(dissenting). The defendant is the. owner of an electric trolley line between Detroit and Ann Arbor, its railroad being laid in the public highway, in accordance with statutory authority, under licenses from the respective municipalities along its route. The township of Nankin granted the right to construct the road in the following language, viz., “Grants and conveys unto Thomas D. Kearney, attorney, his associates, successors, and assigns, hereafter to be organized into a corporation under the laws pf the State of Michigan, exclusive right and privilege of constructing and maintaining perpetuálly a street railway for the transportation of passengers and light freight along, upon, or adjacent to the highway known as the ‘ Chicago Road, ’ ” etc., subject to the rights in said highway of the Detroit & Saline Plank-Road Company. It also provides that ‘ ‘ the track or tracks of said railway shall be so laid as to obstruct as little as possible the free passage of vehicles and carriages along said highway, and so as to best accommodate the public traffic.”
This highway was one maintained by the Detroit & Saline Plank-Road Company, under the plank-road act (2 Comp. Laws, chap. 173), and the railroad was built with the consent of said company. The plaintiff owned and occupied a farm upon said highway, along the east side, of which ran the Flint & Pere Marquette Railroad, which crossed the highway in question a few rods east of the plaintiff’s house. The railroad was about eight feet above the natural surface of the ground bordering the highway, which its trains crossed above grade by means of a bridge, which was 15 feet long. To make room for the passage of teams under the bridge, the highway was *158graded down some feet at the intersection of the railroad, the cut extending westerly to a point about 15 feet west of plaintiff’s dwelling. By consent of the plank-road company, the highway was widened and lowered, by grading, to accommodate the electric road, and a new bridge, both wider and longer than the old, was built, by, and at the joint expense of, the two railroad companies. The electric line was laid along the north side of the highway, near to the line of the street; nearly the entire width of the roadway, including the bed of the railway track, being cut down to a uniform grade, so that the cut reached the level of the highway, as it theretofore existed, some rods west of the plaintiff’s house, which left plaintiff’s premises some three or four feet higher than the roadway where the cut was deepest; the ground being cut back to within a foot or two of his fence at the surface, and sloping thence to the track. A flight of five or six steps was built by the railroad company from the track up to the level of the land in front of plaintiff’s house. This action was brought to recover damages for an alleged injury to plaintiff’s premises, and the defendant has appealed from a judgment of $475 in plaintiff’s favor.
The plaintiff’s contention in this case is that the railroad company had no right to cut off or impair his access to the highway from his premises by lowering the grade for its track below the highway as it then existed, and by laying it so close to the line of the highway as to subject his fence and land to the danger of sliding into the highway. The defendant contends, on the contrary, that the plaintiff’s property has been subjected to no additional servitude. In the case of Detroit City Railway v. Mills, 85 Mich. 634 (48 N. W. 1007), the court held that the construction of an ordinary electric railway in the streets of a city, corresponding to the grade of the street, was not an additional servitude. But in Nichols v. Railway Co., 87 Mich. 361 (49 N. W. 538, 16 L. R. A. 371), it was held that the street-railway act confers no power upon a railway company to construct a road along the line'of a highway within two *159or three feet of the side of the road, where the roadbed does not conform to the grade of the street, but is built upon a grade with cuts and fills, — in that case the cuts and fills being two feet or thereabouts. It is sought to distinguish that case from the present in this: It is said that, while defendant’s road does not conform to the grade as it existed when the contract with the township was made, the grade has since been changed by defendant with the consent of the plank-road authorities, so that now the track is laid at grade. This is in effect saying that, while the defendant is not authorized to build a roadbed for its own use not conforming to the general grade, it may change the grade of the entire road with the track, without regard to its effect upon adjacent owners, if it can get authority from the plank-road company to’ do so.
A reference to the statutes may throw light upon this question. Section 6446 provides that a company may construct, use, maintain, and own a street railway for the transportation of passengers in and upon the streets and highways of any township, upon such terms and conditions as may be agreed upon by the company and the township board. Does this statute contemplate that the township authorities may turn over to the street-railway company the authority to wholly change the grade of its streets ? I apprehend that no one will assert this authority without at least some misgivings. But, even if this power be deemed to be granted to the township board by the section in question, it is sufficient for the purpose of this case to say that the township authorities never exercised that power, and never assumed to confer upon the defendant railway the right to change the grade of this street. The grant is set out above. It is simply a grant of the privilege of constructing and maintaining a street railway along the line of, upon, or adjacent to the highway known as the “ Chicago Road,” subject to the rights in said highway of the Detroit & Saline Plank-Road Company, and contains a provision that the track or tracks shall be so laid as to obstruct as little as possible the free passage of *160carriages and vehicles along said highway, and so as best to accommodate public travel. One might look long and earnestly, but in vain, to find within the four corners of this contract any suggestion of a right in the company to wholly change the grade of this highway.
But it is said that the plank-road company might change the grade for its own purposes, and that it has granted the right to the defendant company to change the grade, and that therefore the injury to plaintiff’s property is damnum absque, injuria. Here, again, a reference to the statute is not unprofitable. The legislature has provided, by sections 6470, 6471, that a street or electric railway may agree with a toll-road company for a purchase of all or any portion of the rights and franchises of such company, and, in case of failure to agree, there máy be a condemnation ; but the statute contains the express provision that the provisions of this act shall not be so construed as to affect the rights of abutting property owners or the rights of the public in such highways. In view of this provision, can it be said that the plank-road company may agree with the street-railway company that, for its own purposes, it may r.egrade a portion of the highway in a manner which injuriously affects the adjacent owner, and this without authority from the township board? We think it clear that no such right exists.
Independent of this statutory provision, the difficulty to my mind is as obvious. The right of the plank-road company is a special privilege and right, it terminates with its charter, its use of the highway is limited to such use as is essential for the purposes indicated by its charter, and it is reasoning in a circle to say that it may, under cover or pretense of enlarging its own uses of the power, evade the requirement of the statute which limits the use of a street railway to such as is agreed upon with the township board, and confer authority upon the street railway which the township board withholds.
For the reasons stated, I think it clear that the plaintiff was entitled to recover such damages as he sustained.
*161Other questions are raised by counsel, which may be briefly considered. The declaration claimed damages to the plaintiff’s land by reason of the excavation of that portion of the highway adjacent to his premises. Complaint is made that the circuit judge, in his charge, stated that this railway track, constructed as it was, constituted an additional servitude, and that evidence was given that the fence and soil would prbbably fall because of the excavation, and also as to the inconvenience in going up the steps onto the plaintiff’s land. We think it may be said of this testimony that it did no more than describe the situation, and was not intended to afford a basis for damages. In fact, an inspection of the photograph of the premises, which was introduced in evidence, would of necessity exhibit these conditions and authorize the inferences drawn by the witnesses.
The court charged the jury that the occupation and excavation of that portion of the road was unlawful, and that the plaintiff was entitled to recover such damages as would compensate him, limiting the damages to the amount which the land actually depreciated in value on account of the peculiar construction of the road, and distinctly stated to the jury: ■ “It is the damages for the excavation, and not for the operation of the road.” He also instructed the jury that the plaintiff was not entitled to recover any damages because of the fact that teams could not be hitched in front of his house, as that claim was not covered by the pleadings. We think this instruction fully protected the defendant’s rights, and that it was not error to permit the jury, in determining the damages caused by the excavation, to take into account the fact that plaintiff’s fence would be more likely to fall by reason of such excavation.
We think that no error was committed to the prejudice of the defendant, and the judgment should be affirmed, with costs.
Moore, J., concurred with Montgomery, J,