*553 "It was not intended in the Story Case to overrule or change the law in regard to steam surface railroads. The case embodied the application of what was regarded as well-established principles of law to a new combination of facts, such facts amounting, as was determined, to an absolute and permanent obstruction in a portion of the public street, and in a total and exclusive use of such portion by the defendant, and such permanent obstruction and total and exclusive use, it was further held, amounted to a taking of some portion of the plaintiff's easement in the street for the purpose of furnishing light, air, and access to his adjoining lot. This absolute and permanent obstruction of the street, and this total and exclusive use of a portion thereof by the defendant were accomplished by the erection of a structure for the elevated railroad of defendant; which structure is fully described in the case as reported. O. R. Co. 121 N. Y. 505, 8 L.R.A. 453, 24 | case it was held that the abutting landN. E. 919, Judge Peckham, now Mr. Justice owner had the right to compensation for Peckham, made the following statement of the construction of a viaduct in the street the effect of the Story Case. Certain por- for the practically exclusive occupation of tions of it are italicized here for the pur- a railroad. In the second case it was held pose of emphasizing the point now under that the abutting owner had no right of consideration: compensation for the erection of a public bridge with inclined approaches and a guard wall, to carry travel over a railroad, although the structure impaired the access to his land. We are not concerned with the question whether the distinction between an elevated structure for the exclusive use of a corporation and the same structure for the purposes of public travel is, so far as an abutting landowner is concerned, a just or harsh one, provided it is a clear distinction based upon real differences. We think that before the plaintiff had acquired his title the law of New York had plainly drawn this distinction. The highest court of the state had held that the contract of the owner of land abutting on streets entitled him to the right of unimpaired access and uninterrupted circulation of light and air as against an elevated structure erected for the exclusive use of a private corporation; had, with scrupulous care, refrained from holding that he had the same right as against an elevated structure of the same kind erected for the purpose of public travel; and had pointed out plainly the essential distinction between the two cases. This distinction, as we have already seen, has been made or approved by the courts of other states wherever the occasion to consider it arose, and it is a real and substantial distinction which arises out of the trust upon which the public owns the public highways. "The structure, by the mere fact of its existence in the street, permanently and at every moment of the day took away from the plaintiff some portion of the light and air which otherwise would have reached him, and, in a degree very appreciable, interfered with and took away from him his facility of access to his lot; such interference not being intermittent and caused by the temporary use of the street by the passage of the vehicles of the defendant while it was operating its road through the street, but caused by the iron posts and by the superstructure imposed thereon, and existing for every moment of the day and night. Such a permanent, total, exclusive, and absolute appropriation of a portion of the street as this structure amounted to was held to be illegal and wholly beyond any legitimate or lawful use of a public street. The taking of the property of the plaintiff in that case was held to follow upon the permanent and exclusive nature of the appropriation by the defendant of the public street, or of some portion thereof." The distinction between the erection of an elevated structure for the exclusive use of a private corporation and the same structure for the use of public travel is clearly illustrated in the contrast in the decisions of Reining v. New York, L. & W. R. Co. 128 N. Y. 157, 14 L.R.A. 133, 28 N. E. 640, and Talbot v. New York & H. R. Co. 151 N. Y. 155, 45 N. E. 382. In the first The trust upon which streets are held is that they shall be devoted to the uses of public travel. When they, or a substantial part of them, are turned over to the exclusive use of a single person or corporation, we see no reason why a state court may not hold that it is a perversion of their legitimate uses, a violation of the trust, and the imposition of a new servitude. But the same court may consistently hold that with the acquisition of the fee, and in ac cordance with the trust, the city obtained* the right to use the surface, the soil below, and the space above the surface, in any manner which is plainly designed to promote the ease, facility, and safety of all those who may desire to travel upon the streets; and that the rights attached to the adjoining land, or held by contract