MEYER
v.
RICHMOND.

*89 *90 Mr. Henry R. Pollard for plaintiff in error.

Mr. H.T. Wickham and Mr. Henry Taylor, Jr., for defendants in error.

*91 MR. JUSTICE McKENNA, after stating the case, delivered the opinion of the court.

The jurisdiction of this court is challenged. The defendants in error claim that "the declaration shows no point is therein raised which demanded the consideration by the court of any constitutional question," and they insist further that "if it were intended to raise the question that the charter and ordinance were unconstitutional, and in consequence thereof plaintiff was deprived of his property without due process of law, the same should have been specially set up as claimed by apt language in the declaration so as to bring the question to the attention of the court when it had to pass on the demurrer." This certainly was not done, and if it was an indispensable condition to the jurisdiction of this court it has none.

But it was done subsequently, as we have stated, and, whatever the ground of the court's ruling on the demurrer and on the first motion to reverse that ruling, the second motion was unequivocally based on the invalidity of the city ordinance because of its asserted conflict with the Fourteenth Amendment of the Constitution of the United States, and the court's ruling necessarily responded to and opposed the grounds of the motion — necessarily denied the right specially set up by him under the Constitution.

Plaintiff's motion and the special grounds of it and exceptions to the ruling of the court were embraced in a bill of exceptions, and allowed and became part of the record on his petition to the Supreme Court of Appeals of Virginia for a review and reversal of the judgment, and the petition besides explicitly set up and urged a right under the Constitution of the United States.

*92 The Court of Appeals rejected the petition. Its order recited "... that, having maturely considered, and the transcript of the record of the judgment aforesaid seen and inspected, the court, being of opinion that such judgment is plainly right, doth reject said petition."

Necessarily, therefore, the Supreme Court of Appeals did as the court of the city of Richmond did — considered the right which plaintiffs claimed under the Constitution of the United States, and denied the right. Chicago, Burlington &c. Railroad v. Chicago, 166 U.S. 226, 228.

So far the conditions of the power of review by this court existed. A right under the Constitution of the United States was specially set up and the right was denied. Was it set up in time? It has been repeatedly decided by this court that to suggest or set up a Federal question for the first time in a petition for a rehearing in the highest court of a State is not in time. Texas & Pacific Railway v. Southern Pacific Railroad, 137 U.S. 48, 54; Butler v. Gage, 138 U.S. 52; Winona & St. Peter Railroad v. Plainview, 143 U.S. 371; Leeper v. Texas, 139 U.S. 462; Loeber v. Schroeder, 149 U.S. 580.

In all of these cases the Federal question was not presented in any way to the lower court nor to the higher court until after judgment. It is not, therefore, decided that a presentation to the lower court at some stage of the proceedings and in accordance with its procedure, and a presentation to the higher court before judgment, would not be sufficient.

In Loeber v. Schroeder the Court of Appeals of Maryland, having before it for review a judgment of one of the lower state courts, reversed such judgment, and, having denied a rehearing on April 28, 1892, issued its order for a fieri facias against Loeber for the amount of the judgment decreed returnable to the lower court. On April 29, 1892, Loeber entered a motion before that court to quash the writ because the decree on which the writ was issued and the writ were void, because said writ would deprive him of his property without due process of law, and because it was issued in violation of the Constitution of the United States and amendments thereto. The motion was denied and Loeber prosecuted an *93 appeal which affirmed the order of the lower court, holding that the state law upon which it had made its decision was not in conflict with the Constitution of the United States. From this judgment of the Court of Appeals, Loeber prosecuted a writ of error to this court assigning the unconstitutionality of the state law sustained by the Court of Appeals.

Mr. Justice Jackson, who delivered the opinion of the court, said: "The motion to quash the fi. fa. in this case on the grounds that the order of the Court of Appeals, which directed it to be issued, was void for the reasons assigned, stood on no better footing than a petition for rehearing would have done, and suggested Federal questions for the first time, which, if they existed at all, should have been set up and interposed when the decree of the Court of Appeals was rendered on January 28, 1892." In other words, should have been urged when the case was pending and before its decision. It is an inference from the opinion that, if this had been done, the Federal question would have been claimed in time.

