1. That which the law authorizes cannot be a nuisance such as to
give a common law right of action.
2. A municipal corporation, authorized by law to improve a
street by building on the line thereof a bridge over, or a tunnel
under, a navigable river where it crosses the street incurs no
liability for the damages unavoidably caused to adjoining property
by obstructing the street or the river unless such liability be
imposed by statute.
3. If the fee of the street is in the adjoining lot owners, the
state has an easement to adapt the street to easy and safe passage
over its entire length and breadth. When making or improving the
streets within its limits, in the exercise of an authority
conferred by statute, a city is the agent of the state, and, if it
acts within that authority, and with due care, dispatch, and skill,
is not at common law answerable for consequential damages.
4. Acts done in the proper exercise of governmental powers, and
not directly encroaching upon private property, although their
consequences may impair its use, are not a taking within the
meaning of the constitutional provision which forbids the taking of
such property for public use without just compensation
therefor.
5. The owner who makes excavations on his land is liable if he
thereby deprives that of adjoining proprietors of its lateral
support while it is in its natural condition, but their right to
such support does not protect what ever they have placed upon the
soil increasing the downward and lateral pressure.
This is an action of trespass on the case by the Northern
Transportation Company of Ohio against Chicago, Ill., to recover
damages sustained by reason of the construction by that city of a
tunnel under the Chicago River along the line of La Salle Street.
The company offered evidence tending to prove that it possessed a
certain lot in Chicago, with dock and wharfing rights and
privileges; that it owned a line of steamers running between
Ogdensburgh, New York, and Chicago, and touching at intermediate
points; that during 1869 and 1870, it
Page 99 U. S. 636
had thirteen or fourteen of them employed, five of them arriving
and departing each week from its dock on said lot, where it had, at
an expense of $17,000, constructed a warehouse and shed used in
loading and unloading them, and where its office was located; that
its dock extended eighty feet on the south side of the lot which
abutted on the Chicago River, a navigable stream; that the city
commenced, Nov. 1, 1869, building a tunnel under the river on the
east line of the lot at its intersection with the river and La
Salle Street, and erected a coffer dam in front of the dock; that
said dam remained until some time in August, 1870; that about Nov.
1, 1869, the city commenced excavating La Salle Street, and
excavated it for some distance, blocking up the doors of the
warehouse on that street, and leaving free only the entrance on
Water Street; that by reason of the construction of said dam
plaintiff was unable to bring its boats up to the dock or to land
freight and passengers thereat, and was compelled to rent and
remove to other docks and sheds; and that the negligent and
improper manner in which the work, especially the excavating, was
done, greatly damaged and injured the warehouse, and caused the
walls to crack, settle, and in several places to fall.
The city offered testimony tending to prove that the work was,
without unnecessary delay, well and carefully done; that the coffer
dam as constructed was required for the construction of the tunnel;
that the company could during the time have had access with its
boats to a portion of the lot; and that the obstructions complained
of were unavoidable in the proper construction of the tunnel.
To the following portions of the charge of the court to the jury
the plaintiff excepted:
"The defendant had the right under the law to enter upon La
Salle Street and make such public improvements as in the judgment
of the city authorities were necessary, and to construct the tunnel
in question, and for that purpose to enter upon the portion of the
river in front of the plaintiff's lot and construct the coffer dam
there, if it was necessary to enable them to construct the
tunnel."
"The plaintiff took its lot subject to the right of the city
to
Page 99 U. S. 637
make these necessary public improvements in the streets. The
method of crossing the river at this point, whether by a ferry, a
bridge, or a tunnel, was one to be determined by the city
authorities; and when they had determined to effect the crossing by
a tunnel, they had a right to use and occupy so much of the street
as was necessary to construct the tunnel, using due skill and care
and dispatch always in doing it, so as not unnecessarily to
interfere with private property."
