A private right of way is an easement and is land, and it
destruction for public purposes is a taking for which the owner of
the dominant estate to which it is attached is entitled to
compensation.
The value of an easement cannot be ascertained without reference
to the dominant estate to which it is attached. In this case, an
award for destruction of a right of way and also for damage to the
property to which it was an easement sustained.
The facts are stated in the opinion.
Page 217 U. S. 338
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a proceeding under the Act of March 3, 1887, c. 359, ยง
2, 24 Stat. 505, to recover the value of land taken by the United
States. It is admitted that a strip of about three acres of land
lying along the side of Four Mile Creek, and running east and west,
was taken, and is to be paid for. It was permanently flooded by a
dam on the Kentucky River, into which Four Mile Creek flows.
United States v. Lynah, 188 U. S. 445.
Manigault v. Springs, 199 U. S. 473,
199 U. S. 484.
The plaintiffs owned other land south of and adjoining the strip
taken, and had a private right of way at right angles to the creek,
northerly, across land of other parties, to the Ford County Road,
which ran parallel to the creek and at some distance from it. This
was the only practical outlet from the plaintiffs' farm to the
county road. The taking of the intervening strip, of course, cut
off the use of the way, and the judge who tried the case found that
it lessened the value of the farm $1,700. He allowed this sum in
addition to $300 for the land taken. The United States took a writ
of error on the ground that the former item was merely for
collateral damage not amounting to a taking, and of a kind that
cannot be allowed; that at most it was only a tort. The case is
likened to the depreciation in value of a neighboring but distinct
tract by reason of the use to which the government intends to put
that which it takes.
Sharp v. United States, 191 U.
S. 341,
191 U. S.
355.
The petition, like the form of the finding, lends some
countenance to this contention by laying emphasis on the damage
Page 217 U. S. 339
to the farm, although it is to be noted that, even in this
aspect, the damage is to the tract of which a part is taken. 191
U.S.
191 U. S. 354.
But both petition and finding in substance show clearly that the
way has been permanently cut off. A private right of way is an
easement, and is land. We perceive no reason why it should not be
held to be acquired by the United States as incident to the fee for
which it admits that it must pay. But if it were only destroyed and
ended, a destruction for public purposes may as well be a taking as
would be an appropriation for the same end.
Miller v.
Horton, 152 Mass. 540, 547, a recovery for the taking of land
by permanent occupation allows it for a right of way taken in the
same manner, and the value of the easement cannot be ascertained
without reference to the dominant estate to which it was attached.
The argument is only confused by reference to cases like
Gibson
v. United States, 166 U. S. 269;
Harvard College v. Stearns, 15 Gray, 1;
Smith v.
Boston, 7 Cush. 254, etc., where it was held, although there
are decisions the other way, that a landowner cannot recover for
the obstruction of a public watercourse, the discontinuance of a
public way, or the like. The ground of such decisions is that the
plaintiff's rights are subject to superior public rights, or that
he has no private right, and that his damage, though greater in
degree than that of the rest of the public, is the same in kind.
Here there is no question of the plaintiffs' private right.
Judgment affirmed.
MR. JUSTICE HARLAN concurs in the judgment only so far as it
allows the item of $300.