It was undoubtedly a matter of much public concern to the citizens of Ft. Smith and the Indian Territory that vehicles and foot passengers should be allowed to use the bridge as soon as possible, and that necessitated the use to a limited extent of appellant's right of way. When congress authorized the latter use (as we think it did) it was not incumbent on it to require compensation for the additional servitude to be paid in advance of its actual enjoyment by the public, even if some additional compensation is recoverable. Cherokee Nation v. Southern Kan. R. Co., 135 U. S. 641-659, 44 Am. & Eng. R. Cas. 26. Furthermore, the appellees have a right of action at law to recover such additional compensation as they may be entitled to. Central Branch U. P. R. Co. v. Twine, 23 Kan. 591; Bentonville R. Co. v. Baker, 45 Ark. 252; Lewis Em. Dom. § 623, and citations. But the most important consideration bearing on the right to an injunction is the fact that, in the exercise of the authority granted to it by congress, the railway company does not propose to intrude upon the possession of any lands now occupied by the appellees, or to do an act that will occasion injury to any considerable extent.

The damages, if any, to which the appellees can lawfully lay claim, are certainly very small, if not purely nominal. We recognize the rule that legal rights of every description are entitled to protection, no matter how small their money value may be, but a court of equity is not bound to afford protection by an unconditional order of injunction, when adequate relief may be afforded in some other manner, whether the right involved is of great or little value. Bassett v. Salisbury Manuf'g Co., 47 N. H. 437; McElroy v. Kansas City, 21 Fed. Rep. 257, 6 Am. & Eng. Corp. Cas. 8; Erie R. Co. v. Delaware, L. & W. R. Co., 21 N. J. Eq. 291,

292.

We are of the opinion that the circuit court would have gone quite far enough in the case at bar, had it required the appellant to give a bond in a reasonable sum, not exceeding $2,500, conditioned to pay such damages, if any, as the complainants below might thereafter be adjudged to be entitled to, by any court of competent jurisdiction, in consequence of the alleged additional servitude imposed or threatened to be imposed on its right of way.

Entertaining these views, the order of injunction appealed from is hereby vacated and annulled, the existing injunction is dissolved, and the cause is remanded to the lower court with directions to take a bond for the protection of the appellees not exceeding the amount, and with conditions as above indicated.

COMMISSIONERS OF PARKS AND BOULEVARDS

ย.

DETROIT, GRAND HAVEN & MILWAUKEE R. Co. et al.

(Michigan Supreme Court, July 28th, 1892.)

Eminent Domain-Condemnation of Crossing Over Railroad "Yard" for Boulevard.-Under Local Acts 1889, No. 388, sec. 15, which provides that the commissioners of parks and boulevards may acquire by legal proceeding, any land or interest in lands which may be found necessary for the opening of any park or enlargement or extension of any park or boulevard which may hereafter be laid out, located or established, “a right of way for a boulevard may be condemned across the right of way of railroad companies, completely occupied with their main tracks, and side tracks used for the purpose of storing cars, and called a " yard."

Damages Cost of Erecting Gates at Crossing.-A railroad company is entitled to compensation for expense incurred in the erection of safety gates at a crossing of a boulevard extension over its tracks.

APPEAL from Recorder's Court of Detroit.

Proceedings to condemn a right of way for the use of a boulevard across railroad tracks.

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

John J. Speed, for appellees.

Statement of

CANO.

MCGRATH, J.-These are proceedings for the opening of the boulevard in the city of Detroit, over respondent's rights of way, under Act. No. 388 of the Local Acts of 1889. Precisely the same questions are raised as were passed upon in Commissioners, etc., v. Michigan Cent. R. Co., 90 Mich. 385, 50 Am. & Eng. R. Cas. 144; and in Same v. Chicago, D. & C. G. T. J. R. Co., (Mich.) 51 N. W. Rep. 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 crossexamination, 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. R. Co. v. City of Fari bault, 23 Minn. 167, and in St. Paul Union Depot Co. v. City of St. Paul, 30 Minn. 359, it was proposed to take depot grounds. In Prospect Park & C. I. R. Co. v. Williamson, 91 N. Y. 552, 14 Am. & Eng. R. Cas. 34, 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. R., and Grand Trunk, 90 Mich. 385, 50 Am. & Eng. R. Cas. 144, 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. Mich. 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 en

gineer, 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 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.

Laying out Streets and Highways Across Railroad Tracks. See Commissioners of Parks v. Michigan Cent. R. Co. (Mich.) 50 Am. & Eng. R. Cas. 144; Chicago & N. W. R. Co. v. City of Chicago (III.) 50 Id. 150, and cases cited in note, 160. See also Illinois Cent. R. Co. v. City of Chicago, post. Damage to Adjacent Property by Construction of Boulevard Across Railroad Tracks. Where, in a proceeding to condemn a right of way for a boulevard across defendant's railroad tracks, it appeared that the crossing rendered the company's warehouse, and the land upon which it was located, less available and less valuable, this was a proper element of damages, and should have been submitted to the jury. Commissioners of Parks & Boulevards of Detroit v. Detroit & C. G. T. Junction R. Co., (Mich. April 8, 1892), 51 N. W. Rep. 934.

ILLINOIS CENTRAL R. Co.

ข.

CITY OF CHICAGO.

(Illinois Supreme Court, May 12, 1892.)

Eminent Domain—Extension of Street Across Railroad.—Under the constitution (Const. 1870, Art. 11, § 14) and statutes (Rev. St. 1874, chap. 24, Art. 5 § 1 par. 89) of Illinois, every railroad company holds its right of way subject to the right of the public to extend the public highways and streets across such right of way, and a city may exercise this right even though such extension subjects the railroad company to great inconvenience in the operation of its road. And this right includes the extension of a street across a collection of tracks called a "yard."

Overhead or Grade Crossings-Discretion of City Council.-Under the statute (Rev. St. 1874, chap. 24, Art. 5, § 1 par. 89) the city council is vested with the power to extend the streets either "over or "across" the tracks, either above the tracks by means of viaducts, or on the same grade or level with the tracks, and having exercised their discretion, the courts will not interfere.

Restoration of Track. The provision in par. 89 of the above statute, that "where no compensation is made to said railroad company the city shall restore such track to its former state, or in a sufficient manner not to have impaired its usefulness," only requires the track to be so restored as not to