as much as a blast or a staging, and is not a part of the permanent structure.

The following cases confirm us in our opinion that, as an incident or means of excavating the ore, the master has only the duty of furnishing competent men, and furnishing suitable materials for the use of those engaged in the common employment: Hall v. Johnson, 3 Hurl. & C. 589, where it was held that "an underlooker in a mine, whose duty it was to examine the roof, and prop it up if dangerous, was a fellow laborer with a workman." Waddell v. Simoson, 112 Pa. St. 567, where it was decided that "the operator of a coal mine fulfills the measure of his duty to his employés if he commits his work to careful and skillful bosses and superintendents." And in Consolidated Coal Co. v. Scheller, 42 Ill. App. 619, the court held that, if a master exercises reasonable or ordinary care in selecting men and materials, a mine owner is not liable if the roof falls. In Quincy Mining Co. v. Kitts, 42 Mich. 34, a workman was injured by a fall occasioned by the breaking of a bridge across a permanent opening, consisting of a winze or perpendicular shaft for ventilation in a mine. The timber man was held to be a fellowservant, which excludes the theory contended for in this A case substantially like the one before us is Coal & Mining Co. v. Clay's Adm'r, 51 Ohio St. 542 (cited in the former opinion).

case.

We see no occasion to change or modify the opinion heretofore filed in this cause, which disposed of all questions necessary to a decision of the case.

Judgment affirmed.

The other Justices (LONG, C. J., GRANT, MONTGOMERY, and MOORE, JJ.) concurred.

CINCINNATI, SAGINAW & MACKINAW RAILROAD CO. v.
BAY CITY & BATTLE CREEK RAILROAD CO.

1. RAILROAD COMPANIES-EMINENT DOMAIN-SUFFICIENCY OF PETI

TION.

A petition by a railroad company for the condemnation of land, alleging that the petitioner has not been able to acquire title to the property, although it has tried to do so, because the owner refuses to sell the same or to set a price thereon, sufficiently shows a bona fide effort to obtain the property by purchase.

2. SAME-DESCRIPTION OF LAND-AMBIGUITY.

In proceedings by a railroad company to condemn for warehouse purposes land abutting on a street in which its track is located, a petition describing the premises by lot, block, and plat, and averring its said road to be adjacent and contiguous thereto, is not bad for ambiguity. The condemnation of the lots would carry with it all rights in the street attaching by reason of the ownership of the abutting property, and no others.

3. SAME-CONDEMNATION OF LAND OF ANOTHER COMPANY-JURIS

DICTION.

Where the petition in proceedings by one railroad company to condemn land of another company shows the property to be subject to condemnation, and no issue thereon is raised by the answer, the jurisdictional fact of the right to condemn is admitted. So held where the land sought to be taken abutted upon a street in which the tracks of both companies were located, and it was claimed by the respondent that the proceeding was an attempt to condemn its track and right of way. 4. SAME-PROOF OF FILING MAP.

Condemnation proceedings instituted by a railroad company are not invalidated by the failure to prove that the petitioner had filed a map and survey of its line, as required by 3 How. Stat. § 3332, where the averment of that fact in the petition was not denied by the answer.

5. SAME-AWARD OF DAMAGES.

Where the commissioners in condemnation are unable to apportion the damages among the several respondents, an award in gross, subject to apportionment by the court, is proper under 1 How. Stat. § 3338, providing that, in case of doubt as to whom the money belongs, the court may direct the same to be paid into court, and may determine who is entitled thereto.

Appeal from Bay; Maxwell, J. Submitted June 14, 1895. Decided September 27, 1895.

Condemnation proceedings by the Cincinnati, Saginaw & Mackinaw Railroad Company against the Bay City & Battle Creek Railroad Company, the Michigan Central Railroad Company, and the Metropolitan Trust Company. Respondents appeal from the award of the commissionAffirmed.

ers.

Hatch & Cooley (Henry Russel and N. E. Slaymaker, of counsel), for appellants.

