The court also ordered that the plaintiff might cross the defendant's spur known as the "Buffalo Spur" at an angle of 16 degrees, 48 minutes. Concerning this spur, the court added: "Provided, however, that the defendants may, and if they do, within ten days from the date of this order, notify the plaintiff in writing that they consent to permit the plaintiff to raise the entire grade of the said Buffalo spur, so that the plaintiff can cross the same at its own grade, then, in that event, the plaintiff shall, before making said crossing, raise the grade of the whole of said spur, at its own expense, so as to make a feasible crossing with its road, and leave said spur in a reasonable condition for the use of the defendants; and provided further, that if the defendants do not give such consent within the said time and in the said manner, the plaintiff shall make said crossing at its own grade, in as reasonably safe manner as the same can be done without raising the grade of the entire Buffalo spur aforesaid." Other facts sufficiently appear in the opinion. There being a judgment for the plaintiff, the defendants moved for a new trial, which was denied, and an appeal was taken both from the judgment and the order overruling the motion for a new trial. The following is a copy of the plat introduced on the trial. (See next page.) Shropshire & Burleigh and Forbis & Forbis, for the appel lants. M. Kirkpatrick, W. W. Dixon, and William Scallon, for the respondent. 522 HUNT, J. By this appeal we are called upon to decide questions of importance, not alone to the community at large, but especially so to railroad corporations, possessed of such powers as may be granted to them under the constitution and laws of the state. The topography of Montana, as characterized by its name, renders it of unusual significance that the laws of eminent domain be correctly expounded at this comparatively early period of the development of the state. The strict limits of all delegated authority to take the property of another must be cautiously and accurately guarded, lest private rights or those conferred be unnecessarily invaded. On the other hand, if the power to take has been delegated, 523 that power must be precisely defined and upheld by the courts, as one vitally affecting the material interests of the state. The ways for railroads to reach remote mining camps, some times lying within small areas, upon precipitous mountainsides, at unusual altitudes, and in steep and rocky sections, are often very few, and only feasible at all by skillful engineering and vast outlays of money. Where, therefore, two or more railroads, in their mountainous routes, may seek the same objective mineral districts in view of their probably necessary juxtaposition, their rights must be carefully established with relation to the law as applied to the physical, as well as other and more general, conditions controlling them in their obligations toward one another and to the public as well. Two main propositions are presented for review: 1. Are plaintiff's road and branches public uses? 2. Can the plaintiff company construct its road within the defendants' right of way, and is plaintiff's use of the ground a more necessary use than that of the defendant companies, and is the ground sought to be taken necessary to plaintiff's use, and not necessary to defendants' use? It is well established that if, in point of law, a use is public, the fact that not very many persons will enjoy the use is not material: Talbot v. Hudson, 16 Gray, 417. The character of a way, whether it is public or private, is determined by the extent of the right to use it, and not by the extent to which that right is exercised. If all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small: Phillips v. Watson, 63 Iowa, 28; Lewis on Eminent Domain, 241; Shaver v. Starrett, 4 Ohio St. 496; Kettle River Ry. Co. v. Eastern Ry. Co., 41 Minn. 461; Randolph on Eminent Domain, sec. 56. The circumstance that the plaintiff road was built by a private corporation, and that its branches run within convenient contiguity of private mines or orehouses, does not materially affect the road and give a private character to its use, or to the use of its spurs. All termini of tracks and switches are more or less beneficial to private parties, but the public character of 524 the use of the tracks is never affected by this. "It may be, in such cases, that it is expected, or even that it is intended, that such tracks will be used almost entirely by the manufacturer; yet, if there is no exclusion of an equal right of use by others, and the singleness of use is simply the result of location and convenience of access, it cannot affect the question": Chicago Dock etc. Co. v. Garrity, 115 Ill. 155; Chicago etc. R. R. Co. v. Porter, 43 Minn. 527; St. Louis etc. Ry. Co. v. Petty, 57 Ark. 359. The force of these observations is peculiarly apparent in a new mining state. Frequently, railroads are extended by spurs or lateral connections of main lines, or by independent lines, into mining camps where but a single mine is developed and capable of shipping freight. Such roads or spurs are not infrequently built by the private enterprise of those interested in the one mine to be benefited, and, when constructed, it is intended that the tracks will be used almost