(dissenting). I cannot concur either in *661the result arrived at by the majority or in the reasoning or conclusions of Mr. Justice Grant.
The case hinges upon the question as to whether or not the construction and operation of a street railway in a street, and, as incident thereto, the placing of poles therein upon which are to be stretched electric wires, is a new servitude; and I am .clearly of opinion that a street railway, whether operated by animal power, electricity, or steam, is ‘an additional burden; and it seems to me that the exemption of any street, whether narrow or not, is a practical concession to this view. If it is or can be an added servitude in any street, however narrow, it must be in any street, however wide, the only difference being one of degree. If the width of the street is to determine, just what width shall determine the question? If the right exists to grant a franchise in one street, and the exercise of that right concludes the abutting owner, why not in any street? Any fixed right of way in a street is a new burden upon that street. Any use of a street, a like use of which is not common to all, is a new servitude. Any use of a street, which narrows the street, or which interferes with the use-of any part of the street by the public, or confines the public to a use of but a part of the street, is an added burden. Any use of a street which increases the danger of a common use of that street is an additional servitude. Any use of a street which interferes with its use by the public is a use affecting the abutting owners.
The value of property upon a. street is materially affected by its width, by the portion thereof devoted to public travel, by the facilities afforded for ingress and egress, and by anything and everything that interferes with a common use of the street, or the abutting owner’s access to it, or which obstructs his view, or interferes with the utility or beauty of his premises. He is entitled *662to every use which is not inconsistent with the public use, and to every use which is not inconsistent with such a use as is common to all. A street railway lays its track upon the surface and in the center of a street. It appropriates just so much of the street to its use, and to a use which is practically exclusive. It divides a wide street into two narrow streets. The portion of the street occupied by its tracks can only be used with increased danger. It cannot be crossed without danger, nor without the exercise of great care. Wheels and axles of vehicles are being constantly broken by attempting to drive on its way, or along or across its wajr, and the only answer which the street railway or the municipality makes to the injured party is, “Keep out of the track.” It has been held that a line of omnibuses will not be allowed to run regularly upon street-car tracks, to the injury of the business. Railroad Co. v. Citizens’ Coach Co., 31 N. J. Eq. 525.
Streets are laid out not only with reference to roadway, but to sidewalks and margins for ornamentation. A street is laid out 50. feet wide, with a 25-foot road-way, and 12-g- feet on each side for sidewalks and ornamentation. A street-car track is laid through the center of the road-way, leaving practically but less than 10 feet each side of the track, insufficient for two teams to pass each other, and insufficient for one team to pass on that side of the street, if there should be a street-car approaching, and a team hitched at the curb. Cars moving along these tracks have practically the right of way. They turn out for no one’s convenience, and are practically moving obstructions in the street, discommoding other vehicles, and adding materially to the hazard of travel. The abutting owner cannot unload a load of freight or hitch a horse in front of his own door without increased risk. Because of the existence of these *663tracks, road-ways are being constantly widened at the expense of sidewalks and ornamental grounds and ornamentation. If the local legislature has the right to permit the laying of a single track, why not of two tracks, or of four tracks?
Mr. Lewis, in his recent work on Eminent Domain, says:
c‘ That a difference exists between the ordinary horse railway and the ordinary steam railway is obvious; but is the difference anything more than one of degree? The essential characteristic of both kinds of roads is that there is granted to a private corporation or individual an exclusive franchise, right, or easement in the soil of the street. * * * If the principle- of the horse railroad cases is sound, then a street may be so filled with tracks, with cars running so frequently, as practically to exclude all other travel and traffic from the street.” Chapter 5, §124.