by its owner, are subordinate to such uses, whether they were foreseen or not when the street was laid out. In earlier and simpler times the surface of the streets was enough to accommodate all travel. But under the more complex conditions of modern urban | question of local law with the soundness life, with its high and populous buildings, of which we have no concern. and its rapid interurban transportation, the requirements of public travel are largely increased. Sometimes the increased demands may be met by subways and sometimes by viaducts. The construction of either solely for public travel may well be held by a state court to be a reasonable adaptation of the streets to the uses for which they were primarily designed. What we might hold on these questions where we had full jurisdiction of the subject, it is not necessary here even to consider. In basing its judgment on the broad, plain, and approved distinction between the abandonment of the street to private uses and its further devotion to public uses, the court below overruled none of its decisions, but, on the contrary, acted upon the principles which they clearly declared. The plaintiff, therefore, has not shown that in his case the state court has changed, to his injury, the interpretation of his contract with the city, which it had previously made, and upon which he had the right to rely. The case at bar is not within the authority of the Muhlker Case. When Muhlker acquired his title the elevated railroad cases had declared the law of New York, and it was here held that he had the right to rely upon his contract as in them it had been interpreted. The structure complained of was in the Muhlker Case, as in the elevated railroad case, one devoted to the exclusive use of a private corporation. This court, in order to obtain jurisdiction and to declare that a Federal right was violated, was obliged to hold, and did hold, that the two cases were identical, and that in deciding the Muhlker Case the court of appeals had in effect overruled the elevated railroad cases, and this view was supported by the court of appeals itself in Lewis v. New York & H. R. Co. 162 N. Y. 202, 56 N. E. 540, where a plaintiff in like situation with Muhlker had obtained damages for exactly the same structure. The theory upon which the Muhlker Case stands and upon which it was put in the opinion of the court, is that, in deciding against Muhlker, the state court had overruled its own decisions, and changed the interpretation of the contract upon which he had the right to rely. But the fundamental fact upon which the decision in the Muhlker Case rested, present there, is absent in the case at bar. Here there was no overruling of decisions and no change in the interpretation of the contract. There was, therefore, no impairment of the obligation of a contract, and the decision was merely on a' The judgment is affirmed. Mr. Justice McKenna, dissenting: The York & H. R. Co. and Birrell v. New York Let I am unable to agree with the opinion and judgment of the court. I think this case cannot be distinguished in principle from Muhlker v. New York & H. R. Co. 197 U. S. 544, 49 L. ed. 872, 25 Sup. Ct. Rep. 522; Birrell v. New York & H. R. Co. 198 U. S. 390, 49 L. ed. 1096, 25 Sup. Ct. Rep. 667. On the authority of those cases the judgment in this case should be reversed. Those cases were determined by Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146, and Lahr v. Metropolitan Elev. R. Co. 104 N. Y. 268, 10 N. E. 528, known as the elevated railroad cases. structures there described are what are known as elevated railroads, and may be presumed to be familiar, and a structure of substantially similar character was the subject of the controversy in Muhlker v. New & H. R. Co. Its characteristic was elevation above the surface of the street, and this was the point of the decisions. said the court, "is the extent of this easeme quote from the Story Case: "But what," ment? What rights or privileges are secured thereby? Generally, it may be said, it is to have the street kept open, so that from it access may be had to the lot, and light and air furnished across the open way. The street occupies the surface, and to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air, to the detriment of the abutting owner." And again, it was said that the agreement-grant from the citywas, "that if the grantee would buy the lot abutting on the street he might have the use of light and air over the open space [italics mine] designated as a street." And yet again (and the passage was quoted in the Muhlker Case, page 566, L. ed. p. 876, Sup. Ct. Rep. p. 526): "Before any interest passed to the city the owner of the land The public purpose of a street requires of had from it the benefit of air and light. the soil the surface only." The Lahr Case repeated the principle. And it was said in the Muhlker Case, in effect, that the disregard of the distinction between the surface of a street and the space above the surface would leave "remaining no vital element of the elevated railroad