In Chicago, Burlington &c. Railroad v. Chicago, 166 U.S. 226, the right under the Constitution of the United States was claimed by plaintiff in error after verdict and in a motion to set aside the verdict and to grant a new trial. It is true that in that case, being a proceeding to condemn land under the eminent domain act of the State of Illinois, no provision was made for an answer, but this accounts for some but not all of the language of the decision. Mr. Justice Harlan, speaking for the court, said: "It is not, therefore, important that the defendant neither filed or offered to file an answer specially setting up or claiming a right under the Constitution of the United States. It is sufficient if it appears from the record that said right was specially set up or claimed in the state court in such manner as to bring it to the attention of that court." But he said further: "But this is not all. In the assignment of errors filed by the defendant in the Supreme Court of Illinois these claims of rights under the Constitution of the United States were distinctly reasserted."

The similarity of that case to the case at bar is apparent. In both, the constitutional right was claimed in such manner *94 as to bring it to the attention of the lower court, and its decision was necessarily adverse to such right. In both it was reasserted in the assignment of errors to the higher court, and there again in both the effect of the judgment was to declare the right not infringed by the proceedings in the case. This court, therefore, has jurisdiction, and we proceed to the consideration of the merits.

The plaintiff's constitutional claim is under that provision of the Fourteenth Amendment, which prohibits a State from depriving any person of property without due process of law, and he avails himself of it by the contention (which we give in his own language):

"That under the constitution and laws of the State of Virginia, the free and uninterrupted use of highways, once dedicated to and accepted by the public, or acquired by the right of eminent domain, are for continuous public use, and that, when relying upon that fact, important public and private property rights have been acquired, the highway cannot be permanently diverted to a private use without proper compensation being made to those injured, and as a consequence, any person or persons so diverting such highway are trespassers and liable in damages to the parties injured."

The proposition is very general. To make it available to plaintiff in error it must be held to cover and protect an owner whose property abuts on one part of a street from damage from obstruction placed in another part of the street and not opposite his property — not only a physical taking of his property, but damages to it — not only direct damages, but consequential damages. All of these aspects of the proposition seem to be rejected by the decision of the Supreme Court of Appeals of Virginia on the plaintiff's petition for writ of error. The petition submitted for decision the power of the city of Richmond to make or authorize the obstruction complained of under its charter, and the constitution and laws of Virginia as well as the prohibition of the Constitution of the United States. If the decision necessarily passed on and denied the latter as we hold it did, and hence entertain jurisdiction to review its judgment, it necessarily passed on and denied the *95 former. If under the constitution and laws of Virginia whatever detriment be suffered was damnum absque injuria, he cannot be said to have been deprived of any property. Marchant v. Pennsylvania Railroad, 153 U.S. 380.

The plaintiff quotes Western Union Telegraph Co. v. Williams, 86 Virginia, 696; Hodges v. Railroad Co., 88 Virginia, 636; Norfolk City v. Chamberlain, 29 Gratt. 653; Buntin v. Danville, 93 Virginia, 200. The case at bar is not within the principle of these cases. These were concerned with erections immediately in front of the abutting owner's property, and it was held that he owned to the middle of the highway, subject only to the easement of the latter; that it was for the easement only for which he was compensated, and that any other use was an additional servitude and its authorization illegal unless paid for.

In Home Building &c. Co. v. Roanoke, 91 Virginia, 52, the city of Roanoke authorized the erection of a bridge across a street in the city and itself constructed the approaches to it. These approaches were sixteen feet high and thirty-five wide, but did not extend to either side of the street, but left on each side about seven and one half feet unoccupied on Randolph street, on which the complainant's lot was situated, available for its use and that of the public. It was held that the city was not liable.

The substantial thing is not that one may be damaged by an obstruction in a street — not that one may be specially damaged beyond others, but is such damage a deprivation of property within the meaning of the constitutional provision? According to the Virginia cases an additional servitude may be said to be another physical appropriation, and hence another taking, and must be compensated. But the plaintiff's case is not within this doctrine, nor is there anything in the decisions of Virginia which makes consequential damages to property a taking within the meaning of the constitution of that State. Decisions in other States we need not resort to or review. Those of this court furnish a sufficient guide. Transportation Co. v. Chicago, 99 U.S. 635; Chicago v. Taylor, 125 U.S. 161; Marchant v. Pennsylvania *96 Railroad, 153 U.S. 380; Gibson v. United States, 166 U.S. 269.

In Transportation Company v. Chicago, it was decided "that acts done in the proper exercise of governmental power and not directly encroaching on private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision." Removing any apparent antagonism of this proposition to Pumpelly v. Green Bay Co., 13 Wall. 166, and Eaton v. Boston, Concord & Montreal Railroad Co., 51 N.H. 504, it was further said that in those cases "the extremest qualification of the doctrine is to be found, perhaps," and they were discriminated by the fact that in them there was a permanent flooding of private property, hence a "taking" — "a physical invasion of the real estate of the owners and a practical ouster of his possession."

