(dissenting). The main question in this ease may be thus stated: When a steam-railroad company has condemned a right of way and extended its *235tracks across a public street or highway on which is an existing street-car line, and at the time the public travel upon the street or highway was not such as to require the erection of gates, etc., for the protection of the public, but subsequently, owing to the increase of population, the increase of tracks and trains by the railroad company, and the increase of travel upon the street or the highway, the erection and maintenance of such safeguards becomes essential for the protection of the public, can the street-railway company be required to pay a portion of the expense ? It is now the settled law of this State that a street railway does not create an additional servitude. People v. Railway Co., 92 Mich. 522 (52 N. W. 1010). In addition to the authorities cited in Detroit City Ry. v. Mills, 85 Mich. 634 (48 N. W. 1007), and Nichols v. Railway Co., 87 Mich. 361 (49 N. W. 538), see, also, the following: Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., 139 Ind. 297 (38 N. E. 604, 26 L. R. A. 337, 47 Am. St. Rep. 264); Chicago, etc., R. Co. v. West Chicago St. R. Co., 156 Ill. 255 (40 N. E. 1008, 29 L. R. A. 485). Another well-settled principle is of importance in this discussion, viz.: A steam railroad, in constructing its tracks across an existing highway, must pay all the expense of putting the highway in safe condition, and erecting and maintaining such safeguards as are required for the protection of travelers upon the street or highway, as weil as those who are traveling upon the steam ■ cars. The correlative proposition is also well established, viz. : When a public highway is laid out across an existing railroad, .the public must compensate the railroad company, not only for the value of the land taken, but also for the construction of requisite safeguards, including gates, flagmen, fences, cattle-guards, etc., for the protection of the public. Chicago, etc., R. Co. v. Hough, 61 Mich. 507 (28 N. W. 532 ); City of Grand Rapids v. Railroad Co., 58 Mich. 641, 648 (26 N. W. 159); Commissioners of Parks & Boulevards of Detroit v. Michigan Central R. Co., 90 Mich. 385 *236(51 N. W. 447); Same v. Chicago, etc., R. Co., 91 Mich. 291 (51 N. W. 934); City of Grand Rapids v. Bennett, 106 Mich. 528 (64 N. W. 585 ); 8 Am. & Eng. Enc. Law (2d Ed. ), 351; Du Bois Traction Pass. R. Co. v. Buffalo, etc., R. Co., 10 Pa. Co. Ct. R. 401. The elements of damages in such cases are ably discussed by Mr. Justice Champlin, in Flint, etc., R. Co. v. Detroit, etc., R. Co., 64 Mich. 350 (31 N. W. 281), and many authorities there cited. Another well-established principle important to be here noted is this: He who creates and maintains a nuisance must pay the cost of abating it; and that business which, in its management, endangers the persons and property, of others, must pay the expense of taking the necessary precaution to avoid the danger, and it matters not whether that danger existed at the time of the establishment of the business or arose afterwards. It follows that in 1888, when the Wabash Railroad Company constructed its single track across the highway, and in 1893, when the Union Terminal Association placed its tracks across, they were required by law to pay the expense of all appliances at that time necessary for the protection of the public. So, too, if these companies were now making application -to cross the highway, they would be compelled to pay the expense of all the appliances which, in this proceeding, the commissioner has divided equally between the relator and the Union Terminal Association, and would be obliged to do so so long as they did business.
The argument of the learned attorney general seems to be that because, under the circumstances as they existed when the Wabash Railroad Company and the Union Terminal Association constructed their roads, damages for the cost of the appliances now required would then have been uncertain and speculative, and could not have been considered, therefore these companies cannot now be required to bear the entire expense. He states his position as follows:
“In behalf of respondent, I claim that said cases, while establishing the doctrine that a railroad company whose *237track is crossed is entitled to just compensation for all damages which it may have sustained by reason of such crossing, do not sustain the claim made by counsel for petitioner, namely, that the Union Terminal Association Railway Company must for all time bear the expense of constructing and maintaining the safety contrivances and appliances mentioned in the commissioner’s order, for the simple reason that, under the facts and circumstances of this case, the expense of constructing and maintaining said safety contrivances is not an element which can be considered in making up the just compensation to which petitioner is entitled under the Constitution and laws of this State. * * * This, court has never decided that where the necessity of safety appliances is created some 15 or 20 years after the crossing is made, solely in consequence of changed circumstances and conditions, resulting from the growth of the surrounding territory, that the road whose tracks were first laid shall be forever exempt from the burden of assisting in constructing and maintaining safety appliances made necessary by such changed conditions. ”
The injustice to the railroads is not apparent, because by holding them to bear the expense they are doing no more than the law would clearly require of them if they were now seeking to cross the highway. What is it that causes the danger to travelers upon the highway ? Clearly, it is not the street cars. It is the trains of the railroad companies. The street-car companies, by relieving travel, may fairly be held to lessen the danger to otherwise overcrowded streets. Why should the street-car company, any more than an omnibus line or a stage company, using the same streets, be required to pay for the expense of protecting the public ? If it be said that there is danger to travelers upon the steam railway from the street cars, the answer is ready that they are no more dangerous than heavy trucks, van wagons, stages drawn by four or six horses, or other vehicles. The street cars differ only from other methods of travel in that their carriages run upon rails. They have no more rights in going over the streets than other travelers have, except that other travelers are required reasonably to give the cars the right of way. *238Under the police power, these street-car companies are subject to all reasonable rules in running their cars. . They may be, and now are, required by law to stop their cars a certain distance from the railroad crossing, and not to cross until some employé has gone to the railroad track, and signaled that -the track is clear. The same rule might be required of stagecoaches- and any other conveyances with heavy loads.
