(concurring) — I concur in the result, upon the second ground stated in the opinion but not decided by the majority. I am led to take this view because of the fact that it is only in cases of grade separation that an abutting owner is entitled to damages. In view of this fact, the right of condemnation conferred by Rem. & Bal. Code, § 9081 would be rendered meaningless if it did not carry with it the power to permit the precise condition presented by the case at bar. The Schade case has been properly distinguished by Judge Gose. The company there involved was a steam railroad, and the decision was correct. But in arriving at its conclusion, I think the court must have overlooked the distinction which Judge Gose has pointed out, and used ex*17pressions which were calculated to mislead, and which have in fact encouraged this proceeding. In the Schade case will be found the following broad statement:
“It seems to us that a railway company given the use of a public street, under the powers of the city council here invoked, must be given that use, if it is to occupy any of the surface of the street, upon substantially the same terms as any other traveler upon such street may use it; that is, a free passage along the portion of the street surface so granted, when it is not in the actual use of some other traveler.”
This expression is inadvertent, and as I read the cases, is not sustained by reason or authority. Under its general police power, a city can, if the safety or welfare of the citizen demands it, say that a part of a street shall be given up to pedestrians, and a part to vehicles; that certain vehicles shall not go upon certain streets; or, as was held in the New York Elevated Railway cases, a grade separation may be ordained. While rights in a street are, as between the pedestrian and the vehicle — be it street car, wagon, or automobile — mutual, the city may, for the safety of either, or the convenience of the general public, give over a part of the street to one class, although technically it may seem that the use is exclusive. The remedy of the abutting owner is to take his damages.