The object of this suit is to enjoin the sale of ten parcels of land for the, nonpayment .of taxes assessed thereon by the city in 1901. The trial court gave complainant relief as to parcels 8 and 9, but held it liable to pay either all or part of the taxes assessed against the other parcels. Complainant paid the taxes on parcels 4 and 6, and asks this court on this appeal to decree that it is not liable to pay taxes on the other parcels. The principal ground upon which complainant seeks relief is that the parcels of land in question are by law exempt from taxátion.
■ The larger part of parcels 1, 2, 3, 5, and 7 were, by the consent of complainant, in 1901, in the exclusive possession of private individuals, who used the same for their own business. Two wood and coal yards were located on parcel 2, one on parcel 1, one on parcel 7. A wood yard was located on parcel 3, a lumber yard on parcel 5. The *589business carried on at these yards by these various private individuals was apparently precisely what it would have been had their location been remote from the railroad. Most, if not all, of the merchandise bought by them came to them by rail over complainant’s railroad. Some of that sold by them — though in the case of the wood and coal this appears to have been very little — were shipped away over complainant’s railroad. But apparently they sold, and had a right to sell, merchandise to any one who would buy. The estates of these private individuals granted by the railroad company were not in form permanent. The record does not show what rights the owner of the wood yard on parcel 3 had. Complainant gave no express permission for the occupancy of parcel 5 for a lumber yard. But we are bound to decide-that that permission was implied. The occupation of parcels 1, 2, and 3 for coal and wood yards was under an express agreement called a “permission and license.” The record contains the agreements by which parcels 2 and 7 are occupied. . The occupant was to pay no rent; to remove the buildings by him erected, and to vacate the property, in one case in 60 and in the other in 30 days after notice. The occupants of parcel 2 agreed to pay the taxes on the property, if any were assessed. On parcel 1 there was also situated an elevator owned and controlled by the Brown Milling Company. This building was erected under a written permission made in 1888, similar to the writing above described, except that there was no provision for the payment of taxes. The writing specifies that the building “shall be used for the purpose of a grain elevator and warehouse.” There is no provision in the writing that the business of a public warehouseman shall be carried on, and there is nothing to indicate that the business that was actually carried on was in any sense a public business. On the contrary, it is to be inferred that the occupant used the same exclusively for storing and shipping the grain purchased or shipped in by itself.
Though the estate of these occupants is called a license, *590it was, in a legal sense, more than a license. See Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124). It had many of the characteristics of an estate at will. See 1 Washburn on Real Property (6th Ed.), §§ 762-796. While it was terminable at will, it might last for a long .period, and as a matter of fact at the time the assessment was made parcel 7 had been occupied under the agreement above described for 19 years.
Parcel 10 was in the form of a parallelogram, 800 feet in length north and south, and 350 to 400 feet in width east and west. A short distance from its eastern boundary was a side track. On the western 85 feet of the tract were four side tracks and a coal dock belonging to complainant. About midway between the tracks on the western side and the side track on the eastern side was another track — a stub track — which extended south about 100 feet from the northern line of this tract. All these side tracks were used by complainant as occasion demanded. While it is evident that when the assessor placed this tract upon the assessment roll he found it vacant, we are nevertheless satisfied from the testimony of complainant that the spaces between these various tracks were occasionally used, and necessarily used, for the storage, of bulky articles; e. g., xailroad material of various kinds and sewer pipe. This does not mean that every foot of space on this tract was actually used for storage purposes. The space was used for that purpose as occasion demanded, and we are bound to say that such use was occasionally demanded.
Was this property subject to taxation like other real estate ? This depends upon the proper construction of the following part of section 6277 of the Compiled Laws of 1897:
“The taxes so paid [the specific tax] shall be in lieu of all other taxes upon the properties of such companies, except such real estate as is owned and can be conveyed by such corporations under the laws of this State, and not actually occupied in the exercise of its franchises, and not necessary or in use in the proper operation of its road, but *591such real-estate so accepted [obviously this should be “ excepted”] shall be liable to taxation in the same manner, and for the same purposes, and to the same extent, and subject to the same conditions and limitations as to the collection and return of taxes thereon, as in other real estate in the several townships or municipalities within which the same maybe situated.”
I agree with my Brothers Gbant and Hookeb that under this section parcel 10 is not liable to general taxation.
Are the other parcels liable to such taxation ?
As shown by the foregoing statement, the greater portion of parcels 1, 2, 8, 5, and 7 are, by the consent of complainant, in the exclusive possession of private individuals, and exclusively used by them for their individual business. In the case of the elevator, that business is the purchasing and storing of grain. In the case of the wood and coal yards, that business is the sale of coal and wood. In such business complainant could not lawfully engage. When, by the consent of a railway company, its land is exclusively devoted to a business in which it cannot lawfully en-' gage — a business foreign to the purpose of its organization —such land is not, in my judgment, “actually occupied” by it, and is “not necessary or in use in the proper operation of its road,” and is, therefore, under the statute above' quoted, taxable “like other real estate in the several townships or municipalities in which the same may be situated.”
