(dissenting). Complainant’s bill was filed to restrain the city of Grand Rapids from collecting a tax levied upon several parcels of land, all of which were covered by tracks of the complainant’s railroad. As the law now stands, similar questions cannot hereafter arise, complainant’s claim being based on the law in force in 1901, which imposed a specific tax of per cent, upon the gross earnings of railroads, and relieved their property from other taxation, except such property as they should not actually occupy in the exercise of their franchises, and was not necessary or in use in the proper operation of the roads. While the land in controversy is described as separate and distinct parcels, such parcels are contiguous to each other, except as they are separated by city streets, and they are all within the yard of the company at Grand Rapids; and, as we view the testimony, all were used, in whole or in part, for railroad purposes, such as switching and storing cars, loading, unloading, and storing freight, etc. Upon some of the parcels there were wedge-shaped pieces between tracks, and strips of land of greater or less width outside of the tracks, which the defendant claims were either not used at all or were given over to the private use of individuals under leases or licenses, for the storage of wood, coal, and lumber.
As to the former- of these classes, we are of the opinion that the wedge-shaped and other parcels, if not used for tracks, or not occupied by cars or other property of the railroad, or used for the loading or unloading of freight, were nevertheless in use for railroad purposes. They were so located as to be comparatively, if not wholly, useless for any other purposes, and the safety of trains is promoted by an absence of crowding and by the increased advantages of vision which open spaces afford.
The authorities have been liberal in construing the law where railroads have not used land contiguous to their tracks for purposes foreign to railroad business. It is a fact well known that there are miles of right of way in the country crossed by but a single track. It has never been *605proposed to subject any part of this to local taxation upon the ground that it is not in use for Railroad purposes, or is a provision for future use. The strip of land in dispute in this case is two or three or four times as wide, but the requirements of the company, and the business done over it, are proportionately much larger than that done over country tracks. Weave of the opinion that the land appropriated by the complainant is not unreasonable in, amount, and that it was not subject to local assessment upon the ground that it was not used for railroad purposes, except such parts thereof as were appropriated to other uses, if there were any such.
The evidence shows that portions of this yard were devoted to the loading and unloading and storing of freight. We understand that defendant does not claim that land used for the loading or unloading of freight, to be drawn away immediately, is not used in connection with the business of the railroad. We are not sure that it would be claimed that such use would not properly include temporary storage of heavy and bulky commodities upon the ground or in sheds erected by the company for the purpose. At all events, we understand it to be a common and proper practice for railroads to store freight in depots and warehouses until called for, and that the practice is well within the proper management of their business, and in fact could not be safely omitted; and we know of no reason why the rule does not include grain, wood, coal, and lumber. These are bulky articles, and it is important that they be not subjected to the necessity of repeated drayage. It is the general practice for dealers in such commodities to deliver them to the consumer from the car where practicable, and otherwise store them where unloaded from the car until sold. Some dealers own or rent their sheds or yards, and induce the railroads to run sidings to them. In the present case the railroad appears to have been willing to allow such storage upon its land adjacent to its sidings.
The evidence shows that upon one of these parcels the *606complainant has permitted one Brown to erect a building to be used as a grain elevator. Upon other portions different persons have been assigned specific places for the unloading, loading, and storing of wood, coal, and lumber brought in or to be shipped out upon complainant’s cars or over its road. Written authority has been given in some cases, in others verbal; but it is our understanding that in no case is such authority more than a license, and in no case is rent reserved or paid. If this is such a use as to bring these parcels within the exception of the statute, the complainant must fail; but if it is a proper and legitimate use of the land for the purposes of complainant’s business, its complaint should be sustained.
The statute in question need not necessarily be called a statute of exemption to be strictly and technically construed against the complainant. It provides a tax by appropriating a percentage of complainant’s gross income, and, instead of saying that it shall be exempt from other taxes, says that this specific burden shall be in lieu of all other taxes. Which method would be productive of the greater revenue may be an open question. Certainly there is no presumption against the specific tax. A reasonable construction would seem to be that the legislature proposed to apply the specific tax to all productive property of railroads where used for railroad purposes, but not to allow them to escape taxation upon property that they did not see fit to use at all, or to devote to other and perhaps less productive purposes. See Kimball v. Milford, 54 N. H. 406; Gardner v. State, 21 N. J. Law, 560.
In City of St. Paul v. Railway Co., 39 Minn. 112 (38 N. W. 925), it was said:
“ These charters do not exempt the property from taxes, but provide a substituted method of taxation, based upon the assumption that the property of the companies will be used for railroad purposes, and thereby an income be derived, the percentage of which received by the State will be equivalent in its results to taxation of the property.” Citing County of Ramsey v. Railway Co., 33 Minn. 537 (24 N. W. 313).
*607In Milwaukee, etc., R. Co. v. Supervisors of Crawford Co., 29 Wis. 123, it was said:
“ The payment of this sum into the State treasury, and which is called ‘license money,’ must, in the light of past legislation upon the subject, be regarded as, in the judgment of the legislature, an equivalent for the taxes which those companies would otherwise be required to pay if assessed and taxed according to the ordinary method prescribed by law. A strict construction of the statute, therefore, against the company, or a liberal one in favor of the public, can, with difficulty, be justified in view of what seems to have been the legislative intent, and it would seem that little or no effect can be given to the rule. We are at liberty, therefore, and, indeed, required, to give the statute a fair and liberal construction in favor of the company, or such an one as it should receive supposing there is no injustice in the claim made by the company, or advantage to he gained by it over the public or taxpaying community generally in avoiding the taxation complained of.”