In Chicago v. Taylor, Taylor sued to recover damages sustained by reason of the construction by the city of a viaduct in the immediate vicinity of his lot. The construction of the viaduct was directed by special ordinances of the city council. The facts were:

"For many years prior to, as well as at, the time this viaduct was built, the lot in question was used as a coal yard, having upon it sheds, machinery, engines, boilers, tracks and other contrivances required in the business of buying, storing and selling coal. The premises were long so used, and they were peculiarly well adapted for such business. There was evidence before the jury tending to show that, by reason of the construction of the viaduct, the actual market value of the lot, for the purposes for which it was specially adapted, or for any other purpose for which it was likely to be used, was materially diminished, access to it from Eighteenth street being greatly obstructed, and at some points practically cut off; and that, as a necessary result of this work, the use of Lumber street, as a way of approach to the coal yard by its occupants and buyers, and as a way of exit for teams carrying coal from the yard to customers, was seriously impaired. There was, also, evidence tending to show that one of the *97 results of the construction of the viaduct, and the approaches on either side of it to the bridge over Chicago River, was that the coal yard was often flooded with water running on to it from said approaches, whereby the use of the premises as a place for handling and storing coal was greatly interfered with, and often became wholly impracticable.

"On behalf of the city there was evidence tending to show that the plaintiff did not sustain any real damage, and that the inconveniences to occupants of the premises, resulting from the construction and maintenance of the viaduct, were common to all other persons in the vicinity, and could not be the basis of an individual claim for damages against the city."

There was a verdict and judgment against the city, and this was sustained. The tenor of the decision is, that the damages were consequential, and the difference of the ruling from that in Transportation Co. v. Chicago was explained and based upon a change in the constitution of the State of Illinois, which enlarged the prohibition to the damaging as well as to the taking of private property for public use, and its interpretation by the Supreme Court of the State "that it does not require that the damage shall be caused by a trespass, or an actual physical invasion of the owner's real estate; but if the construction and operation of the improvement is the cause of the damage, though consequential, the party may recover."

In Marchant v. Pennsylvania Railroad Co., the plaintiff owned a lot on the north side of Filbert street, Philadelphia; the railroad erected an elevated railroad on the south side of the street and opposite plaintiff's property. It was held by the Supreme Court of Pennsylvania, reversing the trial court, that for the damages hence resulting the plaintiff could not recover. The case was brought to this court by writ of error, the plaintiff urging that her property had been taken without due process of law. The judgment was affirmed. The court, by Justice Shiras, said:

"In reaching the conclusion that the plaintiff, under the admitted facts in the case, had no legal cause of action, the Supreme Court of Pennsylvania was called upon to construe the laws and constitution of that State. The plaintiff pointed *98 to the tenth section of article 1 of the constitution, which provided that `private property shall not be taken or applied to public use, without authority of law, and without just compensation being first made or secured;' and to the eighth section of article 16, which contains the following terms: `Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.'

"The first proposition asserted by the plaintiff, that her private property has been taken from her without just compensation having been first made or secured, involves certain questions of fact. Was the plaintiff the owner of private property, and was such property taken, injured or destroyed by a corporation invested with the privilege of taking private property for public use? The title of the plaintiff to the property affected was not disputed, nor that the railroad company was a corporation invested with the privilege of taking private property for public use. But it was adjudged by the Supreme Court of Pennsylvania that the acts of the defendant which were complained of did not, under the laws and constitution of the State, constitute a taking, an injury, or a destruction of the plaintiff's property.

"We are not authorized to inquire into the grounds and reasons upon which the Supreme Court of Pennsylvania proceeded in its construction of the statutes and constitution of that State, and if this record presented no other question except errors alleged to have been committed by that court in its construction of its domestic laws, we should be obliged to hold, as has been often held in like cases, that we have no jurisdiction to review the judgment of the state court, and we should have to dismiss this writ of error for that reason."

In Gibson v. United States, a dike was constructed in the Ohio River under the authority of certain acts of Congress for the improvement of rivers and harbors. The construction of said dike by the United States substantially destroyed the *99 landing of Mrs. Gibson by preventing ingress and egress to and from the landing on and in front of her farm to the main or navigable channel of the river, — Held, damnum absque injuria. The court by the Chief Justice said: "The Fifth Amendment to the Constitution of the United States provides that private property shall not be taken for public use without just compensation. Here, however, the damage of which Mrs. Gibson complained was not the result of the taking of any part of her property, whether upland or submerged or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power."