In Du Bois Traction Pass. R. Co. v. Buffalo, etc., R. Co., 10 Pa. Co. Ct. R. 401, the complainant, the street-railway company, filed i£s bill in equity to restrain the defendant, a steam-railway company, from interfering with the construction of its tracks in the public highway across the railway tracks. The defendant used force to prevent the construction. In the suit the defendant claimed that the street-railway company should pay damages to the, defendant for injury to its business. It was there said:
“The respondent holds this right [the use of the street] subject to all the consequences flowing from the ever-increasing travel upon Booth street, and the use of all methods discovered or discoverable for the accommodation of the travel upon the surface of the street; and, if the respondent suffers any damages arising from the crossing of its track by the public, it is of a kind which it must be held to have assumed to itself when it entered upon Franklin street. * * * The crossing of its track by the passenger-railway company gives no greater right to damages, in the view we take of the case, than it could have if the claim was made against an omnibus line.”
This case was approved in 149 Pa. St. 1 (24 Atl. 179). That case is quoted with approval in Chicago, etc., R. Co. v. Steel, 47 Neb. 741 (66 N. W. 830), where the authorities are reviewed, and the court holds “that it [the steam-railroad company] is presumed to have contemplated the adoption of such improved means of travel as the exigencies of the case require in order to best subserve the public interests and necessities.”
In Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., *239139 Ind. 297 (38 N. E. 604, 20 L. R. A. 337, 47 Am. St. Rep. 264), it was held that the street-railway company was in the enjoyment of the public easement and use of the street, and that the right of the street railway to cross the tracks of the steam railway was subject to no conditions other than those to which the general public is subject in traveling over such streets. The court said:
“It [the steam railway] never owned its right of way over and across the streets named free from the burden of the public easement, a part of which belongs to the appellee, the street railway. ”
The true rule seems to be that when a railroad company crosses a public street or highway, in the absence of any limitations in its charter, it obtains its right subject to all lawful uses to which the street may be put. It obtains its right subject to the well-known fact that conditions change with the growth of population, and that it itself must meet the. expense which these conditions have made necessary for the protection of travelers upon the highway or street.
The learned attorney general seems to concede that, were it not for this street railway, the commissioner, under the law and the police power, could place upon these rail, roads the entire cost of erecting and maintaining these appliances. As we have shown and held, the street-car company is a lawful user of the highway, and, as such user, it cannot be selected to pay the whole or any part of the-, expense required for the protection of all who travel upon the highway or upon the railroad. This disposal of the case renders it unnecessary to determine the other questions raised.
Since writing the above I have received the opinion of my Brother Moore. The question involved is of such great importance that I feel justified in making a brief reply. It is well to keep in mind the precise question for our determination. The question is not between two steam railroads crossing each other on private grounds or on the public highway. Neither is it between steam *240railroads and the entire public using the highway. It is between steam railroads and one user of the public highway, and the question is, Who shall pay for the protection of the entire public ? or, in other words, Can one user of the public highway be required to pay part or all of the expense of protecting all users of the highway and as well those traveling upon the steam road? It must also be borne in mind that no one is seeking to abridge, lessen, or destroy the police power of the State to adopt any and all regulations which are necessary to protect the persons and property of those using the highway or the steam road. This power remains the same. The State, either directly or through the municipality, can regulate the speed of street cars within 100, 500, or 1,000 feet of the crossing. It can compel them to stop at any distance from the crossing. It can regulate the speed of the steam cars when approaching. It can, as it now does, compel an employé on the street car to advance to the track before crossing, and see whether the crossing is safe. It may compel the steam road to- erect gates, etc. I quote again from Chicago, etc., R. Co. v. Whiting, etc., St. R. Co.:
“ So long, therefore, as it is the settled law of this State that a street railway is not an additional burden to that of the easement which the general public has in the street, and that the street-railway company’s right to use the street is founded on that easement, that long it must be 'held that the right of such street railway to cross over the tracks of a steam railway laid on such street is subject to no conditions other than those to which the general public is subject in traveling over such streets. When the steam-railway company obtains its right of way over and along a public street, it does so subject to the right of the general public to use such street, and the street crossings over its tracks; and it is generally incumbent on such steam-railway company to make such crossings as passable for the general public as they were before the construction of their tracks thereon.”
