and after relocation the uses of the street and the railway may coexist. This theory is not new, but, if adopted by any of the adjudged cases, the fact has not been discovered by us. On the contrary, numerous cases have denied it. In Railroad Co. v. Kip, supra, it was said: "It is claimed that there are other lands in the same vicinity, equally adapted to the use of the applicant, as those sought to be acquired by these proceedings, and which possibly might be acquired by purchase from the owners. But such objections to these proceedings are untenable. The location of the buildings of the company is within the discretion of the managers, and courts cannot supervise it." In New York Cent. & H. R. R. Co. v. Metropolitan G. L. Co., 5 Hun, 201, it was said: "Upon the point that the lands proposed to be taken are not necessary, because it might be practicable for the respondents to lay their tracks upon their own lands, by adopting another curve, we are not prepared to concur with the appellant's counsel. It is not a question of possibilities, nor of strict practicabilities within the opinion of engineers. No route was ever surveyed for a railroad which was not open to such objections, and if the right to take lands was to be determined by the conflicting evidence, whether, after all, the tracks might not, with greater or equal convenience, be laid elsewhere, the construction of a road would be attended with the most serious embarrassments. Reasonable necessity must be shown, but a reasonable discretion must be allowed to the officers who locate the tracks of a railroad, for it cannot be presumed that the corporation is unnecessarily incurring heavy expenses in obtaining lands, when those it already has would answer its purpose.' In Eldridge v. Smith, 34 Vt. 484, it was held that "when land is taken for a legitimate railroad use by the railroad company, the judgment of the officers of the road, unless clearly beyond any just necessity, is regarded as conclusive." We may add that if round houses, water tanks, coal docks, or other necessary uses of a railway, may be disturbed and relocated, or their location destroyed, it becomes a matter of extreme difficulty, if not an impossibility, to discriminate between such right and the right to require tracks to be removed for the benefit of other public uses; and further, if the removal of such buildings and structures may be required to appropriate their location to other public uses, it would be difficult to determine

why depots should not be subject to the same rule. Another difficulty in adopting the theory contended for by the appellee is that the rule could not be made to depend upon the proximity of the old to the new location, for if the removal were required, and there was no ground for the new location in the immediate vicinity, public necessity, in pressing its demand for a street crossing, could insist with force that remote situations afforded equal or better facilities for the convenient and safe employment of the uses sought to be superseded. Without legislative sanction it is our opinion that such uses cannot be destroyed upon the mere discovery that they may be enjoyed at some place other than the point of their location.

It is suggested that the act of March 6, 1891 (Acts 1891, p. 122), purporting to authorize the removal of buildings and structures of railway companies from the lines of projected streets, and permitting the use of crossings at such points, grants the power sought in this case to have been exercised. The proceedings to condemn the crossing were instituted, and the reference of the matter to the city commissioners was as early as December 1, 1890, and said commissioners filed their report of meeting and examination in January, 1891. This suit was commenced and the venue changed before the passage of said act. We are unable to find any reason or authority for the suggestion so made. There can be no pretense that any step was taken pursuant to said act. If the act should be considered as affecting the questions in this case, it should probably be in the implication thereby of the legislative determination that without the act no power existed to require the removal of such buildings.

In our opinion the Circuit Court erred in its finding and judgment, and the appellant's motion for a new trial should have been granted. The judgment is reversed.*

1. Right to lay out street across railroad tracks or through railroad yards, grounds or buildings.-There is no question about the power of the proper public authorities to lay out a street or highway across the right of way of a railroad company, under a general authority to establish highways and streets. Lewis Em. Dom. § 266. As to the second branch of the question, the general rule is that under a general authority to establish or extend streets, a street cannot be laid out through railroad grounds so as to take or materially

* Reported in 38 N. E. Rep. 167.