L. C. Stanley (Shepard & Lyon and E. W. Meddaugh, of counsel), for appellee.

HOOKER, J. Lots 3, 4, 5, 6, 7, 8, and the southerly 12 feet (the same width front and rear) of lot 2, block 11, plat of Lake City, now part of West Bay City, abut upon the east side of Williams street. The petitioner's railroad,-i. e., the Cincinnati, Saginaw & Mackinaw Railroad Company,-is alleged to be located and in operation, being laid through Williams street, and said lots are adjacent and contiguous to said railroad, and petitioner seeks to condemn the lots mentioned for the purpose of a warehouse. From the award in favor of the petitioner, the defendants have appealed.

The Toledo, Saginaw & Mackinaw Railroad Company was organized in June, 1887. Its map, on file, designates a route along Williams street. In February, 1888, the Battle Creek & Bay City Railroad Company was organized, and in November, 1888, it obtained the passage of an ordinance by the common council of West Bay City granting the privilege of laying a track in Williams street, subject to the control of the council, and subject also to the privilege of subsequent railroad companies to use said track on certain terms, and it laid the track accordingly. This track was laid along the center of Williams street, and it is claimed that a side track was

laid east of said main track, and in December, 1888, the Battle Creek & Bay City Railroad Company bought the lots mentioned for the purpose of station buildings. It is claimed by petitioner that this was in pursuance of an arrangement or understanding between the officers of the two roads mentioned to have station grounds in common, and that the Toledo, Saginaw & Mackinaw Railroad Company bought lands adjoining upon both sides. In April, 1889, an ordinance was passed authorizing the Toledo, Saginaw & Mackinaw Railroad Company to lay its track upon Williams street, and it tore up the existing track, and new tracks were laid in or near the center of the street and towards the east side. Petitioner contends that there was but one track there at the time this was done. This left the west side of the street open, and is said to have avoided a crossing of tracks, which would have resulted had the road been built on the west side of the Battle Creek & Bay City Railroad tracks. In December, 1889, the Toledo, Saginaw & Mackinaw Railroad Company was reorganized under the name of the Cincinnati, Saginaw & Mackinaw Railroad Company, and in February, 1890, the Battle Creek & Bay City Railroad Company, having been reorganized as the Bay City & Battle Creek Railroad Company, passed, with its road, to the Michigan Central Railroad Company, which purchased its stock. Meantime the Cincinnati, Saginaw & Mackinaw appears to have been operating its road and using its tracks in Williams street, while it is claimed that the defendants never used said street for the purpose of running trains; and in September, 1894, these proceedings were instituted by the Cincinnati, Saginaw & Mackinaw Railroad Company to condemn the lots in question, as stated.

Counsel for the defendants raise several questions, which they assert to be jurisdictional:

1. That the petition does not contain a sufficient allegation of inability to purchase.

2. That it appears that this is an attempt to condemn the property of another railway under circumstances unauthorized by statute.

3. That this last was a preliminary question, which should have been settled before entering upon the question of damages.

The following other points are made against the proceeding:

4. That the description of the land in the petition is ambiguous.

5. That petitioner did not prove that it had filed the map and survey required by statute.

6. That the award is void for the reason that it attempted to give damages for the use of the street, and thereby, impliedly, to condemn it.

7. That there was no evidence that there was a necessity for taking the street.

8. That there was no evidence of the value of the lots, except as depreciated by the existing road of petitioner. 9. That the damages were not apportioned among the defendants.

A bona fide effort to obtain the property by purchase is necessary, and the petition should show this. Toledo, etc., R. Co. v. Detroit, etc., R. Co., 62 Mich. 576, and cases cited. This appears from the petition, which alleges that the "petitioner has not been able to acquire title to said lots and property, although it has tried to do so, for the reason that the Bay City & Battle Creek Railroad Company, the owner thereof, and the Michigan Central Railroad Company decline and refuse to sell the same to your petitioner, or to set a price thereon." Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 572, 70 Mich. 390.

The description in the petition is, in our opinion, free from ambiguity. Counsel for the defendants assert that it describes no rights in the street, and this is certainly true, except as to such rights in streets as are usually held to be conveyed when a lot is described by number, block, and plat. The description is the same as that by which the lots were purchased, and, if defendants ac