to do justice on compulsion. That a suit cannot be maintained against the State without its consent, is shown by the statute which enabled Pennsylvania claimants to sue the State for the value of the lands ceded to Connecticut claimants within the seventeen townships in Luzerne County. But this prerogative would be unavailing if it could not protect the agents whom the Commonwealth has necessarily to employ. It was applied to the protection of a private corporation in the Monongahela Navigation v. Coons, and Henry v. The Allegheny Bridge; in which it was held that a chartered company to improve the navigation of a public highway, or to build a bridge, is not answerable for consequential damages; and it was applied to the protection of a municipal corporation in Green v. The Borough of Reading, The Mayor v. Randolph, and the Philadelphia and Trenton Railroad; to which may be added every decision on the subject in our sister States, except the decisions in Ohio, which, however founded in natural justice, are not founded in the law which prevails elsewhere.

Yet it must be admitted that, while it is inequitable to injure the property of an individual for the benefit of the many, it would be impossible for a corporation to bear the pressure of successive commonlaw actions for the continuance of a nuisance, each verdict being more severe than the preceding one. The modification of the remedy would be for the legislature, which can turn compensation for a permanent detriment into the price of a prospective licer. ; but to attain complete justice, every damage to private property ought to be compensated by the State or corporation that occasioned it, and a general statutory remedy ought to be provided to assess the value. The constitutional provision for the case of private property taken for public use, extends not to the case of property injured or destroyed; but it follows not that the omission may not be supplied by ordinary legislation. No property was taken in this instance; but the cutting down of · the street consequent on the reduction of its grade left the building useless, and the ground on which it stood worth no more than the expense of sinking the surface of it to the common level. The loss to the congregation is a total one, while the gain to holders of property in the neighborhood is immense. The legislature that incorporated the city never dreamt that it was laying the foundation of such injustice; but, as the charter stands, it is unavoidable.

Judgment affirmed1

1 In O'Brien v. Philadelphia, 150 Pa. 589 (1892), in a like case, the court, STERRETT, J., said: " If any regard is to be had for the constitutional mandate [Const. 1874, Art. xvi. s. 8] that municipal and other corporations . . . shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements,' we are at a loss to see how the learned judge could do otherwise than decide the reserved question as he did. Nobody con. versant with the history of the constitutional provision above quoted can entertain any doubt that it was intended to provide, inter alia, for the class of cases of which O'Con nor v. Pittsburgh, 18 Pa. 187, is a conspicuous example. It has uniformly been so regarded from the date of its adoption until the present time. . . . In Ogden v. Phila

IN Peart et al. v. Meeker (45 La. Ann.), 12 Southern Rep. 490 (1893), in reversing a judgment for the plaintiff, who complained of the acts of the defendant, President of a Levee District, in locating and constructing a line of levee on the Red River, the court (FENNER, J.) said: "The quantum of damages is admitted between the parties, and the delphia, 143 Pa. 430, the claim was for damages caused by grading North Street. After stating that the undisputed facts were 'that the first grade. . . was established on the city plan in 1871, but nothing was done on the ground until 1887,' our Brother Mitchell says. For the establishment of the grade of 1871 there was no right of action. O'Connor v. Pittsburgh, 18 Pa. 187; Philadelphia v. Wright, 100 Pa. 235. Therefore the Statute of Limitation could not begin to run from that date. But the Constitution of 1874, Article xvi. s. 8, gave a right to owners to have compensation for property injured, as well as for property taken by municipal and other corporations in the construction or enlargement of their works.'"

·

In Smith v. Washington, 20 How. 135, 148 (1857), the defendant city was sued in an action on the case to recover damages for an alteration of the grade of the street on which the plaintiff had his dwelling-house In sustaining a judgment of the Circuit Court of the United States for the District of Columbia in favor of the defendant, the court (GRIER, J.) said: "Having performed this trust, confided to them by the law, according to the best of their judgment and discretion, without exceeding the jurisdiction and authority vested in them as agents of the public, and on land dedicated to public use for the purposes of a highway, they have not acted unlawfully or wrongfully,' as charged in the declaration. They have not trespassed on the plaintiff's property, nor erected a nuisance injurious to it, and are, consequently, not liable to damages where they have committed no wrong, but have fulfilled a duty imposed on them by law as agents of the public. The plaintiff may have suffered inconvenience and been put to expense in consequence of such action; yet, as the act of defendants is not unlawful or wrongful,' they are not bound to make any recompense. It is what the law styles damnum absque injuria. Private interests must yield to public accommodation; one cannot build his house on the top of a hill in the midst of a city, and require the grade of the street to conform to his convenience at the expense of that of the public. The law on this subject is well settled, both in England and this country. The cases are too numerous for quotation; a reference to one or two more immediately applicable to the questions arising in this case will be sufficient. “In Callender v. Marsh, 1 Pick. 417, the defendant, as surveyor of the highways, was charged with digging down a street in Boston, so as to lay bare the foundations of plaintiff's house, and endanger its falling. The authority under which he acted was given by a statute which required that all highways, townways, etc., should be kept in repair and amended from time to time, that the same may be safe and convenient for travellers.' This very general and exclusive authority,' say the court,' would seem to include everything which may be needed towards making the ways perfect and complete, either by levelling them where they are uneven and difficult of ascent, or raising them where they should be sunken and miry.' It was held, also, that the law does not give a right to compensation for an indirect or consequential damage or expense, resulting from a right use of property belonging to the public.