cases." It may be said there was a qualification made in those cases and recognized in the Muhlker Case, that it was not alone the elevation of a structure above the surface, but the elevation of one "useless for gen 999. *558 eral street purposes." I may accept the limitation. The structure in the case at bar comes within the characterization. It is useless for general street purposes. It obstructs the frontage of abutting lots and affords no access to or from them in any proper sense. There is a descent by stairs from it to the street below, but for pedestrians only-necessarily not for vehicles. But there is a like descent by stairs from elevated railroads to streets below, but this did not save the roads from liability for abutting property. It must be borne in mind that this case is not disposed of by making a contrast between the passage of a railroad and the traffic on a street. The contrast is catching and only seems important. In New York a railroad is a street use and can be imposed on the surface of a street without liability for consequential damages, and this even if it be a steam railroad. Fobes v. Rome, W. & O. R. Co. 121 N. Y. 505, 8 L.R.A. 453, 24 N. E. 919. The distinction, therefore, was necessary to be made between the surface and the open space over the surface. And we have seen that this distinction was noted in the cases and determined their judgment. In other words, the use of a street by a railroad was decided to be a proper street use, and, therefore, whether put upon the surface or above the surface, retained that character. In either place it was a proper street use and damages could only have been consequent to the elevation of the road above the surface, to which, to quote again the Story Case, the "public purpose of a street" attached only. The elevated railroad cases get significance from the arguments of counsel. Such arguments, of course, are not necessarily a test of the decision. But they may be. The opinion may respond accurately to them. We find from the report of the Story Case that the argument of Mr. Evarts for the plaintiff was that "a permanent structure above the street surface, and an encroachment thereby and by its use upon the appurtenant easement of the open frontage held by the abutting proprietors, was not covered by the original condemnation for the public easement, which was limited to a maintenance of such open streets and perpetual frontage. People v. Kerr, 27 N. Y. 188; Craig v. Rochester City & B. R. Co. 39 N. Y. 404." Mr. Choate, also for the property owners, submitted the following: "The abutting owners on the streets have an interest in the nature of property for all time in the streets above their surface, and in having them kept open and unobstructed forever, of which they cannot be deprived without being compensated.” The contentions express the invocation of the property owner of the court, and the court responded to and sustained it. Is not that response rejected in the case at bar? The structure in the case towers as high as a house of five stories and is planted on columns, the size and strength and number of which can easily be imagined. Does it need any*comment to describe its effect? The plaintiffs have really no access to it from their land or from any building that may be put upon their land, because they may not bridge the intervening gap. They have no other access to it but that which I have described. The public has no access from it to plaintiffs' property but that which I have described. The buildings that stood upon the land when the structure was built were practically under its shadow. Any buildings that may be erected will be equally so. "To get above it," plaintiffs' counsel asserts, “the abutter must build up five stories," and it is only from such elevation that he may contemplate the traffic that passes his prem ises. And even then, counsel also asserts, light can only reach the abutter "through a slit 10 feet wide between his eaves and the edge of the structure." And to this measure his right to an unobstructed frontage, his right to unobstructed light and air, has been reduced. Is it possible that the law can see no legal detriment in this, no impairment of the abutter's grant from the city, no right to compensation? I am not insensible of the strength of the reasoning by which this court sustains that conclusion, but certainly all lawyers would not assent to it. Indeed, one must be a lawyer to assent to it. At times there seems to be a legal result which takes no account of the obviously practical result. At times there seems to come an antithesis between legal sense and common sense. I say this in no reproach of the law and its judgments. I say it in no reproach to the opinion of the court. I recognize it proceeds upon distinctions which are intelligible, although I do not assent to them. My purpose is only to express the view that the legal opinion which I hold has justification in the serious practical consequences Sauer, became the owner of the property, †When the original plaintiff, George there were