flowage, or a landing, it is an additional burden, and if by the change from one use to another, increased injury is done,3 or easements are impaired to a greater extent than before,1 or access to the land is made more difficult,5 compensation must be made for the injury. Property which is already held for a public use cannot be condemned to another public use without legislative authority, and the subsequent grant will not be construed as authorizing the subversion or destruction of the former, unless such intent appears by express words or necessary implication. Thus, the board of public works of the State of Ohio has been held to have no authority to grant to a railroad corporation the right to lay its track along the berme-bank of a navigable canal belonging to the State. A railroad company, which is authorized by statute to select route for its road, cannot take land which is already occupied, under authority from the legislature, by a canal, or by a reservoir erected by a city.9 A water company cannot condemn land which is in use as a public street, when there are other means of carrying its powers into effect.10 The authority given by mill acts to flow land, does not justify the flooding of a public road11 or bridge,12 and land occupied by the United States for an armory cannot be flowed under these statutes.13 A private 1 Davidson v. Boston Railroad, 3 road Co., 37 Ohio St. 157. See State Cush. 91. v. Newark, 28 N. J. L. 529. 2 Railroad Co. v. Schurmeir, 7 Wall. 272; post, § 257. 3 Gordon v. Pennsylvania Railroad Co. (Penn. 1878) 6 Rep. 727. 8 Hudson Canal Co. v. New York Railroad Co., 9 Paige, 323; Tuckahoe Canal v. Tuckahoe Railroad, 11 Leigh, 42; Housatonic Railroad v. Lee Rail 4 Whitman v. Boston & Maine Rail- road, 118 Mass. 391. road, 7 Allen, 313. 5 Chicago Railroad r. Stein, 75 Ill. 41; Hatch . Cincinnati Railroad, 18 Ohio St. 92; Gordon v. Pennsylvania Railroad, 6 Rep. 727. 6 Little Miami Railroad Co. a. Dayton, 23 Ohio St. 510; Hickock v. Hine, Id. 522; Bridgeport v. New York Railroad, 36 Conn. 255; Re Buffalo, 68 N. Y. 167; Locks and Canals v. Lowell, 7 Gray, 223. 7 State v. Cincinnati Central Rail 9 State v. Montclair Railway Co., 35 N. J. L. 328. 10 Ex parte Manhattan Co., 22 Wend. 653; Bradshaw v. Rogers, 20 Johns. 103, 735; Springfield v. Connecticut Railroad Co., 4 Cush. 63. 11 Commonwealth r. Stevens, 10 Pick. 247; Venard v. Cross, 8 Kansas, 248. 12 Hooksett v. Amoskeag Manuf. 44 N. H. 105. 13 United States v. Ames, 1 Wood. & M. 76. corporation, which is authorized by its charter to construct a canal, sluice, or raceway, and which cuts or digs it across an existing highway, is bound to provide a bridge for the public passage along the highway, without an express provision in its charter to that effect; but if, after the construction of the canal, a highway is laid out across it, its owner is not bound to erect or maintain a bridge. While a corporation, under a general power of eminent domain, cannot, without special authority, deprive another corporation with a like power of Lands held by it for a public use, yet an easement may be acquired, in invitum, by legislative authority, in lands so held and occupied for a public use when such easement may be enjoyed without detriment to the public or interfering with the use to which the lands are devoted. When a ferry franchise is held by a municipal corporation, it does not lose its character of private property, and cannot be resumed by the public without making just compensation. But if the legislature authorizes a bridge to be built at a point where there was an ancient ferry, and provides for compensation to the owner of the ferry, which is accepted, the ferry is abolished, and such taking for public use does not transfer the ferry franchise to the proprietors of the bridge. The fact that property is held under a covenant of quiet enjoyment from a city does not prevent its board of aldermen, if authorized by statute, from taking such property in laying out a street over tide-waters. 