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 Railroad, and the Detroit & Bay City Railroad 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 Railway Co. v. City of Faribault, 23 Minn. 167, and in Union Depot Co. City of St. Paul, 30 Id. 359 (15 N. W. Rep. 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 railroad company for canal purposes.

In Re Boston & A. R. R. Co., 53 N. Y. 574, the rail

road 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. R. Co. et al., 90 Mich. 385, involved the crossing of the rights of way of the three roads-the Michigan Cent. R. R. (lessee of the Detroit & B. C. R. R.), Lake Shore & M. S. Ry., and Grand Trunk R. R.-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 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. R. Co., et al., supra. The causes will be remanded to the jury for further proceedings.

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

GRANT, J. (dissenting). I can find no reason to justify a reversal or modification of my former opinion in this case, which was handed down May 6, 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. Petitioners' only witness, their 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 respondents, 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. R. Co. et al., 90 Mich. 385, and we see no reason for reversing any of the rulings therein. That case involved the powers 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. On next page is a map showing the situation.

The question is a new one in this Court, and it is of the utmost importance to railroad companies and to the public, who possess the right of carriage over these roads of both person and property. There are one main track and three side tracks of the Detroit, Grand Haven & Milwaukee Railway Company, and two Y tracks of the other respondent. These side tracks are in daily and constant use for storing and switching and marshaling cars, and for the transfer of freight cars from one road to the other. Two engines are there employed in this business from about 7 A. M. to about 5 P. M. daily. Switching is also going on at night. Several factories are situated just south of the proposed boulevard, and some of these tracks are used in taking cars to and from them. Over the main line of the Detroit, Grand Haven & Milwaukee Railway Company, 26 passenger and 12 freight trains pass daily in the dullest season, while in the busy season 14 or 15 freight trains pass each way daily. The distance of the boulevard across this railroad yard is 191 feet. One passing over it, either on foot or by carriage, would be among the railroad tracks for all but 16 feet of this distance.

The petitioners introduced but one witness, their civil engineer. He testified, on direct examination: "To carry