By the Maryland code an executor may prosecute any personal action whatever, whether at law or in equity, that the testator might have prosecuted, except an action for slander. Code of 1888, Art. 93, § 104. And by § 81 of the same article the executor of a person who shall have made sale of real estate, and has died before receiving the purchase money or conveying the same, may convey said real estate to the purchaser, and his deed shall be good and valid in law, and shall convey all the right, title, claim and interest of such deceased person in such real estate as effectually as the deed of the party so dying would have conveyed the same; provided, the executor of the person so dying shall satisfy the Orphans' Court granting him administration that the purchaser has paid the full amount of the purchase money. These seem sufficient to make out the plaintiff's case, if there were nothing more. The proviso in the Maryland statute obviously must create a condition subsequent only, as it is not to be supposed that a purchaser would pay unless he got what he paid for at the same time. In substance, the code points out the executor as the proper person to enforce the contract, gives him a right of action to that end and empowers him to make the deed. We do not perceive how a conveyance could be questioned, if made by an executor upon a cotemporaneous payment of the price, in pursuance of a binding contract of his testator, even without obtaining antecedent authority from the Orphans' Court. Therefore we do not perceive why the executor is not entitled to require specific performance if he is ready to deliver a deed at the moment of receiving the price. In this case the executor obtained an order from the Orphans' Court, purporting to authorize him to complete the sale, as if it had been an application for leave to sell under § 276. This seems to us to have been superfluous, but it did no harm, and it does not narrow the plaintiff's right to recover, by being set out as one of the foundations of the bill.

Next, apart from statute, it would be going far in search of possible doubts to say that sufficient authority could not be

derived from the will. The language is, "I direct, authorize and empower" the executor "to have full and complete power and authority over my entire estate, real, personal and mixed," and it directs and empowers him to sell the testator's real estate at public sale, after one month's notice, upon such terms as he thinks proper. We are not inclined to disagree with the Court of Appeals in its opinion that the words taken with the whole will imply a devise of the legal title to his executor and an authority sufficient to warrant his carrying out the sale. It is urged that the probate of the will does not establish it conclusively as to real estate, and that the heirs might attack it hereafter, but it is answered that by the contract the land had become personalty as against them, and that therefore so far as this land is concerned the will is safe from collateral attack. Moreover, as it is clear that the estate has and is subject to a binding contract, it is hard to see how it matters to the heirs who does the formal acts of accomplishment so long as he is accountable to the Orphans' Court.

No question was raised on either side as to the covenants of Stewart being enforceable only by Griffith personally, because the agreement was under seal, and Griffith alone was party to it. Berkeley v. Hardy, 5 B. & C. 355; Frontin v. Small, 2 Ld. Raym. 1418, 1419. It is enough to say that Stewart could not have profited by the suggestion had it been made.

MR. JUSTICE HARLAN Concurs in the result.

Decree affirmed.

217 U. S

Argument for the United States.

UNITED STATES v. WELCH.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY.

No. 147. Argued April 11, 1910.—Decided April 25, 1910.

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.

THE facts are stated in the opinion.

Mr. John Q. Thompson, Assistant Attorney General, with whom Mr. A. C. Campbell and Mr. Percy M. Cox were on the brief, for the United States:

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

Argument for the United States.

217 U.S.

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. Ry. 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. Lim., 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.

217 U.S.

Argument for the United States.

R. R., 15 B. Mon. (Ky.) 404; Hollister v. The Union Co., 9 Connecticut, 436; Sharp v. United States, 191 U. S. 341; Currie v. Waverly &c. Railroad Co., 23 Vroom, 392; High Bridge Lumber Co. v. United States, 69 Fed. Rep. 320, 324; Transportation Cc. 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. But Congress has made no provision for the payment of sucn damages as are claimed in the case at bar.

A city is not 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, 9 W. & 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 & Worc. 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. S 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