standing upon it certain frame buildings which had been used as a pleasure resort. In 1890 he enlarged and improved the buildings at great expense and occupied them at the time of the erection of the These buildings structure in controversy. were destroyed in 1897 by fire, and the land is now vacant. And it may be noted that Sauer having died pending this writ of error, his administratrix and heirs have been substituted as parties plaintiff. $560 *559 that the plaintiffs in error have sustained | by the violation of a right which this court said, in the Muhlker Case, citing Barnett ▼. Johnson, 15 N. J. Eq. 481, was founded in the "common practice and sense of the world." tion below that as returned by the clerks of the several counties, which implies that the board has the power of change, and, but for the prohibition, might reduce the total. [No. 280.] From my standpoint, what the courts of Argued April 26, 1907. Decided May 27, 1907. states other than New York have decided is of no consequence to the pending controversy, and I take no time therefore to dis-APPEAL from the Supreme Court of the pute the pertinence of their citation to justify the structure of which plaintiffs complain. I am authorized to say that Mr. Justice Day concurs in this dissent. Statutes-construction-re-enactment. 1. The re-enactment in the same words of a statute which has notoriously received a construction in practice from those whose duty it is to carry it out gives rise to the presumption that such construction is satisfactory to the legislature, unless it is plainly erroneous. * Taxes-equalization. 2. The Arizona board of equalization, in exercising its power under Ariz. Rev. Stat. § 3880, to increase or diminish the valuation of property in any county in order to produce a just relation between all the valuations of property in the territory, is not bound to deal with the valuation of each county as a whole, but may increase or diminish the valuations of particular classes of property within the county. Statutes-adopted construction. Territory of Arizona to review a judgment sustaining a demurrer to an application for a writ of certiorari to vacate proceedings of the board of equalization by which the total valuation of property in the territory, as well as the valuation of par. ticular classes of property, was increased. Affirmed. See same case below (Ariz.) 84 Pac. 511. The facts are stated in the opinion. Messrs. William Herring, Everett E. Ellinwood, and Sarah Herring Sorin for appellant. Messrs. Elias S. Clark, William C. Prentiss, and Horace F. Clark for appellee. Mr. Justice Holmes delivered the opinion of the court: This is an appeal from a judgment on demurrer to a petition for a writ of certiorari. The object of the petition was to vacate proceedings of the board of equalization in 1905, by which the board added very largely to the assessed valuation of patented mines and, in a less degree, of work horses and saddle horses, in Cochise county and other counties in Arizona. It was alleged that by these proceedings the board increased the total valuation of property in the territory and increased the valuation of the petitioner's property of the above-mentioned kinds. The writ had been issued by a single 3. The construction given by the Colo-justice, returnable before the full bench, but rado courts to a statute of that state which is alleged to have served as the model for Ariz. Rev. Stat. § 3880, defining the powers of the board of equalization, need not be followed by the Arizona courts when construing the territorial statute, where the Colorado decision turned partly on the notion, inapplicable to Arizona, that the board of equalization had no function of assessment, and in part on the Constitution of the state. Taxes-equalization. 4. The total valuation of the property in the territory may be increased by the Arizona board of equalization beyond the sum of the returns of the board of supervisors of the several counties, since Ariz. Rev. Stat. § 3880, empowering the board to increase or diminish the valuation of property in any county in order to produce a just relation between all the valuations of property in the territory, only prohibits the board from reducing the aggregate valua the case was heard on the demurrer by consent, and by the judgment the demurrer was sustained and the writ was quashed. The errors alleged are two: First, that while the board, for purposes of equalizing, might add to the total value of the property in one county and diminish that of property in another, it had no power to increase the total valuation of property in the territory above the sum of the returns from the boards of supervisors of the several counties; and second, that the board was bound to deal with the valuation of each county as a whole, and could not increase or diminish the valuations of particular classes of property within a county. The power of the board depends, of course, upon statute, and it is said that the statute of Arizona was taken almost verbatim from one of Colorado, which had been construed by the Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, § 300, 302-306 supreme court of that state in accordance with the first of the petitioner's above contentions before it was adopted by Arizona. People ex rel. Crawford v. Lothrop, 3 Colo. 428. The construction, it is said, goes with the act. Henrietta Min. & Mill. Co. ■*Gardner, 173 U. S. 123, 130, 43 L. ed. 637, 640, 19 Sup. Ct. Rep. 327. The second contention is based on an interpretation of the statutes, the supposed absence of an express grant of power, and later decisions in Colorado and other states. 