In this case I concur most emphatically in all that has been said by Mr. Justice McGrath in his dissenting opinion.
I am satisfied that the system of railway in operation upon Mack street does fasten a new burden upon the land of the abutting owners on that street. It introduces a new and dangerous element of locomotion, certainly not known, or even thought of, when the street was dedicated to public use, and for the purposes of public travel.
I know that the current of authority, what little there is of adjudication upon the subject, is to the contrary; but in every single case the reasoning of the opinion, to me, rests upon a false and dangerous foundation. It is that the rights of the individual must give way to the needs of the public, in the use of new discoveries and inventions to facilitate travel and' rapid transit in the *672great and growing cities of our land. But there is no public need that can, in right, be permitted to destroy or damage 'the property of the individual without compensation. The safety of this government, and of' every community, rests upon the .protection of the law to the rights of the individual man. Railroads and other corporations ought not, under any plea of the public convenience or the public welfare, to be permitted practically to destroy the dwelling-place of the humblest citizen, or to damage, it, without compensation; and, when such an attempt is made, without any proposed compensation, and without the consent of the owner of the property, the strong arm of equity ought to interpose to save the rights of the individual thus threatened, without reference to the effect of such action upon the public, or its convenience.
The system of propelling street-cars by electricity, known as the “trolley system,” burdens the street, in the first place, with a track wider than a wagon track, which is practically taken out of the street, away from the use of other travelers, and made the “ right of way ” of the street-car company. Poles are planted in front of the property of abutting owners, and upon these are strung wires, charged with a dangerous, and not entirely certain, force, the full nature of which is known to but a few, if any, and the full control of which has, as yet, not been given to man.
It has been held by the same authorities that consider a horse railroad not to be an additional servitude that a steam railway imposes a new burden. The only reasons given for the distinction are, as said in one case, that the question whether any use of a street was a new servitude was one of degree, and depended on the manner in which the streets were used; that in the case of steam *673power to propel the cars there was noise and smoke, the trains were longer and heavier, and the speed was greater, than in the case of horse cars, and the use was practically inconsistent with other uses of the highway (Railway Co. v. Doyle, 88 Tenn. 747, 13 S. W. Rep. 936); and that it has been found by actual experience that the use of cars upon a street, propelled by steam, practically destroys the street for any other means or purposes of travel.
If the question to be considered, then, in determining whether or not the abutting land-owners upon the street are entitled to compensation, is the degree that the proposed use may prevent the street being used for the ordinary, legitimate purposes of public travel, certainly such a road as this electric road upon Mack street does impose a new servitude, for which the defendants are entitled to compensation before the road is laid; for, under the circumstances shown, it is a nuisance, and practically destroys the street, and with the destruction of the street the property of defendants is taken. The evidence shows that between the car track and the ditch of the street there is only from six to eight feet in many places; that the track is raised from four to eight inches above the center of the street; that it is almost impossible to pass a car with any vehicle without being ditched; travel has decreased on the street; coal, wood, meat, milk, and other wagons will not go upon; the street; the wires are strung so low that a load of hay cannot pass under them. People are denied access to their homes by teams and vehicles, and residence property has greatly depreciated since the road has gone into operation. The cars run with greater speed, and therefore with greater danger, make more noise, emit sparks and flashes of light, and are more dangerous, frightening horses, and even people. *674Under such circumstances, the use of these cars in this street, in its present condition, is a nuisance to the property-owners on its line, and to all the public who travel upon it by ordinary methods.
It is said that the city of Detroit can remedy most of these evils by grading and paving the street, and that the municipality can safely be trusted to do this. But the property-owner of traveler on this street has no way of compelling the city thus to remedy the evils of which he may justly complain, and is not bound, in my opinion, to wait and suffer without compensation, and without any tangible hope of relief.
It is bad enough, under the exercise of the power of eminent domain, to destroy or damage the home of the citizen, which he has planted upon the spot where he desires it to stand, when he is compensated for the 23ecuniary sacrifice; but it is a crime against him, and a violation not only of our Constitution, but of the very essence of liberty, to damage or destroy it without compensation, at the will of municipal or other corporations. And in my opinion, neither the city nor the Legislature can permit a private or public corporation practically to destroy an existing street without the intervention of a jury or commissioners to assess the damages to the abutting owners by such destruction. The city of Detroit has no authority to allow a street-railway company to obstruct the uses of a street. In such a case as the present, the street should have been graded and paved before the franchise was granted to the complainant.
This case, in brief, is this: Here is a land-owner upon a resident lot abutting upon a street, in the soil of which he owns the fee, subject only to a public easement which he, by dedication or otherwise, has granted for the ordinary and proper uses of a street or highway. When *675lie built his dwelling-house, abutting the street, and when he dedicated his land to the public use, such a thing as an electric railway was unknown, not only in operation, but even in the published thought of man. But the new discovery is made. Travel by the new method is more rapid, and therefore more convenient and useful to the public, -than the old Ways. And it requires ’ money to operate such a road; there must be an aggregation of capital to organize and run it. A corporation is formed, and this corporation, asking only the leave of the publie, represented by the common council of the city of Detroit, and against the protest of this resident land-owner and his neighbors, proceeds to lay its tracks in the middle of this narrow street, raising such track above the level of the street to conform more easily in the future to a proposed grade, plants its poles at the edge of his sidewalk in front of his residence, ..strings upon them wires from 13 to 18.feet above the ground, and commences running the cars. He must bring his wood, coal, hay, etc., upon some other street, as near to his residence as he can. He must bring his milk and meat home by hand. The value of his property is lessened, and his home becomes undesirable. He cannot sell, except at a sacrifice. In effect, his property is taken from him without compensation. When he goes into court he is informed that he cannot prevent this corporation from thus damaging his property, because the public demand, and must have, rapid transit; that his property cannot be protected, and his rights as an individual asserted, against this corporation, because the public are benefited at his expense. This is to me a new doctrine of eminent domain. The public need and are benefited by steam railroads; the progress of ■ civilization would be checked and the world at a standstill without them; but they have never been allowed to acquire private *676property except by purchase or condemnation. But here is an electric railway company permitted to take private property without consent or condemnation, and the landowner is powerless to prevent it; and it is doubtful, from the opinions of some of the learned judges who have upheld such proceedings, if he can even seek relief, after the road is laid and operating, in a court of law, for the actual damages he has suffered. In my opinion, no legislative grant, or municipal authority under such grant, can thus deprive an individual of his interest in land, no matter how' urgent the wants of the public. The need of the public cuts no figure when the question of compensation to the land-owner for the taking of his property is mooted. It can o"nly be considered when the question of the right to take it at all is raised.
