Detroit, Fort Wayne & Belle Isle Railway v. Osborn/Opinion of the Court
1. A motion is made to dismiss the writ of error on the ground that the record exhibits no Federal question. The motion is denied. The plaintiff claimed and set up a right under the Constitution of the United States, and the decision of the supreme court of the state was tantamount to the denial of that right. Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U.S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173.

2. The argument of plaintiff in error on the merits is that it was the first to occupy Clark avenue; that at that time there was no public highway or street crossing at such avenue; that subsequently the steam railroads laid their tracks, the Wabash Railway Company being the first to do so, but installed no safety devices of any kind, 'though it were the junior company;' that the tracks on the other railroads were subsequently constructed and are controlled by the Union Terminal Company. It is hence asserted that the plaintiff in error cannot be made liable for any part of the cost of safety devices, because it is the settled constitutional law of Michigan that its occupation constituted no additional burden upon the highway, but is simply a method of using the highway for the purpose of public travel and 'in direct furtherance of the purpose for which the highway was established; that the street railroad company, in contemplation of the law, bears no different relation to the highway than that of any other person using the highway for the moving of vehicles or for any other method of public or private travel, and cannot, as between others using the highway for like purposes, be required alone to bear the expense of installing and maintaining safety devices at steam railroad crossings designed for the protection of all the traveling public.'

And, further, it is also a well-established principle of the constitutional law of Michigan, that a junior road seeking to cross another cannot shift any portion of the expense of maintaining safety devices without compensation, though the senior company did not insist upon the installation of the devices or compensation at the time the tracks of the junior company were constructed. In other words, it is asserted that the dangerous condition arose, and yet arises, from the steam railroads, and on them alone can the cost of safety devices be legally imposed.

3. It is also insisted that the law is unconstitutional because it does not provide for notice.

(1) It was conceded by the supreme court of the state that it was the law of the state that the compensation for the damages caused by crossing the tracks of a railroad by another railroad or by a highway included the cost of making the highway safe. But the court said: '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 relate 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.'

And besides this element of time, the court said that there were other elements of damage which were either too remote or depended upon the relation of the roads to the state. Both elements are important. The conditions which exist to-day could not have been contemplated years ago, or be the measure of the rights and relations of the respective roads. Those rights and relations were necessarily determined at the time the crossings were made. What could not be foreseen could not have been made a ground of action, and if the growth of business and population can give rights to either of the bisecting roads it is not clear how the police power of the state can be limited in its control over either of them. The supreme court of the state recognized this, and fortified its views by Michigan cases.

In Flint & P. M. R. Co. v. Detroit & B. C. R. Co. 64 Mich. 350, 31 N. W. 281, the court in an elaborate opinion expressed the rules of compensation when the right of one road to cross the tracks of another was sought by condemnation proceedings. In that case compensation was claimed, not only for the use of the crossing, but for the cost of maintaining signals or a cross system, cost of a watchman, and cost of stopping trains. These items were rejected. There was some uncertainty in the evidence, and the items for maintaining signals or the crossing system were disallowed on that ground, but the court pointed out the difference between a 'structural change in the property,' for which compensation should be given, and those things which may be required by the legislature in the exercise of police regulations, as to which the roads 'stand upon an equality before the law, and neither can levy tribute upon the other as a compensation for obedience to its requirements.' And such regulations, it was observed, 'are as binding upon an existing road as one newly organized.' The court cited the case of Massachusetts C. R. Co. v. Boston, C. & F. R. Co. 121 Mass. 124, where Mr. Justice Gray, then chief justice of the supreme judicial court of Massachusetts, expressed the law as follows:

'A railroad corporation across whose road another railroad or highway is laid out has the like right as all individuals or bodies politic and corporate owning lands or easements, to recover damages for the injury occasioned to its title or right in the land occupied by its road, taking into consideration any fences or structures upon the land, or changes in its surface, absolutely required by law, or in fact necessary to be made by the corporation injured, in order to accommodate its own land to the new condition. Com. v. Boston & M. R. Co. 3 Cush. 25, 53; Old Colony & F. River R. Co. v. Plymouth County, 14 Gray, 155; Grand Junction R. Co. v. Middlesex County, 14 Gray, 553. But it is not entitled to damages for the interruption and inconvenience occasioned to its business; nor for the increased liability to damages from accidents; nor for increased expense for ringing the bell; nor for the risk of being ordered by the county commissioners, when in their judgment the safety and convenience of the public may require it, to provide additional safeguards for travelers crossing its railroad. Proprietors of Locks and Canals v. Nashua & L. R. Corp. 10 Cush. 385, 392; Boston & W. R. Corp. v. Old Colony R. Corp. 12 Cush. 605, 611, and 3 Allen, 142, 146; Old Colony & F. River R. Co. v. Plymouth County, 14 Gray, 155.'

It is, however, contended that a street railway has a different relation to a street than that which a steam railroad has; that the former 'acquires a right to use the same in common with other members of the traveling public, and is not an additional burden upon the street, but is merely an adaptation of the highway to a particular means of travel, and does not constitute an additional servitude. A railroad is, on the other hand, an additional servitude, and if it is built across a highway it must do all things necessary to render the highway, for all its legitimate uses, as safe as it was before the railroad was built across it, or would be if such railroad were not built across it at all.'

It may be that this difference is recognized as to abutting property owners or crossing railroads, but it cannot be recognized as limiting or affecting the power of the state to regulate the management of the roads in view of the danger of their operation to the public. Whether electricity be the motive power, or steam be the motive power, there is enough danger in the operation of either to justify regulation. The record in this case shows that there are thirty-eight daily passenger trains crossing Clark avenue, and that the cars of the plaintiff in error pass every few minutes. It is manifest, as the supreme court of the state observed, that the crossing 'is a place of unusual danger, not only to the passengers in steam cars, but also to the passengers in the electric cars,' and that the danger is caused by both. In such situation the city is surely not powerless to act, nor before acting must it ascertain the exact quantum of damage caused by each road, and by that standard assign the cost of protecting the public. See Maine C. R. Co. v. Waterville & F. R. & Light Co. 89 Me. 328, 36 Atl. 453.

It is also objected to the order that it deprives plaintiff in error of the equal protection of the laws. The argument to support this contention is an extension of that which claims that the use of the street by the plaintiff in error 'is merely an adaptation of the highway to the particular means of travel.' And it is deduced that an electric street railway has an equality of rights with ordinary vehicles. That we think there is a difference between ordinary vehicles and cars propelled by electricity, which may be recognized by the state in the exercise of its police power, we have sufficiently indicated.

(2) The objection that the statute does not provide for notice seems to be made for the first time in this court. It is not mentioned in the majority opinion nor in the dissenting opinion. It is not particularized in the petition for the writ of error nor in the assignment of errors. In the petition for this writ of error it is recited that the plaintiff in error in its application for mandamus claimed that the order of the railroad commissioners was invalid because it deprived plaintiff in error of its property without due process of law and denied it the equal protection of the laws. And also recited that on the 'issue framed therein said cause went to a final hearing.' The cause was submitted on petition and answer, and the petition alleged 'that notice was given by respondent to relator and the Union Terminal Association, and the hearing had, at which relator's representative objected to the making of said order.' It is, therefore, not open to the plaintiff in error to complain that the statute does not provide for notice.

Judgment affirmed. 

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