"Although the plaintiff may for the time being have been
deprived of the beneficial use of its property by such entry upon
the street, and access to the property through the street
practically prevented by the occupation of the street for the
purposes of constructing the tunnel, and although access to the lot
from the river may have been partially prevented during this time,
yet these were incidental inconveniences, to which the plaintiff,
as the owner of this lot, must submit in order that the public may
be accommodated by the construction of this tunnel. The city had
the same right to enter upon the river for the purpose of erecting
works there to facilitate the construction of the tunnel that it
had to enter upon the street and construct the tunnel itself,
always, however, subject to the condition that they should not
unnecessarily or negligently injure the plaintiff."
"There is left, however, the question to be considered by you in
the light of the evidence as to whether this work in La Salle
Street was so unskillfully or negligently done as to cause any part
of the walls to fall or the building to be impaired. You have heard
all the testimony bearing upon this question. It shows that the
southeast corner of the warehouse, where the office and vault were
situated, became so impaired by the cracking or leaning of the wall
outwardly that it was deemed necessary to take it down; and it was
taken down and rebuilt. Although there was no apparent settling of
the ground in the immediate vicinity, nor any caving in, yet the
wall seemed to fall from some cause from that point, and the claim
is that it fell from the construction of this tunnel by some
displacement of the surface, which was, perhaps, not apparent to
the eye. You will also bear in mind that the evidence shows that
further along, near the north end of the plaintiff's building,
there was
Page 99 U. S. 638
a caving in of the bank, so that the earth near or perhaps
immediately under the wall was to some extent displaced. The wall
fell down there and was subsequently rebuilt and the building
repaired to some extent. You have heard all the testimony in regard
to the extent of the repairs, and to the manner in which the
building was left, and it is for you to say whether the building
was substantially restored to its original condition by the repairs
which were made, so that the plaintiff, on the removal of the
coffer dam, and the other obstructions to the access to the
property, could again enter into the enjoyment of his property as
fully as before. If you are satisfied that the building was not so
far repaired as to make it as useful for the plaintiff's purposes
as it was before these injuries occurred, then the plaintiff will
be entitled to recover such damages as would make it as useful for
his purposes."
The plaintiff asked the court to instruct the jury
"that even if the city be entitled to lay a coffer dam along
across the river, they had no right to lay it in front of the
company's lot and dock, and for any damages which it may have
suffered by the coffer dam being in front of its dock it is
entitled to recover in this action,"
but the court refused, the presiding judge stating
"I refuse the instruction, always assuming that the proof shows
that the coffer dam was a necessity. I look upon the river just as
I do the street. The city had the same right to go into the river
and construct a coffer dam in order to complete this work that it
had to go into a street and put down a track or any other work
necessary in order to carry on improvements."
To which the plaintiff duly excepted.
The court, on motion of the defendant, further charged the
jury,
"If you are satisfied from the evidence that the sinking or
rather the cracking of the wall was due to the weight of the walls
upon the selvage or portion of the earth which was left, and not to
the removal of the material taken out of the street -- that is,
from the pit -- then the defendant would not be liable. If you are
satisfied that if the wall had not stood upon the plaintiff's lot
at the place where it did, there would have been no change in the
level of the ground there, but that the change in the level which
caused the deflection of the wall was caused by the weight of the
wall resting upon
Page 99 U. S. 639
the earth after the excavation was made, then the defendant is
not liable. The principle is precisely like two adjacent owners,
one man building a building and sinking his foundation four feet
into the ground, the adjoining owner may think it is necessary for
him to set his six or ten feet into the ground, and he excavates
for that purpose. Now if the first wall built, by reason of its own
weight, causes the earth to crush or cave away after the excavation
below there has been made upon the adjoining lot, the owner of the
adjoining lot making the deeper excavation is not liable. Each man,
in other words, must look out for his own foundation."
To all of which the plaintiff excepted.
There was a verdict for the defendant. Judgment was rendered
thereon, and the company sued out this writ of error.