2282. Sec. 43. Said duce the aggregate a 3880. (Sec. 50.) The said board shall ascertain whether the valuation of property in each county bears a fair relation or proportion to the valuation in all other counties in the territory, and on such examination they may increase or diminish the valuation of property in any county as much as, in their judgment, may be necessary to produce just relation between all the valuations of property in the territory; but in no instance shall they reduce the aggregate valuation of all the counties below the aggregate valuation as returned by the boards of supervisors of the several counties. And said board shall, at the same time, fix the rate of taxes for territorial purposes which is to be levied and collected in each county. On the other hand, while this court cannot refuse to exercise its own judgment, it naturally will lean toward the interpreta- instance shall they retion of a local statute adopted by the local court. Sweeney v. Lomme, 22 Wall. 208, 22 L. ed. 727; Northern P. R. Co. v. Hambly, 154 U. S. 349, 361, 38 L. ed. 1009, 1014, 14 Sup. Ct. Rep. 983; Fox v. Haarstick, 156 U. S. 674, 679, 39 L. ed. 576, 578, 15 Sup. Ct. Rep. 457. And again, when, for a considerable time, a statute notoriously has received a construction in practice from those whose duty it is to carry it out, and afterwards is re-enacted in the same words, For convenience we take up the second it may be presumed that the construction of the alleged errors first. It will be seen is satisfactory to the legislature, unless that the word "property" takes the place plainly erroneous, since otherwise naturally of "real estate" at the beginning, and that the words would have been changed. New the power given, instead of being only a powYork, N. H. & H. R. Co. v. Interstate Com- er to increase or diminish the aggregate merce Commission, 200 U. S. 361, 401, 402, valuation of real estate in any county, is 50 L. ed. 515, 525, 526, 26 Sup. Ct. Rep. 272. to increase or diminish the valuation of The statute of Arizona was re-enacted in property (not the property) in (not of) any 1901 and was said by the supreme court to county. The word "aggregate" is left out, have been construed by the board against and the fact that it was left out favors the apart from that fact the petitioner's contention ever since the construction that board was created, eighteen years before. would be reasonable, that the power extends Even apart from the re-enactment a certain to the valuation of any property, and is weight attaches to this fact. United States not confined to the valuation of all the propThis construction is v. Finnell, 185 U. S. 236, 243, 244, 46 L. ed. erty as one whole. further favored by the purpose of the 890, 893, 22 Sup. Ct. Rep. 633; United States v. Sweet, 189 U. S. 471, 47 L. ed. 907, 23 Sup. changes in valuation, which is to "produce a just relation between all the valuations of Ct. Rep. 638. The presumption that the codifiers of 1901 knew and approved the interstitial in its working. It does not conproperty in the territory." This phrase is practice of the board certainly is as strong fine the equality to the valuations by counas the presumption that the original enact-ty, but extends it to all the valuations of ors of the statute knew a single decision in another state; and it is more important, since it refers to a later time. As an original question the construction adopted by the supreme court appears to us at least as reasonable as the opposite one contended for, and the variations in the Arizona act from the prototype, if Colorado furnished the prototype, and the different background against which it was to be construed, seem to us to have warranted the refusal to be bound by the Colorado case. We give a section of the General Laws of Colorado, 1877, and of the Revised Statutes of Arizona side by side. property. Yet a further argument may be drawn from the language of § 3874: "No assessor, board of supervisors, or the territorial board of equalization shall assess any real estate at a less valuation than 75 cents per acre." This recognizes the power of the board to deal with a special class of property, and we may add, by way of anticipation, by also recognizing a function of assessment, does much to make inapplicable the reasoning of the Colorado decision upon the other point. It seems to have been argued below that at least the board was confined to dealing with property by the classes mentioned in 481 *480 |