As the plaintiff does not claim to own the land in the street which the company has taken for its road, but claims only a right or interest in the nature of an easement in it appurtenant to his lot, the question has been raised and discussed, at considerable length, whether, conceding the right or interest he claims, the acts of the defendant constitute a taking, within the constitutional provision prohibiting the taking of private property for public use without just compensation. As that provision is inserted for the protection of the citizen, it ought to have a liberal interpretation, so as to effect its general purpose. All property, whatever its character, comes within its protection. It is hardly necessary to say that any right or interest in land in the nature of an easement is property, as much so as a lien upon it by mortgage, judgment, or under mechanic's lien laws. If a man is deprived of his property for the purpose of any enterprise of public use, it must be a taking, even though the right of which he is deprived is not and cannot be employed in the public use. In the case of a lien on land taken for railroad purposes, the company cannot make any use of the lien. It does not succeed to the ownership of it. It merely displaces it, destroys it. So, in case of an easement. If A. has, as appurtenant to his lot, an easement for right of way over the adjoining land, and such adjoining land is taken for railroad purposes, the company does not and cannot succeed to the easement. But it may destroy or materially impair it by rendering it impossible for the owner of it to enjoy it to the full extent that he is entitled to. Such destruction or impairment is within the meaning of the word "taken," as used in the Constitution, as fully as is the depriving the owner of the possession and use of his corporeal property. The main question in the case is, has the owner of a lot abutting on a public street a right or interest in the street opposite his lot, appurtenant to his lot, and independent of his ownership of the soil of the street, and, if so, what is that right or interest? If he has, and the acts of the defendant in constructing and operating its railroad along that part of the street opposite plaintiff's lot prevent or impair his enjoyment of such right or interest, then he has a right to recover. We find a great many cases in which is stated, in general terms, the proposition that, although the fee of the street be in the State or municipality, the owner of an abutting lot has, as appurtenant to his lot, an interest or easement in the street in front of it, which is entirely distinct from the interest of the public. Grand Rapids & Ind. R. Co. v. Heisel, 38 Mich. 62; Lexington & Ohio R. Co. v. Applegate, 8 Dana, 289 (33 Am. Dec. 497); Elizabethtown, etc. R. Co. v. Combs, 10 Bush, 382; Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis, etc. R. Co., 9 Ind. 467 (68 Am. Dec. 650); Stone v. Fairbury, etc. R. Co., 68 Ill. 394; Tate v. Ohio & Mississippi R. Co., 7 Ind. 479; Lackland v. North Missouri R. Co., 31 Mo. 180; Street Railway v. Cumminsville, 14 Ohio St. 523; Railway Co. v. Lawrence, 38 Ohio St. 41; Crawford v. Village of Delaware, 7 Ohio St. 459; City of Denver v. Bayer, 7 Col. 113 (2 Pac. Rep. 6); Town of Rensselaer v. Leopold, 106 Ind. 29 (5 N. E. Rep. 761). In 38 Mich. 62, 71, the Supreme Court states it thus: "Every lot-owner has a peculiar interest in the adjacent street which neither the local nor the general public can pretend to claim; a private right in the nature of an incorporeal hereditament, legally attached to his contiguous ground; an incidental title to certain facilities and franchises, which is in the nature of property, and which can no more be appropriated against his will than any tangible property of which he may be owner." Although the proposition was apparently stated with care and upon deliberation, it seems to us (and we say it with diffidence, because of the eminent character of that court) that the decision of the case was a departure from the doctrine thus laid down (and the same may be said of several of the cases referred to). For where the railroad was laid upon a part of the street opposite the party's lot, of which part he did not own the fee, it denied his right to recover for damages caused to his lot incidental to a proper operating of the railroad, and limited it to cases where the acts of the company, of omission or commission, amounted to a nuisance. As the lot-owner can recover for a private nuisance, committed by the improper operation of a railroad, even on the company's own land, in which he has no interest (Baltimore & Potomac R. Co. v. First Baptist Church, 108 U. S. 317, 2 Sup. Ct. Rep. 719), it would seem as though, if he is in no better plight in respect to the company's acts in the street, his "peculiar interest," distinct from that of the public, in the street, is of very little value. His title to his interest in the street is precarious, if authority from the State or municipality may justify what would without such authority be a private wrong as to him. None of the cases we have referred to, nor any till we come to what are known as the "Elevated Railway Cases," attempt to define the limits and extent of the right of an abutting lot-owner in the street opposite his lot, where he does not own the fee. That it extends to purposes of ingress and egress to and from his lot is