MR. JUSTICE STRONG delivered the opinion of the Court.
We are of opinion that no error has been shown in this record,
though the assignments are very numerous. The action was case to
recover damages for injuries alleged to have been sustained by the
plaintiffs in consequence of the action of the city authorities in
constructing a tunnel or passageway along the line of La Salle
Street and under the Chicago River, where it crosses that street.
The plaintiffs were the lessees of a lot bounded on the east by the
street, and on the south by the river, and the principal injury of
which they complain is, that by the operations of the city they
were deprived of access to their premises, both on the side of the
river and on that of the street, during the prosecution of the
work. It is not claimed that the obstruction was a permanent one or
that it was continued during a longer time than was necessary to
complete the improvement. Nor is it contended that there was
unreasonable delay in pushing the work to completion, or that the
coffer dam constructed in the river, extending some twenty-five or
thirty feet in front of the plaintiff's lot, was not necessary --
indeed indispensable -- for the construction of the tunnel.
The case has been argued on the assumption that the
Page 99 U. S. 640
erection of the coffer dam, and the necessary excavations in the
street, constituted a public nuisance, causing special damage to
the plaintiffs, beyond those incident to the public at large, and
hence, it is inferred, the city is responsible to them for the
injurious consequences resulting therefrom. The answer to this is
that the assumption is unwarranted. That cannot be a nuisance, such
as to give a common law right of action, which the law authorizes.
We refer to an action at common law such as this is. A legislature
may and often does authorize and even direct acts to be done which
are harmful to individuals and which without the authority would be
nuisances; but in such a case, if the statute be such as the
legislature has power to pass, the acts are lawful, and are not
nuisances, unless the power has been exceeded. In such grants of
power, a right to compensation for consequential injuries caused by
the authorized erections may be given to those who suffer, but then
the right is a creature of the statute. It has no existence without
it. If this were not so, the suffering party would be entitled to
repeated actions until an abatement of the erections would be
enforced, or perhaps he might restrain them by injunction.
Here the tunnel of which the plaintiffs complain, or rather its
construction, was authorized by an act of the legislature of the
state, and directed by an ordinance of the city councils. This we
do not understand to be denied, and it certainly cannot be. The
state and the city councils as its agents had full power over the
highways of the city, to improve them for the uses for which they
were made highways, and the construction of the tunnel was an
exercise of that power. Since La Salle Street was extended across
the river, the city not only had the power, but it was its duty, to
provide for convenience of passage. This it could do either by the
erection of a bridge, or by the construction of a tunnel under the
river and along the line of the street. And the grant of power by
the legislature to build a bridge or construct a tunnel carried
with it, of course, all that was necessary for the exercise of the
power. We do not understand this to be controverted by the
plaintiffs in error. Their argument is, that though the city had
the legal right to construct the tunnel, and to do
Page 99 U. S. 641
what was necessary for its construction, subject to the
condition that in doing the work there should be no unnecessary
interference with private property, yet it was liable to make
compensation for the consequential damages caused to persons
specially injured. To this we cannot assent.
It is immaterial whether the fee of the street was in the state
or in the city or in the adjoining lot-holders. If in the latter,
the state had an easement to repair and improve the street over its
entire length and breadth, to adapt it to easy and safe
passage.
It is undeniable that, in making the improvement of which the
plaintiffs complain, the city was the agent of the state, and
performing a public duty imposed upon it by the legislature, and
that persons appointed or authorized by law to make or improve a
highway are not answerable for consequential damages, if they act
within their jurisdiction and with care and skill, is a doctrine
almost universally accepted alike in England and in this country.
It was asserted unqualifiedly in
The Governor and Company of
the British Cast-Plate Manufacturers v. Meredith, 4 Durnf.
& E. 794; in
Sutton v. Clarke, 6 Taun. 28; and in
Boulton v. Crowther, 2 Barn. & Cres. 703. It was
asserted in
Green v. Borough of Reading, 9 Watts (Pa.)
