Fourth. That the plaintiff's property has been taken and appropriated by the defendant for public use without compensation being made therefor.

Fifth. That the defendant's acts are unlawful, and as the structure is permanent in its character, and if suffered to continue will inflict a permanent and continuing injury upon the plaintiff, he has the right to restrain the erection and continuance of the road by injunction.

Sixth. That the statutes under which the defendant is organized authorize it to acquire such property as may be necessary for its construction and operation by the exercise of the right of eminent domain.

Seventh. In view of the serious consequences to the defendant, we think no injunction prohibiting the continuance or operation of the road in Front street should be issued until the defendant has had a reasonable time after this decision to acquire the plaintiff's property by agreement or by proceedings to condemn the same. ANDREWS, Č. J., DANFORTH and RAPALLO, JJ., concurred.

EARL, J.-Dissenting.

At the threshold of this case is presented the inquiry whether the plaintiff's lot extends to the centre of Front street. I think it does not, and in reaching this conclusion I assume, without deciding it, that the city, by its deeds of conveyance in 1773, granted the fee of the land where the street now is to Ellison and De Peyster. Those deeds provided that the grantees should make certain streets through the lands conveyed, among which was the present Front street, and that the streets after they were made should "forever thereafter continue and be for the free and common passage of and as public streets and ways for the inhabitants of the said city, and all others passing and returning through or by the same in like manner as the other streets of the same city now are, or lawfully ought to be," and they contained a covenant that the grantees, their heirs and assigns or some of them should and would from and immediately after the streets were made and finished "forever thereafter, at his and their own proper cost, charge, and expense, keep the same from time to time in good and sufficient repair, plight, and condition." There is no evidence that the owners of the lots ever kept Front street in repair, but the evidence tends to show that the city from an early period kept it in repair either with its corporate funds or with funds realized by it from assessments upon the lot owners. The intermediate deeds of the plaintiff's lot prior to the deed to him are not found in the case. But in the deed to him dated December 18, 1849, the lot is described as follows: "All that certain lot of land situate lying and being in the first ward of the city of New York aforesaid, bounded northerly in front by Front street aforesaid; easterly by ground conveyed by John S. Conger

and Sarah his wife, to Elias H. Herrick, by deed bearing date the first day of May, 1839; southerly by ground now on lots of the said Elias H. Herrick; and westerly by Moore street aforesaid, containing in breadth in front on Front street thirty feet four and a half inches, and in the rear twenty-eight feet ten inches, and in length on either side eighty feet, be the same more or less." These precise measurements in feet and inches extend to the sides of the two streets only, and under such circumstances how must the description in the deed be construed? It is a presumption of law that a conveyance of land bounded upon a highway carries with it the fee to the centre of the highway as part and parcel of the grant; and the intention of the grantor to withhold his interest in a highway to the centre of it after parting with all his right and title to the adjoining land is never to be presumed. But a grantor of land abutting on a highway may reserve the highway from his grant, and such reservation will be adjudged when it clearly appears from the language of the conveyance that it was intended. Jackson v. Hathaway, 15 John. 447; Fearing v. Irwin, 4 Daly, 385; English v. Brennan, 60 N. Y. 609; White's Bank v. Nichols, 64 N. Y. 65; Kings County Fire Ins. Co. v. Stevens (court not yet reported), 87 N. Y. 287; Tyler v. Hammond, 11 Pick. 193; Union Burial Ground v. Robinson, 5 Whart. 21.

In Jackson v. Hathaway the description in the deed was "a certain tract of land beginning at a certain stake by the side of the road called the old Claverack road, etc., from which stake running east 20°, south 2 chains to another stake; thence south 32°, west 17 chains 64 links, and thence" by specified courses and distances to the "first mentioned bounds," and it was held that the description did not include any part of the road; that "if a person over whose land a highway is laid out convey the land on each side of it, describing it by such boundaries as do not include the road or any part of it, the property in the road does not pass to the grantee, as it is excluded by the description in the grant; and it cannot pass as an incident, being in itself a distinct parcel of land, and the fee of one piece of land not mentioned in a deed cannot pass as appurtenant to another." In Fearing v. Irwin it was held that a description " beginning at a point on the northeasterly corner of" two streets" and running thence northerly along the northeasterly side" of one of them, comes to the margin only. In English v. Brennan the description in a deed began as follows: "Beginning at the southwesterly corner of Flushing and Clermont avenues, running thence westerly along Flushing avenue twenty-five feet; thence southerly at right angles to Flushing avenue seventy-nine feet nine inches to a point distant forty feet seven and a half inches westerly from the westerly side of Clermont avenue," and it was held that the title conveyed was confined to the margin of the streets, and in the opinion of Andrews, J., it was in substance said

