871] 4 Lans. 523; Fisher v. Rochester [1872] 6 Lans. 225; Williams v. Kenney [1853] 14 Barb. 629), and the public cannot lawfully take such materials without the Owner's consent and use them on other parts of the highway, except that where the grade of the land is above the surface of the highway and it is necessary to remove a part of the soil for the purpose of providing access to the land, materials so removed may be used on other parts of the highway. Robert v. Sadler (1887) 104 N. Y. 229, 233, 58 Am. Rep. 498, 10 N. E. 428.

Hudson river, riparian owner.-The bank of the Hudson between high and low water mark belongs to the people, and a riparian proprietor has no better right to the use of it than any other person. The legislature may authorize erections in front thereof and any other citizen may navigate the same waters as well as the riparian proprietor. The legislature has power to authorize a railroad company to construct a road between high and low water mark, and an adjoining owner is not entitled to compensation. His property is not taken, and whatever loss he sustains is damnum absque injuria. Gould v. Hudson R. R. Co. (1852) 6 N. Y. 522, citing Lansing v. Smith (1826) 8 Cow. 146, affirmed in (1829) 4 Wend. 9, 21 Am. Dec. 89.

Muniments of title.-A statute which assumes to destroy or nullify a party's muniments of title is just as effective in depriving him of his property as one which bestows it directly upon another. In the one case it despoils the owner directly, and in the other renders him defenseless against any assault upon his property. Gilman v. Tucker (1891) 128 N. Y. 190, 13 L. R. A. 304, 26 Am. St. Rep. 464, 28 N. E. 1040.

Oyster beds. An oyster bed planted in public waters under legislative authority is private property, and it cannot, without compensation, be destroyed by sewage discharged upon it by a municipal corporation. "Any direct invasion of a man's land is a taking of his property within the meaning of the Constitution." The destruction of oysters by casting sewage upon them was as clearly a taking of property as their physical removal and conversion would have been. Huffmire v. Brooklyn (1900) 162 N. Y. 584, 48 L. R. A. 421, 57 N. E. 176.

The same rule was applied as to the effect of discharging city sewage on private property in Sammons v. Gloversville (1901) 34 Misc. 459, 70 N. Y. Supp. 284.