But it is said that, although the fee is in the abutter, the wjiole beneficial use of the land for the purposes of a street is in the public, and that for those purposes it does not belong to the individual at all. Still it must be conceded that the abutter retains his easements of light and air and access to his premises, and also the right of the ordinary ways of travel upon the street to and from his land. These are property rights, and for the loss of these he is entitled to compensation. Nor can he be deprived of his rights because a court may think the damage to him is but trifling. It is by inches that ells are obtained. In the case before us this railway company may be taking but a pound of flesh, but in the case of the home-owner it is the pound of flesh nearest his heart.
The question whether or not a street railway constitutes a new burden was not before this Court in the case of Grand Rapids & I. R. R. Co. v. Heisel, 38 Mich. 62, and what was said in that case by Mr. Justice Cooley ought to have no binding force, except, perhaps, from the fact *677that it has been acquiesced in for a long time by' property-owners in this State. I agree with Mr. Justice McGrath that the argument in favor of the proposition there laid down by Mr. Justice Cooley is unsound.
It seems strange that the same courts that hold that the planting of telegraph or telephone poles in the street imposes a new servitude, and that they cannot be so planted without the consent of the owner, yet hold that the putting up of poles in the same places for an electric railway does not impose any new burden. The reason given is that telegraph and telephone poles are not used to facilitate the use of the streets for travel and transportation,—
“Whereas the poles and wires of the railroad company are directly ancillary to the uses of the street as such, in that they communicate the power by which the cars are propelled.”
This distinction Judge Dillon has said “to be so fine as to be almost impalpable,” and that “it suggests serious doubts whether both conclusions are sound and reconcilable.” If it were not for the telegraph and telephone, the messages transmitted by them would have to go by mail or other carrier, and use the highways more or less therefor, and it needs but a little further extension of the principle laid down in the case of railway poles to include also telephone and telegraph poles. Indeed, the courts of two states have adopted such extensions, and hold that the land-owner is entitled to no compensation for the erection of the latter poles in the street. Pierce v. Drew, 136 Mass. 75; Julia Bldg. Ass’n v. Bell Tel. Co., 88 Mo. 258. If this principle is to prevail because of the needs of and benefit to the public, our streets may be filled with street-car tracks, preventing other modes of travel, and poles may be so thickly planted along our sidewalks as even to exclude light and air from our *678dwellings, and yet we shall have no remedy; for if one company may do anything of this kind another may. The only limit seems to be the legislative or municipal will; the individual is not a factor in the case; his rights have no weight with the law, although he is the one most vitally interested, if the old idea of the sacredness of his right to his home is not a myth or a humbug.
The argument may be amplified in many ways, as it has been, to sustain the idea that an electric railway does not impose a new burden upon the land; but the facts remain, that no land-owner wants such a railway upon his street in front of his home; that it is a means of travel not contemplated when most of our streets were dedicated; that the poles are unsightly, and a damage to the premises of the abutter; that the wires may and have been the means of injury and death; that the cars are more dangerous than horse-cars, and more liable to-frighten animals; that such a road depreciates the value of land as residence property upon the line of such road; and that it is a positive damage to the abutting landowner. Why, then, is not his property taken within the meaning of the Constitution, and taken without compensation? Why should his property rights be disregarded? It can only be justified, as before said, upon the plea that the convenience of the jjublie is so para, mount to the rights of the individual that the property of the latter must be sacrificed without recompense for the benefit of the public.
We have heard this argument before. It has been more than once made in this Court in favor of the great lumber corporations of this State. It has been contended that the lumbering interests of this State were so extensive, important, and valuable, and so identified with the interests of the public, that the poor farmer, with a small piece of land upon a navigable stream, must bear *679the servitude and burden of damage to his land by the flooding of the streams and. running of logs, without compensation, because the public would be benefited thereby. While this argument has been listened to, it has never as yet been accepted by this Court as sound doctrine, and thus far the poor and the weak have not been denie'd the equal justice of our laws. Witheral v. Booming Co., 68 Mich. 57, 58.
The doctrine contended for is but a new phase of the old idea that “ the king can do no wrong.” It cannot prevail in a free government. The individual, in a republican form of government, is the one to be protected and guarded, and in his protection lies the security of liberty to the whole people. If the need of the public demands this kind of a railway for rapid transit, then the public can afford to pay for the privilege of destroying the property of the individual citizen. In no other1 case that I know of has the home of the individual been permitted by the law to be damaged without recompense,, that the public might reap a benefit. If the need of the public is such that it must have this particular method of transit, that need will furnish corporations with the means to repay every private citizen for the loss and damage that his property must suffer to accommodate such public need.
The plea that electric railways will not be built, unless the property of abutters upon -the street is permitted to be taken or damaged without compensation, is too puerile to be considered as an argument in favor of the destruction of private rights.