United States v. Welch

A private right of way is an easement and is land, and its destruction for public purposes is a taking for which, the owner of the dominant estate to which it is attached is entitled to compensation. The value of an easement cannot be ascertained without reference to the dominant estate to which it is attached. In this case an award for destruction of a right of way and also for damages to the property to which it was an easement sustained.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY. The facts are stated in the opinion. The six assignments of error all refer to the rulings of the court in respect to the private road, and but one question, Did the court err in awarding damages to plaintiffs’ land by reason of the destruction of said private road? It may be admitted that where the Government by the erection of a public improvement takes private property there is an implied contract on its part to make compensation therefor. But if private property is merely lessened in value by the erection of a public improvement and is not invaded or encroached upon, there is no such implied contract. Transportation Co. v. Chicago, 99 U. S. 635, 642; United States v. Lynah, 188 U. S. 445, 465; Mills v. United States, 46 Fed. Rep. 738, 742, 748. To constitute a taking of private property such as is inhibited by the Fifth Amendment unless just compensation is made, it must be shown that the owner thereof has been wholly deprived of the use of the same. If it has been merely injured or its use impaired, there is no taking such as is contemplated by said Amendment. Transportation Co. v. Chicago, 99 U. S. 635, 642; Bedford v. United States, 192 U. S. 217, 223, 224, 225; Manigault v. Springs, 199 U. S. 473, 484, 485; C., B. & Q. By. v. Drainage Commissioners, 200 U. S. 561, 583, 584. Where ingress and egress to and from private property is rendered more difficult by reason of the erection of a public improvement and the value of the property is thereby lessened, there is not a taking such as is contemplated by said Amendment. Gibson v. United States, 166 U. S. 269, 270, 275. A claim for damages against the Government which arises out of the construction of a lock and dam to improve the navigable capacity of a river, whereby a private road has been destroyed which afforded to the owners of the farm convenient access to and from a public highway, is not a claim “founded upon the Constitution,” even though the destruction of the private road has lessened the value of the farm. Scranton v. Wheeler, 179 U. S. 141,164. No action will lie for damages consequent upon the erection of public improvements in a skillful and prudent manner, although the result of such erection may impair the value, of property by rendering ingress and egress thereto more difficult. It is axiomatic that private rights are always subservient to the public good. Grotius de Jure Belli, Bk. 3, chap: 20, § 7, p. 1; Surroco v. Geary, 3 California, 70; S. C., 58 Am. Dec. 385; Lansing v. Smith, 8 Cow. 146, 149; Stevens v. Patterson R. R. Co., 34 N. J. L. 532, 549; Cooley on Const. Iim., p. 666; Dillon on Mun. Corp., § 987; Sedgwick on Stat. Const., 2d ed.; Harvard College v, Stearns, 15 Gray, 1; Louisville & Frankfort R. R. v. Brown, 17 B. Mon. 763. With reference to the vacating or closing a street, see Lewis on Em. Dom., 3d ed., § 202; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71; Keasy v. Louisville, 4 Dana, 154; Wolfe v. C. & L. R. R., 15 B. Mon. (Ky.) 404; Hollister v. The Union Co,, 9 Connecticut, 436; Sharp v. United States, 191TJ. S. 341; Currie v. Waverly &c. Railroad Co., 23 Vroom, 392; High Bridge Lumber Co. v. United States, 69 Fed. Rep. 320, 324; Transportation Co. v. Chicago, 99 U. S. 642. See also Union Bridge Co. v. United States, 204 U. S. 364. In Bauman v. Ross, 167 U. S. 548, it is held that Congress may direct that when a part of a parcel of land is appropriated for public use the tribunal vested by law with the duty of assessing the compensation or damages due to the owner shall take into consideration the injury to the rest. Bút Congress has made no provision for the payment of sucii damages as are claimed in the case at bar. A city is pot liable for inconvenience occasioned by a ditch along a street which is constructed under proper authority, even though it becomes enlarged by erosion so as greatly to impair access to adjoining property. Lambar v. St. Louis, 15 Missouri, 610; Benjamin v. Wheeler, 8 Gray, 409; and see Gould v. Hudson River R. R. Co., 6 N. Y. 522. Dams constructed in a stream which indirectly injured a canal, held not a taking. Susquehanna Canal Co. v. Wright, 9W.&S. 9; Monongahela Nav. Co. v. Coon, 6 W. & S. 101. The owner of a way is not entitled to compensation for the establishment of a railroad over it, although he is inconvenienced thereby. Boston & Wore. R. R. v. Old Colony, 12 Cush. 605. So as to an embankment. Richardson v. Vt. Cent. R. R., 25 Vermont, 465, and see Beseman v. Railroad Co., 50 N. J, L. 235. Mere inconvenience or additional expense in operation does not constitute a taking. Pumpelly v. Green Bay Co., 13 Wall. 166, does not apply to the facts in this case. See Manigault v. Springs, 199 U. b 473, 481; Gibson v. United States, 166 U. S. 269; Scranton v. Wheeler, 179 U. S. 141. . No action can be maintained against the United States under the act of March 3, 1887 (24 Stat. L. 505), to recover damages in the nature of a trespass, whether proximate or .consequential, because such action.would necessarily “sound in tort,” and therefore without the jurisdiction of the court. Necessarily, an action on the case — in other words, an action for damages “sounding in tort.” Railroad Co. v. Towboat Co., 23 How. 209; Mills v. United States, 46 Fed. Rep. 738, 747-8; Wright v. Freeman, 5 Harr. & J. 467; Lambert v. Hoke, 14 Johns. 383; Cushing v. Adams, 18 Pick. 110; Shrieve v. Stokes, 8 B. Mon. (Ky.) 453. Nor can claimants by any evasion in pleading create an action ex contractu out of one purely sounding in tort. Bigby v. United States, 188 U. S. 400; Hill v. United States, 149 U. S. 593, 598; Gibson Case, 29 C. Cls. 18. The private right of way which one landholder owns over the land of his neighbor is an easement. In fact, of all easements it is one of the commonest and best known, particularly in the agricultural districts. And it is oftentimes, as in this case, a property interest of great value. 14 Cyc. 1139. Ah easement is as subject to condemnation under the right of eminent domain as any other interest in lando is. See Eminent Domain, in 15 Cyc. 607; Ross v. ’Georgia &c. Rwy. Co., 33 S. Car. 477; Deavitt v. Washington, 53 Ad. Rep. 563. Railroad rights of way, which are ;n a. ense private property, furnish many instances of th* acc-iie-. ’ion of the rule. West Un. Td. C,,, p,.vu. R. E CA .. S 540. A fee simple hue'.nf. >; taken in v ¡them end of ¿he roadway ’jeer? ¡. 202; Potts v. Penn. S. Valley R. Co., 119 Fa. St. 278; Peck v, Superior Short Line R. Co., 36 Minnesota, 3-13. The same amount would necessarily be: allowed even if the farm and the easement were not considered as one piece of prope) ty. The easement, which constitutes one end of the private roadway, was totally destroyed, rendering compensation equal to its value necessary. If the easement had not been touched the outlet was still destroyed by the submerging of fifty yards of roadway. United States v. Great Falls Mfg. Co., 112 U. S. 545; Hill v. United States, 149 U. S. 593; and Bigby v. United States, 188 U. S. 400, distinguished; and see United States v. Lynah, 188 U. S. 446.