conceded by all. And for this purpose it may extend beyond the part of the street directly in front; for, as we have seen, an action by him will lie for obstructing the street, away from his lot, so as to cut off or materially interfere with his only access to it. The questions are asked, how does the lot-owner get an easement in the street?... It is, however, hardly necessary to inquire how the lot-owner gets his private right in the street; for it is established law that he has a private right, which, as we have stated, all the cases concede extends to the necessity of access. Access to the lot is only one of the direct advantages which the street affords to it. In a city densely peopled and built up, the admission of light and air into buildings is about as important to their proper use and enjoyment as access to them. Light and air are largely got from the open space which the streets afford. What reason can be given for excluding a right to the street for admit ting light and air, when the right to it for access is conceded? For mere purposes of access to the lots, a strip 10 or 15 feet wide might be sufficient. Yet everybody knows that a lot fronting on a street 60 or 70 feet wide is more valuable, because of the uses that can be made of it, than though it front on such a narrow strip. Take a case in one of the States where the fee of the streets is in the State or municipality, and of a street 60 feet wide. The abutting lot-owners have paid for the advantages of the street on the basis of that width, either in the enhanced price paid for their lots, or, if the street was established by condemnation, in the taxes they have paid for the land taken. In such a case, if the State or municipality should attempt to cut the street down to a width of 10 or 15 feet, would it be an answer to objections by lot-owners that the diminished width would be sufficient for mere purposes of access to their lots? It would seem as though the question suggests the answer. The cases known as the "Elevated Railway Cases" (Story v. N. Y. Elevated R. Co., 90 N. Y. 122, and Lahr v. Metropolitan Elevated R. Co., 104 N. Y. 268, 10 N. E. Rep. 528) are notable in several respects: first, because they were the first cases (and it seems strange that they should have been) in which was squarely presented, so as to demand a direct decision, the claim of abutting lots to an easement in the street in their front, for purposes of light and air; second, for the number and ability of the counsel on each side, and the thoroughness with which they discussed every point involved, and presented every argument pro and con that could be suggested; and, lastly and especially, for the exhaustive character of both the prevailing and dissenting opinions by the members of the court. The latter case was really a re-argument of the questions decided in the earlier, and in its opinion the court not only adhered to, but took pains to define, its earlier decision, and in some respects to go beyond it, and give to the principles determined a wider application than appears to have been given to them in the first case. We think that in those cases the doctrine is unqualifiedly established that no matter how the abutting owner acquires title to his land, and no matter how the street was established, so that the only right of the public is to hold it for public use as a street forever (and the public gets no greater right under a dedication), and no matter who may own the fee," an abutting owner necessarily enjoys certain advantages from the existence of an open street adjoining his property, which belong to him by reason of its location, and are not enjoyed by the general public, such as the right of free access to his premises, and the free admission and circulation of light and air to and through his property." The doctrine was followed and applied by the Circuit Court of the United States for the Southern District of New York, in Fifth Nat. Bank v. N. Y. Elevated R. Co., 24 Fed. Rep. 114. The general doctrine, we think, stands on sound reason and considerations of practical justice. The private right in a street is of course subordinate to the public - right. The latter right is for use as a public street, and the incidental right to put and keep it in condition for such use, and for no other purpose. Whatever limitation or abridgment of the advantages which the abutting lot is entitled to from the street may be caused by the exercise of the public right, the owner of the lot must submit to. If putting it to proper street uses causes annoying noises to be made in front of his lot, or the air to be filled with dust and smoke, so as to darken his premises, or pollute the air that passes from the street upon them, he has no legal cause of complaint. His right to complain arises when such interruptions to the enjoyment of his private right are caused by a perversion of the street to uses for which it was not intended; by employing it for uses which the public right does not justify. That constructing and operating an ordinary commercial railroad on a street is a perversion of the street to a use for which it was not intended, one not justified by the public right, and which the State or municipality, as representing such right, cannot, as against private rights, authorize, the decisions of this court are full and explicit. It has always been held here, contrary to the decisions in many of the