wholly by the mining company which constructed the spur. The supposed barrenness of the country contiguous to the road, or the undeveloped condition of the mountain in which the mine is lying, or, perhaps, the hitherto unrewarded search of the prospector, has encouraged the belief that, apart from the single mine owned by those who have built the railroad, there are no other paying properties upon which a railroad might rely for ores or supplies to transport. Such expected limited uses are but the results of the location of the mine and its inaccessibility. They do not in any way, however, exclude an equal right of use by others, perchance, desiring to ship freight or secure transportation over the road. To better illustrate our meaning, we have only to modify the instance just referred to of the railroad lateral built to a single mine. Suppose that a pioneer prospector has located and represented a claim contiguous to such railroad, but, by reason of the impracticability or expense of constructing a wagon road, he has been obliged to simply keep what he believed was a good mine, hoping that in the future railroad facilities would afford him the opportunity to haul his ore to market. Suddenly, by the enterprise of others, and without any 525 expectation on their part of aiding any project other than their own, a railroad is built, and he may attain the fruition of his hopes if he can use the railroad to ship his ore. Could it be contended with any merit that the railroad company, incorporated under the railroad laws of the state, can discriminate against him by saying, "We are a private enterprise, for private use, and are not generally open to the public, and for this reason refuse to haul your ore, or to bring your machinery and supplies into these hills, and you cannot compel us to act otherwise?" Or, to carry the illustration farther, suppose many mines are located close to the new line of road, and a mining district opened of incalculable interest to the state, a town springs up, with its diversified trade relations, and that thus the railroad, originally constructed and intended to subserve the single mine, with little or no thought of any greater use, may become a measure of great utility to many people; must this development stop, or be dependent upon the caprices or will or discriminatory orders of the incorporators or owners, based upon a claim that the road was constructed for private purposes, and cannot be made to answer the demands of the public? ! We say, after full deliberation, that the express command of section 5 of article 15 of the constitution, that "all railroads shall be public highways, and all railroads, transportation and express companies, shall be common carriers, and subject to legislative control," etc., supplemented by the statute (Comp. Stats. 1887, div. 5, sec. 680, p. 809) authorizing the construction of sidetracks, branches, etc., has made them instruments of public service, as well as private profit, and is sufficiently comprehensive to include, not only the railroad used to illustrate our views, but, by analogy, the particular railroads of appellants and respondents in their main lines, lateral branches, and spurs, to particular mines in and about the numerous mining dumps, shafts, and orehouses described in this suit, and situate upon the hills adjacent to the city of Butte: Getz's Appeal, 3 Am. & Eng. R. R. Cas. 186. • ... Furthermore, it is expressly provided by section 7, article 526 15, of the constitution, that "all individuals, associations, and corporations shall have equal rights to have persons or property transported on and over any railroad, transportation, or express route in this state. No discrimination in charges or facilities for transportation of freight or passengers shall be made between persons or places within this state. . . . . No railroad or transportation company . . . . shall give any preference to any individual, association, or corporation in furnishing cars or motive power, or for the transportation of money or other express matter." This provision, when considered with the previous one quoted, also demonstrates that the constitution, in its letter, its spirit, and its policy as well, classes all railroads, with their feeders, such as respondent and appellants operate, as public highways, subject to use by the public of right, amenable to the laws governing common carriers forever forbidding all obnoxious favoritisms between any who desire to use such highways: St. Louis etc. Ry. Co. v. Petty, 57 Ark. 359. This stable written policy is doubtless the outgrowth of pernicious systems of discrimination and preference which railroad corporations may have indulged in throughout the land where their powers are unrestrained by constitutional or other restriction. It puts them all on a plane, and, under the facts before us, respondent and appellants, as public highways, are alike the beneficiaries of its liberality, subject, nevertheless, to its restrictions and liabilities. Chief Justice Hawley, for the supreme court of Nevada, vigorously discusses a "public use," as meant by the constitution of that state, and concludes that the necessities of the business of mining, milling, smelting, etc., are of direct interest to the people of Nevada, and that a statute of that state is constitutional |