"In Green v. The Borough of Reading, 9 Watts, 282, the defendants, by virtue of their authority to improve and repair,' graded the street in front of plaintiff's house five feet higher than it had been before, and it was held that the corporation was not liable to an action for any consequential injury to plaintiff's property by reason of such improvement or change of grade in the public street.

"In the case of O'Connor v. Pittsburgh, 18 Penn. Rep. 187, a church had been built according to the direction of the city regulator, and by a grade established in 1829. Afterwards, in pursuance of an ordinance, the grade of the street was reduced seventeen feet; the church had to be taken down and rebuilt on a lower foundation, at a damage of $4,000. The authority given to the city was 'to improve, repair, and keep

sole question before us is the legal liability of defendant. Whatever may be the law elsewhere, we consider the law of Louisiana too well settled to admit of further dispute to the following effect: That under article 665 of our Civil Code riparian property on navigable rivers inthis State is subject to a servitude or easement imposed by law for the public or common utility, authorizing the appropriation by the government, under proper laws, of the space required for the making and repairing of levees, roads, and other public works; that the State is charged with the administration of this public servitude; that in locating and building levees she does not expropriate the property of the citizen, but lawfully appropriates it to a use to which it is subject under the title itself; that in so doing she acts, not under the power of ́ eminent domain, but in the exercise of the police power; that laws, constitutional or statutory, concerning the expropriation of private property for public use, and requiring adequate compensation therefor,, have no application to property legitimately required for levee purposes, and that private injury resulting from the legitimate exercise of this legal right is damnum absque injuria, to which the individual must submit as a sacrifice to the public safety and welfare. Ruch v. City of New Orleans, 43 La. Ann. 275, 9 South. Rep. 473; Bass v. State, 34 La. Ann. 494; State v. Maginnis, 26 La. Ann. 558; Cash v. Whitworth, 13 La. Ann. 401; Dubose v. Commissioners, 11 La. Ann. 165; Police Jury v. Bozman, 11 La. Ann. 94; Zenor v. Concordia, 7 La. Ann. 150. It is useless to quote from these decisions. They are familiar to the profession, and their tenor, as above stated, is unambiguous, harmonious, and emphatic. They were rendered under the régime of constitutions which prohibited the taking of private property for public purposes without compensation; and, however broad and emphatic may be the same prohibition in our existing constitution, it had not either the intention or effect to repeal Article 665 of the Civil Code, or to bring within its grasp the lawful appropriation of property for levee purposes. On the contrary, the Constitution itself charges the General Assembly with the duty of maintaining a levee system, authorizes the creation of levee districts under the administration of commissioners to be appointed or elected, and grants specified powers of taxation for this purpose. Const. arts. 213-216. In the execution of these powers and duties, the Red River, Atchafalaya & Bayou Bœuf Levee District was created by Act 79 of 1890, amended and re-enacted by Act 46 of 1892, and the defendant commissioners were appointed. . . The Constitution itself (Article 214), in authorizing the appointment of commissioners for levee districts, expressly declares that they shall in

in order the streets,' etc. The court say, 'We had this case re-argued in order to discover, if possible, some way to relieve the plaintiff consistently with law, but grieve to say we can find none. The law is settled, not only in Pennsylvania, but by every decision in the sister States, except one.'

"We are of opinion, therefore, that the instructions given by the court below on these points were correct, and affirm their judgment.” — ED.

VOL. I. 67

the method and manner to be provided by law, have supervision of the erection, repair, and maintenance of the levees in said districts.' These commissioners were therefore bound, under an express constitutional mandate, to exercise their functions exclusively in the method and manner' prescribed by law. The law confined their powers to the construction, maintenance, and repair of such levees only as, in the opinion of the Board of State Engineers, will protect said levee district from overflow,' and further devolves upon the State Engineers the exclusive authority and duty to survey and locate, repair or remove and change all levees,' and further charges said engineers with the full 'responsibility of all such location.'

