the term, and so the interest in the premises, is not to be considered by the jury in arriving at a proper award. But if the effect of the change would be to cause a removal from the premises which would not otherwise be made, just compensation may require payment of the cost of such removal, and, perhaps (the point is not involved on this appeal), payment for the loss of net earnings of a business for a reasonable period necessary to removal. It is not to be supposed that any interested person will profit out of the transaction, or that compensation will be awarded with any notion of punishing the municipality. In his charge the recorder laid down rules more liberal to respondents than those we have stated.

We cannot say that it was error to exclude testimony of the effect of other separations of grades upon the property in the immediate vicinity of those changes, or to exclude evidence of the fact that on other streets in the city the slope or inclination of the street exceeded that upon the street in question after the improvement was completed. There are many circumstances and conditions affecting particular localities in cities. A comparison of existing and known conditions invites innumerable issues. The number of such issues will not be diminished in any attempt to prove that the same results will follow the same improvements in different localities.

The recorder said to the jury:

"The onus of any uncertainty that exists here is upon the petitioner. This is not an action upon contract, but it is more in the nature of an action of tort, wherein these respondents had no chance to agree or disagree with the proposed improvement, but were entirely innocent parties; and, if anybody has to suffer by reason of the necessary uncertainty of the testimony, it ought in all justice to be the active, moving party, the petitioner, and not the innocent, passive parties, the respondents.'

In this we think he was in error. Testimony too uncertain in its nature to establish a right to compensation under the provisions of this statute may not be made cer

tain by indulging the idea that upon the city rests any responsibility for such uncertainty.

Some other questions are argued in the briefs. None of them are related to the facts involved in the particular appeals. The views we have expressed require a reversal of the order of the court below as to all of the appellees except the Detroit United Railway.

Respondent Lindsay is sublessee of the Goebel Brewing Company, lessee of Charles A. Kandt, who owns two lots affected by the improvement. The owner valued his property at $7,500 before the work of improvement was begun. Goebel Brewing Company had a written lease of a building on the property, expiring in 1908, the rent reserved being $55 a month. Lindsay, who occupies the building with a grocery and saloon, under a parol lease from the brewing company, paid $55 a month to that company. The jury awarded the owner $4,400, the Brewing Company $700, and Mr. Lindsay $1,500, a total of $6,600. The awards to the owner and to the brewing company are not involved in this appeal. The award to Mr. Lindsay is based wholly upon testimony tending to prove loss of profits and deflection of his trade, occasioned by inconvenience of access to his store and interference, generally, with travel upon the street and upon the railroad property adjoining his property. The same is true of respondents Croul and McNutt. They are tenants from month to month. We award a new trial to each of these respondents, assuming that they may regard themselves entitled to some damages under proper rules.

As to respondent Detroit United Railway, the question is one of interpretation of the agreement, the initial act in the proceeding, to which agreement it was a party. It is a provision of the agreement that the city assumes the payment of all abuttal damages to property of persons other than the parties of the second part, arising in any way from said change of grade and all cost, expense, charges, or liability in any proceedings which may be instituted to effect or to prevent the contemplated changes

of grade, "and the parties of the second part hereby waive any and all claim for damage by reason of the change of grade of any of said streets to any abutting property owned or controlled by them, or any of them." That the waiver is intended to apply only in such cases and on such streets as respondent uses in operating its road at the point of intersection with the steam railroad ways, is the claim made for respondent. The recorder instructed the jury:

"That the waiver claimed by the city in the agreement existing between the city and the Detroit United Railway does not cover the property in question in the contemplation of the statute, which was the basis of the agreement made between the city and the Detroit United Railway."

The statute, as we have seen, contemplates the payment of damages to street railway companies for interference with tracks. It places no part of the original burden of cost of separation of grades upon them, and the respondent is a voluntary party to the agreement which was made. It is admitted that in some of the streets affected by the agreement the street railway has no interest; in others it is interested as owner of abutting property, or of a railway in operation, or both as owner of abutting property and of a railway. The agreement in general terms imposes upon "the parties of the second part" responsibilities and liabilities which it is clear are to be borne by the railroad companies alone. If the agreement did not also, in other portions of it, deal specifically with the liabilities assumed by each of the parties of the second part, there would be more force to the argument made for respondent. But it does in detail specify the things which each party of the second part agrees to do. It does not, however, in terms, modify or enlarge the liability assumed on the part of the city to pay "all abuttal damages to property of persons other than the parties of the second part." There is no modification of the waiver above recited. There is the further distinct waiver that "the said second parties, and each of them, shall re

lease all damages, charges, or claim arising from loss of traffic, or otherwise, occasioned by said changes of grade." The mutual promises and obligations of each of the parties stand opposed, in their entirety, to those of each of the other parties to the agreement, and the agreement is fairly susceptible of but one interpretation, which is that respondent waived its right to the damages awarded to it by the jury. The award should not have been confirmed, and the order of confirmation is reversed. There is, however, no occasion for a new trial of this issue.

We award costs of this appeal against the appellees, jointly and severally, to the appellant city.

BLAIR, C. J., and GRANT, MONTGOMERY, MOORE, MCALVAY, and BROOKE, JJ., concurred. HOOKER, J., on account of illness, took no part in the decision.

CITY OF DETROIT v. MICHIGAN CENTRAL RAILROAD CO.

1. MUNICIPAL

CORPORATIONS RAILROADS HIGHWAYS AND

STREETS-SEPARATION OF Grades--DAMAGES.

Where, under the statute (chap. 102, 2 Comp. Laws), damages
to property owners occasioned by the change of grades are
recoverable only by the owners of such property as abuts
upon that portion of the street affected, an agreement by the
city with certain railroads to save them harmless from all
abuttal damages occasioned by a change of grades, did not
contemplate such damages as resulted to owners of property
abutting upon the right of way of the railroads and not upon
the streets where the improvement was to be made.

2. RAILROADS-CHANGE OF GRADES-DAMAGES-CONTRACTS.
Aside from constitutional or statutory requirements, the rera-
tion between manufacturers and railroad companies as to

the construction and maintenance of side tracks rests entirely in contract; and where, in the absence of an express contract, a railroad company constructs a side track to facilitate the handling of the products of a manufacturer, no contract is implied binding either to a continuance of the arrangement, nor is the manufacturer entitled to damages against the railroad company occasioned by reason of changes in the grade of such railroad necessitating a like change in the side track.

3. SAME.

And the fact, that in the interest of the public, certain statutory requirements have been made in regard to securing railroad facilities, does not affect the right of the railroad companies to change the grade of their tracks, nor give the manufacturer damages therefor.

Error to the recorder's court of Detroit; Connolly, J. Submitted January 22, 1909. (Docket Nos. 57, 58.) Decided March 30, 1909.

Petition by the city of Detroit for the separation of grades in a certain street. The American Car & Foundry Company intervened claiming damages. There was judgment confirming the award of the jury, and both parties bring error. Reversed, and intervener's petition dismissed.

P. J. M. Hally, for petitioner.

Angell, Boynton, Stevens, McMillan & Bodman, for, intervener American Car & Foundry Co.

This is a proceeding to separate grades at the intersection of Junction avenue with the rights of way with the Michigan Central Railroad Company and other railroads. The act for such separation and the contract between the city and the several roads and the proceedings instituted are identical with those in the case of the separation of such grades in Greenwood avenue, and are sufficiently set forth in an opinion handed down herewith in that case. The American Car & Foundry Company was not