interfere with depots, freight houses or any similar structures. Lewis Em. Dom. § 266. As to grounds covered with tracks and used for storing and switching cars, the result would, perhaps, depend upon the circumstances of the particular case. In Commissioners v. Detroit, G. H. & M. R. Co., 93 Mich. 58; 52 N. W. Rep. 1083, it was held that a boulevard could be laid out across the right of way of defendant, although it had been filled with tracks, some of which were used for main tracks and some for storing cars, and was used and known as a "yard" at the point in question. Here the plaintiffs were acting under a general authority to take any land found necessary for opening or extending any boulevard. The cases of Illinois Central R. Co. v. City of Chicago, 141 Ill. 586; 30 N. E. Rep. 1044, and Chicago & N. W. R. Co. v. City of Chicago, (Ill.) 37 N. E. Rep. 842, are similar to the Michigan case, except that the authority conferred upon the city was somewhat broader. The city of Chicago had express power to open or extend any street over or across any railroad track, right of way or land of any railroad company within the corporate limits." In the case last cited the court says: "The particular ground of contention is that the strip of land sought to be condemned had been devoted to the specific public use of a railroad yard. A railroad yard is a tract of ground upon which are railroad tracks, used for the purpose of receiving and storing cars when not in use, or used for the purpose of switching in the distribution of cars and engines to other places and in the making up of trains. As shown by the foregoing statement, there were upon the 100-foot strip, at the point of the proposed street crossings, eight parallel railway tracks connected by switches. Two were used for passenger trains, two for freight trains, and the others for such use as the convenience of the company demanded in the switching and storing of cars. It is insisted that there is no express authority given by the legislature to the city to open streets across the land in question. It seems to be well settled that to authorize the taking by the municipality, for a public use, land already devoted to another public use, the legislative intent to grant the authority must be shown by clear and express language or by necessary implication from the words of the grant. It is contended, however, that the terms 'right of way,' 'tracks, and 'land,' as used in the eighty-ninth paragraph, apply only to such right of way, tracks and land as are appropriated to the active operation of the company's railway, and that they do not apply to tracks or land devoted to the purposes of a railroad yard. The attempted distinction is without foundation. Without pausing to discuss or determine what would be the effect of an attempt by the city to open a street, under the power conferred by this paragraph of the statute, through depots, engine houses and the like, it is sufficient to say that the attempt here was simply to extend the streets across land devoted to railroad tracks. The tracks upon the land sought to be taken, although some were devoted to the passage of passenger trains, others for the accommodation of freight traffic, and still others used for switching purposes, and devoted to the storage of cars, were each railroad tracks,' and it cannot be important to what particular use the 'railroad tracks' may be devoted. By the express terms of the statute, power is given to the city authorities to extend streets, alleys, and highways over and across the same. The right of the legislature to exercise the power of eminent domain, and to invest the

*

municipal authorities of the state with the power is clear; and that it may extend to railroad property is not questioned. Const. § 14, art. 11; East St. Louis C. Ry. Co. v. East St. Louis U. Ry. Co., 108 Ill. 265; Chicago & A. R. Co. v. Joliet, L. & A. R. Co., 105 Ill. 389. It will be unnecessary to determine the question, pressed upon us with so much force, that, where both uses may not stand together, with such tolerable interference that compensation can be made by the payment of damages; that is, if the use of the land for a street, when exercised, will exclude the former use, to which the land was appropriated, it cannot be implied from the general power to extend streets over and across rights of way, tracks and land, and the legislature meant to subject the land to the new public use to the exclusion of the prior public use; that is, it cannot be implied from the general language that the legislature intended to destroy the prior use. True, as already said, the opening of the street would exclude from the tracks within the street the use of such tracks for the

purpose of storing cars thereon. But it is manifest that it is an interruption of the use only at the crossings, and, if damages accrue because of the taking of that right, or the value of the property of the railway company not taken is decreased in value in consequence, adequate compensation can be made in the proceeding at law."

than railroad purposes.

