The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-12-25

an injunction against illegal acts
committed or threatened by public
officers.
The next point for consideration
is whether the acts alleged in the
the bill amount to a taking" OF
compliments property within the
meaning Of the constitutional pro
visions?
The complainant relies upon the
following cases:
Harding VS.. Stamford Fatcr Co., Al
Conn. 81.
Hooker VS.. EacRarea Co., IA Conn.
146.
DelGrare and Raritaa Canal CO. VS..
Lee, ? Fab. 243.
Eaton vs.. B. c. II. R. r., 81 H.
5O4.
Punperly vs.. Green Bay Co., Is Wall.
166.
Trenton Water PO,cer Co. vs.. RAT, 36
n. J. 1876.
In all these cases it appears that
some actual interference with the
plaintiffs lands so as to deprive them
of the use of the lands took place,
either by overlooking the lands with
water OF by taking or diverting water
from them. In the four last cited
cases the actions were in trespass for
damages.
The allegation in the bill in this
case is ''that such new grade when
established and completed will
render compiainant's said ware
houses unsafe and impracticable for
use and greatly deteriorate and in
jure the value thereof and diminish
the value of all compliments said
property" and submits that his
property is thus taken and about to
be taken for public use without due
process of law or Just compensation.
1t does not appear to us that the
injury alleged brings this case within
the authorities cited as amounting
to taking of the property. The
work may cause a damage to the
plaintiffs property for which he
might, except for the reasons here
after appearing, be entitled to com
pensation by action, but does not
constitute a taking" of the prop
erty.
In some of the recent constitutions
of the American States, provision is
made for taking or damaging"
and the State of Illinois
has amended its constitution by adj
ding to the word ''taken" the words
''or damaged" We refer to this to
show that the word taken" was not
deemed sufficient to cover damage
similar to that alleged here.
See also Transportation Co. Us.
Chicago, 80 U. S. G35.
We come now to the question as
10 the right of the defendant to es-
5ablish the grade Of the street in
question, under the statute before |
to.
The complainant urges that the |
defendant has no such right and |
hat the statute is unconstitutional |
IS authorizing the taking of prop |
erty without due process of law or
asst compensation"
We have already held that the in
ury complained of is not taking"
md we see nothing in the statute to
authorize the taking of any property
lnder the Interpretation we give to
he word The point as to the CON
ititutionality of the law is not made
~ the bill and as at present advised
he law does not appear to us to be
unconstitutional.
We have considered the authori-
les cited by counsel on the author
ty of public bodies to grade streets
md highways and as to the right of
PARTIES whose property may be in
ured by such grading to compensa-
ion.
In the leading American case, Cal
sadar rs. Marsh, l Pick. 418, 430,
Parker, Q. j., sets forth the right of
he public. "The streets on which
he plaintiffs house stands had be-
ONE public property by the Act of
aging them out conformably to law,
nd the value of the land taken must
AVE been either paid for or given to
he public at the time, or the street
ould not have been legally estab-
ished. Being legally established,
Though the right of title remains
4 him from whom the use was taken,
ct the public acquired the right not
My to pass over the surface, on the
tate it was when first made street,
ut the right also to repair and
mend the street, and for this pur-
ose to dig down and remove the
oil sufficiently to make the passage
afe and convenient. Those who
urchase house lots bordering on
treets are supposed to calculate the
nance of such elevations and reduc-
ons, as the increase of population
f the city may require, in order to
ender the passage to and from the
eyeral parts Of it safe and conyen-
mt, and, as their purchase is always
oluntary, they may indemnify
themselves in the price of the lot
hitch they buy, or take the chance
future improvements as they shall
ee fit" "He who purchases lots for
ne purpose of building on them is
ound to consider the contingencies
-hich may belong to them"
It may be proper to remark here
,oF Jo1aLrouiIa cfroof 1rac Ibid ont |