If a lot-owner has a frontage of 30 feet, he is entitled to 30 feet of unobstructed approach. If the council may grant the right to erect poles 100 feet apart, why not 50 or 25 or 12 feet apart? And then, why not the right to place cross-trees on the top of these poles, and ties upon the cross-trees, and stringers upon the ties, and all the incidents of an elevated railway? If the increased needs of the municipality is to be the test, then the legal rights, of the abutting owners must vary with place and varying population. An elevated railway in one of the populous streets of New York is as much a necessity there as is a surface railway on the street in question. A public highway is one over which all the people of the State have a common and equal right "to travel. It is a way in which no one has the exclusive right to travel, nor the. exclusive right to use it in a particular manner.
What is said by Dillon, regarding the use of a street by a steam railway company, is true in a sense of a street railway company:
*664“A different use of the land from that for which it was intended cannot be justified on the ground that a railway is an improved highway. Railway companies are only public corporations in a limited sense. The right of way, the road-bed, and the carriages propelled thereon are owned by private individuals, and not by the public. Fares are charged for travel thereon, for the exclusive benefit of the parties owning the road. They are constructed and equipped in the interest of private speculation, but at the same time they are intended to subserve the public good. The travel on them bears no analogy to our notions of travel on an ordinary street or highway, where every one travels at pleasure, in his own conveyance, without paying tolls or fares. The uses are totally different, and even inconsistent. The one is exclusive, in favor of private interest, and the other is open and free to all." 2 Dill. Mun. Corp. (3d ed.) § 704.
The defendants here are protesting against the occupancy of that street by the railway company with its tracks, poles, and wires, and it is notorious that, in a. number of instances in the city of Detroit, the residents of streets have vigorously opposed construction of lines of street railway in front.of their property. At the present time a petition is before the common council of that city for a franchise to construct an electric railway on Howard street, and the residents of that street have presented to the council the following reasons why the franchise should not be granted:
<fl. That the street is too narrow of its present width bo warrant the erection of such without' placing in jeopardy the lives of every resident along said street.
“2. That, in the event of a street railway along said street, the property from commencement to terminus will be depreciated in value.
“3. That to undertake to widen said street, as has been suggested by some of the petitioners, would not only depreciate property along the street, but would destroy the shade-trees upon both sides, which are not only a benefit, comfort, and luxury, but have taken years of care and attention to cultivate.
*665“4. That Howard street is the only street which we have to drive up from the center to the western portion of the city with any degree of comfort, on the western side of city, south of Grand Eiver avenue.
“5. That, in the event of an ordinance being granted for a street railway along said street, the street would be absolutely destroyed for residence purposes, as has been shown by improvements along such street compared with the portion already burdened with a street-railway track between Seventh street and Trumbull avenue.
“6. That the erection of a street railway, as contemplated by petitioners, would be endangering the lives of every child along said 'street, who feels more or less free at present to step outside its /place of abode.
“ 7. That the voluminous remonstrance against the same, presented to and now before. your honorable body and committee, is a sufficient indication that the residents of said street have no desire for such.
“ 8. That not a single individual has as yet petitioned for a line along said street, which is of itself a sufficient warrant that our present street-railway accommodations are very satisfactory to all who live on said street.
“ 9. That the recent decision of our Supreme Court pertaining to the erection of electric street-railways, through and along streets similarly situated as Howard street, is not justifiable, and cannot be done by the mere asking for and granting of the same.
“10. That, above all, it is not of a public necessity:
“ Thefore be it resolved that these resolutions be adopted, and a copy be presented by a committee of three, to be appointed at this meeting, to the common council, and the committee on streets and ordinances.”
Is it within the province of this Court to say to these property-owners, “ You do not know what you do not want?” to say to them that, as a matter of law, the railway will not be a new servitude? to suggest that this occupancy and use will not depreciate their property, will not bring a new danger to their doors, but will be an • advantage to them? to declare, as a matter of law, that this occupation of this street is a public necessity, whereas the public have not asked for it?
