MOORE
J.
The
following statement of facts is taken from the brief of
counsel for relator:
'The
petition and answer filed in this cause set out as briefly
as practicable the facts in the case. In substance, they
are that petitioner owns a lien of street railway in
Detroit, authority to construct and operate which was
granted in 1865. In the following year the railway was
built, forming a continuous line west on Fort street to
Clark avenue, south on Clark to the River road, and then
west again on the River road. At the time the track was
constructed on Clark avenue there was no railroad, or
highway, street, lane, or alley, or crossing, of any kind,
over Clark avenue between Fort street and the River road.
In 1882 or 1883 the Wabash Railroad constructed a single
track across Clark avenue and across petitioner's
tracks. Up to that time there had been no crossing over
Clark avenue between Fort street and the River road of any
kind, either that of a railroad or a public highway, a
private way, road, street, or alley. In the year 1893 or
thereabouts the Union Station was opened at the corner of
Third and Fort streets, in Detroit, and since that time
said station has been used jointly by the Wabash, the
Detroit, Lansing & Nothern, the Flint & Pere Marquette, the
Detroit & Lima Nothern, and the Canadian Pacific Railroads
as a terminal point, the tracks over Clark avenue at this
point having been increased from one to three to
accommodate the increased traffic. These tracks are used as
approaches to the Union Station, and incoming and outgoing
trains and cars of all the foregoing roads, except the
Canadian Pacific Railroad, pass over said tracks. There are
38 regular daily passenger trains crossing Clark avenue
upon these tracks. Besides this, the Canadian Pacific uses
the station as an Eastern terminus, connecting with the
other roads for purposes of through east and west traffic.
In 1893 the legislature passed an act (No.
171) which provides (section 5) that the 'commissioner
of railroads shall * * * examine the crossings of the
tracks of railroads and street railroads then existing, and
order such changes made in the manner of such crossings, or
such safeguards for protection against accidents to be
provided thereat as in his judgment ought to be made or
provided; and shall apportion any expenses incident thereto
between the companies affected as he may deem just and
reasonable.' Claiming authority under this act, the
respondent has ordered the construction of certain safety
devices, and apportioned the expense between the Terminal
Association and the Ft. Wayne & Belle Isle Railway Company.
Petitioner must bear whatever expenses can properly be
imposed upon the Ft. Wayne & Belle Isle Railway
Company.'
The
petition in this case is filed for the purpose of having the
order set aside. The answer alleges that, if the
street-railway tracks were not constructed in said street,
'and did not cross the tracks of said steam railroad, the
said safety appliances so ordered as aforesaid would not be
required or necessary in the manner in which the order
provides they shall be constructed and maintained; and,
though the safety gates provided for in such order are
disigned specially for the protection of the general public
traveling on said highway from danger resulting from said
steam railroad, still the derailing and signaling appliances
are intended to protect the traveling public on both electric
and steam roads from collision at the crossing of the two
roads, and that the necessity for the said safety devices
results equally as much from the existence and presence of
the petitioner's tracks as from the presence of the
tracks of the Union Terminal Association.'
Counsel
for the relator in their brief say
'There are a number of important questions involved in
this controversy, one being the extent of the authority of
the railroad commissioner over street-railway companies. We
feel it necessary, however, to suggest only one of these
questions, because the adjudication thereof in the manner we
anticipate will render a consideration of the others
unnecessary. We call attention to the fact, fully set out in the petition, that the necessity for the
order of the railroad commissioner, if any there be, is due
to the construction of the Terminal Association's tracks
after petitioner's tracks were laid. The danger is not
caused by petitioner, nor due to its presence in the street.
Under the well-settled rule of this court, the cost of making
the crossing safe must be brone by the company making the
crossing and responsible for the danger. In People v.
Railway Co., 52 Mich. 277, 17 N.W. 841, it was decided
that a statute requiring a railroad company to bear the
expense of constructing and maintaining a crossing for a
highway which was laid out after the railroad was built was
unconstitutional and void. The court said that, 'as far
as the same can be reasonably accomplished, it [the crossing
road] shall reduce the inconvenience occasioned to the public
by its own peculiar mode of enjoyment to a minimum. But when
the reason ceases the right of interference must cease.'