If we were without authority upon this subject, and the case were therefore one to he decided upon “first impression,” justice would require that weight be given to the effect of such use. Manifestly, the earnings from freight handled for these persons in connection with their use of said parcels furnish revenue to the State; and, if the lands are also to be taxed, the public obtains additional revenue, although the use of the land has been directly instrumental in producing taxable revenue for the company, in the exact way that the statute contemplates, and not through uses foreign to the railroad purpose.
Mr. Justice Grant has alluded to several cases where elevators owned and operated by railroads have been held to be structures properly connected with the railroad business. We may take judicial notice that nearly all the grain of the country is the subject of shipment, and, as has been often said, the facilities for loading afforded by an elevator are as appropriate to the loading of grain as derricks or trucks are for loading heavy freight.
In Pennsylvania R. Co. v. Mayor, etc., of Jersey *608City, 49 N. J. Law, 540 (9 Atl. 782, 60 Am. Rep. 648), it was held that a grain elevator bnilt by the road, and used, for storing and transshipping grain, was used for railway purposes, and not taxable locally. It was there said:
“ It appears in the evidence that the elevator is used for transshipping grain and relieving cars of their lading. The elevator does by machinery what was before done by hand, and appears to be one of the necessary terminal facilities of a railroad engaged in the transportation of large quantities of grain. It further appears that the grain passing through this elevator, if not called for by the consignee, is retained there, and if it remains in store for over ten days a charge is made of one-quarter of a cent per bushel for each ten days thereafter. Before the elevator was built, grain was sometimes detained in the cars, and when so detained a demurrage charge of $5 or 110 a day per car, or two cents per bushel, was paid by the consignee. Other trunk lines to the west had erected elevators prior to the erection of the one in question. They are used as freight houses for grain, and seem to be as indispensable to the railroads in handling the immense quantity of grain which they carry as any other freight houses used for the reception or unloading of merchandise transported. If grain was allowed to remain in the elevator until called for without charge, it would unquestionably be an appliance for railroad purposes. The fact that a small penalty is added to the freight charge to induce shippers to remove their grain within a reasonable time does not withdraw this structure from that class of improvements which are necessary for railroad uses, within the meaning of that term as construed in State v. Hancock, 35 N. J. Law, 537.”
A similar case will be found in State v. Railway Co., 86 Tenn. 438 (6 S. W. 880). See, also, In re Swigert, 119 Ill. 83 (6 N. E. 469), and Gilkerson v. Brown, 61 Ill. 486.
The question is settled in this State where the Union Depot Company owns and operates the elevator, by the case of Detroit, etc., Station Co. v. City of Detroit, 88 Mich. 347 (50 N. W. 302).
In the present case the complainant did not own the elevator, and therefore derived no profit from the storage or handling of grain. It allowed another to erect an eleva*609tor upon its grounds, thereby obtaining the usual facilities for loading grain without cost to itself. This elevator was subject to taxation to the person owning it, as was held in the case of Gilherson v. Brown, 61 Ill. 486, and, so far as the land was concerned, it was devoted to railway purposes as fully as though the company had owned and managed the structure. So the coal sheds erected by dealers would be subject to local taxation. Thus, in both instances, the city would profit by such practice, for, if the elevator or sheds were erected and controlled by the railroad company, they would not be subject to local taxation.
Stress is laid upon the claim that the owners of the elevator and those who owned the coal, wood, and lumber were allowed to use the land for their own private purposes, and it is argued that this is controlling. We should not feel justified in holding that a railroad company might escape local taxation upon lands leased by it to others and devoted to manufacturing or mercantile purposes ; but neither does it seem reasonable that land in its yards, which is in daily use for the unloading of freight from its cars, is to be taxed merely because the company permits its use for temporary storage until the property-can be transshipped or sold and delivered about town, or because, in the economical conduct of its business, it sets aside given portions for large shippers who manage their business from there. Great abuses of such privileges do not necessarily follow. Each case must rest ,upon its own facts, and evasions can be detected and excepted from the application of the rule.
The case of Auditor General v. Railroad, 114 Mich. 682 (72 N. W. 992), is in point upon this case. In that case the railroad company owned a piece of land in Bay City, near the river, and a dock. The company was said to have used that land constantly in “originating [whatever that may mean] and shipping freight.” The uncontradicted proof shows that the land was occupied by two lumber firms; i. e., “lumber dealers,” who “had lumber yards upon it,” and were in the habit of shipping such *610lumber as they shipped by rail over the company’s road. There was also a fish house on the dock, used by Tromper & Co. for preparing fish for shipment over the road. No rent was paid. The inference to be drawn from the record is that all of these persons were licensees, in exclusive occupancy of certain portions of the land for the purposes mentioned. It was held that such holding was a convenience to the railroad company, and that the land was not subject to local taxation. "
The present case seems to be clearly within the principle laid down in the two Michigan cases cited. I concur in the opinion and conclusion reached by Mr. Justice Grant.