*666It may be conceded that street-ear service is a public convenience, but the necessities of the public must be supplied at public expense. The Legislature has no right to say that the property of the individual may be taken or injuriously affected for the public good without compensation. Public convenience is not to be subserved at the expense or disadvantage of the private citizen. The Constitution provides not only that private property shall not be taken without compensation, but it also provides that it shall not be taken at all, unless the necessity for the taking shall first be found by a jury or a commission appointed by the court. As was said by Mr. Justice Campbell in Powers’ Appeal, 29 Mich. 510:
ffNo legislation can be maintained which does not plainly require this question to be left to a jury.”
The street itself is the major necessity, yet the land taken for streets in a majority of cases is just what must ultimately be given in order to the beneficial use of the remainder; yet, if the public demands it before the owner chooses to give it, the public must pay for it, and those who have dedicated their own land for street purposes are assessed to pay for the taking. Nor is it true that rapid transit or street-railway transit is as necessary as light or sewerage or water, for these are actual necessities, while these methods of transit are simply conveniences. The common council has a right to provide that sewerage shall be directed to and through the public sewers, but it has no right to determine that transportation shall be confined to street-railway cars. The lighting of the streets is necessary for the protection of the public and municipality as well. The public and the city are interested in having water for convenient use, whether used by abutting owners or not.
But it is said that this is not a taking of property, *667within the meaning of the Constitution. Property is the right to the beneficial use and enjoyment of a thing, and the right to dispose of that beneficial use and enjoyment. Any thing which impairs that use and enjoyment is a taking. The opening of a street may not divest the owner of the fee, yet it is a taking and appropriation. In Grand Rapids Booming Co. v. Jarvis, 30 Mich. 320, Mr. Justice Ohristianoy says: '
“It is a transparent fallacy to say that this is not a taking of his property, because the land itself is not taken, and he utterly excluded from it, and because the title, nominally, still remains in him, and he is merely deprived of its beneficial use, which is not the property, but simply an incident of property. Such a proposition, though in some instances something very like it has been sanctioned by courts, cannot be rendered sound, nor even respectable, by the authority of great .names. Of what does property practically consist, but of the incidents which the law has recognized as attached to the title or right of property? Is not the idea of property in or title to lands, apart from and stripped of all its incidents, a purely metaphysical abstraction, as immaterial and useless, to the owner as 'the stuff that dreams are made of?’ Is it not a much less injury to him, if it can injure him at all, to deprive him of this abstraction, than of the incidents of property, which alone render.it practically valuable to him? And among the incidents of property in land, or anything else, is not the right to enjoy its .beneficial use, and so far to control it as to exclude others from that use, the most beneficial, the one most real and practicable idea pf‘ property, of which it is a much greater wrong to deprive a man than of the mere abstract idea of property without incidents? This use, or the right to control it with reference to its use, constitutes in fact all that is beneficial in ownership, except the right to dispose of it; and this latter right or incident would be rendered barren and worthless, stripped of the right to the use. Property does not consist merely of the right to the ultimate particles of matter of which it may be composed, — of which we know nothing, — but of those properties of matter which can be rendered manifest to our senses, and made to contribute to our *668wants oi’ our enjoyments.” See Eaton v. Railroad Co., 51 N. H. 504.
The same cases which hold that a horse railway is a proper use of a street declare that a steam railroad is not, and that the occupation of a street by a steam railroad is a new servitude; yet the use by the steam railroad is within the same limits as that of the horse railroad. The burden may not be as' great in the one case as in the other, but there is no difference in the principle. In this State the fee is in the abutter, and he has, in addition, a greater interest in the easement in front of his own property than- the public generally; but, whether he has the fee or but an easement, a burden upon either affects a property right.
It is urged that this use of streets “must be supposed to have been contemplated.” Is it possible that a use of a street which is not common to all streets, and which depends upon the desire of a street-car company or the will of a common council, must be supposed to have been 'contemplated? Can this special use, depending upon the question of profit to its promoters, be deemed to be one of the ordinary purposes for which property for a street was taken? Can it be that the use of a street as a mere outlet for a traffic which, in the absence of that use, would be distributed over several streets, can be said to be a use contemplated at the opening of that street? Is it true that all the traffic of a given territory embracing a number of streets may be directed upon a given street, and a system of transportation adopted which interferes with the other and' ordinary modes of travel upon that street, and the other streets relieved at the expense of that street, and yet that this system of transportion is not a new burden?