And it was held that the railroad could not be made to bear
the expense of crossing, because it was 'not a
contrivance which the existence of the railroad renders
necessary, and which otherwise would be needless.' In
Railway Co. v. Hough, 61 Mich. 507, 28 N.W. 532, it
was said: 'If a railroad interferes with an existing
highway, it must bear all the expense of crossing and
restoring the highway, as far as practicable, to a safe
condition. * * * But as pointed out in 52 Mich. 277, 17 N.W.
841, when a new highway is created, then it belongs to those
who created it to bear the expense of making the crossing in
the condition necessary to meet all the expense and danger it
occasions.' The danger which the commissioner wishes to
guard against not being in existence before the railroad
corssing was constructed, it belongs to the Union Terminal
Association, which created it, to 'bear the expense of
making the crossing in the condition necessary to meet all
the expense and danger which it occasions.' The same
principle is recognized and enforced in the following cases:
City of Grand Rapids v. Grand Rapids & I. R. Co., 58
Mich. 647, 26 N.W. 159; Commissioners of Parks &
Boulevards of City of Detroit v. Michigan Cent. R. Co.,
90 Mich. 385, 51 N.W. 447; Same v. Chicago, D. & C. G. T.
J. R. Co., 91 Mich. 291, 51 N.W. 934; Same v.
Detroit, G. H. & M. Ry. Co., 93 Mich. 58, 52 N.W. 1083;
City of Grand Rapids v.
Bennett, 106 Mich. 528, 64 N.W. 585; To view
preceding link please click here Gage v. Pittsfield Tp.
(Mich.) 79 N.W. 687; Flint & P. M. R. Co. v. Detroit
& B. C. R. Co., 64 Mich. 350, 31 N.W. 281.'
An
examination of these cases will show they were all cases
where it was sought to obtain a right of way either for a
railroad across a highway, or for a highway across a
railroad, or a crossing for one railroad over the right of
way of another; and none of the cases relates to the question
involved here, as to who shall bear the expense of additional
safeguards ordered upon roads which have crossed each other
for a long period of time. An examination of the cases will
also disclose that, in proceedings by one road for a right of
way over another, there are some inconveniences and burdens
which must be borne by the senior road for which it is not
entitled to compensation from the junior road. In the case of
Flint & P. M. R. Co. v. Detroit & B. C. R. Co., 64
Mich. 350, 31 N.W. 281, the former company sought to obtain a
right of way over the railroad track of the defendant
company. The commissioners allowed only $100 for the land
taken and the consequential damages. The defendant company
gave evidence tending to show that it would suffer a yearly
expense, as the result of establishing the crossing, of $50
cost for maintaining signals, $425 cost of watchman, and $300
cost of stopping trains, and claimed the allowance made by
the commissioners was grossly inadequate, but the court
declined to disturb it. In discussing the question, Justice
Champlin used the following language: 'The question as to
what elements of damages should enter into and form a basis
of an award, when one railroad crosses another, has been
before the courts of some of our sister states; and, while
the decisions have not been entirely uniform, the principles
underlying them all point to an allowance which shall secure
a just compensation, within the recognized rules of evidence
relating to damages, as including all loss or injury which is
the direct result of the appropriation of the land to the new
use. They also recognized that there are elements of damage
which, aside from being uncertain, remote, or
conjectural, are the consequence of regulations by the
legislature designed to secure the safety of the public,
which are imposed upon all railroad companies alike, and
which, in so far as they do not involve any structural change
in the property itself in order to make it conform to the new
condition, do not afford a basis for compensation.'
The
result of the decision in Massachusetts was announced by Mr
Chief Justice Gray in Massachusetts Cent. R. Co. v.
Boston, C. & F. R. Co., 121 Mass. 124, tersely, as
follows: 'A railroad...