It is true that there is a relation between complainant’s business and the business carried on uppn this land. That relation arises from the fact that complainant transported the coal, wood, and lumber sold on these several parcels, and will transport or has transported the grain purchased and stored in the elevator. If this relation affords a ground for exemption, I think we must say that all lands of a railway company used for the storage, purchase, manufacture, or sale of goods which have been or are to be carried by it are exempt from taxation. If so, land of a railway company occupied by a grocery store for the sale *592of groceries carried by it, land occupied by a dry goods store for the sale of dry goods carried by it, land occupied by a clothing store for the sale of clothing carried by it, and land occupied by a saloon for the sale of liquors carried by it are all exempt from taxation. And I cannot see why, by the same reasoning, the buildings on said land and the goods stored, purchased, manufactured, or sold thereon are not also exempt. The principle which leads to such consequences cannot, in my judgment, be sound. I think, therefore, that the parts of parcels 1, 2, 3, 5, and 7 which were exclusively in the possession of private individuals, and exclusively used by them for their individual business, were liable to taxation like other real estate. This conclusion is supported by authority.
Under a charter which provided “that no other or further tax or imposition [than the specific tax therein, provided] shall be levied or imposed upon the said company,” it was held by the supreme court of New Jersey that docks of a railway company leased for lumber yards, for which rent or equivalent compensation was paid, were liable to general taxation. See State v. Newark, 25 N. J. Law, 315. The judgment in that case was affirmed by the court of errors and appeals. See Id., 26 N. J. Law, 519.
Under a similar provision in a charter it was held by the last-named court that property leased by a railway company for a coal yard was liable to general taxation. See Cook v. State, 33 N. J. Law, 474
It appears from the case last cited that the test of tax-ability was the profit derived from renting the land. While I do not think this is the test under our statute, which, as already indicated, differs from the New Jersey statute, still, if that test were applied, it would not, in my judgment, help complainant. For while it appears that those who used the land in question paid no rent, it does appear that as a consequence of that occupancy the railway company materially augmented its earnings by carry*593ing their freight. Complainant did, therefore, receive compensation for the occupancy.
The decisions of our own and other States (see Detroit, etc., Station Co. v. City of Detroit, 88 Mich. 347 [50 N. W. 302]; Pennsylvania R. Co. v. Mayor, etc., of Jersey City, 49 N. J. Law, 540 [9 Atl. 782, 60 Am. Rep. 648]; Chicago, etc., R. Co. v. Bayfield Co., 87 Wis. 188 [58 N. W. 245]) which hold that elevators erected for the purpose of facilitating the loading and unloading of grain carried by railways are not liable to taxation clearly have no application to the land exclusively used by private individuals for the business of conducting coal or wood yards, as appears from the following quotation from the opinion in Detroit, etc., Station Co. v. City of Detroit, supra:
“ This elevator is as essential and necessary to the complainant in the handling of its grain as is its depot for the use of passengers, or its freight depot for the handling of the general merchandise it carries. ”
Neither do these decisions apply to the land occupied by the Brown elevator. Those decisions are authority for the proposition that, elevators which railroad companies are empowered to erect and operate are not liable to general taxation. Railway companies have not, as had the complainant station company in Detroit, etc., Station Co. v. City of Detroit, supra, any express authority to own and operate an elevator. They undoubtedly do have an implied authority to erect any elevator which enables them to better perform their obligation as common carriers of grain. It is obvious that such elevators — like the elevator in question in Detroit, etc., Station Co. v. City of Detroit, supra, and in the other cases last cited — afford equal advantages to all shippers. They are not, like the elevator in the case at bar, devoted to the exclusive use of a single person engaged in the business — a business which complainant itself could not carry on — of purchasing and shipping such grain.
*594The distinction between the business of running an elevator to facilitate the carriage of grain and of running it as a public warehouse for the storage of grain has been made. See Milwaukee, etc., R. Co. v. City of Milwaukee, 34 Wis. 371; In re Swigert, 119 Ill. 83 (6 N. E. 469). And it is held that the first class of elevators are not liable to taxation, and that the second are. It is apparent that these authorities go much further than it is necessary to go to justify the conclusion that the land occupied by the elevator in question is liable to taxation.