1 Re Trenton Water Power Co., Spencer (N. J.) 659. 2 Morris Canal Co. v. State, 24 N. J. L. 62. 6 4 Benson v. New York, 10 Barb. 223. So the property rights of a county, though acquired by donation from the State, are protected by the constitutional guarantees which protect the property of individual citizens. Milam County v. Bateman, 54 Texas, 153. 8 New York Central Railroad Co. v. Metropolitan Gaslight Co., 63 N. Y. 326; Matter of Rochester Water Commissioners, 66 N. Y. 413; Re New York Central Railroad Co., 77 N. Y. 248; Boston Water Co. v. Boston & Worcester Railroad, 23 Pick. 360, 397; Matter of Main and Hamburgh Street 19. Canal, 50 How. Pr. 70; James River Co. v. Anderson, 12 Leigh, 278. 5 Charles River Bridge v. Warren Bridge, 7 Pick. 344, 352. 6 Brimmer v. Boston, 102 Mass. § 256. When individuals or corporations construct and maintain roads or bridges across streams under authority conferred by the legislature, they are bound to provide suitable passage ways for the water, and to keep them unobstructed by drift or mud,2 and are liable to the owners of private lands adjoining, which are injured in consequence of their insufficiency. Thus, a railroad company which neglects to construct sluices or culverts over streams crossed by its road, or which constructs them so imperfectly as to flood the adjoining lands, is liable to an action for the injury whether any portion of such lands is taken for the purposes of the road or not.3 Such injury is not one that is taken into account in measuring the compensation to the owner of land through which the road is located, but the company is answerable in damages by a repetition of suits, or if the flooding is permanent and unnecessary, the obstruction may be abated by a court of equity. So, if a railroad company, 1 New Castle Railroad Co. v. McChesney, 85 Penn. St. 522; Oregon Railroad Co. v. Barlow, 3 Oregon, 311; Whitehouse v. Birmingham Canal Co., 5 H. & N. 928; Perley v. Chandler, 6 Mass. 454; Rowe v. Granite Bridge, 21 Pick. 344; Blood v. Nashua Railroad, 2 Gray, 137; Mellen v. Western Railroad, 4 Gray, 301; Jones v. West Vermont Railroad Co., 27 Vt. 399; Addison v. Rowe, 34 N. H. 396; Manser v. Northern Counties Railway Co., 2 Rail. Cas. 380. 2 West v. Louisville Railroad Co., 8 Bush, 404; Chicago Railroad Co. v. Moffitt, 75 Ill. 524. 3 Bagnall v. London Railway Co., 1 H. & C. 544; 7 H. & N. 723; Lawrence v. Great Northern Railway Co., 16 Q. B. 643; Hatch v. Vermont Central Railroad Co., 25 Vt. 49, 68; Norris v. Vermont Central Railroad Co., 28 Vt. 102; King v. Iowa Midland Railroad Co., 34 Iowa, 458; Mississippi Central Railroad v. Caruth, 51 Miss. 77; Mississippi Central Railroad Co. v. Mason, Id. 234; Baughton v. Carter, 18 Johns. 405; Cott v. Lewiston Rail Portsmouth road, 36 N. Y. 214, Brown v. Cayuga 4 Raleigh Air Line Railroad Co. v. Wicker, 74 N. C. 220; Brown v. Carolina Central Railroad Co., 83 N. C. in building its road, finds it necessary to divert a stream, and for that purpose to construct a new channel, it is bound to keep the new channel in a suitable condition so as to preserve the usefulness of the stream for those entitled to it.1 Except in cases of strict necessity, a railroad company has no right to divert a stream of water from its natural channel to the injury of the land-owner,2 and if the diversion is merely convenient and not necessary, it may be restrained by injunction.3 By voluntarily granting a right of way for a railroad, the grantor does not license the building of the road so as to overflow his other land not on the right of way, and his damages for the flowage of such other land will not be diminished because of the enhanced value given by the road to his land, in common with others in the vicinity. But by virtue of such a grant the corporation would be authorized to extend ditches from its culverts in the grantor's land, and beyond the limits of the location, or to deepen and widen the channel of a watercourse beyond such limits, when these acts are necessary to prevent the flooding and washing away of the land and to preserve the road from damage. A railroad being a public highway, the doctrine of dedication or of estoppel in pais applies to the right of way therefor. Where a land-owner verbally gave to a railroad company the right of way over his premises, 5 6 128; Easterbrook v. Erie Railway Co., 51 Barb. 94; Selma Railroad Co. v. Keith, 53 Ga. 178. 