Commissioners of Parks & Boulevards of City of Detroit v. Detroit, G.H. & M. Ry. Co.

• Decision Date: 28 July 1892
• Citation: 52 N.W. 1083,93 Mich. 58
• Parties: COMMISSIONERS OF PARKS AND BOULEVARDS v. DETROIT, G. H. & M. RY. CO. et al. SAME v. DETROIT & B. C. R. CO. et al.
• Court: Michigan Supreme Court

52 N.W. 1083

93 Mich. 58

COMMISSIONERS OF PARKS AND BOULEVARDS v. DETROIT, G. H. & M. RY. CO. et al.

SAME v. DETROIT & B. C. R. CO. et al.

Supreme Court of Michigan

July 28, 1892

Appeal from recorder's court of Detroit; F. H. CHAMBERS, Judge.

Proceedings by the commissioners of parks and boulevards against the Detroit, Grand Haven & Milwaukee Railway Company and others and against the Detroit & Bay City Railroad Company and others, respectively, to condemn a right of way for the use of a boulevard across defendant companies' tracks. Judgment of condemnation. Defendants appeal. Reversed.

E W. Meddaugh, Henry Russel, and L. C. Stanley for appellants.

John J. Speed, for appellees.

MCGRATH J.

These are proceedings for the opening of the boulevard in the city of Detroit, over respondents' rights of way, under Act No. 388 of the Local Acts of 1889. ^[1] Precisely the same questions are raised as were passed upon in Commissioners, etc., v. Michigan Cent. R. Co., (Mich.) 51 N.W. 447, and in Same v. Chicago, D. & C. G. T. J. R. Co., Id. 447, except that here it is insisted that the opening is across lands which are used by the railroad company for yard purposes. It clearly appears from the records that all of the tracks in use by respondents within the lines of the proposed boulevard, and for some distance both north and south, are within the original rights of way of respondents. The only basis for the claim that the land sought to be condemned is railroad yard land is the testimony, upon cross-examination, of the city engineer, who says that it is a railroad yard. The yard master called by respondents said: "We call the Grand Trunk Railway Y tracks the 'Yard."' This Y, so called, is the main line upon which every train to and from the city runs. The main track of the Detroit, Grand Haven & Milwaukee road is upon the right of way which it is proposed to cross. In the motions made to dismiss the petitions in both cases respondents allege, upon oath, that the lands sought to be taken "are portions of the rights of way of said respondents, occupied by its main and side tracks." The yard master says, further: "Trombly and Milwaukee avenues cross the track. These avenues interfere with switching, the same as any grade crossing, and they take the storage room for cars." It cannot be contended that a railroad company can so convert its right of way into store room for its cars, and call it "a yard," and thus prevent a street from crossing its right of way. It cannot be that a railroad company can condemn a right of way through city or other property, and then so convert such right of way, or so denominate it, as to prevent the owners of the property through which that right of way is condemned from obtaining streets across the same. No such use or purpose was contemplated when the right of way was secured. It is notorious that every street, from Tenth to the westerly limits of the city, is crossed by the Michigan Central, and upon every one of these crossings side tracks have been added, until every foot of space upon the right of way of the company is covered. The Lake Shore & Michigan Southern Railway, the Grand Trunk Railway, and the Detroit & Bay City Railway maintain separate tracks and side tracks, with adjoining rights of way, from and across the boulevard on the west, northeasterly to the northerly limits of the city at a point above the land in question, crossing Michigan avenue, Grand River avenue, Woodward avenue, and again crossing the boulevard and more than a score of other streets. The Detroit, Grand Haven & Milwaukee maintains a main track and two or more side tracks from Croghan street north to the city limits, covering 50 streets in its course.