Judgment affirmed.

MR. CHIEF JUSTICE FULLER, with whom MR. JUSTICE GRAY concurred, dissenting on the question of jurisdiction.

I am of opinion that this writ of error should be dismissed. The contention of plaintiff in error is that the validity of the act of the general assembly of Virginia of May 24, 1870, was drawn in question in the state courts on the ground of repugnancy to the Constitution of the United States, and that the decision of the Court of Appeals was in favor of its validity.

The validity of a statute is drawn in question when the power to enact it is denied, and a definite issue in that regard must be distinctly deducible from the record in order for this court to hold that the state courts have adjudicated as to the validity of the enactment under the Constitution.

This case had gone to judgment, and a motion to set aside the judgment had been made and denied, before it was suggested that the act was inconsistent with the Federal Constitution. And that question was then attempted to be raised by a second motion to vacate. But the disposal of motions of this class is within the discretion of the trial court, and only revisable by the appellate tribunal, if at all, when there is a palpable abuse of discretion.

Whether the trial court, in this instance, overruled the second motion because a second motion of that sort, without special cause shown, could not be entertained, or because of *100 unreasonable delay, it is impossible to say, and to impute to that court the decision of a Federal question when it obviously may have considered that the point was presented too late, seems to me wholly inadmissible. And although in his petition to the Court of Appeals, plaintiff in error recited the action he had taken, and urged that the trial court had erred in sustaining the demurrer to his declaration, and in refusing to set aside the judgment so that the constitutional question suggested might be passed on, that court, in the exercise of appellate jurisdiction only, may well have concluded that the discretion of the court below could not be interfered with.

It does not follow from the bare fact that this second motion presented in terms a single point that that point was disposed of in denying the motion, when other grounds for such denial plainly existed.

It is thoroughly settled that if the record of the state courts discloses that a Federal question has been raised and decided, and another question, not Federal, broad enough to sustain the judgment, has also been raised and decided, this court will not review the judgment; that this is so, even when it does not appear on which of the two grounds the judgment was based, if the independent ground on which it might have been based was a good and valid-one; and also where the record shows the existence of non-Federal grounds of decision though silent as to what particular ground was pressed and proceeded on. In other words, the rule is that the record must so present a Federal question that, even if the reasons for decision are not given, this court can properly conclude that it was disposed of by the state courts. If the conflict of a state law with the Constitution and the decision by the state court in favor of its validity are relied on, such decision must appear on the face of the record before the judgment can be reexamined in this court.

In Klinger v. Missouri, 13 Wall. 257, 263, a juror had declined to take the test oath prescribed by the sixth section of the second article of the constitution of Missouri of 1865, and was discharged from the panel. It was insisted here that he was thus excluded for no other reason than that he refused *101 to take the oath, and, if this had been so, the question of the repugnancy of the section to the Constitution of the United States would have arisen. But as this court was of opinion that, inasmuch as the grounds the juror assigned for his refusal manifested a settled hostility to the Government, he might "well have been deemed by the court, irrespective of his refusal to take the oath, an unfit person to act as a juryman, and a participant in the administration of the laws;" it was held that "it certainly would have been in the discretion of the court, if not its duty, to discharge him." And Mr. Justice Bradley, delivering the opinion of the court, said: "In this case it appears that the court below had a good and valid reason for discharging the juror, independent of his refusal to take the test oath; and it does not appear but that he was discharged for that ground. It cannot, therefore, with certainty, be said that the Supreme Court of Missouri did decide in favor of the validity of the said clause of the state constitution, which requires a juror to take the test oath." There was nothing in the record to show on what ground the trial court excluded the juror, or that the point urged in this court was taken in the Supreme Court of the State, and yet because the trial court might have discharged the juror as matter of discretion, or because of unfitness in the particular suggested, this court decided that its jurisdiction could not be maintained, and the writ of error was dismissed. And see Johnson v. Risk, 137 U.S. 300; Dibble v. Bellingham Bay Land Co., 163 U.S. 63.

We have held that the question whether a party has by laches and acquiescence waived the right to insist that a state statute impaired the obligation of a contract is not a Federal question. Pierce v. Somerset Railway Company, 171 U.S. 641.

And, certainly, in view of the careful language of § 709 of the Revised Statutes, we ought not to take jurisdiction to revise a judgment of a state court, where a party seeks to import a Federal question into the record, after judgment, by an application so palpably open to decision on non-Federal grounds. I am authorized to state that Mr. Justice Gray concurs in this dissent.