States, that laying such a railroad upon a public street or highway is the imposition of an additional servitude upon it, an appropriation of it to a use for which it was not intended. Carli v. Stillwater Street Ry., etc. Co., 28 Minn. 373 (10 N. W. Rep. 205), and cases cited. Many of the decisions cited to show that upon a state of facts such as exists in this case the lotowner can have no right of action, were by courts which hold that the use of a street for an ordinary railroad is a legitimate street use, that comes within the uses and purposes for which streets are established. Where that is the rule, inasmuch as the right or interest of the abutting lot-owner is subordinate and subject to the right to devote the street to use for a railroad, as well as for any other proper mode of street travel, of course no cause of action in favor of the lot-owner, whether he owns the fee of the street or not, could grow out of the proper construction and operating of a railroad in the street. For that reason the decisions of such courts can be of no authority here, where a different rule upon the rightfulness of using the street for such a purpose prevails. one The conclusions arrived at are that the owner of a lot abutting on a public street has, independent of the fee in the street, as appurtenant to his lot, an easement in the street in front of his lot to the full width of the street, for admission of light and air to his lot, which easement is subordinate only to the public right. That depriving him of or interfering with his enjoyment of the easement for any public use not a proper street use is a taking of his property within the meaning of the Constitution. That appropriating a public street to the construction and operation of an ordinary commercial railroad upon it is not a proper street use. That where, without his consent and without compensation to him, such a railroad is laid and operated along the portion of the street in front of his lot, so as upon that part of the street to cause 'smoke, dust, cinders, etc., which darken or pollute the air coming from. 'that part of the street upon his lot, he may recover whatever damages to his lot are caused by so laying and operating such railroad on that part of the street. That the recovery should be limited to the damages caused by operating the railroad in front of plaintiff's lot, and ought not to include any that might have accrued from operating it on other parts of the street, was undoubtedly the opinion of the court below when it came to make its findings of fact; for it finds as a fact no other damage than the depreciation in the rental value of the lot caused by operating the railroad on the street in front of it. The proof of depreciation in rental value, however, was made in part by admitting proof (against defendant's objection) of the rental value "with the road constructed on that street, and operated there as roads usually are." There was no other evidence of depreciation. The evidence takes into account not merely the consequences to the lot from operating the railroad in front of it, but also from operating the road on the whole or any part of it, however remote from the lot. This would allow plaintiff to recover for such consequences of operating the road as he suffered in common with the public generally, and not merely such as were peculiar to himself. The evidence was erroneously admitted, and, as there was no competent evidence to sustain the finding of the amount of damage, the finding must be set aside. A new trial is therefore ordered of the issue as to the amount of damage (but of no other issue), unless the plaintiff will consent in the court below to take judgment for nominal damages merely.1 VANDERBURGH, J. (dissenting). If a street or highway is so occupied or encumbered as to occasion special and peculiar injury to an abutting land-owner, an action for damages or an injunction may be sustained. But I do not assent to the proposition that such owner has property interests in the street, beyond the boundary of his land therein (presumptively the centre line thereof), which are the proper subject of condemnation proceedings. The opposite rule, I think, has always been accepted and acted on in this State, and is supported by the great weight of authority. . . . 1 And so Lamm v. Chic. &c. Ry. Co., 45 Minn. 71, 78 (1890); Williams v. City Electric St. Ry. Co., 41 Fed. Rep. 556 (U. S. C. C. E. D. Ark. 1890). Compare Nichols v. Ann Arbor, &c. Ry. Co., 87 Mich. 361. In Garrett v. Lake Roland El. Ry. Co., 29 Atl. Rep. 830 (June, 1894), the Maryland Court of Appeals (MCSHERRY, J.), in sustaining a decree dismissing the plaintiff's bill, said: "By Section 5 of Ordinance No. 23, approved April 8, 1891, the North Avenue Railway Company (one of the several roads by the consolidation of which the Lake Roland Elevated Railway Company was formed) was authorized to bridge the Northern Central Railway Company's tracks on North Street, by means of an elevated structure, extending, including the necessary approaches thereto, along North Street from the corner of that and Eager streets to the corner of North and Saratoga streets. A stone abutment, forming an inclined plane, to carry on its perpendicular or highest side the iron superstructure, and to serve, on its surface, as the northern approach to the elevated road, has been erected nearly in the centre of North Street between Chase |