6

"The evidence in the case fully establishes that the levee complained of is built on the line surveyed, located, approved by the State Engineers. . . . What was the board to do? The levee was an important one, involving the protection of an extensive region from overflow. Under the mandates of law above referred to its duty was clear and manifest to build the levee on the line located by the State Engineers, who are charged with the authority, duty, and responsibility of making such location. It is difficult to understand how this corporation can incur liability for performing the plain duty imposed on it by law, or how, in any event, the corporate funds could be used in satisfaction of such liability. It is clear that the commissioners, even if they desired to do so, could not, under section 11, devote the corporate funds to the satisfaction of plaintiff's claim, without violating the law, and the judicial power could not be invoked to compel them to violate the law. To hold otherwise would be to authorize such officers to create unwarranted debts against this corporation, which is a mere functionary of the State, and for their payment to divert public funds from the purposes to which they are lawfully and exclusively dedicated. Whatever be the rights of plaintiff, and whatever be her remedies for their vindication, the latter cannot possibly take the shape of an action of damages against this corporation. The law under which the officers. of this corporation and the State Engineers have acted is a valid law, and nothing done in the proper execution of its mandates can give rise to any action of damages. If such an action exists, it must arise from acts of these officers in violation of the authority conferred upon them. This brings the case within the dilemma propounded in Bass' Case, where we said: The dilemma seems irresistible: Either the Board of Engineers, the public agents of the State, have acted within the scope of their mandate and authority, or they have not. If they have, then, as they have carried out a valid law, neither they nor the State can be held responsible. If they have acted beyond that scope, their principal cannot be made responsible for their unauthorized act, and they alone are chargeable.' Bass v. State, 34 La. Ann. 494. For the reasons heretofore indicated we think the corporate liability of this levee district is governed by the same rules which apply to the State herself. If there is any liability for damages it rests on the officers individually

who have acted in excess of their authority, and under the law in this case, which we have heretofore quoted, it seems quite clear that, as between these commissioners and the State Engineers, the latter alone would be charged with whatever responsibility might result from the improper location of the levees. We need not advert to the strong shield of protection which the law extends over public officers charged with discretionary duties, and which exempts them from liability for honest errors, and except in clear cases of oppression and injustice; and it is only proper to say that nothing in this record indicates any but honest motives and conscientious action on the part of all the public officers concerned. It is undoubtedly the duty of the public officers charged by the State with the execution of its police power, to make no greater sacrifice of private rights than the public welfare demands. In several cases this court has said that power so conferred is not arbitrary, and that the citizen is not without remedy to subject it to judicial control in proper cases. We are not called upon in this case to consider this question further than to say that the present action of damages against this levee district is not an appropriate remedy, and cannot be sustained. It is therefore decreed that the judgment appealed from be reversed, and that plaintiff's demand be rejected, at her costs in both courts." 1

1 The exact scope and limitations of property rights may, of course, differ materially in different States. Compare the doctrine of the Appropriation of Waters in the Pacific and adjacent States, by which a permanent right to running water, even as against riparian owners, is acquired by actual prior appropriation to mining or any other useful purposes. See Black's edition of Pomeroy's Water Rights.

In Drake v. Earhart, 2 Idaho, 716, 720 (1890), BEATTY, C. J., for the court, said: "The important question, for the settlement of which this appeal was chiefly brought, is what, if any, rights the appellant has to any of that water as a riparian proprietor. His claim is not based upon prior or any appropriation under our territorial laws, but upon the fact that the stream in question flows by its natural channel through his lands; hence, that he is entitled to the use thereof allowed by the common law. This doctrine of riparian proprietorship in water as against prior appropriation has been very often discussed, and nearly always decided the same way by almost every appel. late court between Mexico and the British possessions, and from the shores of the Pacific to the eastern slope of the Rocky mountains, as well as by the Supreme Court of the United States. But for the fact that it has elsewhere repeatedly appeared in the same court, it would seem surprising that it should now be seeking another solution in this While there are questions growing out of the water laws and rights not fully adjudicated, this phantom of riparian rights, based upon facts like those in this case, has been so often decided adversely to such claim, and in favor of the prior appropriation, that the maxim,first in time, first in right,' should be considered the settled law here. Whether or not it is a beneficent rule, it is the lineal descendant of the law of necessity. When, from among the most energetic and enterprising classes of the east, that enormous tide of emigration poured into the west, this was found an arid land, which could be utilized as an agricultural country, or made valuable for its gold, only by the use of its streams of water. The new inhabitants were without law, but they quickly recognized that each man should not be a law unto himself. Accustomed, as they had been, to obedience to the laws they had helped make, as the settlements increased to such numbers as justified organization, they established their local customs and rules for their government in the use of water and land. They found a new condition of things. The use of water to which they had been accustomed, and the laws concern