street. But persons who are not abutting owners, and whose only right in the street is to come upon and pass over it, are affected as other citizens are by whatever affects the street. The municipal authorities of Pottsville have permitted the defendant company to occupy part of Coal Street with their tracks, reducing the width of the traveled road way to about fifteen feet. This involves some public inconvenience, from which all who use the street must suffer. It involves some private injury, which affects lot-holders on that part of the street occupied by the railroad. The plaintiff belongs to the first of these classes. No part of his land is taken or injured. No part of his private alley has been disturbed. No cut or fill has shut it up, or cut it off from Coal Street. His land and his way are precisely as they were before. The change in his situation consists in this: that after passing over his private way to Coal Street, he finds himself in a street. which has been reduced in breadth, and which has been rendered insecure for travel behind horses that are afraid of the cars, by reason of the nearness of trains. In other words, his ground of complaint is, that a public street has been made inconvenient and dangerous to travelers over it, of whom he is one. But this complaint will not give a right to recover. it would, every citizen whose business makes it desirable for him to use Coal Street would have an equally good cause of action. It is an injury to property, to a particular piece of property as such, that gives a right of action.

As a general proposition, the property must be that which is invaded in the exercise of the right of eminent domain, or that which abuts upon a highway that is invaded. Of the latter class was Pennsylvania etc. R. R. Co. v. Walsh, 124 Pa. St. 544; 10 Am. St. Rep. 611. The plaintiff's property was upon a street corner in that case, and the railroad was built along one street, close to the curbstone, and across the other, thus obstructing access to the property. So in Pennslyvania R. R. Co. v. Duncan, 111 Pa. St. 352, the structure complained of was in the street on which plaintiff's property had a front, and extended to and within the line of the curbstone, preventing access to the plaintiff's property.

Our attention is called to Monongahela Navigation Co. v. Coons, 6 Watts & S. 101, as authority for the proposition that it is not necessary the property alleged to be injured should adjoin or have any physical relation to the defendant's works; but no such rule is held in that case. The facts were,

that the defendant built a dam in the Monongahela River, which caused the water to set back in a tributary of the river and drown the plaintiff's mill-wheel. Here was a connection between the act of the defendant and the loss of the plaintiff. The erection of the works of the navigation company were intended to raise, and did raise, the level of the water in the river. The injury was caused by the water thus raised and Bet back so far as to reach and drown the plaintiff's mill. The navigation company forced the water back against the plaintiff's wheel. The relation between cause and effect was a visible one and the injury was actual, physical, and permanent. But no such facts exist in this case. The plaintiff's land, with all that is upon it or under it, is just as it was before the railroad was built. He has the same modes of access to it as before. The only difference that can be suggested is the difference in the condition of a public highway to which he has a right of access over another man's land, and in which he has the same interest with other citizens who do not live upon it, but have access to it by means of public or private ways. This street is less desirable and less secure for travel than it was before it was made so narrow, and a part of its surface given up to the movement of trains. More care is necessary in driving upon it, and in turning into and out of it, than before, but it is still a public street, in constant use for teams and pedestrians who prefer to take the chances of travel upon it, rather than avoid it by adopting a more circuitous route. The plaintiff suffers in common with all who use it, from fear of accident. It is disagreeable to suffer fear, to be in dread that your horse may take fright, or that the horse of some other traveler may do so, and that so personal loss or harm may come to you; but I know of no ground on which the nervous or timid traveler can rest a claim for damages for such an injury. It was clear, upon the testimony, that neither the larger tract nor the private alley leading from it to Coal Street had been taken, injured, or destroyed by the defendant in the construction of its road, and the court was right in refusing to submit any question of damages done to said tract or way to the jury.

The judgment is affirmed.

ERS.

RAILROAD COMPANIES-EMINENT DOMAIN-DAMAGES TO ABUTTING OWN. - That inconvenience caused by mere proximity to a railroad is not an element of the damages which an abutting owner can recover, see notes to

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Jones v. Erie etc. R. R. Co., ante, p. 733, and Sheehy v. Kansas City Cable R'y Co., 4 Am. St. Rep. 400.

EMINENT DOMAIN-UPON WHAT PROPERTY DAMAGES MAY BE ASSESSED. As a general rule, disconnected properties are to be treated as separate and distinct properties, and damages for right of way will ordinarily be assessed on this principle: Potts v. Pennsylvania etc. R'y Co., 119 Pa. St. 278; 4 Am. St. Rep. 646; Bay City etc. R'y Co. v. Hitchcock, 90 Mich. 533; Northern Pac. etc. R'y v. Coleman, 3 Wash. 228; Cameron v. Chicago etc. R'y Co., 42 Minn. 75; but the mere platting of lands into blocks on a map does not divide it into separate tracts, so as to limit the owner's damages to the value of a particular block, a small parallelogram of which, as it appears on the map, is actually taken: Currie v. Waverly etc. R. R. Co., 52 N. J. L. 381; 19 Am. St. Rep. 452, and note. A similar rule applies to the minor govern. ment subdivisions over which a road may pass, and the company cannot avoid payment of damages by picking out and describing in its petition the forty or eighty acre tracts through which the road is located: Chicago etc. Ry Co. v. Baker, 102 Mo. 553; Chicago etc. R'y Co. v. Brunson, 43 Kan. 371.

WILLIAMS V. FULMER.

[151 PENNSYLVANIA STATE, 405.]