1 Cott v. Lewiston Railroad Co., 36 N. Y. 214; Hatch v. Vermont Central Railroad Co., 25 Vt. 49. See Denslow v. New Haven Co., 16 Conn. 98. 2 Stodghill v. C. B. & Q. R. Co., 43 Iowa, 26; Young v. Chicago Railway Co., 28 Wis. 171; Baltimore Railroad Co. v. Magruder, 34 Md. 79. 3 Pugh. Golden Valley Railway Co., 12 Ch. D. 274; 15 Ch. D. 330. 4 Norris v. Vermont Central Railroad Co., 28 Vt. 99; St. Louis Railway Co. v. Morris, 35 Ark. 622; Chicago Railroad Co. v. Carey, 90 Ill. 514; Jacksonville Railroad Co. v. Cox, 91 Ill. 500. See Hutchinson v. Chicago Railway Co., 37 Wis. 582; Lawrence v. Great Northern Railway Co., 20 L. J. N. s. (Q. B.) 293. 5 Ibid. A purchaser of a mill cannot sue on a covenant made by a railroad company with its former owner to dig a new channel for the mill stream, if the covenant was already broken at the time of the purchase. Junction Railroad Co. v. Sayers, 28 Ind. 318. 6 Babcock v. Western Railroad, 9 Met. 553. Contra, under condemnation proceedings as to the right to dig ditches. State v. Armell, 8 Kansas, 288. free of charge, if it would construct ditches to carry off water, and the road was constructed and the ditches dug, it was held that, after the lapse of seventeen years, the landowner was to be regarded as having dedicated the right of way to the public use, and that the company had acquired a vested right thereto, which was not divested by its failure to maintain sufficient ditches.1 § 257. A railroad company is liable in damages if an excavation made for its road drains a well or spring on land adjacent to but not crossed by its line; if the road injuriously affects a right of flowage,3 or a landing, or causes injury to crops;5 if it is constructed through a mill-pond which the legislature has authorized to be raised in a navigable river, although the conditions of the statute giving such authority have not been complied with; or if it removes a natural barrier which is not on the land taken, but which protects it from floods in a neighboring river, even after the land-owner has released all damages on account of the construction of the road through his land. If a canal company, under the power granted to take land by paying 1 Texas Railway Co. v. Sutor, 56 23, 1803, to construct a mill-dam in a Texas, 496. As 2 Parker . Boston & Maine Railroad, 3 Cush. 107; Aldrich v. Cheshire Railroad Co., 21 N. H. 359; Peoria Railroad v. Bryant, 57 Ill. 473. to the right of a railway company to appropriate a spring of water, which is private property, to supply a tank, see Strohecker v. Alabama Railroad Co., 42 Ga. 509. 3 Davidson v. Boston & Maine Railroad, 3 Cush. 91; Hot Spring Railway Co. v. Tyler, 36 Ark. 205. + Railroad Co. v. Schurmeir, 7 Wall. 272; ante, § 255. Chicago Railroad Co. r. Carey, 90 Ill. 514; Houston Railroad Co. v. Knapp, 51 Texas, 592. 6 White v. South Shore Railroad Co., 6 Cush. 412. In Pennsylvania, the right given by the act of March navigable stream, is a revocable license, and the mill-owner cannot recover for a subsequent interference with this right by the construction of a railroad under legislative authority. Susquehanna Canal Co. v. Wright, 9 W. & S. 9; Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Bigler v. Antes, 21 Penn. St. 288; New York Railroad Co. v. Young, 33 Penn. St. 175; West Branch Canal Co. v. Mulliner, 68 Penn. St. 357. 7 Eaton v. B. C. & M. R. Co., 51 N. H. 504; Delaware Canal Co. v. Lee, 22 N. J. 243. Contra, Alexander v. Milwaukee, 16 Wis. 247, which appears to be now overruled. See Arimond v. Green Bay Co., 31 Wis. 316; Pumpelly . Green Bay Co., 13 Wall. 166. |