It is contended that our own decision of Auditor General v. Railroad Co., 114 Mich. 682 (72 N. W. 992), is opposed to this decision. In that case the auditor general undertook to sell a part of the terminals and depot grounds of the railroad company situated in Bay City. It was held by this court that this could not be done, even though it appeared that two lumber firms “also occupied a part of the docks.” I think it may be inferred from the record in that case, as pointed out in the opinion of my Brother Hooker, that certain portions of the land assessed were in the exclusive occupancy of these lumber firms who used the same for carrying on their individual business of running a lumber yard. The contention that these portions of the land were taxable because they' were used exclusively for a business foreign to that of a railway company does not seem to have been presented to the court, or considered by it. And, if it had been, it would not have affected the decision. Had such a contention been made, the court could have answered it by saying the State has no power to sell this entire description of land, most of which is exempt from taxation, because a portion of it is not exempt. See Osborn v. Railroad Co., 40 Conn. 498. In my judgment, therefore, Auditor General v. Railroad Co., supra, is not opposed to the views stated in this opinion.
It is said that, as the State has once taxed these earnings, it is unjust for it to also tax the land the use of which contributed to augment them. This charge of injustice is *595not well founded. It is true that, except for their arrangement with'complainant, the lumber dealers and coal dealers who occupied its land would not have shipped their lumber and coal over complainant’s road; but either they or other dealers who supplied the city of Grand • Rapids would in that event have shipped it over other railroads. The earnings of railroads liable to State taxation were therefore entirely unaffected by the arrangement between complainant and the occupants of its land. The truth is that complainant, by granting to these lumber and coal dealers a special privilege, viz., the privilege of occupying its land without paying rent, which gives such dealers an advantage over their competitors, has been enabled to obtain the carriage of their freight, which otherwise would have been carried by its competitors. In" other words, the railway company, by giving the lumber and coal dealers an advantage over their - competitors, obtains an advantage over its competitors. If this arrangement is proper, it is beneficial only to the lumber and coal dealers and to complainant. It in no way inures to the benefit of the public, and therefore-does not entitle complainant to any public consideration.
Neither is it true that the arrangement for the occupancy of these parcels of land was beneficial to the city because it resulted in the erection of buildings which are subject to taxation. It must be assumed that, if this arrangement had not been made, these buildings would have been erected in some other part of the city, where they would have also been subjected to taxation. It was, therefore, a matter of indifference to the city where they were erected. Nor would these buildings have escaped taxation if the railroad company had itself erected them. It is true that, if it had used them for some legitimate railway purpose, they would have been exempt; but, if they had been used as these were, it is clear that under the reasoning of this opinion they would not have been. We do not hold these parcels of land liable to taxation simply because of the use to which they are put, but because that use proves that *596the land is “not actually occupied ” by complainant, and is “not necessary or in use in the proper operation of its road.” And the statute (Section 6277, 2 Comp. Laws) in express terms makes all land of this description liable to taxation. See City of St. Paul v. Railway Co., 39 Minn. 112 (38 N. W. 925); Milwaukee, etc., R. Co. v. City of Milwaukee, supra.
Complainant, as additional grounds for relief, contends .-
(a) That the description of the third parcel is fatally defective.
(b) The assessment of the first, second, and third parcels is void because included in one description, and under one valuation, are distinct parcels owned by complainant and the Michigan Central Railroad Company.
(c) - Included in every description are parts which are certainly exempt.
The ground upon which it is claimed that the third description is defective is that there is no means of knowing what is described by this exception: “Also except part used for G. R. & I. and M. C. R. R. Company’s right of way.” The right of way of the Grand Rapids & Indiana Railway Company is shown by a deed made in 1870 and duly recorded. There is nothing to indicate, and it should not be presumed, that the right of way of the Michigan Central Railroad Company is not also shown by a similar recorded deed. We cannot say, therefore, that the description was not good under our decision in Harts v. City of Mackinac Island, 131 Mich. 680 (92 N. W. 351).
The other objections, if valid, would prevail if they were asserted in a suit at law or as a defense to a suit to enforce the tax. See Auditor General v. Railroad Co., 114 Mich. 682 (72 N. W. 992). But here complainant is seeking relief in a court of equity. Part — the greater part — of these parcels of land is justly liable to taxation. Equitably complainant should pay the proportionate tax justly assessable against such part. It never offered to pay, and now objects to paying, that. Complainant seeks to be relieved from the entire burden of taxation, part of *597which, equitably, it ought to bear. It seeks equity, but declines and has declined to do what is equitable. Nor has it presented to us a record which enables us to make any just correction in the decree appealed from — a decree which relieved complainant from the payment of part of the taxes under consideration. Under these circumstances the objections under consideration do not entitle complainant to relief. See Palmer v. Township of Napoleon, 16 Mich. 176; Merrill v. Auditor General, 24 Mich. 170; Conway v. Waverly Township Board, 15 Mich. 257; Tisdale v. Auditor General, 85 Mich. 261 (48 N. W. 568).
It follows that, in my judgment, complainant is entitled to a decree enjoining the sale of parcel 10, and that the decree appealed from so far as it relates to the other parcels should be affirmed. Complainant will have costs in this court.
Moore, C. J., and Montgomery, J., concurred with Carpenter, J.