382;
O'Connor v. Pittsburg, 18 Pa.St. 187; in
Callendar v. Marsh, 1 Pick. (Mass.) 418; as well as by the
courts of numerous other states. It was asserted in
Smith v. Corporation of
Washington, 20 How. 135, in this Court, and it has
been held by the Supreme Court of Illinois. The decisions in Ohio,
so far as we know, are the solitary exceptions. The doctrine,
however it may at times appear to be at variance with natural
justice, rests upon the soundest legal reason. The state holds its
highways in trust for the public. Improvements made by its
direction or by its authority are its acts, and the ultimate
responsibility, of course, should rest upon it. But it is the
prerogative of the state to be exempt from coercion by suit, except
by its own consent. This prerogative would amount to nothing if it
does not protect the agents for improving highways which the state
is compelled to employ. The remedy, therefore, for a consequential
injury resulting from the state's action through its agents, if
there
Page 99 U. S. 642
be any, must be that, and that only, which the legislature shall
give. It does not exist at common law. The decisions to which we
have referred were made in view of Magna Charta and the restriction
to be found in the constitution of every state, that private
property shall not be taken for public use without just
compensation being made. But acts done in the proper exercise of
governmental powers, and not directly encroaching upon private
property, though their consequences may impair its use, are
universally held not to be a taking within the meaning of the
constitutional provision. They do not entitle the owner of such
property to compensation from the state or its agents, or give him
any right of action. This is supported by an immense weight of
authority. Those who are curious to see the decisions will find
them collected in Cooley on Constitutional Limitations, page 542
and notes. The extremest qualification of the doctrine is to be
found, perhaps, in
Pumpelly v. Green Bay
Company, 13 Wall. 166, and in
Eaton v. Boston,
Concord, & Montreal Railroad Co., 51 N.H. 504. In those
cases it was held that permanent flooding of private property may
be regarded as a "taking." In those cases, there was a physical
invasion of the real estate of the private owner, and a practical
ouster of his possession. But in the present case, there was no
such invasion. No entry was made upon the plaintiffs' lot. All that
was done was to render for a time its use more inconvenient.
The present Constitution of Illinois took effect on the 8th of
August, 1870, after the work of constructing the tunnel had been
substantially completed. It ordains that private property shall not
be "taken or damaged" for public use without just compensation.
This is an extension of the common provision for the protection of
private property. But it has no application to this case, as was
decided by the Supreme Court of the state in
Chicago v.
Rumsey, recently decided, and reported in Chicago Legal News,
vol. x, p. 333. That case also decides that the city is not liable
for consequential damages resulting from an improvement made in the
street, the fee of which is in the city, provided the improvement
had the sanction of the legislature. It also decides that La Salle
Street is such a street, and declares that a recovery of such
damages by an
Page 99 U. S. 643
adjacent lot holder has been denied by the settled law of the
state up to the adoption of the present Constitution. There would
appear, therefore, to be little left in this case for
controversy.
It is insisted, however, that the plaintiffs may recover for the
obstruction to the access of their lot caused by the coffer dam in
the river. It is admitted that the dam was necessary to enable the
city to construct the tunnel under the river, and it is not
complained that it was unskillfully built, or that it was kept in
the stream longer than the necessities of the work required, but it
is contended that neither the state nor the city had any right to
obstruct passage on the river at all. Yet the river is a highway --
a state highway as well as a national. It has long been held that
navigable rivers wholly within a state are not outside of state
jurisdiction so long as Congress does not interfere. An abridgment
of the rights of those who have been accustomed to use them unless
it comes in conflict with the Constitution or a law of the United
states, is an affair between the government of the state and its
citizens, of which this Court can take no cognizance.