The logic of this case and others cited by me upon the same point is that the street railway is a proper, legiti*241mate, and necessary use of the public highway, and that it cannot be made subject to conditions “ other than those to which the general public is subject in traveling over the streets.” Wherein is the logic of compelling one user of the public highway to pay the whole or part of the expense in protecting all users of the highway against the dangers incident to the passage of long, swift, and pon. derous trains of steam cars ? It is not the street car which causes the congestion of travel at this point; on the other hand, it relieves the congestion. The congestion is'caused by the increase of population,—by vehicles of all sorts, engaged in the transportation of goods and passengers, and as well travelers on foot. My Brother refers to the horseless carriage as probably increasing the danger to those who have the right to travel in the streets. Will it be contended that the owners of horseless carriages could be selected from the owners of other vehicles using the highway, and compelled to in part or entirely pay for the expense of gates, etc., at a railroad crossing? If a cartage company, a corporation, were engaged in the transportation of goods with its heavy trucks and enormous loads over this highway every 15 minutes or half hour in the day, could it be compelled to pay part or all of the expense to avoid the danger caused by the trains of the steam roads? 'Many vehicles, with their loads, are as heavy, and sometimes nearly or quite as large, as ordinary street cars. The tallyhos, with four or six horses, are certainly as dangerous at these crossings as are the street cars. But for the street cars there would be more conveyances of other character, and more congestion of travel, at these crossings, and consequently more danger than results from the use of the street cars.
It is urged that the facts in the cases I have cited are not those of this case, and that the precise question now • before us was not involved in them. This is true. The same may be said of the cases cited in my Brother’s opinion, unless it be the Maine case, to which I will refer
hereafter. The question is a new one, and calls for the *242application of principles to be deduced, so far as possible, from the decided cases, and by the application of sound legal principles. My Brother says:
“If there was no highway at this point traveled by a line of electric-railway cars and by the public, there would be no occasion for the interference of the railroad commissioner. It is because both of these conditions exist that human life is endangered at this crossing, and, under the exercise of the police power in the interest of public safety, the State is authorized to interfere through its agent, the railroad commissioner,”—citing several cases.
Will it be said that if there were no electric cars there would be no necessity of interference by the commissioner or some other authorized body to protect the public and prevent danger ? Is the electric car the sole cause of the danger, so far as it is caused by the using of the highway ? Might not the danger be as great, or even greater, without the street car ? The cases cited by my Brother relate to fences, cattle-guards, farm crossings, and the like, and do not touch this case.- The statement of my Brother that, “ under the exercise of the police power in the interest of public safety, the State is authorized to interfere,” is the conceded law. But does that affect the question who shall pay for these safeguards? The authorities cited, apportioning the expense where one steam road crosses another, are not, in my judgment, applicable. He qúotes extensively from Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 30 Ohio St. 604. I understand the rule laid down in that case is the general rule approved by this court, and is applicable only to steam railroads, whether they cross one another on private grounds or the public highway. It has never been applied to street railways.
I am not aware, as my Brother suggests, that street cars in cities are allowed a speed of from 40 to 50 miles per hour. No ordinance so providing has ever been called to my attention. I doubt whether there are as many accidents at street-car crossings from collisions with street cars as with other vehicles. The fact that there *243are frightful injuries and fatal casualties in the streets of the city, in consequence of collision with street cars, does not affect this question. Those accidents may result from the negligence of travelers, or from the employes of the street-car companies, or both, or from too great a speed allowed by the city, or in violation of the city ordinance. The question we are dealing with is one entirely foreign to those.
Maine Central R. Co. v. Waterville, etc., R. & Light Co., 89 Me. 328 (36 Atl. 453), is cited as a case in point. The language quoted by my Brother from that case must be read and understood in connection with its facts. The steam-railroad tracks were first laid-. The street-railway company recognized its duty, when it crossed, to place the necessary crossing frogs at its own expense. That this would be the legal duty of the street-railway company would hardly be questioned. These frogs were a part of the track of the street railway, and were necessary in its construction. They had become so worn as to be dangerous. The street-railway company claimed that it was the duty of the steam-railroad company to replace them, and to make proper provisions for the passage of the electric cars across the tracks of the steam road,—-a proposition which could not commend itself to any one’s judgment. The railroad commissioners very properly held that the street-railway company should bear the expense essential to enable it to cross the petitioner’s track, and to keep it in repair. No other conclusion, in the exercise of good sense, could have been reached. The syllabus of the opinion reads as follows:
“Whenever an alteration is made in an existing rail-Toad track for the sole convenience and accommodation of another railroad, the expense should be borne by the latter.”
No question of the exercise of the police power was discussed or apparently involved. I am unable to see that that'' case controls this.
The question before us is not whether the legislature *244may enact that the expense of crossings similar to this shall be borne, in whole or in part, by the entire public, nor whether the street-car company, in putting its tracks-across a steam road, can be compelled to make an overhead crossing at its own expense. We are dealing with a case where the natural growth of public travel, through the increase of trade and population, has made the proposed safeguards necessary for the protection of all, and where the attempt is made to make one user of the public highway bear half the expense to the exclusion of all others.
The writ should issue.,
Hooker, J., did not sit.