In a street-opening proceeding, the measure of damages is the value of the property taken, and the physical *669injury to what is left; but in the condemnation of lands for railroad purposes another element of damages is considered, viz., the consequential injury to the remaining estate growing out of the mode and nature of the use. The very existence of these different rules clearly indicates that, in the street-opening proceeding, no possible consequential injury was contemplated. The continuing consequential injury has always been treated as an element of the taking, and it has been held that a use of the same right of way by another steam railroad was a new servitude, although the damages must necessarily be consequential. Railroad Co. v. Reed, 41 Cal. 256. The Legislature cannot authorize either a direct or consequential injury to property without compensation to owners. It will not be claimed, even in the presence of this new use of streets, that it would be competent to permit a jury, in a street-opening proceeding, to consider the probable or possible use of a street for street-car purposes. The person whose land has been taken for a street has been compensated for the land, but he has also been assessed for the very benefits which this use deprives him of. Usually the benefits are assessed upon a limited territory, and not upon the public generally.
I am unable to reconcile the opinion of Mr. Justice Grant with the case of Taylor v. Bay City Street Ry. Co., 80 Mich. 77. That was a bill filed by abutting owners to enjoin the construction of a street railway. The court below dismissed the bill, but this Court made a decree restraining the defendant from the use of the road in front of .complainants5 premises. The decision was put upon the ground that1 the charter of Bay City empowered the council of that city to authorize the running of street railways in the streets of said city upon condition that the owners of lots adjoining, and persons interested therein, should receive compensation therefor, *670and the Court restrained the company until it had complied with the statute “requiring condemnation proceedings.” The company acquired the right to construct its road in 1864, but the amendment to the charter requiring compensation to be made was not enacted until 1869. If it be true that the street railway imposes no new servitude, then the statutory proceedings requiring compensation and condemnation proceedings is a barren provision, and the decree of this Court requiring condemnation proceedings to be taken imposed a duty upon the railway company which could result only in annoyance to it. It was urged in that case, as strenuously as it is here, that the construction of a street railway in a street imposed no added servitude; hence the point was raised. The result is that abutting owners in Bay City are entitled to compensation because the statute has merely declared the remedy, while in Detroit they are'not entitled to any remedy, because, as a matter of law, there is no injury.
This is not a question of whether or not the public shall have street railways or rapid transit, but it is one as to whether the owners of property shall be divested of its beneficial use and enjoyment without compensation, because a private corporation is attracted by the prospective revenue there is in the enterprise, and, upon the plea that it will be a great public convenience, has obtained a franchise to appropriate a portion of the street to its use. It is upon this same plea that the public, through its legislatures, has parted with about all it had that was of value, except its interests in the public highways, and it remains to be seen whether they, too, will be surrendered to monopolistic control, to the detriment, not only of the public, but of abutting land-owners as well. These owners have special interests in these ways which courts, at least, are bound to respect.
*671Iii this commercial age there is a growing tendency to avoid .those constitutional methods which are designed for the protection of property rights of individuals which should' be cheeked, else cburts will in time be powerless to protect the rights thus acquired from unlawful attack or abuse. The Constitution provides that private property shall not be taken until the necessity therefor shall have been first determined by a jury, and not then until compensation shall be made therefor. If the necessity for this use of our public streets is so pressing, there should be no difficulty in its determination by the methods pointed out by the Constitution, rather than by the desire on the part of the corporation to use the street for the purposes of revenue; and whether the injury to abutting property is slight or great is a matter of fact to be determined by a jury, upon 'proper consideration of the situation and circumstances of each case.