Wilson v. The Black Bird
Creek Marsh Co., 2 Pet. 250. In numerous instances,
states have authorized obstructions in navigable streams. They have
authorized the erection of bridges, the piers of which have been
more or less impediments to navigation. In this case, the coffer
dam was only a temporary obstruction. It was no physical
encroachment upon the plaintiffs' property, and it was maintained
only so long as it was needed for the public improvement. The
tunnel could not have been constructed without it. We cannot doubt
that it was lawfully placed where it was, and having thus been,
that the city is not responsible in damages for having erected and
maintained it while discharging the duty imposed by the
legislature, the obstruction not having been permanent or
unreasonably prolonged.
We have examined the decisions of the courts of Illinois, and
others to which we have been referred by the plaintiffs in error,
but in none of them was it decided that a riparian owner on a
navigable stream, or that an adjoiner on a public highway, can
maintain a suit at common law against public agents
Page 99 U. S. 644
to recover consequential damages resulting from obstructing a
stream or highway in pursuance of legislative authority, unless
that authority has been transcended, or unless there was a wanton
injury inflicted, or carelessness, negligence, or want of skill in
causing the obstruction.
Very many of the decisions relied upon were cases in which it
appeared that the acts complained of as having wrought injurious
consequences were done by private individuals, for their own
benefit, and without sufficient legislative authority. The
distinction between cases of that kind and such as the present is
very obvious. It was well stated by Gibbs, C.J., in
Sutton v.
Clarke, supra, which, as we have seen, was decided on the
ground that the defendant was acting under the authority of an act
of Parliament, deriving no advantage to himself personally, and
acting to the best of his skill and within the scope of his
authority, and so was not liable for consequential damages. "This
case," said the Chief Justice,
"is totally unlike that of the individual who for his own
benefit makes an improvement on his own land according to his best
skill and diligence, not foreseeing it will produce injury to his
neighbor; if he thereby, though unwittingly, injure his neighbor,
he is liable. The resemblance fails in this most important point,
that his act is not done for a public purpose but for private
emolument. Here the defendant is not a volunteer: he executes a
duty imposed upon him by the legislature, which he is bound to
execute."
The observations we have made cover the whole case as made for
the plaintiffs in error, except the point presented by the
sixteenth assignment. That was not mentioned in the argument, but
we will not overlook it.
There was evidence at the trial that during the progress of the
necessary excavation of La Salle Street a portion of the walls of
the plaintiffs' buildings on the lot cracked and sunk. This was
caused by the caving in of the excavation in the street, the
timbers used for bracing the sides having given way. In reference
to this testimony the court instructed the jury that if they were
satisfied from the evidence that the sinking of the wall, or rather
the cracking of the wall, was due to the weight of the wall upon
the selvage or portion of the earth which was left, and not to the
removal of the material
Page 99 U. S. 645
which was taken out of the street, that is, from the pit, the
defendants were not liable. If they were satisfied that if the wall
had not stood upon the plaintiffs' lot where it did there would
have been no change in the level of the ground there, but that the
change in the level which caused the deflection of the wall was due
to the weight of the wall resting upon the earth after the
excavation was made, then the defendant was not liable for
that.
We think this instruction was entirely right. The general rule
may be admitted that every landowner has a right to have his land
preserved unbroken, and that an adjoining owner excavating on his
own land is subject to this restriction, that he must not remove
the earth so near to the land of his neighbor that his neighbor's
soil will crumble away under its own weight and fall upon his land.
But this right of lateral support extends only to the soil in its
natural condition. It does not protect whatever is placed upon the
soil increasing the downward and lateral pressure. If it did, it
would put it in the power of a lot owner, by erecting heavy
buildings on his lot, to greatly abridge the right of his neighbor
to use his lot. It would make the rights of the prior occupant
greatly superior to those of the latter.
Wyatt v.
Harrison, 3 Barn. & Adol. 871;
Lasala v.
Holbrook, 4 Paige (N.Y.) 169; Washburn, Easements, c. 4, sec.
1.
Judgment affirmed.