Is it true that a railway company may fill its right of way on a street with side tracks, and that the existence of these side tracks at other points, if called "a yard," will actually prevent the opening of streets across the right of way of the company? In Milwaukee & St. P. Ry. Co. v. City of Faribault, 23 Minn. 167, and in St. Paul Union Depot Co. v. City of St. Paul, 30 Minn. 359, 15 N.W. 684, it was proposed to take depot grounds. In Railroad Co. v. Williamson, 91 N.Y. 552, the land proposed to be taken had been condemned for depot purposes. In Re City of Buffalo, 68 N.Y. 167, it was proposed to take certain portions of the yards of the railway company for canal purposes. In Re Boston & A. R. Co., 53 N.Y. 574, the railroad company sought to take lands which had been donated to the respondent village for the purpose of a park. Here neither depot nor yard grounds are proposed to be taken, nor is it proposed to divest the railroad companies of the legitimate use of the land for the purpose for which it was condemned. The case of Commissioners, etc., v. Michigan Cent. R. Co., (lessee of the Detroit & B. C. Ry.,) Lake Shore & M. S. Ry., and Grand Trunk, (Mich.) 51 N.W. 447, involved the crossing of the rights of way of these three roads at a point where the rights of way are side by side, where the main and side tracks of each road cross the boulevard, and where the Detroit & Bay City road leaves the line of the other roads, forming a Y, to reach the main tracks of the Michigan Central Railroad. The same questions were raised in that case, except that the Y was not called a part of the yard. All of the traffic of the Detroit & Bay City road, and all of the freight traffic of the Grand Trunk, to and from the western portion of the city, crosses the boulevard at that point. The verdict and order of confirmation must, however, be set aside for the refusal of the court to permit the jury to consider the allowance to respondents of compensation for the expense of erecting safety gates. Upon that point, as well as the other questions raised, the case is governed by Commissioners, etc., v. Michigan Cent. R. Co. and Same v. Chicago, D. & C. G. T. J. R. Co., supra. The causes will be remanded to the jury for further proceedings.

MORSE, C.J., and LONG and MONTGOMERY, JJ., concurred with McGRATH, J.

GRANT, J., (dissenting)

I can find no reason to justify a reversal or modification of the former opinion in this case, which was handed down May 6th, but withheld when the rehearing was ordered, and now becomes my dissenting opinion. It was stated upon the rehearing that the respondent obtained the land by purchase. If this be so it clearly has the right to occupy this land for any purpose legitimately connected with railroading. But if it was obtained by condemnation proceedings, why may it not use a reasonable portion of the land thus obtained for yard purposes? All the switching of the Detroit, Grand Haven & Milwaukee Railway Company in connecting with other railroads in the city of Detroit, and in connection with the neighboring factories, is done here. Petitioner's only witness, its own engineer, testified: "It is a railroad yard, with switches and main tracks." The crossing of the boulevard will destroy the yard, and work irreparable injury to the respondent, without any corresponding benefit to the public, who will use the boulevard simply for pleasure. The injustice in establishing a crossing at grade at this point is apparent. It is not to be presumed that the legislature intended to accomplish an injustice. Neither of the boulevard acts showed the crossing at this place, and we cannot, therefore, presume knowledge of the situation on the part of the legislature, and that it would have authorized a grade crossing so injurious to respondent and so dangerous to the public.

The following is the opinion referred to above by Mr Justice GRANT:

GRANT J.

This is a condemnation proceeding, brought for the purpose of obtaining a right of way for the boulevard across the property of these respondents. The jury awarded to the Detroit, Grand Haven & Milwaukee Railway Company $1,420, and to the other respondent $1,302. The jury also found that the public necessity required the crossing in the manner proposed. This was a crossing at grade, and the jury were instructed to give respondents as damages only the cost of planking and grading. All the questions save one now raised were involved in Commissioners, etc., v. Michigan Cent. R. Co., (decided at the present term,) 51 N.W. 447, and we see no reason for reversing any of the rulings therein. That case involved the power of the commissioners to condemn the right of way for the boulevard across the railroad tracks. In the present case is involved the power to condemn a similar right of way across the yard of the respondent railroad companies, which is used for switching and storing cars. Below is a map showing the situation:

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