that the presumption is that the owner of land abutting on a highway owns to the centre, but that it is much less strong in respect to lots in large cities; that in construing a grant of land adjacent to a highway it is presumed that the grantor intended to convey his interest in the street, but that the presumption is rebutted if it appears by the description that he intended to exclude the street from the conveyance. In White's Bank v. Nichols it was held that where a deed describes the granted premises as beginning at the intersection of the exterior lines of two streets the point thus established controls the other parts of the description, and lines running along the street are thereby confined to the exterior lines of the streets. In King's County Fire Ins. Co. v. Stevens it was held that the road bed was excluded in the following description: "Beginning at a point on the southerly side of the Wallabout bridge road and adjoining the land now or lately belonging to John Skillimore," and after certain other courses "north forty-eight degrees and nine minutes, west 594 feet to the Wallabout bridge road, and thence along said road 1225 feet to the place of beginning." In Tyler v. Hammond it was held that where a deed of land describes it as bounded on a road but sets forth metes and bounds which plainly exclude the road, no part of the soil of the road passes by the grant. The particular description there was as follows: "Bounded northwesterly on Ann street, there measuring thirty-one feet six inches; northeasterly on Crudert alley, there measuring fifty feet two inches; southeasterly on Dock square, there measuring twenty-eight feet six inches; and northwesterly on the estate of the late Joseph Tyler, there measuring forty-eight feet." Wilde, J., used language quite applicable to this case: "This is a very particular description of the land intended to be conveyed, in respect to which there can be no doubt or uncertainty. The lines are short and were measured, no doubt, with great exactness, and therefore a mistake in the side lines of twenty or thirty feet cannot be supposed." In the case of The Union Burial Ground Society v. Robinson the description in the deed there under consideration was very like that contained in the deed to the plaintiff. It was as follows: "Containing in breadth on Prince street" (which ran parallel with Washington street and north of it), "thirty-one feet four inches and in length southwardly between parallel lines running at right angles with Washington street on the east line thereof ninety-eight feet six inches, and on the west line thereof seventy-three feet six inches and two thirds of an inch, be the same in depth more or less to Washington street, where it contains in breadth east and west thirty-one feet; bounded on the north by the said Prince street, on the south by the said Washington street," and it was held that the deed did not convey any part of the soil of Washington street. Kennedy, J., writing the opinion of the court, after laying down the rules which govern in the construction

of such deeds, used language very pertinent to this case, as follows: "What is here said is particularly applicable whenever the quantity of land conveyed is small and its extent is described with great nicety, as in all conveyances almost of city or town lots or parts thereof, and in the present case the ground intended to be conveyed, is described with a remarkable if not very unusual degree of nicety and minuteness, as if it were intended to preclude all possibility of including any more than came within the metes and bounds as set out not merely in feet and inches, but limited even to the very fraction of an inch."

But in addition to the precise measurements in plaintiff's deed, limited not only to feet and inches, but to a half inch, we have other circumstances bearing upon the construction to be given to the deed. For a long time anterior to the date of the deed Front street had become like the other streets of the city, and had been maintained and kept in repair by the city. It owned the fee of nearly all the streets within its limits, and it must have been the common practice of conveyancers to exclude the streets from the grants of adjoining lots by confining measurements to the margin of the streets. Reading the precise measurements in plaintiff's deed in the light of these circumstances I think there is little ground for dispute that his grantors intended to limit their grant to the margin of the street, and that such intent should have effect is shown by the authorities above cited.

Therefore as the plaintiff did not own any of the soil in Front street it matters not where the title to it rested. As to him it may be treated as if it were in the city, and I shall so treat it in the further discussion of this case.

Whatever private rights then the plaintiff has in this street are such, and such only, as belong to him as an abutter upon the street. Such rights as he has in common with the public generally cannot be enforced in this action, or in any other action in his name. It is not disputed that to maintain this action the plaintiff must show that in violation of the acts under which the defendant was organized, and of the constitution, "private property" of the plaintiff's has been taken without compensation. It is not sufficient for him to show that he is injured or suffers damage from the construction or operation of defendant's railway, or that his adjoining property is deteriorated in value. He must show that his private property is, in some proper sense, taken; and to this effect are nearly all the authorities in this country, except in States where provision is made in the constitution or laws that compensation shall be made for property damaged or injuriously affected, as well as for property taken. In Sedgwick on Statutory and Const. Law, 519, the learned author, speaking of the constitutional provision which prohibits the taking of private property for public use without compensation, says: "It seems to be settled, to entitle the owner

to protection under this clause, the property must be actually taken in the physical sense of the word, and that the proprietor is not entitled to claim remuneration for indirect or consequential damages, no matter how serious or how clearly and unquestionably resulting from the exercise of the power of eminent domain." In Dillon on Munic. Cor., sec. 784, it is said that "although the adjoining property may be injured, still it is not, in a constitutional sense, taken for public use. In Transportation Co. v. Chicago, 99 U. S. R. 635, Judge Strong said that "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." In O'Conner v. Pittsburgh, 18 Penn. St. 187, it was held after two arguments of the case and much consideration that the constitutional provision for the case of private property taken for public use extends not to the case of property injured or destroyed. See also the cases of Hatch v. The Vermont Central R. R. Co., 25 Vt. 49, and Richardson v. The Same, id. 473, where will be found a very learned discussion of the subject and many observations quite applicable to this case. The same rule is laid down in Radcliff's Executors v. The Mayor, etc., of Brooklyn, 4 N. Y. 195. It was there supported by such cogent reasons and full citation of authorities as to place it beyond question in this State, and it has received the uniform sanction of our courts.

Our attention is called to two cases (Pumpelly v. Green Bay Co., 13 Wall. 166, and Eaton v. The B. C. and M. R. R. Co., 51 N. H. 504) which are supposed to take a new departure in the construction of the constitutional provision we are now considering. They are spoken of in the subsequent case of Transportation Co. v. Chicago as "the extremest qualification of the doctrine" to be found. They hold that permanent flooding of private property may be regarded as a "taking," and thus may be justified on the ground that there was a physical invasion of the real estate of the private owner, and a practical ouster of his possession.

We should not be embarrassed by any subtle meaning to be given to the word "property" in the constitutional provision. The broad meaning sometimes given to it by law writers whose definitions are more apt to confuse than enlighten, or a meaning which can be evolved only by philologists and etymologists, was probably not in the minds of the framers of our Constitution. They must be supposed to have used the word in its ordinary and popular signification, as representing something that can be owned and possessed and taken from one and transferred to another. In popular parlance there is a distinction between taking property and injuring