2. Measure and elements of damages when a street is laid out across railway tracks and grounds.-The measure of compensation for railroad land taken by a city for a street is the decrease in its value for railroad use, caused by its use as a street, without reference to such expenditures as the railroad company may be obliged to make in complying with the police regulations of the city in regard to street crossings. Lake Shore & M. S. R. Co. v. City of Chicago, 148 Ill. 509; 37 N. E. Rep. 88; Chicago, B. & Q. R. Co. v. City of Chicago, 149 Ill. 157; 37 N. E. Rep. 78. The fact that the railroad company owns the land in fee makes no difference in the measure of compensation, since a railroad company has no right to use any land for other Chicago, B. & Q. R. Co. v. City of Chicago, 149 Ill. 157; 37 N. E. Rep. 78. Where a street is laid out across tracks used for storing cars, the railroad company may recover such damages as it will sustain by being deprived of such use of the tracks within the limits of the street. Chicago & N. W. R. Co. v. City of Chicago, Ill. ; 37 N. E. Rep. 842. So where a street was laid out across tracks near a large switching yard, which formed the "neck," as it was called, of the yard, and was used in connection with switching and making up trains in the yard, it was held that the company was entitled to recover damages to its yard caused by laying out the street at the point in question. The court says: "The company was shown to own, and be in use of, a large switch yard, lying south of the proposed street, and that the neck,' as it is called in the evidence, of the switch tracks, necessary in the operation of said yard, extended north across and beyond the street. For the purpose of showing that the opening of Sixtieth street, as proposed, would damage the same, and decrease its value, appellant called witnesses, and, after laying the foundation therefor, by showing them experienced in railway operation, asked them the effect upon the switch yard of the opening said street. Objection thereto was interposed and sustained, and appellant excepted. The evidence introduced by appellant, and admitted,

tended to show that, in the use of such yards, the operation of appellant's switch engines would be retarded and hindered; that it would require an increased expenditure of money daily to perform the same operations in handling, switching cars, making up trains, etc., now carried on, after the opening of the proposed street. The witnesses were asked and approximated the average daily increased expenditure to the railway company by reason thereof. It is, in effect, conceded that this last evidence was proper for the consideration of the jury, in determining damages to land not taken, if any such damages were shown. It was, under all the rulings, clearly competent evidence, as tending to show damages to property not taken." On the subject of compensation in such cases generally, see Boston & Albany R. Co. v. City of Cambridge, 8 Am. R. R. & Corp. Rep. 436, and cases cited in note thereto.

MONTGOMERY V. SANTA ANA & W. RY. Co.

(Supreme Court of California in banc, September 13, 1894.)

1. RAILROADS IN STREETS. DISTINCTION BETWEEN COUNTRY HIGHWAYS AND CITY STREETS. There is a wide distinction between a highway in the country and a street in a city or village, as to the mode and extent of the enjoyment, and in the extent of the servitude in the land upon which they are located.

2. LEGITIMATE USES OF CITY STREETS. When land is acquired for a street in a city, it is subject to all the uses and purposes of the public as a street, including the construction of sewers and drains, the laying of gas and water pipes, the erection of telegraph and telephone wires, and including such methods for the transportation of passengers and freight as modern science and improvements may have rendered necessary, and such uses must be deemed to have been in contemplation when the street was opened, whether by dedication, purchase or condemnation proceedings, and hence such uses impose no new burden or servitude upon the soil or abutting land.

3. NO DISTINCTION BETWEEN RAILWAYS FOR PASSENGER TRAFFIC AND FOR BOTH FREIGHT AND PASSENGERS. No reason exists for a distinction between railroads designed exclusively for passenger traffic and railroads designed to carry both freight and passengers, as respects the burden thereby imposed upon the street. The difference, if any, is of degree and not of kind.

4. EJECTMENT AGAINST RAILROAD IN STREET. Where a railroad is laid in a public street without authority, ejectment will lie by the owner of the fee, but if the road is laid under legislative authority, ejectment will not lie. In such case the owner should be remitted to an action to restrain, or, if the injury is consummated, to an action for damages, or to proceedings to abate as a nuisance, as the case may be.

5. DAMAGE TO ABUTTING PROPERTY.

In an action of ejectment by the

owner of the fee of a street, against a railroad laid therein, no question of damages to abutting property arises.

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