RIPARIAN OWNER'S RIGHT TO WATER-POWER. — A riparian owner on a navigable river has no right to the water-power either above or below low-water mark, and cannot recover for its loss from obstruction and diversion by an adjoining owner. RIPARIAN OWNER DAMAGES FOR DIVERSION OF STREAM. A riparian owner on a navigable river is entitled to recover, as against another riparian owner, for a diversion of the stream by the latter from its natural channel. If the wrong is done without malice, he must restore the stream to its natural channel, or make compensation for the loss; but if malice is shown, exemplary damages may be recovered against him.

R. E. Wright, for the appellant Williams.

Edward Harvey and John Rupp, for the appellant Fulmer.

WILLIAMS, J. These are cross-appeals from the same judgment, and may be best considered together. The same parties were before us in 1888 with substantially the same questions, and the case is reported in 122 Pa. St. 191; 9 Am. St. Rep. 88.

The plaintiff is a manufacturer of school slates. His fac tory is situated on the west bank of the Lehigh River, and prior to 1883 the machinery was propelled by water-power. This was obtained by means of a dam thrown across an arm of the river that flowed between an island and the mainland, on which the factory was located. The dam raised the sur

face of the water above it from one to two feet, which was sufficient to furnish the power required for the factory.

The defendant owns and operates a slate quarry on land immediately above that of the plaintiff. He has been dump ing the refuse from his quarries for many years into the river, a little way above the plaintiff's factory. He had in this manner filled up the channel of the arm of the river far beyond low-water mark, and had nearly closed the channel into which it flowed. The water was by this means diverted from the front of the plaintiff's land, and thrown into the channel on the opposite side of the island, and the water-power of the plaintiff was completely destroyed.

This action was brought to recover damages for the destruction of the water-power. The defense rested on the general proposition that the Lehigh River was a navigable public highway belonging to the commonwealth; that the plaintiff, as a riparian owner, had no right to its waters or the power to be obtained from them, but that the state had granted the exclusive right to such water-power to the Lehigh Navigation Company, which was still its owner. We held that the defense was well taken, so far as the water-power was concerned; but that the plaintiff was nevertheless entitled to recover for any injury he had sustained by reason of the diversion of the stream from its natural channel along the front of his land; and if any such diversion had been affected with malice toward the plaintiff, or for the purpose of inflicting injury upon him, exemplary damages might also be given. Another trial has now taken place, resulting in a recovery for the plaintiff, although for a smaller sum than before. From this judgment both parties have appealed. The plaintiff asks us to reconsider our former holding, so far as it relates to the water-power, and allow a recovery, at the very least, for the loss of such power as the water flowing between high and low water marks would afford him, in addition to the damages which he has recovered as a riparian owner. The defendant, on the other hand, asks us to reconsider our judgment so far as to deny the plaintiff any right to recover damages for the diversion of the stream, and hold him to be remediless. We must decline to do either. The plaintiff is without title to the water or the power to be derived from it, whether above low-water mark or below it. He used it for years, it is true, but the right to use it was in the navigation company, the grantee of the com. monwealth, and not in him. His use of it could have been

stopped at any time. He cannot recover for that to which he has no title. But he was the owner of land lying upon a navigable stream. The advantages of his location were inseparable from the ownership of the land, and if they increased its desirability, or added to its value for purposes of business or of pleasure, they were his property as truly as the land itself.

The diversion of the stream was an injury to his land that was direct, peculiar, and not shared with the general public. It was as clearly actionable as the diversion of a stream passing over his land. Whoever brought about such diversion so as to deprive him of the advantages of his location, whatever they were, inflicted a pecuniary wrong upon him. The manner in which the diversion is brought about is not important. It might be accomplished by means of elaborate works arranged to carry the stream elsewhere, or it might be effected by filling up the channel so as to compel it to seek another. The result accomplished and the injury inflicted would be the same. The lower riparian owner would be deprived of the natural advantages which ownership of the land at that point gave him, by the unlawful act of another; and he would have a right to call upon the wrong-doer to repair the wrong done him, by restoring the stream to its channel or making compensation for its loss. The learned trial judge followed the rule laid down in Williams v. Fulmer, 122 Pa. St. 191, 9 Am. St. Rep. 88, and tried the cause with discrimination and ability. The assignments of error in both appeals are overruled, and the judgment affirmed.

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WATERCOURSES WATER-POWER ON NAVIGABLE STREAM RIPARIAN OWNER'S RIGHT TO. A riparian owner upon a navigable stream has no right to erect a dam to turn the water to his mill without a grant from the commonwealth, and if he does so, he is a trespasser, and acquires no title to the water-power resulting therefrom: Fulmer v. Williams, 122 Pa. St. 191; 9 Am. St. Rep. 88, and note. For the destruction of a dam across a floatable stream by logs placed therein, there can be no recovery, because the land-owner has no right to maintain his dam in such a manner as to interfere with the right of the public to float logs and other products down the stream: Gaston v. Mace, 33 W. Va. 14; 25 Am. St. Rep. 848, and note. In Michigan, a riparian proprietor on a navigable stream owns to the middle of the stream, and can use his land covered by water for any purpose, so long as he does not unreasonably interfere with the right of navigation, or damage other riparian owners above or below him: Grand Rapids v. Powers, 89 Mich. 94; 28 Am. St. Rep. 276, and note. And the rule seems to be the same in New Hampshire: Connecticut River Lumber Co. v. Olcott Falls Co., 65 N. H. 290. AM. ST. REP., VOL XXXI. — 49